Sergey Glandin addresses the issue of legal tools for lifting or easing anti-Russian sanctions available to the US President and Viktor Orban, who will chair the European Council until the end of 2024.
Joe Biden is out of the presidential race, sharply increasing Donald Trump’s chances of returning to the White House. The Republican candidate, unlike the administrations of Democratic Presidents Obama and Biden, is not a supporter of economic sanctions against Russia. Under him, unlike the two Democratic administrations, not so many sanctions were introduced in comparison with the volume that was introduced after the start of the Special Military Operation. Traditionally, the European Union, which is also pursuing an active policy of sanctions against Russia, is closely monitoring its American partner in terms of sanctions pressure.
In this regard, I will try to answer questions about the legal tools for lifting or easing anti-Russian sanctions available to the US President and Viktor Orban, who will chair the European Council until the end of 2024. We will talk about purely legal procedures, leaving aside political factors that obviously make the lifting or easing of sanctions extremely unlikely.
United States
As surprising as it may sound, the US President can lift the lion’s share of the anti-Russian sanctions imposed by the previous administration with a stroke of the pen; there is a legal mechanism for this. Let’s review the relevant US legislation, the International Emergency Economic Powers Act (IEEPA), which serves as the basis of all sanctions regimes. By virtue of its provisions, the president has the right to introduce an international state of emergency in the country to combat an unusual and extraordinary threat to national security, the economy, citizens, or foreign relations if the epicentre of this threat is entirely or largely located abroad. The state of emergency is introduced by an executive order, which also lists the methods and means of such a fight.
November 14 of this year will mark the 45th anniversary of the first application of this law — Jimmy Carter’s Order declaring an international emergency after the seizure of the American diplomatic mission in Tehran. At that time, all American banks and business entities were ordered to freeze the assets of the government, the Central Bank and other state and quasi-state structures of Iran.
The first anti-Russian decree of Barack Obama from March 6, 2014 was also adopted under the IEEPA.
As we know, all anti-Russian sanctions are imposed by the current administration under Executive Order 14024. On April 15, 2021, by this order, Joe Biden introduced an emergency situation in the United States due to threats of “Harmful Foreign Activities of the Government of the Russian Federation.” Thus, three months after his inauguration, the 46th President of the United States responded to the vulnerability of the internal information systems of a number of US executive bodies, related to SolarWinds' software. According to unfounded claims by the American authorities, hackers associated with the Russian Foreign Intelligence Service are behind it. Personal and sectoral sanctions were used in response to threats from malicious activities.
If Donald Trump terminates the new national emergency declared via Executive Order 14024, then all those included in the SDN on its grounds will be excluded. This also applies to sectoral sanctions. The sanctions imposed by the Obama administration with respect to the Ukrainian issue, digital security and other issues will remain.
There are quite a few precedents for such cancellations. Thus, Biden, already in the first months of his presidency, cancelled Trump’s executive order on sanctions against judges and functionaries of the International Criminal Court. The latest example is dated March 4 of this year, when Biden cancelled the international emergency in the United States due to the situation in Zimbabwe, introduced 21 years ago by Executive Order 13288. All those included in the SDN on its grounds were excluded.
European Union
In the European Union, sanctions fall under the Common Foreign and Security Policy (CFSP). This is Title 5, Chapter 2 of the Treaty on the EU (TEU). By virtue of Article 29, the Council of the EU has the power to take decisions determining the position of the Union on individual issues of a geographical or thematic nature. On this basis, on 17 March 2014, Decision 145 and Regulation 269 on sanctions against Russia were adopted. At that time, all 28 member states of the EU voted for this decision. Article 6 of the Decision specifies its validity period — only six months, until September 17, 2014. On that date, the acts were extended for another six months, so their validity is extended twice a year: every mid-September and mid-March. Other sanctions regimes against Russia are also extended.
In the second half of 2024, Hungary holds the Presidency of the EU Council. The President determines the agenda, holds meetings and votes. EU Council meetings were held on September 12-13 with an agenda on extending the blocking anti-Russian sanctions until mid-March next year. Article 31 of the TEU requires unanimity when making such decisions, that is, for all EU member states to vote in favour.
Let us imagine Hungary’s demarche and its vote against the agenda item on extending the blocking anti-Russian sanctions. Legally, Decision 145 would cease to be effective. Following this, Regulation 269 would also lose its force. All those included in the list on their grounds would be exempt from the blocking sanctions. Of course, there were few reasons to believe in such a demarche this year. Thus, on July 22, Hungary, already holding the EU presidency, together with the other 26 member states of the bloc, unanimously extended the sectoral sanctions against Russia until January 31, 2025, and also supported all other decisions of the EU Council on sanctions against Russia. But if Trump wins the election and after his inauguration cancels Biden’s Order 14024, Hungary may quite openly follow the same path and vote against another extension of one of the anti-Russian sanctions packages. There are no political grounds for such steps in the current conditions, but the legal mechanisms for making decisions on sanctions in the US and the EU should be taken into account.
