August 3, 2017 – Fort Russ News
–Deutsche Wirtschafts Nachrichten, translated by Tom Winter –
Translator note: the statement of the German government is followed by a series of comments by German legal scholars. I hope I have made the legalese intelligible…
The Federal Government sees a violation of international law in the US Sanctions Act against Russia that US President Donald Trump signed on August 2, 2017, a spokesman for the Federal Ministry of Economics and Technology (BMWI) told Deutsche Wirtschafts Nachrichten:
“The law on Russia’s actions involves “extraterritorial sanctions.” Extraterritorial sanctions have an impact on actions taken outside the territory of the United States, by nationals/companies of other countries, which have no reference to US sovereignty (so-called secondary sanctions).
“Such extraterritorial sanctions can also hit energy companies in Germany and Europe. In our opinion, extraterritorial sanctions are contrary to international law. We therefore reject them.
“The law grants the US president certain room for maneuver. The Allied authorities, in particular the EU, are also to be consulted prior to the imposition of sanctions. We are always ready for a dialogue. A good signal is that Foreign Minister Tillerson expects to speak with the European partners.
“If the US actually imposes extraterritorial sanctions, it is up to the European Union to consider what appropriate responses to take. For this, we are in exchange with the EU Commission. The extent to which German companies will be affected depends on the specific measures the US is taking. We can not prognosticate that.”
Ciarán Burke, Professor of International Law at the Friedrich Schiller University of Jena, explains the problems of international law in his conversation with the German Economic News. And here it becomes clear that international law only provides a limited measure against US sanctions.
In the first place, the problem begins with the question of whether the US is at all entitled to impose sanctions. Burke: “Nonviolent countermeasures are, as a matter of principle, accepted as a response from a state to a violation of international law by another state, and have received recognition from the International Court of Justice (ICH) and the International Law Commission. Countermeasures are permissible under the following conditions: The preceding act of the addressee contrary to international law, the prior warning of the addressee before the taking of countermeasures, the counter-measure is directed to the effect of restoring the lawfulness, appropriateness of the measure.
“The USA refers to annexation of The Crimea, which, if it had been such, would constitute a violation of international law. However, there is also another point of view: namely, that the majority of the Crimean population used their right to self-determination and that, therefore, when the Crimea joined the Russian Federation was not a violation of international law.
But the new US sanctions do not only affect Russia. Burke:
“The question of the legality of countermeasures that harm third parties has arisen with the recent US sanctions against Russia of 12 June 2017, which have been raised concern and counter-reaction within the EU in France, Germany, and the EU itself should they be harmed by the sanctions.
“Provided that the sanctions of the United States against Russia are lawful, the question arises as to what effect they have against third parties. According to Article 22 of the ARS, unlawfulness under international law is excluded in the case of legal counter-measures; Actually unlawful acts thus become lawful acts. However, this only applies in relation to the first state.
“If countermeasures therefore affect the rights of third states, the illegality is not excluded. This would result in a compensation obligation for the reacting state. The exclusion is only an indirect violation or an impairment, which is only a consequence of the measures against the addressee of the reprisal.
Another issue is the restriction of the pure interests of other states, to which there is no legal redress, which should not be violated by international law.
The commentary on the articles on the responsibility of the state also refer to the indirect consequences of international trade. “
The possibilities for Europeans to defend themselves against the sanctions are therefore limited: the energy war between the USA and Russia is mainly about interests. The position of the EU should also be argued that it is about legal positions and not just about interests. Although the companies involved in the Nord Stream 2 pipeline can claim their contractual rights and demand compensation, these procedures are usually lengthy, expensive and dependent on the political climate.
This is not clear in the case of Russia: some states such as the Baltic States and the Poles are for a hard procedure. The Nord Stream 2 pipeline is sceptically viewed by most countries – they see it as just for Germany. Especially in the aftermath of the Greek and refugee crises, the willingness to accommodate Germany is rather moderate in Eastern Europe.
In addition, some Eastern Europeans, such as the Poles, are firmly in the transatlantic camp: US President Trump had visited Warsaw before joining the G20 summit and spoke with the Polish government about close cooperation in the energy sector. The Poles are against Nord Stream 2, because they themselves want to become a European energy hub and want to have the lucrative transit charges associated with it.
The EU Commission also has little scope to make it all right. According to Reuters, Jean-Claude Juncker was therefore “fundamentally satisfied” that US law had been “defused” by the EU. The threat of counter-attacks now, as the facts lie on the table, sounds less energetic than a few days ago. Juncker according to Reuters: “If European interests are not taken into account, the EU reserves the right to countermeasures.”
Prof. Dr. Hans-Georg Dederer, professor of international law from the University of Passau, told the German Economic News:
International law does not generally prohibit the US from subjecting foreign companies and their activities abroad to their own US laws. However, international law sets limits on “extraterritorial” regulatory powers of the US legislature. The exact determination of these limits is difficult. It is considered to be sufficient that the US sanctioning legislation extending to foreign matters has a reasonable and appropriate connection. Such a connection would missing if:
– A territorial link (to the US state) should not be shown because, and insofar as the foreign companies are active abroad in connection with the Russian energy projects, and this foreign activity does not have any significant, significant or direct effects in the United States ,
– A personal connection (due to US citizenship or status) should not be represented either because and insofar as the foreign companies affected by the US sanctions do not have US nationality and the US sanctions are not the protection of persons or companies with US citizenship or status.
– A link to the protection of essential public (for example, security) interests of the United States could not be shown, because and as far as the sanctions are on Russia for its conduct in connection with the Ukraine crisis (Eastern Ukraine, Crimea). One could still think about the protection of the interior democratic will in the USA from the influence of Russia. However, the extent to which the participation of foreign companies in Russian energy projects as such could directly and seriously jeopardize this (undoubtedly essential) public concern of the USA is unlikely.
Even if an intelligible, appropriate connection of the “extraterritorial,” that is, Foreign law, the international assessment must be differentiated:
– To the extent that there is no wise, reasonable connection, the US sanctioning regulation would in itself be regarded as contrary to international law. However, the problem of international law may have been defused to in that the US sanctions legislation of the US executive obviously provides certain scope, e.g. In the determination of the legal grounds which trigger the penalties or in deciding whether and how a sanctioning authorization should be exercised. Such gaps could be used by the US executive in some cases to avoid violations of international law, or if important trade partners (such as the EU) do not see any reason to defend themselves.