1. President of the Russian Association of International Law
Institute for East European Law Kiel University Academy of Administration in Bordesholm International Conference Legal Position of Non-Recognized States in the Post-Soviet Space Under International Trade Law, Private International Law and International Civil Procedure
Topic:
Sanctions regimes and non-recognized States in the region: some considerations in the light of Russian legislative practice
Anatoly Kapustin
Professor, Doctor Hab., Deputy Director of the Institute of Legislation and Comparative Law Research under the Government of Russian Federation,
President of the Russian Association of International Law

2. Sanctions regimes and non-recognized States in the region: some considerations in the light of Russian legislative practice
Outline
1. Meaning of the used terms under public international law
1.1. “Non-recognized State”
1.2. “Sanctions regime”

3.  2. Types of lawful sanctions regimes
2.1. Measures taken by the UN Security Council under Chapter VII of the UN Charter
2.2. Measures of international responsibility (countermeasures) – applied in case of internationally wrongful act
2.3. Unilateral measures of States or regional international organizations as a means of political pressure on other State(s)
2.4. Retortions against unfriendly acts of States and regional international organizations
3.Position of the Russian Federation regarding sanctions regimes
4. Conclusion

4. 1. Meaning of the used terms under public international law
1.1. “Non-recognized State”
no clear legal meaning
consists of two elements:
a State – no clear legal meaning, too. Some definitions in legal and political doctrine
Non-recognized – a State that has not gained recognition from other States of international community. This is a political entity that has all necessary features of a State, but it does not possess legal rights of a subject of public international law
Various public international law qualifications of a political entity
Historical predecessors: national liberation movements, States at a time of implementation of a right to self-determination.
Non-recognized States (NRS) can be considered as “non-state actors”
1. Meaning of the used terms under public international law

5. 1. Meaning of the used terms under public international law
1.2. “Sanctions regime”
The term “regime” is widely used in public international law (law of the sea, air law, trade law etc.)
International legal regime is based on the international legal acts, it affects rights and obligations of a State and the international legal order in total.
There is no presumption of (il-)legality or (il-)legitimacy of a legal regime in international law, it has to be established ad hoc.
The term “sanctions” has several legal meanings.
UN Charter, UN ILC Draft Articles on State Responsibility, other relevant international documents do not contain a definition of sanctions.
“Sanctions regime” is a body of legal rules regulating a certain field of international relations by legal means for achieving specific set of goals
“Sanctions regime” is established by acts of international organizations, domestic laws.
1. Meaning of the used terms under public international law

6. 2. Types of lawful sanctions regimes
2.1. Measures taken by the UN Security Council under Chapter VII of the UN Charter
UN SC (Chapter VII of the UN Charter)
employs measures not involving the use of armed force or involving air, sea, or land forces
to maintain or restore international peace and security
against a State, terrorist group and individuals for committing or involvement in terrorist attacks
2.2. Measures of international responsibility (or countermeasures as they are named in the Draft Articles on State Responsibility) – applied in case of internationally wrongful act
lawfulness is based upon PIL rules for responsibility for wrongful acts
Not applicable to NRS
2.3. Unilateral measures of States or regional international organizations as a means of political pressure on another State(s)
lawfulness is questionable, but they are not expressly prohibited
2.4. Retortions against unfriendly acts of States and regional international organizations
lawful
2. Types of lawful sanctions regimes

7. 3. Position of the Russian Federation regarding sanctions regimes
Official position regarding sanctions regimes and NRS
The Foreign Policy Concept of the RF 30 November 2016.
sanctions: paras. 26 (e.) and 40 (e.):
1. to continue efforts to improve the UN sanctions mechanism, decisions to impose such sanctions should be taken by the UN Security Council jointly
2. to contribute to eliminating from international relations illegal, unilateral coercive measures adopted in violation of the UN Charter and other norms of international law;
3. in accordance with international norms and principles, to adopt the necessary trade policy measures to protect national interests and effectively respond to unfriendly economic actions by foreign States that infringe upon the rights of the Russian Federation or Russian business entities;
NRS in the region:
Russia undertakes to make every effort to promote political and diplomatic settlement of the conflicts on the post-Soviet space
No specific provisions on trade or other policy in regards to NRS of the region.
3. Position of the Russian Federation regarding sanctions regimes

8. 3. Position of the Russian Federation regarding sanctions regimes
Russian legislation
Restrictive measures (retortions) against discriminatory measures
Art Civil Code of the RF
Art. 40 ‘Retortion’ of the Federal Law dated 8 December 2003 No. 164-FZ “On the fundamentals of the government regulation of foreign trade activity”
Federal Law dated 30 December 2006 No. 81-FZ “On special economic measures”:
A) internationally wrongful act
B) unfriendly act that pose threat to interests and security of the Russian Federation and (or) violating rights and freedoms of its citizens
C) in accordance with the UNSC Resolutions
Including several prohibitions. Special economic measures are temporal.
No reference to NRS
3. Position of the Russian Federation regarding sanctions regimes

9. 3. Position of the Russian Federation regarding sanctions regimes
Federal Law dated 4 June 2018 No. 127-FZ “On impact (counter-) measures against unfriendly acts of United States of America and other foreign States”.
Against – the USA and other foreign States, committing unfriendly acts vis-à-vis the Russian Federation, Russian citizens and legal persons
Examples: termination or suspension of international cooperation of RF, Russian legal persons with the unfriendly foreign States and organizations under the jurisdiction of such States.
The term “unfriendly foreign States” is not applicable to NRS.
Humanitarian assistance to citizens of certain territories
Presidential Order No. 74 dated 18 February 2017 “On recognition in the Russian Federation documents and registered signs of vehicles, issued to Ukrainian citizens permanently residing in the certain districts of Donetsk and Lugansk regions”.
These documents are recognized temporary (until political stabilization is achieved) as valid
3. Position of the Russian Federation regarding sanctions regimes

10. The high political severity prevents the international community from regulating the status of NRS and sanctions regimes in the context of NRS. The Russian sanctions policy does not expressly involve territory of NRS, their natural and legal persons.
Human rights protection is a separate issue, regulated by universally-recognized principles and rules of international human rights law and the Constitution of the Russian Federation
Russia has provisionally recognized the documents of personal character, inter alia for the purposes of entering its territory by citizens and stateless persons, if those documents are issued by respective de facto authorities of NRS
But this may not be considered as de facto or de jure recognition of such authorities as representatives of separate independent States.
There is a need to draft an international legal instrument with minimal human rights guarantees for persons residing in the territories of non-recognized States, including those falling under the sanctions regimes of certain States and regional international organizations.
4. Conclusion