Amidst the breaking-down of cooperation between the USA and Russia in addressing the war in Syria, the continuation of the Ukrainian crisis and the US charges against Russia for its alleged interference in the American Presidential elections, the sanction tit-for-tat between the two Powers continues. The most recent episode occurred during the first week of October, when the Russian Federation decided to suspend – and in one case terminate – various nuclear-related agreements between itself and the United States of America. Russia’s unilateral decisions raise several questions, notably with regard to the law of treaties; however it is Russia’s justification for suspending the 2013 Agreement on Cooperation in Nuclear and Energy Related Scientific Research and Development (hereafter the ‘2013 Agreement’) that caught my attention and on which I wish to comment. It so happens that the Kremlin justified the suspension as a countermeasure in response to the American sanctions against it.
The 2013 Agreement‘s aim is to provide a stable and reliable framework within which the USA and Russia can cooperate in fields of research and development regarding the peaceful use of nuclear energy. Because of the vague wording of the 2013 Agreement, it is difficult to determine what the exact obligations of the parties are and whether their fulfilment allows more leeway. Under these circumstances, one could consider Russia’s suspension as simply symbolic and another indication of the cooling of relations with the USA. Nevertheless, in a document published by the Russian State, the suspension is claimed to be a countermeasure against the sanctions adopted by the US, implying that Russia views its own action as wrongful. By invoking the magic word ‘countermeasures’, the Russian government is summoning a circumstance precluding wrongfulness. As is well known, in order for Russia to justifiably adopt such measures, the (main) condition that needs to be respected is the commission of a wrongful act by the United States against the Russia Federation. It follows that the legality of Russia’s suspension (or the preclusion of the wrongfulness of that act) would depend – in part – on the legality of the American sanctions that Russia is objecting to.
Russia claims that, as a result of the sanctions against it, the US is responsible for a ‘substantial violation of the terms of the [2013] Agreement’ and specifically Articles IV(3) and X(1). This breach would result from a letter sent in April 2014 by:
‘the US Department of Energy Bureau at the US Embassy in Moscow (…) announcing the suspension of nuclear energy cooperation in connection with the events in Ukraine’ and the subsequent cancellation of ‘bilateral meetings and events related to nuclear energy’.
Hence, the sanctions would have directly ‘affected the areas of cooperation under the Agreement’. In Russia’s view, the continuation of the US sanctions – which includes the violation of the Agreement – ‘requires the adoption of countermeasures in relation to the US’ (all the above quotes are taken from the Russian government decision). In another comment, the Russian Ministry of Foreign Affairs indicated that ‘Russia will consider the possibility of reversing its decision to suspend the Agreement when the United States reaffirms its willingness to fully restore compliance with the Agreement’.
The American government adopted sanctions against Russia in 2012 in response to ‘gross human rights violations’, the Magnitsky Act, and in 2014 in reaction to the Ukrainian crisis. Though the Kremlin has also objected to the former sanctions, including with regard to the suspension of other nuclear-related agreements (see here), this commentary will be limited to the latter measures. Russia appears to link the alleged breach of the 2013 Agreement to the USA’s decision to adopt sanctions in spring 2014 and their systematic renewal. It is worth quoting the government decision again:
‘the regular extension of US sanctions against Russia, including the suspension of Russian-US nuclear energy cooperation, requires the adoption of countermeasures in relation to the US.’
The 2014 sanctions include assets freezes and travels bans, which were adopted in March (see here and here), and sectoral sanctions, which were adopted in July and which target Russia’s financial and energy sectors. In essence, this policy constitutes a response to Russia’s violation of Ukraine’s territorial and sovereign integrity, hence a breach of an obligation erga omnes. The sanctions are consistent with the American administration’s view that it may legitimately use its economic power to achieve its foreign policy and security goals and to defend essential norms of the international community. If the USA’s unilateral coercive measures do not amount to a violation of an obligation owed to Russia, the Kremlin would be barred from invoking the countermeasure argument. However, it has been suggested that the embargo on energy-related goods violates America’s obligations under the WTO-system, which Russia joined in 2012 (see Martin Dawidowicz ‘Third-Party Countermeasures: A progressive development of international law?’ (2016); and Rostam J. Neuwirth & Alexandr Svetlicinii, ‘The Economic Sanctions over the Ukraine Conflict and the WTO: “Catch-XXI” and the Revival of the Debate on Security Exceptions’ (2015). With regard to the 2013 Agreement, the USA’s refusal to cooperate is viewed by Russia as a breach of the Agreement’s provisions. Whether other obligations are violated needs to be determined on a case-by-case basis and a study of the bilateral agreements between the USA and Russia.
It is this legal uncertainty and the fear of causing further escalation of a dispute that caused third-party countermeasures to be a subject of controversy during the drafting of the ILC’s Articles on State Responsibility, which, as is well known, were ultimately included in the Draft Articles as a savings clause (Responsibility of States for Internationally Wrongful Acts (2001)). Generally speaking, countermeasures – taken either in response to violations of bilateral obligations or community norms – were perceived as measures that could escalate a dispute rather than encourage cessation of a breach. This is one of the reasons why the Commission aspired to include provisions on the obligation to settle disputes peacefully (see, e.g., Fifth Report of the Special Rapporteur (1993)); however this proved to be unrealistic. Additionally, one of the recurring objections against third-party countermeasures was the fact that they are adopted unilaterally by States, without safeguards, and could potentially erode the UN Security Council’s powers. In the context of the Ukrainian crisis, it is clearly doubtful whether the USA is transgressing the Council’s competences as the organ is blocked from adopting measures under UN Charter Chapter VII. However, the sanctions are framed as illegitimate by Russia precisely because of their non-multilateral nature; they are described as an attempt to hurt Russia’s economy and interfere in its internal affairs. It is perhaps noteworthy that, as a matter of principle and of law, Russia frequently denounces the adoption of unilateral sanctions, as do BRICS States and the Non-Aligned Movement. Russia has, for example, argued that such measures violate the UN Charter (as illustrated by President Putin’s speech at the UN General Assembly in 2015) and condemned their practice in a joint declaration with China (a commentary is available here). The perceived illegitimacy of the sanctions has caused the target State to withdraw from mechanisms that have been set up to encourage bilateral or multilateral cooperation and to seek alternative alliances; Russian officials, including Prime Minister Medvedev, claim the West wants to start a new Cold War. Despite these criticisms, Russia has not held back from responding to the US sanctions against it by imposing its own coercive measures against the USA and other countries that have aligned with the anti-Russia sanctions. At present, reconciling Russia and the West does not appear any easier as both parties become further entrenched in their positions.
Against this backdrop, a potential solution to this conundrum may be to consider more seriously the effect sanctions (whether retorsions or countermeasures) have on State behaviour and their ability to encourage compliance with international law. Though the issues of legitimacy raised above are separate from questions of legality, they could have repercussions on the sanctions’ success in enforcing international law. If the targeted entity views the sanctions as illegitimate, it is more likely to develop policies of non-compliance and resistance, thus broadening the dispute. Admittedly, this post raises more questions than it is able to answer, however it is hoped (possibly naively) that these questions could trigger discussions on solutions or alternatives. If we aspire to a more stable international (legal) system, Russia’s – and like-minded countries’ – objections to the legitimacy of coercive measures merits consideration. In the meantime, we can only debate on the legality of third-party countermeasures and the implications for Russia’s unilateral suspension of the 2013 Agreement. If such measures are accepted as lawful, then Russia could most likely not invoke the countermeasure argument against the USA’s third-party countermeasures.
Thanks for this really interesting post. Countermeasures are indeed fascinating and, despite their old age, there remain many areas of uncertainty about the institution.
In this particular case, there is, as you say, a difficult question relating to whether the precondition for the taking of countermeasures exists (ie, whether the US actions themselves constitute wrongful acts), which depends on whether it is accepted that third-party countermeasures are lawful under international law. Countermeasures are by definition unilateral, and as the ARS Commentary suggest, they are taken by the State at its own risk: if the unilateral qualification of the prior act as wrongful turns out not to be the case, then the countermeasure will be wrongful [See Commentary to art 49, para 3].
Now, one thing that interested me in this incident is the specific measure adopted. Russia’s action, as you describe it, is the suspension of the Treaty as such. Now, the Commentary to Chapter V of Part One of the ARS indicates that the circumstances precluding wrongfulness have no effect on the obligation as such, in that they cannot ‘annul or terminate it’ and it explains that the reason for this is that the application of the circumstances ‘looks towards’ the resumption of compliance with the obligation once the factors causing its application disappear [para 2]. The Commentary to Article 22 then adds that ‘Where countermeasures are taken in accordance with article 22, the underlying obligation is not suspended, still less terminated’ [para 4].
There is, of course, some artificiality in saying that countermeasures do not suspend the obligation but merely justify non-performance for the time being. But I wonder if, where treaties are concerned, this might be relevant? After all, the VCLT contains specific procedures for the suspension of treaties and, relevant to the goal of resumption of compliance of the circumstances, it contains no provisions on the procedure to resume the operation of treaties that have been suspended.
Might the fact that Russia's measure relates to the suspension of the treaty, rather than simply the non-performance of the obligations under the treaty, render the countermeasure unlawful, regardless of whether it is a response to an (objectively established) prior wrongful act? Or is this just a difference without a difference?
Best wishes
Federica
Martins Paparinskis says
October 28, 2016
A point that further muddles the distinction between responses under law of treaties and law of State responsibility relates to the substance of Russia’s position that might have got lost in translation. The English version of the document says that ‘[t]his step by the US is a substantial violation of the terms of the Agreement that is designed to expand cooperation in nuclear energy research and development and provide a stable, reliable and predictable foundation for this cooperation’, http://government.ru/en/docs/24766/. But the Russian text uses terms ‘существенное нарушение’ and ‘цель[]’ (for what is translated as 'substantial violation' and 'design[]'), http://government.ru/docs/24766/, which is the way how respectively ‘material breach’ and ‘purpose’ are expressed in Article 60 of the Russian authentic version of the Vienna Convention on the Law of Treaties, https://treaties.un.org/doc/Publication/UNTS/Volume%201155/v1155.pdf 433. So Russia seems to be saying simultaenously that (1) the US has committed a material breach of the treaty by violating provisions essential to the accomplishment of its object and purpose, and therefore the treaty is suspended (by implication, in compliance with the law of treaties) and (2) the US has committed wrongful acts to which Russia is responding by a countermeasure (by implication, breaching its obligations under the treaty). It is an interesting question of whether this is a case of belts and suspenders through fall-back arguments, a borrowing of the structure of countermeasures for implementing retorsions, the choice of drafting technique of constructive ambiguity, or a reminder that the line between law of treaties and responsibility is fuzzier in practice than is sometimes assumed.
Maria Xiouri says
October 31, 2016
I agree with Federica and Martins that the relationship between the law of treaties and the law of State responsibility with regard to responses to the breach of a treaty, which is the subject of my PhD research, is far from clear. The State practice mentioned in Alexandra's very interesting post is a representative example of the confusion which is created between the notions of suspension of the operation of a treaty according to Article 60 VCLT and countermeasures and which raises questions with regard to the existence of two legal bases for the temporary non-performance of a treaty.
Although there is also reference to countermeasures, in the Government Decision in question (http://government.ru/en/docs/24766/) it is stated that the ‘suspension’ is effected ‘under Article 37.1 of Federal Law 101-FZ of June 15, 1994, On International Treaties of the Russian Federation’, namely according to the law of treaties. Although the intention of the Russian Federation through reference to countermeasures might have been, as Martins notes, to create the possibility of ‘a fall-back argument’ or ‘of a constructive ambiguity’ with regard to its response, in fact it has based its response on the law of treaties. The use of the term ‘countermeasure’ for a response to an alleged material breach of a treaty which is effected according to the law incorporating the VCLT in the Russian domestic legal system merely shows the level of confusion in practice between the notions of suspension of the operation of a treaty and countermeasures, in spite of the distinction made by the ICJ in paragraph 47 of its judgment in the Gabčíkovo-Nagymaros case and by the ILC in its commentary to the ASR, namely that there can be no suspension of treaty obligations through countermeasures, but only suspension of their performance.
Such confusion might prejudice legal certainty with regard to responses to the breach of a treaty: according to the above mentioned judgment, a response to the breach of a treaty can be either countermeasure or suspension, not both, and must be submitted to the respective conditions of application. It might be asked in this regard whether suspension was chosen in order to evade the conditions of application of countermeasures, particularly the procedural conditions of Article 52 ASR, which do not seem to have been met in the particular case and which, at least to a certain extent, constitute customary international law. It might be noted that the US is not a party to the VCLT and the procedural conditions of Articles 65-68 and Annex VCLT do not constitute, for the most part, customary international law. Therefore, the Russian Federation, by basing its response on the law of treaties, did not have to comply with other conditions of application of Article 60 VCLT apart from the material character of the breach; indeed, as Martins notes, it referred to it as a ‘substantial violation’. It is also characteristic that in the Government Decision in question it is stated that the Russian Federation ‘will preserve the possibility of resuming cooperation under the Agreement when that is justified by the general context of relations with the US’ (emphasis added). Although, as Federica also notes, the VCLT does not regulate the modalities of the resumption of the operation of a treaty which has been suspended, such resumption cannot but be specifically related to the cessation of the material breach of the treaty on the ground of which the operation of the treaty was suspended and cannot depend on the ‘general context of relations’ with the defaulting party.
Dapo Akande says
October 31, 2016
Dear all,
This is a very interesting discussion. In my view, despite the attempts of the ILC and the ICJ to draw clear distinctions, the difference between suspension of a treaty and suspension of performance of a treaty as a countermeasure is not very clear. At least it is not clear what the difference is when the state concerned suspends performance of all its obligations under the treaty as a countermeasure. In such a circumstance it is not clear how suspension of performance of obligations (countermeasures) is different from suspension of the operation of the treaty (suspension under the law of treaties). I would be grateful if anyone could enlighten me as to what the difference really is. Of course, the latter is only available for material breaches under the treaty in question and the former can be used for other breaches of international law.
Maria and Federica, you make an interesting point about how the VCLT does not regulate the modalities of resumption of the operation of a treaty that has been suspended. Maria says that such resumption "cannot but be specifically related to the cessation of the material breach of the treaty" that led to suspension and "cannot depend on the 'general context of relations' with the defaulting party". I assume you mean that if the material breach is brought to an end, the suspension must also be brought to an end. However, if suspension is a choice that a party is entitled but not required to make, presumably it can choose to bring the suspension to an end even if the material breach has NOT ended and can choose to do so based on considerations of its own choosing. So Russia would at least in that context be entitled to base itself on the "general context of relations".
Alexandra Hofer says
October 31, 2016
Dear Federica and Martins, thank you both for your interesting remarks. When it comes to non-performance of treaty obligations, countermeasures do seem to blur with law of treaties; the added ambiguity of the language (especially when working with translations) does not make drawing the line any simpler.
I don’t think that suspending the obligation would automatically make Russia’s countermeasure unlawful, as the Russian government says it would consider reversing the measure. However, this does leave open the possibility that the measure would be irreversible. If Russia sticks to the countermeasure argument, I would argue that it all really depends on what would happen after the dispute with the US is solved: if Russia would refuse to resume cooperation, then the US could complain that Russia is responsible for a wrongful act under the 2013 Agreement. To my knowledge, the American administration has not really responded to Russia’s suspension (except for this statement regarding the decision to suspend another agreement signed in 2000: http://www.state.gov/r/pa/prs/dpb/2016/10/262717.htm#RUSSIA2).
My understanding of the English-version of the Russian justification is that Russia is not only complaining of a US breach of the 2013 Agreement but seems to complain of the American sanctions in a broader sense, i.e. not only the sanctions that have affected the 2013 Agreement, which it views as illegal. This correlates with the justification given for the termination of the 2000 Agreement with the US (the English-version refers to the US sanctions and, interestingly, to a ‘fundamental change in circumstances’ see: http://en.kremlin.ru/acts/news/53009).
As the dispute’s scope seems to be much broader than the 2013 Agreement, and hence not only within the confines of the law of treaties, then the countermeasure argument would appear to be relevant.
Maria Xiouri says
October 31, 2016
Dear Dapo, thank you very much for your comment. According to ASR commentary page 128-9 paragraph 4, the difference between the 'suspension of performance' of treaty obligations in case of countermeasures and the 'suspension of the operation of a treaty' according to Art 60 VCLT is that in case of countermeasures the force of treaty obligations is not affected, while in the case of suspension of the operation of a treaty it is temporarily affected, namely the treaty obligations suspended are temporarily not in force.This is also the prevailing view in the literature. Nevertheless, as you also observe, there are many obscure points in the relationship between the two notions and in any case, as already seen, confusion may be created in practice.
With regard to your second point, you pertinently note that the suspension of the operation of a treaty according to Art 60 VCLT is a right or faculty of the responding party and not an obligation. In my opinion, if a State decides to suspend the operation of a treaty according to Art 60 VCLT, based on its material breach, if the material breach of that treaty ceases, the suspension as a response to that must presumably also be brought to an end and cannot depend on the general context of relations between the parties. This is what I wanted to say although I did not express myself clearly enough. This does not mean, as you note, that the responding State may not decide to bring suspension to an end even if the material breach has not ended. In any case of course questions arise with regard to the cumbersome procedure of Arts 65-68 and Annex VCLT, as well as with regard to whether the reinstitution of suspended treaty provisions requires the consent of both States or whether the State which has suspended the treaty can unilaterally restore its force. These questions are left open by the VCLT.
Federica Paddeu says
October 31, 2016
Thank you all for your responses—a most interesting incident!
As to your question, Dapo, it is indeed a difficult distinction to draw.
To further add to the blurred lines… historically there was no difference between a treaty-law response and a ‘responsibility’, if we may anachronistically call it this, response (though note that Anzilotti did refer to reprisals as the oldest institution of State responsibility…). Reprisals, though usually involving resort to armed force, could also take other forms. One such form was precisely the suspension, and even termination, of treaties in response to a breach of the treaty itself or the breach of any other obligation. There are indeed a few examples in practice in which States threatened to suspend/terminate treaties with other parties as a result of breach, usually of other provisions of the treaty itself. One of my favourite examples is a letter from Napoleon, during the war of the Fifth Coalition, in which he reminds the Swedish Crown (then a neutral State) that if it failed to comply with the Treaty of 24 February 1810, France would consider itself released from fulfilment of the obligations under that treaty. ‘[S]i vous manquez à vos engagements, je me croirai dégagé des miens’ wrote Napoleon. Another interesting incident relates to the Wohlgemut affair between Switzerland and Germany in the late 19th century.
At some point, the two responses became formally separated though in substance, at least insofar as suspension is concerned, they remain very much the same. For there is, indeed, no difference in terms of effect for the State adopting the measure: ultimately, in both cases, it will be lawful for the State to withhold performance of the relevant obligations for the time being.
This said, there are some differences in the regulation of both institutions. These are formal, or shall we say cosmetic, rather than substantive differences, but in my view they respond to the legitimate concerns of the fields within which each operates: in the case of material breach, the ultimate goal of the law of treaties of ensuring stability and certainty of legal relations, and in the case of countermeasures, the re-establishment of legality and reparation. So there are differences relating to the purpose of the measure (resumption of compliance for countermeasures v re-establishment of balance between treaty parties); procedures for adoption of countermeasures (more flexible) and treaties (more formal); the typology of breach which will suffice (any breach for countermeasures v a ‘material breach’); and so on. (Incidentally, I find it troublesome that, precisely as a result of the goals of the law of treaties and law of responsibility respectively, a State taking countermeasures may need to follow certain procedural steps as a matter of customary law but that the suspension of a treaty could occur by operation of law…)
Ultimately, in any given case where the facts would allow the taking of countermeasures or the suspension of the treaty due to material breach, the State will be able to choose which mechanism to adopt. A State could, as Martins suggests, invoke material breach and countermeasures as alternative fall-back arguments. Equally, depending on how long they expect the breach to last and the effect of the breach on their own obligations, they may opt to suspend the treaty relation or simply rely on countermeasures. (A similar point was made by Special Rapporteur Waldock in respect of suspension due to impossibility of performance and force majeure as a defence in the law of responsibility.)
Not quite black/white differences, but differences grounded on relevant and defensible rationales. What do you think?
Dapo Akande says
October 31, 2016
Hi Federica and Maria,
Thanks for those responses. Federica, I agree that the institutions of suspension of treaties and countermeasures are regulated differently and that is precisely what is problematic here. The "thing" being regulated is occasionally exactly the same - notably in cases of suspension of obligations under a treaty as a response to a breach by the other party of its own obligations under that treaty. If a party chooses to label it as a suspension of a treaty certain conditions must be met. If, on the other hand, it chooses to label it as a countermeasure, different conditions must be met. But the state is (at least in some cases) doing the same thing, as it is taking the same action, and I speak now only of the case when it chooses to suspend performance of all its obligations under the treaty. The problem is that if we accept that the action the state is taking is the same, meaning that it has the same consequences and effects, then we would be forced to admit that the grounds for suspending a treaty include countermeasures (or indeed the other circumstances precluding wrongfulness) under the law of state responsibility. To avoid this conclusion, the ILC and ICJ in Gabcikovo Nagymaros insist that these actions - suspension of the operation of a treaty and suspension of performance of obligations are not the same - which I take to mean that they do not have the same consequences. For me, that is really the question. What is the difference in effect or consequences between a countermeasure or the suspension of a treaty?
Maria suggests one possible difference in the consequences relating to interest. I can't quite see why it would matter relating to interest but I take Maria's more general point that since the (originally) continues to have obligations under the treaty, it would continue to accumulate breaches for as long as it fails to act in compliance with the treaty. Thanks for that.
Maria Xiouri says
October 31, 2016
Furthermore, Dapo, it deserves to be emphasised that in case of suspension of the operation of a treaty according to Art 60 VCLT the treaty is not an applicable legal standard both for the responding and the defaulting party according to Art 72 (1) (a) VCLT, contrary to countermeasures, where only the non-performance of treaty obligations of the State taking the countermeasures is justified.Therefore in the case of countermeasures the defaulting party continues to be in breach of its obligations under the treaty. This might have consequences with regard to possible interest on reparation owed by the defaulting party.
Federica Paddeu says
November 1, 2016
I think Maria's point is valid more generally. Treaty-suspension affects both parties (wrongdoing and injured State), and potentially can affect all parties to the treaty. Countermeasures do not: they can only affect the invoking State's own obligations. So while the effect is ultimately the same for the invoking State, it is not the same for the other party (or parties) to the treaty.
Maria Xiouri says
November 1, 2016
In any event, as Federica noted already in her first comment and as we all have agreed in our comments, the relationship between the two notions is problematic.
Russia’s Unilateral Suspension of the 2013 Agreement on Nuclear Cooperation with the United States
Written by Alexandra HoferAmidst the breaking-down of cooperation between the USA and Russia in addressing the war in Syria, the continuation of the Ukrainian crisis and the US charges against Russia for its alleged interference in the American Presidential elections, the sanction tit-for-tat between the two Powers continues. The most recent episode occurred during the first week of October, when the Russian Federation decided to suspend – and in one case terminate – various nuclear-related agreements between itself and the United States of America. Russia’s unilateral decisions raise several questions, notably with regard to the law of treaties; however it is Russia’s justification for suspending the 2013 Agreement on Cooperation in Nuclear and Energy Related Scientific Research and Development (hereafter the ‘2013 Agreement’) that caught my attention and on which I wish to comment. It so happens that the Kremlin justified the suspension as a countermeasure in response to the American sanctions against it.
The 2013 Agreement‘s aim is to provide a stable and reliable framework within which the USA and Russia can cooperate in fields of research and development regarding the peaceful use of nuclear energy. Because of the vague wording of the 2013 Agreement, it is difficult to determine what the exact obligations of the parties are and whether their fulfilment allows more leeway. Under these circumstances, one could consider Russia’s suspension as simply symbolic and another indication of the cooling of relations with the USA. Nevertheless, in a document published by the Russian State, the suspension is claimed to be a countermeasure against the sanctions adopted by the US, implying that Russia views its own action as wrongful. By invoking the magic word ‘countermeasures’, the Russian government is summoning a circumstance precluding wrongfulness. As is well known, in order for Russia to justifiably adopt such measures, the (main) condition that needs to be respected is the commission of a wrongful act by the United States against the Russia Federation. It follows that the legality of Russia’s suspension (or the preclusion of the wrongfulness of that act) would depend – in part – on the legality of the American sanctions that Russia is objecting to.
Russia claims that, as a result of the sanctions against it, the US is responsible for a ‘substantial violation of the terms of the [2013] Agreement’ and specifically Articles IV(3) and X(1). This breach would result from a letter sent in April 2014 by:
Hence, the sanctions would have directly ‘affected the areas of cooperation under the Agreement’. In Russia’s view, the continuation of the US sanctions – which includes the violation of the Agreement – ‘requires the adoption of countermeasures in relation to the US’ (all the above quotes are taken from the Russian government decision). In another comment, the Russian Ministry of Foreign Affairs indicated that ‘Russia will consider the possibility of reversing its decision to suspend the Agreement when the United States reaffirms its willingness to fully restore compliance with the Agreement’.
The American government adopted sanctions against Russia in 2012 in response to ‘gross human rights violations’, the Magnitsky Act, and in 2014 in reaction to the Ukrainian crisis. Though the Kremlin has also objected to the former sanctions, including with regard to the suspension of other nuclear-related agreements (see here), this commentary will be limited to the latter measures. Russia appears to link the alleged breach of the 2013 Agreement to the USA’s decision to adopt sanctions in spring 2014 and their systematic renewal. It is worth quoting the government decision again:
The 2014 sanctions include assets freezes and travels bans, which were adopted in March (see here and here), and sectoral sanctions, which were adopted in July and which target Russia’s financial and energy sectors. In essence, this policy constitutes a response to Russia’s violation of Ukraine’s territorial and sovereign integrity, hence a breach of an obligation erga omnes. The sanctions are consistent with the American administration’s view that it may legitimately use its economic power to achieve its foreign policy and security goals and to defend essential norms of the international community. If the USA’s unilateral coercive measures do not amount to a violation of an obligation owed to Russia, the Kremlin would be barred from invoking the countermeasure argument. However, it has been suggested that the embargo on energy-related goods violates America’s obligations under the WTO-system, which Russia joined in 2012 (see Martin Dawidowicz ‘Third-Party Countermeasures: A progressive development of international law?’ (2016); and Rostam J. Neuwirth & Alexandr Svetlicinii, ‘The Economic Sanctions over the Ukraine Conflict and the WTO: “Catch-XXI” and the Revival of the Debate on Security Exceptions’ (2015). With regard to the 2013 Agreement, the USA’s refusal to cooperate is viewed by Russia as a breach of the Agreement’s provisions. Whether other obligations are violated needs to be determined on a case-by-case basis and a study of the bilateral agreements between the USA and Russia.
If – as Russia claims – the American sanctions would be wrongful, then Russia could conceivably attempt to right a wrong by adopting countermeasures. However, in as much as the American violation is a response to a previous violation of an obligation erga omnes attributable to Russia, they could qualify as third-party countermeasures. This raises further complications: not only is the legality of such measures an unresolved issue (for a contrary view see: Christian Tams, Enforcing Obligations Erga Omnes in International Law (2005); Martin Dawidowicz, ‘Public Law Enforcement without Public Law Safeguards? An Analysis of State Practice on Third-Party Countermeasures and their relationship to the UN Security Council’ (2006); and Elena Katselli Proukaki, The Problem of Enforcement in International Law, countermeasures, the non-injured state and the idea of international community (2010)), the legal status of Russia’s suspension becomes all the more unclear. Indeed, how does one qualify a wrongful act adopted in reaction to an act whose legal status is uncertain?
It is this legal uncertainty and the fear of causing further escalation of a dispute that caused third-party countermeasures to be a subject of controversy during the drafting of the ILC’s Articles on State Responsibility, which, as is well known, were ultimately included in the Draft Articles as a savings clause (Responsibility of States for Internationally Wrongful Acts (2001)). Generally speaking, countermeasures – taken either in response to violations of bilateral obligations or community norms – were perceived as measures that could escalate a dispute rather than encourage cessation of a breach. This is one of the reasons why the Commission aspired to include provisions on the obligation to settle disputes peacefully (see, e.g., Fifth Report of the Special Rapporteur (1993)); however this proved to be unrealistic. Additionally, one of the recurring objections against third-party countermeasures was the fact that they are adopted unilaterally by States, without safeguards, and could potentially erode the UN Security Council’s powers. In the context of the Ukrainian crisis, it is clearly doubtful whether the USA is transgressing the Council’s competences as the organ is blocked from adopting measures under UN Charter Chapter VII. However, the sanctions are framed as illegitimate by Russia precisely because of their non-multilateral nature; they are described as an attempt to hurt Russia’s economy and interfere in its internal affairs. It is perhaps noteworthy that, as a matter of principle and of law, Russia frequently denounces the adoption of unilateral sanctions, as do BRICS States and the Non-Aligned Movement. Russia has, for example, argued that such measures violate the UN Charter (as illustrated by President Putin’s speech at the UN General Assembly in 2015) and condemned their practice in a joint declaration with China (a commentary is available here). The perceived illegitimacy of the sanctions has caused the target State to withdraw from mechanisms that have been set up to encourage bilateral or multilateral cooperation and to seek alternative alliances; Russian officials, including Prime Minister Medvedev, claim the West wants to start a new Cold War. Despite these criticisms, Russia has not held back from responding to the US sanctions against it by imposing its own coercive measures against the USA and other countries that have aligned with the anti-Russia sanctions. At present, reconciling Russia and the West does not appear any easier as both parties become further entrenched in their positions.
Against this backdrop, a potential solution to this conundrum may be to consider more seriously the effect sanctions (whether retorsions or countermeasures) have on State behaviour and their ability to encourage compliance with international law. Though the issues of legitimacy raised above are separate from questions of legality, they could have repercussions on the sanctions’ success in enforcing international law. If the targeted entity views the sanctions as illegitimate, it is more likely to develop policies of non-compliance and resistance, thus broadening the dispute. Admittedly, this post raises more questions than it is able to answer, however it is hoped (possibly naively) that these questions could trigger discussions on solutions or alternatives. If we aspire to a more stable international (legal) system, Russia’s – and like-minded countries’ – objections to the legitimacy of coercive measures merits consideration. In the meantime, we can only debate on the legality of third-party countermeasures and the implications for Russia’s unilateral suspension of the 2013 Agreement. If such measures are accepted as lawful, then Russia could most likely not invoke the countermeasure argument against the USA’s third-party countermeasures.
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Federica Paddeu says
October 27, 2016
Dear Alexandra,
Thanks for this really interesting post. Countermeasures are indeed fascinating and, despite their old age, there remain many areas of uncertainty about the institution.
In this particular case, there is, as you say, a difficult question relating to whether the precondition for the taking of countermeasures exists (ie, whether the US actions themselves constitute wrongful acts), which depends on whether it is accepted that third-party countermeasures are lawful under international law. Countermeasures are by definition unilateral, and as the ARS Commentary suggest, they are taken by the State at its own risk: if the unilateral qualification of the prior act as wrongful turns out not to be the case, then the countermeasure will be wrongful [See Commentary to art 49, para 3].
Now, one thing that interested me in this incident is the specific measure adopted. Russia’s action, as you describe it, is the suspension of the Treaty as such. Now, the Commentary to Chapter V of Part One of the ARS indicates that the circumstances precluding wrongfulness have no effect on the obligation as such, in that they cannot ‘annul or terminate it’ and it explains that the reason for this is that the application of the circumstances ‘looks towards’ the resumption of compliance with the obligation once the factors causing its application disappear [para 2]. The Commentary to Article 22 then adds that ‘Where countermeasures are taken in accordance with article 22, the underlying obligation is not suspended, still less terminated’ [para 4].
There is, of course, some artificiality in saying that countermeasures do not suspend the obligation but merely justify non-performance for the time being. But I wonder if, where treaties are concerned, this might be relevant? After all, the VCLT contains specific procedures for the suspension of treaties and, relevant to the goal of resumption of compliance of the circumstances, it contains no provisions on the procedure to resume the operation of treaties that have been suspended.
Might the fact that Russia's measure relates to the suspension of the treaty, rather than simply the non-performance of the obligations under the treaty, render the countermeasure unlawful, regardless of whether it is a response to an (objectively established) prior wrongful act? Or is this just a difference without a difference?
Best wishes
Federica
Martins Paparinskis says
October 28, 2016
A point that further muddles the distinction between responses under law of treaties and law of State responsibility relates to the substance of Russia’s position that might have got lost in translation. The English version of the document says that ‘[t]his step by the US is a substantial violation of the terms of the Agreement that is designed to expand cooperation in nuclear energy research and development and provide a stable, reliable and predictable foundation for this cooperation’, http://government.ru/en/docs/24766/. But the Russian text uses terms ‘существенное нарушение’ and ‘цель[]’ (for what is translated as 'substantial violation' and 'design[]'), http://government.ru/docs/24766/, which is the way how respectively ‘material breach’ and ‘purpose’ are expressed in Article 60 of the Russian authentic version of the Vienna Convention on the Law of Treaties, https://treaties.un.org/doc/Publication/UNTS/Volume%201155/v1155.pdf 433. So Russia seems to be saying simultaenously that (1) the US has committed a material breach of the treaty by violating provisions essential to the accomplishment of its object and purpose, and therefore the treaty is suspended (by implication, in compliance with the law of treaties) and (2) the US has committed wrongful acts to which Russia is responding by a countermeasure (by implication, breaching its obligations under the treaty). It is an interesting question of whether this is a case of belts and suspenders through fall-back arguments, a borrowing of the structure of countermeasures for implementing retorsions, the choice of drafting technique of constructive ambiguity, or a reminder that the line between law of treaties and responsibility is fuzzier in practice than is sometimes assumed.
Maria Xiouri says
October 31, 2016
I agree with Federica and Martins that the relationship between the law of treaties and the law of State responsibility with regard to responses to the breach of a treaty, which is the subject of my PhD research, is far from clear. The State practice mentioned in Alexandra's very interesting post is a representative example of the confusion which is created between the notions of suspension of the operation of a treaty according to Article 60 VCLT and countermeasures and which raises questions with regard to the existence of two legal bases for the temporary non-performance of a treaty.
Although there is also reference to countermeasures, in the Government Decision in question (http://government.ru/en/docs/24766/) it is stated that the ‘suspension’ is effected ‘under Article 37.1 of Federal Law 101-FZ of June 15, 1994, On International Treaties of the Russian Federation’, namely according to the law of treaties. Although the intention of the Russian Federation through reference to countermeasures might have been, as Martins notes, to create the possibility of ‘a fall-back argument’ or ‘of a constructive ambiguity’ with regard to its response, in fact it has based its response on the law of treaties. The use of the term ‘countermeasure’ for a response to an alleged material breach of a treaty which is effected according to the law incorporating the VCLT in the Russian domestic legal system merely shows the level of confusion in practice between the notions of suspension of the operation of a treaty and countermeasures, in spite of the distinction made by the ICJ in paragraph 47 of its judgment in the Gabčíkovo-Nagymaros case and by the ILC in its commentary to the ASR, namely that there can be no suspension of treaty obligations through countermeasures, but only suspension of their performance.
Such confusion might prejudice legal certainty with regard to responses to the breach of a treaty: according to the above mentioned judgment, a response to the breach of a treaty can be either countermeasure or suspension, not both, and must be submitted to the respective conditions of application. It might be asked in this regard whether suspension was chosen in order to evade the conditions of application of countermeasures, particularly the procedural conditions of Article 52 ASR, which do not seem to have been met in the particular case and which, at least to a certain extent, constitute customary international law. It might be noted that the US is not a party to the VCLT and the procedural conditions of Articles 65-68 and Annex VCLT do not constitute, for the most part, customary international law. Therefore, the Russian Federation, by basing its response on the law of treaties, did not have to comply with other conditions of application of Article 60 VCLT apart from the material character of the breach; indeed, as Martins notes, it referred to it as a ‘substantial violation’. It is also characteristic that in the Government Decision in question it is stated that the Russian Federation ‘will preserve the possibility of resuming cooperation under the Agreement when that is justified by the general context of relations with the US’ (emphasis added). Although, as Federica also notes, the VCLT does not regulate the modalities of the resumption of the operation of a treaty which has been suspended, such resumption cannot but be specifically related to the cessation of the material breach of the treaty on the ground of which the operation of the treaty was suspended and cannot depend on the ‘general context of relations’ with the defaulting party.
Dapo Akande says
October 31, 2016
Dear all,
This is a very interesting discussion. In my view, despite the attempts of the ILC and the ICJ to draw clear distinctions, the difference between suspension of a treaty and suspension of performance of a treaty as a countermeasure is not very clear. At least it is not clear what the difference is when the state concerned suspends performance of all its obligations under the treaty as a countermeasure. In such a circumstance it is not clear how suspension of performance of obligations (countermeasures) is different from suspension of the operation of the treaty (suspension under the law of treaties). I would be grateful if anyone could enlighten me as to what the difference really is. Of course, the latter is only available for material breaches under the treaty in question and the former can be used for other breaches of international law.
Maria and Federica, you make an interesting point about how the VCLT does not regulate the modalities of resumption of the operation of a treaty that has been suspended. Maria says that such resumption "cannot but be specifically related to the cessation of the material breach of the treaty" that led to suspension and "cannot depend on the 'general context of relations' with the defaulting party". I assume you mean that if the material breach is brought to an end, the suspension must also be brought to an end. However, if suspension is a choice that a party is entitled but not required to make, presumably it can choose to bring the suspension to an end even if the material breach has NOT ended and can choose to do so based on considerations of its own choosing. So Russia would at least in that context be entitled to base itself on the "general context of relations".
Alexandra Hofer says
October 31, 2016
Dear Federica and Martins, thank you both for your interesting remarks. When it comes to non-performance of treaty obligations, countermeasures do seem to blur with law of treaties; the added ambiguity of the language (especially when working with translations) does not make drawing the line any simpler.
I don’t think that suspending the obligation would automatically make Russia’s countermeasure unlawful, as the Russian government says it would consider reversing the measure. However, this does leave open the possibility that the measure would be irreversible. If Russia sticks to the countermeasure argument, I would argue that it all really depends on what would happen after the dispute with the US is solved: if Russia would refuse to resume cooperation, then the US could complain that Russia is responsible for a wrongful act under the 2013 Agreement. To my knowledge, the American administration has not really responded to Russia’s suspension (except for this statement regarding the decision to suspend another agreement signed in 2000: http://www.state.gov/r/pa/prs/dpb/2016/10/262717.htm#RUSSIA2).
My understanding of the English-version of the Russian justification is that Russia is not only complaining of a US breach of the 2013 Agreement but seems to complain of the American sanctions in a broader sense, i.e. not only the sanctions that have affected the 2013 Agreement, which it views as illegal. This correlates with the justification given for the termination of the 2000 Agreement with the US (the English-version refers to the US sanctions and, interestingly, to a ‘fundamental change in circumstances’ see: http://en.kremlin.ru/acts/news/53009).
As the dispute’s scope seems to be much broader than the 2013 Agreement, and hence not only within the confines of the law of treaties, then the countermeasure argument would appear to be relevant.
Maria Xiouri says
October 31, 2016
Dear Dapo, thank you very much for your comment. According to ASR commentary page 128-9 paragraph 4, the difference between the 'suspension of performance' of treaty obligations in case of countermeasures and the 'suspension of the operation of a treaty' according to Art 60 VCLT is that in case of countermeasures the force of treaty obligations is not affected, while in the case of suspension of the operation of a treaty it is temporarily affected, namely the treaty obligations suspended are temporarily not in force.This is also the prevailing view in the literature. Nevertheless, as you also observe, there are many obscure points in the relationship between the two notions and in any case, as already seen, confusion may be created in practice.
With regard to your second point, you pertinently note that the suspension of the operation of a treaty according to Art 60 VCLT is a right or faculty of the responding party and not an obligation. In my opinion, if a State decides to suspend the operation of a treaty according to Art 60 VCLT, based on its material breach, if the material breach of that treaty ceases, the suspension as a response to that must presumably also be brought to an end and cannot depend on the general context of relations between the parties. This is what I wanted to say although I did not express myself clearly enough. This does not mean, as you note, that the responding State may not decide to bring suspension to an end even if the material breach has not ended. In any case of course questions arise with regard to the cumbersome procedure of Arts 65-68 and Annex VCLT, as well as with regard to whether the reinstitution of suspended treaty provisions requires the consent of both States or whether the State which has suspended the treaty can unilaterally restore its force. These questions are left open by the VCLT.
Federica Paddeu says
October 31, 2016
Thank you all for your responses—a most interesting incident!
As to your question, Dapo, it is indeed a difficult distinction to draw.
To further add to the blurred lines… historically there was no difference between a treaty-law response and a ‘responsibility’, if we may anachronistically call it this, response (though note that Anzilotti did refer to reprisals as the oldest institution of State responsibility…). Reprisals, though usually involving resort to armed force, could also take other forms. One such form was precisely the suspension, and even termination, of treaties in response to a breach of the treaty itself or the breach of any other obligation. There are indeed a few examples in practice in which States threatened to suspend/terminate treaties with other parties as a result of breach, usually of other provisions of the treaty itself. One of my favourite examples is a letter from Napoleon, during the war of the Fifth Coalition, in which he reminds the Swedish Crown (then a neutral State) that if it failed to comply with the Treaty of 24 February 1810, France would consider itself released from fulfilment of the obligations under that treaty. ‘[S]i vous manquez à vos engagements, je me croirai dégagé des miens’ wrote Napoleon. Another interesting incident relates to the Wohlgemut affair between Switzerland and Germany in the late 19th century.
At some point, the two responses became formally separated though in substance, at least insofar as suspension is concerned, they remain very much the same. For there is, indeed, no difference in terms of effect for the State adopting the measure: ultimately, in both cases, it will be lawful for the State to withhold performance of the relevant obligations for the time being.
This said, there are some differences in the regulation of both institutions. These are formal, or shall we say cosmetic, rather than substantive differences, but in my view they respond to the legitimate concerns of the fields within which each operates: in the case of material breach, the ultimate goal of the law of treaties of ensuring stability and certainty of legal relations, and in the case of countermeasures, the re-establishment of legality and reparation. So there are differences relating to the purpose of the measure (resumption of compliance for countermeasures v re-establishment of balance between treaty parties); procedures for adoption of countermeasures (more flexible) and treaties (more formal); the typology of breach which will suffice (any breach for countermeasures v a ‘material breach’); and so on. (Incidentally, I find it troublesome that, precisely as a result of the goals of the law of treaties and law of responsibility respectively, a State taking countermeasures may need to follow certain procedural steps as a matter of customary law but that the suspension of a treaty could occur by operation of law…)
Ultimately, in any given case where the facts would allow the taking of countermeasures or the suspension of the treaty due to material breach, the State will be able to choose which mechanism to adopt. A State could, as Martins suggests, invoke material breach and countermeasures as alternative fall-back arguments. Equally, depending on how long they expect the breach to last and the effect of the breach on their own obligations, they may opt to suspend the treaty relation or simply rely on countermeasures. (A similar point was made by Special Rapporteur Waldock in respect of suspension due to impossibility of performance and force majeure as a defence in the law of responsibility.)
Not quite black/white differences, but differences grounded on relevant and defensible rationales. What do you think?
Dapo Akande says
October 31, 2016
Hi Federica and Maria,
Thanks for those responses. Federica, I agree that the institutions of suspension of treaties and countermeasures are regulated differently and that is precisely what is problematic here. The "thing" being regulated is occasionally exactly the same - notably in cases of suspension of obligations under a treaty as a response to a breach by the other party of its own obligations under that treaty. If a party chooses to label it as a suspension of a treaty certain conditions must be met. If, on the other hand, it chooses to label it as a countermeasure, different conditions must be met. But the state is (at least in some cases) doing the same thing, as it is taking the same action, and I speak now only of the case when it chooses to suspend performance of all its obligations under the treaty. The problem is that if we accept that the action the state is taking is the same, meaning that it has the same consequences and effects, then we would be forced to admit that the grounds for suspending a treaty include countermeasures (or indeed the other circumstances precluding wrongfulness) under the law of state responsibility. To avoid this conclusion, the ILC and ICJ in Gabcikovo Nagymaros insist that these actions - suspension of the operation of a treaty and suspension of performance of obligations are not the same - which I take to mean that they do not have the same consequences. For me, that is really the question. What is the difference in effect or consequences between a countermeasure or the suspension of a treaty?
Maria suggests one possible difference in the consequences relating to interest. I can't quite see why it would matter relating to interest but I take Maria's more general point that since the (originally) continues to have obligations under the treaty, it would continue to accumulate breaches for as long as it fails to act in compliance with the treaty. Thanks for that.
Maria Xiouri says
October 31, 2016
Furthermore, Dapo, it deserves to be emphasised that in case of suspension of the operation of a treaty according to Art 60 VCLT the treaty is not an applicable legal standard both for the responding and the defaulting party according to Art 72 (1) (a) VCLT, contrary to countermeasures, where only the non-performance of treaty obligations of the State taking the countermeasures is justified.Therefore in the case of countermeasures the defaulting party continues to be in breach of its obligations under the treaty. This might have consequences with regard to possible interest on reparation owed by the defaulting party.
Federica Paddeu says
November 1, 2016
I think Maria's point is valid more generally. Treaty-suspension affects both parties (wrongdoing and injured State), and potentially can affect all parties to the treaty. Countermeasures do not: they can only affect the invoking State's own obligations. So while the effect is ultimately the same for the invoking State, it is not the same for the other party (or parties) to the treaty.
Maria Xiouri says
November 1, 2016
In any event, as Federica noted already in her first comment and as we all have agreed in our comments, the relationship between the two notions is problematic.