Legality of countermeasures to foreign sanctions

A new Anti-sanction Law was passed by the Standing Committee of the National People’s Congress on June 10. It is an opportune time for me to share with you some thoughts on this topic.

Sovereign equality and the principle of non-intervention

From the international law perspective, sovereign equality is a basic norm of international relations and a fundamental principle of international law, with the Charter of the United Nations (UN) expressly setting out this principle1, adding that nothing contained in the Charter shall authorise the UN to “intervene in matters which are essentially within the domestic jurisdiction of any state2”.

The principle of non-intervention is an important concept central to sovereign equality. The United Nations General Assembly unanimously adopted in 1970 the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” (“Friendly Relations Declaration”), which declares, among others, that “[n]o State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law”. The International Court of Justice in its judgment3 in 1986 reaffirmed non-intervention as a principle of customary international law.

Sanctions by the UN

Under international law, sanctions should be brought only in very limited circumstances which constitute a threat to international peace and security, such as dealing with terrorism or nuclear proliferation, etc., and in an appropriate forum, which is the UN Security Council. When instructed by the Central People’s Government to implement any UN sanctions, the HKSAR Government would make regulations under the United Nations Sanctions Ordinance (Cap. 537) to give effect to the relevant instruction. This mechanism has been in place for years and by which we have implemented a number of UN sanctions in the HKSAR.

Unilateral coercive measures

Other so-called “sanctions” without the authorisation of the UN Security Council, better described as unilateral coercive measures, are contrary to international law and the UN framework, and most importantly violate the principle of non-intervention under international law.

We can see examples where States unilaterally impose coercive measures on other States or individuals with a view to exerting coercion or achieving implicit subjugation. Evidently, these are done with a political motive in mind, intending to suppress the actions of the effected State or individual, and trying to interfere with the internal affairs or exercise of sovereign power of the State. For example, following the enactment of the National Security Law, a number of foreign countries imposed unilateral coercive measures on government officials of the PRC and the HKSAR, suspending surrender of fugitive offenders agreements, and revoking Hong Kong’s special trading status as a separate customs territory and relabeling of exports from Hong Kong.

Measures that have not been taken with authorisation of the United Nations Security Council are “unilateral coercive measures”, breaching the international law principles of sovereign equality and non-intervention, and a major barrier to international peace and stability.

Countermeasures taken in response to unilateral coercive measures

Unilateral coercive measures are without a doubt at odds with the principle of non-intervention, unbecoming of any civilised nation, and a hindrance to international peace and stability. In the face of international illegal acts, a State is justified in deploying any countermeasures as a response to a breach of the principle of non-intervention against itself. Such countermeasures are an accepted practice under international law, and the rules on their use have been formulated under international instruments, notably the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ILC’s Draft Articles) adopted by the International Law Commission in 2001.

In accordance with the ILC’s Draft Articles, a State that is subjected to unilateral coercive measures would be entitled to impose countermeasures as set out under Article 22 of the ILC’s Draft Articles. The ILC’s Draft Articles further provide in Chapter II of Part Three for, inter alia, the requirements of refraining from the threat or use of force, and any countermeasures being proportionate.

Anti-sanction Law is an accepted and legitimate practice under international law

In the Explanatory Note on the Draft Anti-sanction Law, the three necessities for legislating the Law are clearly set out. China is entitled to impose countermeasures in response to unilateral coercive measures taken by foreign States and the Law provides the legal framework for the countermeasures to be implemented. It states unequivocally that it has to be applied within the whole of China. As it is a national law, and as the imposition of countermeasures is entirely a matter of foreign affairs, the most natural and appropriate way for it to be introduced to the HKSAR would be to add it to Annex III to the Basic Law in accordance with Article 18 of the Basic Law. This of course is a matter for the NPCSC to decide after consultation with the Basic Law Committee and the HKSAR Government.

The Anti-sanction Law of the PRC was enacted as a countermeasure in the face of unilateral coercive measures which are prohibited under international law. Not only is the enactment of this Law legitimate, reasonable and fair, it is also in conformity with the requirements relating to countermeasures as set out in the ILC’s Draft Articles highlighted above.

Concerns have been expressed about the impact of the Anti-sanction Law introduced by China. Yet, the more appropriate questions to be asked are first, why does a foreign State interfere with China’s exercise of its sovereign rights to legislate national security laws, and secondly, why should a State or group of States be allowed to impose unilateral coercive measures against other States and legislate “long-arm” statutes purporting to enforce such internationally wrongful acts without consequences. It is these foreign States that impose unilateral coercive measures that should be condemned and it is they that the international community should be concerned about. At this point, one cannot help but recall the treacherous and despicable acts by certain anti-China disruptors who relentlessly and shamefully seek foreign States to impose sanctions against China including Hong Kong. No one who loves China and Hong Kong would embark upon such abominable and contemptible acts.

As can be seen in the Explanatory Note, the Law will provide a legal basis by which the countermeasures are to be implemented and enforced. It will supplement the legal tool box countering unilateral coercive measures, interference and long-arm jurisdiction of foreign States with a view to resolutely safeguarding national sovereignty, dignity and core interests of our motherland.

August 8, 2021


1 See Article 2(1) of Chapter 1 of the United Nations Charter.

2 See Article 2(7) of Chapter 1 of the United Nations Charter.

3 Military and Paramilitary Activities in and against Nicaragua. The judgment of the International Court of Justice acknowledged that the principle of non-intervention “forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States”(see para. 205 of the judgment of the International Court of Justice).