Defending a Rules-Based International Order? The EU’s Adoption of Restrictive Measures in Response to Russia’s Invasion of Ukraine

The EU has adopted unprecedented “massive and targeted sanctions” in response to Russia’s ‘Special Military Operation’ in Ukraine. For Alexandra Hofer, the sanctioners are demonstrating “unmatched levels of coordination” but are struggling to garner additional international support. If the objective is to change Russia’s behaviour, she argues, the EU and its partners need to be clearer about the sanctions’ objectives. However, Russia (unsurprisingly no doubt) does not perceive the sanctions as legitimate and does not appear to believe the sanctioners are willing to lift the measures.

The post is the third in a series drawing on a RENFORCE expert seminar on the EU’s response to the war in Ukraine, held online on 8th March 2022. Click here to read Salvatore Nicolosi on the EU’s response to the migratory flow from Ukraine, and here for Nathan Meershoek on the EU’s decision to provide weapons to Ukraine. Stay tuned to RENFORCE Blog for further analysis of the EU’s neighbourhood policies and Ukraine, and of coverage of the war in the media.


Introduction

During its emergency session on 2 March 2022, the UN General Assembly (‘UNGA’) adopted Resolution ES-11/1 condemning Russia’s ‘Special Military Operation’ as an act of aggression against Ukraine, in violation of the UN Charter (the draft text is available here). The resolution was adopted by a majority of 141, including all European Union member states; 5 states voted against and 35 abstained. During the UNGA debate, the representative of the EU stated that the resolution is “… about defending an international order based on rules. This is about whether we choose tanks and missiles or dialogue and diplomacy”.

According to Professor Mary Ellen O’Connell, in “support [of] Ukraine and the rules-based order founded on the prohibition of force”, states should “cut financial, trade and commercial ties with Russia [and] cut oil and gas purchases.” The EU appears to have followed through by adopting “massive and targeted” sanctions against the Russian Federation; to date, the EU has imposed five rounds of such sanctions.

The country’s financial sector has been the main target of the sanctions: two of the more severe measures against Russia are the freezing of part of the Central Bank of Russia’s reserves and the exclusion of seven Russian banks from SWIFT. The Council of the EU – the European body authorized to adopt restrictive measures – has also imposed sanctions on Russia’s energy sector, as well as its airspace, maritime and transport sectors. It has furthermore decided to no longer apply Most-Favoured-Nation status to Russia within the WTO. The EU has taken the unprecedented decision to suspend Russia Today and Sputnik from broadcasting in EU territory for spreading disinformation. Finally, at the time of writing, some 1021 individuals and 80 entities have been subjected to asset freezes and travel bans. In a rare move, the EU imposed an asset freeze on President Vladimir Putin and the Minister of Foreign Affairs Sergei Lavrov (see further here).

Although the overall goal may be to defend the rules-based international order, it is unclear what the precise objective of the sanctions is. In other words, how are sanctions intended to defend the rules-based order?

After all, these policy tools can serve multiple purposes in inter-state relations. One wonders if the aim is to defend norms through compelling a change in behaviour, by signalling commitment or simply via the imposition of costs. Sanctioners could also seek to restrict Russia’s ability to commit further breaches. The EU is the most vocal about the latter two objectives. It has stated that the aim of its measures is to “cripple the Kremlin’s ability to finance the war”, “diminish its economic base” and to “impose clear economic and political costs on Russia’s political elite responsible for invasion”. Daniel Drezner writes that the sanctioners appear driven to punish Russia for what it has done and warns that imposing costs should not be an end in and of itself. Rather, “[s]anctions should be a means to achieving a larger end”.

To the extent that sanctions are adopted as a tool to compel compliance with international obligations (though one should question whether or not they can actually change behaviour, given their poor track record), they need to be properly designed. This requires, inter alia, (i) the formulation of clear objectives, (ii) coordinated efforts amongst sanctioners and (iii) that Russia views the measures as legitimate. Each of these elements is discussed in turn below.

i. Sending clear signals

The target is unlikely to change its behavior if the sanctioner is pursuing unclear, or mixed, objectives. It is therefore important that the sanctioners communicate what the target needs to do in order for the measures to be lifted. The sanctions’ goals must also be politically achievable, in the sense that they must be something the target can realistically do. While sanctions have been imposed in response to Russia’s behavior in Ukraine, it is not clear which terms need to be met in order for them to be lifted. It is unrealistic, for instance, to expect Russia to withdraw from Crimea or to withdraw its recognition of the Donetsk and Luhansk regions as independent states. Moreover, Russia needs to believe the sanctioner is willing to lift the measures. If the objective is solely to impose costs, then the goal has been achieved and it does not matter what the target does. Defining the sanctions as economic warfare, Vladimir Putin has said sanctions would have been imposed on Russia in any case and has prepared the country to live with them in the long term, thus suggesting he doubts the West is willing to lift the measures.

Additionally, the EU sanctions include responses to issues that go beyond the current conflict in Ukraine. For instance, on 2 March, the Council of the EU explained that Russia Today and Sputnik will be suspended:

until the aggression to Ukraine is put to an end, and until the Russian Federation and its associated outlets cease to conduct disinformation and information manipulation actions against the EU and its member states.

Here the EU is responding not only to Russia’s actions against Ukraine but also to what it considers to be efforts to weaken the democratic institutions within EU member states through disinformation and manipulation. These mixed objectives further complicate reaching an agreement on the Ukrainian conflict that would lead to the lifting of the sanctions. After all, only a negotiated agreement will lead to the end of the war in Ukraine.

Finally, although ‘like-minded countries’ have joined forces to impose costs (as discussed below), they are sending confused signals as to their objectives. In response to a journalist’s question on whether the sanctions would deter Russia, President Joe Biden further muddied the waters:

Sanctions never deter. (…) the single most important thing is for the world to stay unified and for the world to focus on what a brute [President Putin] is, and all the innocent people’s lives being lost and ruined (here at 17’25 and 18’12).

During his speech in Warsaw on 26 March, the US President seemed to hint at regime change:

The international sanctions are sapping Russia’s strength, its ability to replenish its military and its ability to project power. And it is Putin, Vladimir Putin, who is to blame. (…) [T]his man cannot remain in power.

Secretary of State Blinken, however, clarified that the objective of the measures against Russia was not regime change. French President Macron also warned against inflammatory language that could lead to further escalation.

ii. Coordination

When conceptualized as an enforcement mechanism, sanctions are based on a rational choice approach to state behaviour. The rationale is that sanctions are able to shape behaviour by increasing the costs of wrongful behaviour, thereby manipulating the wrongdoing state’s cost-benefit analysis so that it chooses the less costly alternative. It follows that, in order to efficiently impose costs, sanctions should be adopted collectively and in a coordinated manner, especially as the target should not be able to circumvent the measures imposed on it.

Victor Szép has noted the “unmatched levels of sanctions coordination” amongst countries not only within Europe but also across continents in collectively imposing costs on Russia. Due to these combined efforts, Russia is currently under the most stringent sanctions regimes to date, which has been described as “a coordinated shutdown of a country’s economy”. Presently, however, there are reported disagreements amongst EU member states on whether or not to suspend the importation of Russian oil, a move that would be costly on the sanctioning countries and their populations as well. At the time of writing, sanctioners are concerned Russia will be able to compensate for the sanctions imposed upon it and avoid their pain by turning to other partners, such as China and India. US policy makers have threatened these states with secondary sanctions if they engage in trade with Russia (see also here). Trita Parsi writes that the West’s failure to acknowledge its own disregard of international rules helps explain why non-Western states, particularly those that have been on the receiving end of Western unilateralism, are not rallying to sanction Russia.

iii. Legitimacy

The problem of double standards is also relevant when discussing the sanctions’ legitimacy as perceived by the target. If the target views the measures as unfair or illegitimate then it will be less willing to engage with the sanctioners’ demands to see the measures lifted. With regard to the sanctions regime under consideration, if the goal is to signal commitment to international norms then the US, which has announced an oil embargo on Russia, has undermined this by turning to Venezuela and Saudi Arabia for oil.

Venezuela has been under US sanctions since 2015 for human rights violations, which have progressively intensified over the years. The US has not acknowledged Nicolás Maduro as Venezuela’s head of state and recognized Juan Guaidó instead. Yet, as the US aspires to wean itself off of Russian oil it has turned towards Venezuela instead (see also here), which is one of the few countries to have voted against the UNGA resolution and to have legally supported Russia’s intervention in Ukraine. Saudi Arabia has also not fully condemned Russia for its invasion of Ukraine and reportedly gave Washington the cold shoulder when it reached out. US-Saudi relations have somewhat cooled due to, amongst other disagreements, Biden’s reluctance to support the Saudi-led intervention in Yemen, which has caused a humanitarian crisis.

In other words, the defense of a ‘rules-based international order’ against Russia comes at the cost of defending said order in Venezuela and Saudi Arabia as sanctioners seek alternatives to afford the imposition of costs on Russia. Though the EU may not have reached out to Venezuela and Saudi Arabia, this lack of coordination with its ‘like-minded partner’ risks undermining its own efforts.

Conclusion

Presently there are calls for the EU to reduce its gas dependency on Russia so that it can impose harsher measures (see here, here and here) for its violations of international law in Ukraine. Europeans are asked to lower the thermostat and take shorter showers to make Putin pay (see here and here). Such appeals are made with little understanding of how these measures shape state behavior. As this brief commentary has shown, designing sanctions so that they effectively enforce international norms is very difficult to master, especially in the constantly shifting landscape of an international crisis. Sanctioners need to ensure they are coordinated and have support from other states, that they send clear signals and that they don’t undermine the legitimacy of their own measures. In my view, though the measures have succeeded in imposing costs on Russia, it has shown that it remains committed to its ‘Special Military Operation’ and is prepared to weather the storm. The question for sanctioners such as the EU is how long they are willing to commit to their restrictive measures and if they have other tools in their toolbox to defend the “rules-based international order”.

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Alexandra Hofer

About Alexandra Hofer

Alexandra Hofer is Assistant Professor in Public International Law at Utrecht University School of Law, Department of International and European Law. She is a member of the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE). Most of her research has focused on the utility of coercive practices, stigmatization and international punishment in enforcing international norms. She has published various articles and book chapters on the effectiveness and legality of the EU and US sanctions on Russia. For more information, see https://www.uu.nl/staff/ASHofer/Publications