Anton Imennov: Sanctions August 2018. "Ekho Moskvy", 23 August 2018
The time we live in is wonderful. We are witnessing the creation of the new history of law, or the history of the new law – the sanctions one. New sanctions against Russia are imposed every single month. Here's another package of the US sanctions from 22 August. Official sources point out that the main reason is the use of chemical weapons in poisoning Sergey and Yulia Skripal in the UK.
Let's have a closer look at the machinery work in order to realize the whole sweetness of the legal reality.
It is unknown whether the USA has carried out an investigation into this fact. The UK Prime Minister's statement that poisoning was highly likely must have triggered the USA to make its decision and impose sanctions. By the way, it does not conflict with international norms, in particular, the UN Convention "On prohibition of working out, production, storing and use of chemical weapons and their destruction" adopted in the faraway 93. But the US is historically famous for its peculiar attitude to the international law and its own obligations which follow out of it, therefore this package of "chemical" sanctions will be adopted in accordance with the US law "On control and destruction of chemical and biological weapons"(further – Law). The Law is already applied for the third time. The first time – sanctions against DPRK after the villainous poisoning of Kim Jong Nam, North Korea leader's cousin brother, the second time – against Syria for a chemistry attack. As the saying goes: "Take your places in a queue, dirty rascals".
It may seem that the goal of the American legislature of the 102-strong Congress 27 years ago was very simple and clear: to limit the uncontrolled use of chemical weapons in the developing countries against their own citizens under threat of the US trade sanctions. It is reasonable and deserves support. Nevertheless, the Law application practice began to form only 25 years later, and a public question occurred: how elaborately the procedure of the establishment of a country's guilt for the one-time use of chemicals by unidentified people in the third country is regulated or specified. The next question – how transparent the procedure is. And the last one – how free from politics it is.
While imposing these sanctions the US State Department announced only a short report which said nothing about information that had been analyzed and examined before making such a tough decision.
Now let's turn to the wonderful text. In accordance with clause 306 of the Law, the US President has to determine whether a foreign state has used chemical weapons within 60 days after "persuasive information" appears in public domain. So far so good.
Further. The process of "determination" is revealed in the next point. The President evaluates and analyses the following facts:
— all material and also indirect evidence of the possible use of weapons;
— all information from the supposed victims, witnesses, independent observers;
— availability of weapons for an alleged user;
— all official and non-official statements concerning the possible use of such weapons;
— whether a certain government is ready, and to what extent, to satisfy the UN Secretary General's request to give temporary access to the weapons to the UN investigation group (or other legitimate outside parties) in order to estimate the possibility of its use.
Then, after having made a decision that the use of chemical weapons had taken place, the President has to inform the Congress about it. At the same time, the Report to the Congress must contain concrete sanctions provided by the law and which are to be imposed. That is also quite clear.
And now come the questions. We, in Russia, often express indignation over our laws because they are too vague, as if deliberately, so they may be interpreted in different ways. And this is true. But in our case it is an example of what our legislature had better not learn at all – that is cubed vagueness. For instance, what does the concept "convincing information" comprise?How trustworthy should the source of information be to get recognition of the US President? And what evidence, in particular, and what official and non-official statements were taken into consideration?
But the most astonishing thing is the "presumption of guilt" which runs through this legislative act. Now, attention! The President lifts sanctions if one of the following events is established a year after sanctions were imposed:
— a foreign state provides reliable guaranties that it will not use chemical weapons in violation of the international law and against its own citizens;
— a foreign state does not make preparations to use chemical weapons in violation of the international law and against its own citizens;
— a foreign state is ready to allow to check the absence of preparation for the use of chemical weapons to the UN inspections and other independent observers;
— a foreign state will restore the rights of those who suffered from the chemical weapons.
The innocence of a foreign state is not supposed at all, as it follows from the formulations. One more time: innocence as a juridical category is not present in the Act. Such a reason for lifting sanctions as denial of a fact of using chemical weapons after carrying out additional investigations, is simply absent in the Law. "You are guilty because I want to eat", – as the classic said.
Let's go further. The investigation procedure is the most importent thing. Quite surprisingly, but it is not regulated by this legislative act at all. There are no requirements for qualification and authoritativeness of expert organizations, laboratories etc. Such formulations as "unofficial statements" and "supposed victims" sound pleasant to any lawyer and not only a Russian one. I don't argue that the above mentioned facts shouldn't be taken into consideration. However, l'd like to see a well-organized structure of evidence, requirements for proof, i.e. which proof is a top priority, and which one needs a critical analysis.
Unfortunately, unverified information often happens to be the reason for imposing sanctions – incorrect publications in mass media, odd information on the Internet etc. The principle of competitiveness is not observed because of that. Here comes the question whether such a concept is applicable to the relations between two independent states. Nevertheless, the second party – another state doesn't have a legal opportunity to respond and disprove information which caused the implementation of sanctions. So, what's the result? The only possible and maximally stupid measure is introduction of economic restrictions in return.
The "chemical" sanctions package is imposed for a year. But one thing is quite clear – these sanctions are going to last. Everyone remembers the Jackson-Vanik Amendment to the US Law "On Trade" of 1974 which was de jure valid for 38 years even after the initial grounds for introduction of trade restrictions disappeared. Therefore, everyone is advised to prepare for sanctions decades.
What are we to do?
It is that very case when nobody knows the answer. But we know for sure that scaled wars have gradually turned into economic sanctions – regardless of subjective estimates, and it's a deadly loop of the Cold War. There are no independent decisions any more, and though economic wars are better than warfare, they are still defective, destructive, and eventually disastrous for anyone.
If we recognize this new reality and realize that we are only beginning to learn how to live and play in it, then why not accept the rules? And so, there should be effective ways of recovery of the sometimes unjustly broken rules. Indeed, every country has its own territorial jurisdiction, but national courts of law cannot solve the problem of sanctions challenging properly. Maybe it's time to consider the establishment of the international sanctions Court of Justice guided by the universal principle of the supremacy of the international law, before nuclear weapons begin to play its role again?
Anton Imennov, advocate, Managing Partner of Pen & Paper Moscow office