View From Yale: Will Trump Lift US Sanctions Against Russia? (Benjamin Alter)

February 3, 2017

Will Trump Lift U.S. Sanctions Against Russia?

Why Doing So Would Weaken International Law

This article was originally published in Foreign Affairs on January 27, 2017.

“If Russia is really helping us,” U.S. President-elect Donald Trump said in an interview the week before his inauguration, “why would anybody have sanctions if somebody’s doing some really great things?” True to his word, the president is now considering steps that would unilaterally remove at least some of the sanctions that the United States imposed on Russia in the wake of its 2014 annexation of Crimea. 

Trump is certainly entitled to seek better relations with Russia, and lifting the sanctions might help get him there. For a president who campaigned on promises of joining with Moscow to fight terrorism and repeatedly praised Russian President Vladimir Putin, such a move would not be a surprise.

But it would be a mistake. For one thing, it defies the logic of sanctions to lift them without any changes in Russia’s approach to Crimea. The point of sanctions, after all, is not to merely punish an adversary but to compel it to change its behavior.

More serious, however, is the damage that removing sanctions would do to international law. The sanctions represented a novel attempt to enforce this body of law—to give teeth to often ignored prohibitions and to impose meaningful costs on the most powerful of lawbreakers. Lifting sanctions without any change in Russian behavior would send the message that illegal conquest carries no significant penalty, and it would mark another blow to a rules-based international order.

THE ENFORCERS

Russia’s seizure of Crimea violated two core principles of international law: the UN Charter’s prohibition on the threat or use of force, and, perhaps more important, the sanctity of the postwar territorial settlement. From time to time, powerful states do get away with using force outside an international legal framework. (The U.S. invasion of Iraq comes to mind.) But because Russia, in a naked act of conquest, sought to redraw established borders, its annexation of Crimea represented a far more serious breach of international law.

Yet even as the magnitude of Russia’s breach became clear, there appeared to be little recourse. A nuclear-armed power with a Security Council veto had just grabbed territory close to its borders from a weak state that did not enjoy the protection of formal alliances. With a coordinated response at the UN off the table, and with Ukraine’s international supporters unwilling to contest Putin’s land grab with force, international law seemed powerless. (As the University of Chicago professor Eric Posner, a skeptic about international law, noted in a two-line blog post, “1. Russia’s military intervention in Ukraine violates international law. 2. No one is going to do anything about it.”)

But the story did not end there. Following a decision by the UN General Assembly to denounce Russia’s aggression and refuse to recognize Crimea as part of Russia, a powerful ad hoc coalition banded together to penalize Russia. These countries, including Australia, Canada, Japan, Norway, the United States, and the 28 European Union members, imposed a wide range of economic sanctions on Russian and Ukrainian individuals and entities responsible for the conflict. 

The Russia sanctions program was explicitly justified and designed as a way to enforce international law. The day after Crimeans voted to secede from Ukraine in a sham referendum, U.S. President Barack Obama declared that “the referendum in Crimea was a clear violation of … international law,” and that “international law must be upheld.” That week, Herman van Rompuy, the president of the European Council, noted that “Russia’s annexation of Crimea and Sevastopol is a clear violation of Ukrainian sovereignty and of international law…. There is no place for the use of force and coercion to change borders on the European continent in the twenty-first century.”

The sanctions came in several forms. At the outset of the crisis in March 2014, the United States and the EU imposed a set of travel bans and asset freezes targeting Putin’s cronies as well as individuals responsible for the annexation. Over the subsequent months, as violence spread beyond Crimea to the Donbas region of Eastern Ukraine, the United States and Europe threatened massive costs to the Russian economy in hopes of encouraging Moscow to de-escalate. The toughest sanctions came in July and September 2014, after Russian-backed separatists in Ukraine downed a civilian airliner, killing more than 200 EU citizens. These sanctions strictly limited the terms by which Americans and Europeans could transact with the Russian defense, energy, and finance sectors. Coupled with a collapse in global oil prices, these so-called sectoral sanctions hit the Russian economy hard. With falling wages, high borrowing costs, and unprecedented capital flight, Russia’s GDP contracted by 3.8 percent in 2015.

Another set of sanctions focused on Putin’s efforts to incorporate Crimea into the Russian Federation, giving practical effect to the West’s policy of nonrecognition. These sanctions, more than previous ones, represented an attempt to enforce international law, since their purpose was to deny Russia the fruits of its illegal conquest. “If you bite off a piece of another country,” warned Victoria Nuland, a U.S. assistant secretary of state who helped spearhead the sanctions campaign, “it will dry up in your mouth.” 

To give weight to those words, the sanctions blocked nearly all U.S. and EU trade with and investment in Crimea. They also singled out individual companies and individuals who were working to integrate Crimea into Russia, making it impossible for those entities to do business with Americans or Europeans. As a result, the sanctions delayed Putin’s attempts to build a bridge across the Kerch Strait; forced an airline to stop ferrying passengers between Crimea and Moscow; and restricted sea transport, for both commerce and tourism, in and out of Crimean ports. These sanctions forestalled and frustrated the integration of Crimea, making an already cash-strapped Russian government expend additional resources on propping up the peninsula. 

By making Putin’s breach of international law costlier and less effective, would-be conquerors were put on notice.  

A BAD DEAL

The success of the sanctions as a tool of enforcing international law should not be overstated. Although sanctions imposed dramatic costs on the Russian economy, Crimea remains firmly in Russia’s grasp and Moscow shows no signs of letting go. Moreover, ad hoc sanctions—that is, those imposed on the basis of a handful of states’ voluntary decisions—will not always be available as a means of enforcing international law. Generally, they will succeed only if a coalition of states with economic clout decides that it is in their political and economic interests to impose sanctions, as was the case here. If only a small or weak group of states opts to use sanctions, the target state can skirt meaningful costs by trading more with states outside the sanctioning coalition.

Still, the Russia sanctions represent a promising example of how international law can be made more effective. In a situation where no international court or any other formal organization was able to penalize Russia, a voluntary coalition of states made clear that blatant violations carry consequences, no matter how powerful the violator. To the extent that they forestalled Russia’s efforts to make Crimea its own, the sanctions reinforced the international norm against territorial conquest and may have encouraged future aggressors to think twice. 

That is why Trump’s unilateral abandonment of the sanctions would send such a dispiriting message. To U.S. allies in Europe, which took on significant economic risks in joining the sanctions coalition, it would spell a major retreat from cooperation. To Russia, it would signal that the United States will let it get away with conquest in its neighborhood. And to the rest of the world, it would reinforce the perception—too often correct—that violating international law carries no penalty. 

If the new administration is prepared to keep some of the sanctions, it should at least keep the Crimea-specific ones. To lift those while the Russian flag flies over Simferopol would deal the largest blow to the international order. But if Trump fancies himself a dealmaker, none of the sanctions should be lifted without concrete Russian commitments. Good deals come from leverage. This early in the game, it would be a grave mistake to throw away the United States’ best bargaining chip. 

Benjamin Alter is a J.D. Candidate at Yale Law School. In 2014–15, he was Special Adviser to the Under Secretary of the Treasury for Terrorism and Financial Intelligence.