11 März 2022

Sanctions for Abramovich, but Schröder Goes Scot-Free

Linking Sanctions, Citizenship, the Rule of Law and the Values of the European Union

Sanctions in reaction to the terrible war in Ukraine are deployed at full speed. The March 12 Stravinsky weekend at the Haarlem Philharmonic was cancelled because of the war in Ukraine, the German Academic Exchange Service (DAAD) called into question all the scholarships and stipends awarded to Russian citizens, multi-million dollar yachts of the Russian elites are impounded (or sunk) all around Europe. While DAAD apologized, Haarlem is standing firm against the greatest French-American composer of the 20th century born as a Russian Imperial subject into a noble Polish family of landowners in what is now Ukraine. The mass confiscation of Russian property and assets has already been likened to Henry VIII’s seizure of the Church lands – ‘probably the largest inter-state transfer of wealth in history’: The assets already seized are estimated at half a trillion dollars and counting. The criminal war in Ukraine is going on and someone has to be cancelled – why not Stravinsky? Next to the late maestro whose ‘Russianness’ is a problem in Haarlem, a whole array of Russian physical and legal persons is on the ever-expanding sanctions list, including the Central Bank, as explained with clarity in the recent EU Law Live ‘Weekend Edition’. Time will tell what the implications of the sanctions will be for the murderous Putin regime and the war it started, as well as for the millions of Russians who strongly oppose war.

What is the role of citizenship – Russian and European – in the context of the deployment and operation of the sanctions? Those, who appear on the sanctions lists suffer the devastating effects of Council’s foreign policy measures, which aim to cancel outright a large share of their rights, be it the right to property, privacy, freedom of travel, family life and countless others guaranteed under the Treaties, the Charter and national constitutions. The question is far from trivial. Indeed, effective rights-focused judicial review of such measures is very weak, allowing the matters of foreign policy and perceived political expediency and retribution to override core constitutional principles and guarantees of the European legal systems at all levels. Let us start with history, to understand what is going on and give it a legal assessment.

From ‘Enemy aliens’ to human rights

As Daniela Caglioti describes in War and Citizenship, the ‘classical’ approach in war time until recently has been to punish ‘enemy aliens’, i.e., all the holders of the nationalities of the countries on the opposing side. Not only were they interned in camps, with their assets taken, also their naturalizations were frequently annulled and family members mistreated. By definition no connection to the war beyond ‘enemy’ citizenship (either active, or held in the past, like with Mr. Nottebohm) was required, resulting in overwhelming suffering, including for those simultaneously persecuted also by the ‘enemy’ regime. While citizenship played the core role here, so did racism and ethnic profiling: Japanese Americans were interned in camps by Roosevelt and Volga Germans mistreated by Stalin. France denaturalized ‘foreign’ Jews.

Since the founding of the United Nations and the ‘invention of peace’ as the starting given of international relations, the praise for guilt by association gave way to the idea of the safeguard of individual rights. Citizenship emerged as an abstract legal status of attachment to an authority, which does not necessary produce, at least in law, an incriminating effect, as was the case before. Moreover, recognizing women as full citizens in Western law in the second half of the 20th century, gave a huge boost to the cases of multiple nationality and its widespread toleration, as Peter Spiro described. Add to this the move from the ‘culture of authority’ to the ‘culture of justification’, which made mass arbitrary actions constitutionally questionable in modern liberal democracies and played a role in removing ‘duties’ from the citizenship menu: the outline of the recent transformations of relevance for us to keep in mind is complete. Although still essentially nationalist, to agree with Bosniak, modern constitutionalism sells itself as an individualist idea, which precludes the guilt by association based on citizenship or ethnicity by default and cherishes and often protects overlapping identities. The very existence of EU citizenship which is additional to the nationalities of the Member States is a good illustration of this reality, however oxymoronic its practical implications for those brought down by it, as O’Brien also outlines.

Consequently, unlike the world of the past, which Caglioti explored, citizenships today are overlapping, as well as thinner and less punishing: the concept of an ‘enemy alien’ is not kosher any more. Instead of blaming the whole ‘people’, whomever it might include, for the war, we moved closer to the complexities of the lived social reality and sanction specific companies and individuals seen as co-responsible, at least to some degree, for the atrocities. In practice this means a whole lot of things, as one can be put on the sanctions list and see all crucial rights annihilated by virtue of one’s office, as a result of wealth and purported influence and, of course, as a reaction to direct military, economic and political activity fueling the war, like the deputies of the Russian Duma, who voted to ‘recognise’ the ‘independence’ of the East of Ukraine occupied by Russian thugs with direct support of Putin’s military since 2014. While the connection between the criminal actions of the regime and someone’s activities is desirable, to end up de jure or de facto sanctioned, it is not required, as we have seen with Stravinsky in Haarlem, or, the treatment of Syrians, Iranians, and Afghanis world-wide, whose remarkably low quality citizenship gives them a worse deal outright than even the Russians under sanctions. The Commission instructs former colonies not to consider applicants for naturalization from such places, directly exporting ethnic profiling and discrimination, as most recently in the case of Vanuatu.

And back: Weak Rule of Law guarantees in the face of ever expanding sanctions lists

Absent official guilt by association, the political demand for ever broader sanctions seems to be huge, even in the atmosphere where the war started by Putin could be interpreted, precisely, as a sign of absolute powerlessness of the oligarchs and the middle class in the face of Putin’s ‘siloviki’, as Christo Grozdev, but also Branko Milanovic argued. Being sanctioned means that virtually all the core rights, substantive, but also procedural – the sacred cows of Western constitutionalism – get instantly switched off. From the freedom of travel to the basic right of enjoying one’s possessions, family life and, crucially, due process of law, since the scrutiny applied to sanctioning decisions is such that the Council is de facto given a carte blanche to switch off the protections of the national constitutions and primary law even for those who are the citizens of the EU, let alone other ‘Russians’ (see below). The General Court in Mayaleh v. Council has been very receptive to the arguments that Council decisions are lex specialis next to all other instruments (at 198). Tragically, switching off crucial rights via a political decision enjoyed only a rudimentary scrutiny (Id, at 127).

Worse still, even when that standard is not met and the Council loses a case in front of the General Court, it appears that the Council cares little about the EU’s judiciary, as a new decision can be adopted, on the same grounds, to replace the unlawful one. The same can then be repeated over and over again. Such lawlessness game illustrating the absence of de facto remedies against abuse by the Council can be illustrated by the numerous Yanukovich v. Council cases, raising significant doubts concerning the effectiveness of judicial review of Council’s Decisions even beyond the low level of scrutiny adopted by the General Court. Leaving the ECtHR out of the picture, where Arts 1 of the 1st Protocol, as well as 6, 8 and 13 ECHR are of crucial relevance, the EU legal system sensu stricto does not seem to offer effective judicial remedies against the arbitrary use of sanctioning powers by the Council, bringing the EU legal system dangerously close to the early 20th century guilt-by-association ideals. This especially concerns the current scale of sanctions unleashed in response to the criminal war started by Putin’s regime in Ukraine.

Who are the ‘Russians’?

Once the sanctions are introduced, moreover, we learn that plenty of the ‘Russians’, who are of course a multi-ethnic bunch, from Uzbeks to Jews and Tyvans, turn out to be our own, EU citizens too. The geography of allegiances is as broad as of ethnicities: Abramovich is Portuguese, Aven is Latvian, Timchenko is a Finn. In the modern world where Depardieu is Russian and Vladimir Ashkenazi is an Icelander, learning this is not surprising at all: the usual pluralist complexity of citizenship world prevails, where the status depends on countless factors and is absolutely arbitrary by default. This is not terrible news, as it helps those fleeing the regime, like the Kittitian founder of Telegram Pavel Durov. The same arbitrariness can take shady sides too: the notorious chevalier de mérite agricole Arkady Gaidamak is an Angolan Israeli with French and Canadian passports.

As the current sanctions operate, the possession of a Russian citizenship (even if next to a European, Israeli, or any other passport) seems to be a must, which could explain why the German businessman Gerhard Schröder, who still sits on Gazprom board, where he replaced Nazarbayev’s son-in-law, or the Dutch Jorrit Faassen, Putin’s son-in-law, are not on the sanctions list, having contributed to the war in the same way – if not more – than many of the individuals already sanctioned.

Be it as it may, all the Russian citizens who are under sanctions, who are also EU citizens are as much ‘Europeans’ in the eyes of the law as any other. While discrimination on the basis of the ground of acquisition of nationality is prohibited in the EU, EU citizenships of Putin’s elites are acquired based on all kinds of grounds – from marriage and residence in an EU country, to ancestry and investments. The mortal enemies of any particular ground of acquisition, like Ana Gomes MEP, with her dislike of naturalizations by investment, have to concede a basic point: given citizenship’s necessarily random nature, protecting the myth that the boundaries of citizenry are ‘just’ can only lead to rejoicing in passport apartheid and decrying, as Gomes does, that someone is the ‘wrong Jew’. Clearly, the Portuguese citizenship in reparation for the injustices vis-à-vis the Sephardic community hundreds of years ago was not intended for the ‘Russians’ like Abramovich! Blood lines are not just, however, unless you are a racist, which makes Miss Gomes’ story a funny one.

Sanctions against EU’s own ‘Russians’?

But here we come to the main problem: the sanctions applied against EU citizens in the face of the levels of scrutiny, which de facto make strict rights-based review impossible – even if the Council manages to lose anyway, as in Yanukovich cases, showcasing the Rule of Law problems at the heart of EU’s approach to checking power – when applied to our own citizens (even if the ethnicity and origins selection is still deeply biased) erode the very essence of the Union based on the values of Article 2 TEU, including, in particular the Rule of Law and the protection of human rights.

Worse still, the rare case-law of the General Court on dual EU-third country nationals under sanctions is extremely problematic, as the General Court bows in front of the Council and misuses Art 21(1) TFEU to put Council decisions on sanctions above the essence of EU citizenship status and the rights connected therewith (Mayaleh, para 198). The fight for our rights thus stops at the moment when the Council decides to put a name on the list and whatever reason seems to count beyond, as we learnt from Yanukovich cases, prosecution by Ukrainian authorities, which was a reason found wanting in those cases.

This is an upsetting departure from treating EU citizenship as a fundamental status of the nationals of the Member States. The departure is not new, however, as the Court has been consistently punishing ‘impure’ EU citizens, using the pretext of possessing another nationality as a justification for outright mistreatment. This is what clearly follows from the shameful decision in Tjebbes that explained to the Dutch Moroccans that they do not exist as equals in the eyes of EU law, introducing precarity as the core principle of EU citizenship law as applied to dual nationals, as explained by Swider, to the recent decision in JY, where the necessity to be only European, was clearly implied. Be it as it may, Tjebbes and Mayaleh read together demonstrate that crucial rights of EU citizenship can be removed by a poorly motivated Council decision is the absence of serious judicial review, as only the right to enter the Member State of nationality remains, which is not subject to EU law (Mayaleh, para. 185). Worse still, Yanukovich shows that even if the Council fails the most rudimentary scrutiny, this will most likely result in no restauration of rights, as the Council cares little about the General Court, which is of course true of the Court in general, as Butler and I demonstrated. It is thus necessary to be critical, rather than merely descriptive, when analyzing what is going on.

Sanctions vs core values of EU law: a difficult balance?

The legal-political reality described above weakens the edifice of EU law as a modern rights-based constitutional system rooted in the Rule of Law, pushing it closer to the ideal implying the punishment of ‘enemy aliens’, yet moving a step further: the enemies are now also us, EU citizens. Quoting Enzensberger, Ivan Krastev warns in the NYT of the world incapable to distinguish between ‘destruction and self-destruction’: lighthearted dismissal of vital rights and Rule of Law guarantees in difficult times could signify the latter and has a significant potential to do harm.