Žalimas on sanctions against Kaliningrad: “I could see a certain lack of logic”

Lithuanian-Russian border
Lithuanian-Russian border with Kaliningrad, picture VSAT

Dainius Žalimas, former President of the Constitutional Court, says he sees a lack of logic in the sanctions and a lack of courage and competence on the part of the country’s officials. According to him, “if the European Commission’s interpretation is received, ” it may turn out to be unfavourable to Lithuania, which could open the way to transport any goods to Kaliningrad via Lithuania, TV3.lt reported.

On his Facebook account, the lawyer writes that legally, everything is evident with the sanctions, although there may be some snags.

The rules and sanctions are clear

“First of all, I didn’t think that something about the content of the sanctions could be so unclear, although I could see a certain lack of logic in them. The EU Regulation on sanctions against Russia (31 July 2014). Council Regulation No. 833/2014 of 31 July 2014 with all subsequent additions) Article 3g deals with iron and steel products. Paragraph 1 prohibits, among other things: 1) the import of iron and steel products originating in or exported from Russia (p. a); 2) the acquisition of iron and steel products if they originate or are located in Russia (p. b); 3) the transport of iron and steel products “if they originate in Russia or are exported from Russia to any other country” (p. c).

Thus, the critical point here seems to be Article 3g(1)(c) of the Regulation, which prohibits the carriage of specified iron and steel products of Russian origin through the territory of the EU for any purpose whatsoever, as well as the carriage of such products of any other source for export.

This means that if an iron or steel product is of Russian origin, it cannot cross the EU border, even if it is not being exported to another country, i.e. if it is being transported to or from the Kaliningrad region in transit through Lithuania (or another EU country). Otherwise, if iron and steel products of Russian origin could be transported within the EU territory for non-export purposes, there would be no need to distinguish them separately through the conjunction “or”, i.e. only a prohibition of the carriage of iron and steel products of any origin for export from Russia would suffice,” says Mr Žalimas.

However, according to him, the distinction of iron and steel products according to their origin in point (c) may not seem logical and, at the same time, it may seem strange that this point would seem to be an authorisation for the carriage on EU territory of iron and steel products of non-Russian origin, for export from Russia.

“It is difficult to see why such differentiation of iron and steel products based on their origin has been established. I must confess that there is no detailed information on the formulation of such Regulation. However, if we were to recognise this seemingly impossible situation and try to address it systematically, we would have to adopt the broader scope of the sanctions, i.e. the treatment that iron and steel products of any origin cannot pass through the EU territory.

There are at least several reasons for this: (1) the other prohibited acts – imports and acquisitions – clearly cover iron and steel products of any origin in Russia; (2) if we allow the shipment of these products through the EU for the Russian domestic market, we would be facilitating the circumvention of the sanctions (and who is to ensure that these products are not being exported to third countries via the Kaliningrad region),” the lawyer wrote. 

He stressed that the most important thing is that Article 3g of the Regulation does not contain any exception for the Kaliningrad transit. If such an exception were to be envisaged, it would be explicitly stated, as, for example, in Article 3l(2)(b) of the same Regulation, which allows Russian road hauliers (which are not allowed to operate on the territory of the EU), as an exception, to transit through the part of the EU specifically “between the region of Kaliningrad and Russia”, but (note!) “provided that the transport of such goods is not prohibited by the other provisions of the present Regulation”.

Thus, in any event, the transit of goods through Lithuania cannot, by way of exception, involve the carriage of prohibited goods, in this case, at least iron and steel products of Russian origin.

“In conclusion, Lithuania should have a clear position on implementing Article 3g of the Regulation that all, or at least not, iron and steel products of Russian origin may cross the Lithuanian border. Unfortunately, it would appear that such a position, endorsed by the European Commission, which is responsible for implementing EU law, was in place but was distracted by a well-prepared campaign of pressure and disinformation from Russia,” he wrote. 

Doubts about “technical clarification”

He questioned whether Lithuania should wait for a “technical clarification” from the EC without stating its precise position. Which, it seems, could be unfavourable and change the content of the sanctions so far in favour of Russia so that all the banned iron and steel products can be transported for transit between Russia and Kaliningrad.

“I think it is necessary to make it clear that “technical clarifications” cannot change the Regulation’s text, which, as I have said, at least does not allow iron and steel products of Russian origin to transit for any purpose. Therefore, changing the text is no longer a matter for the EC, but for the Council of the EU”, he said. 

Caught unprepared

He added that the challenge of EU sanctions on Kaliningrad transit caught Lithuania completely unprepared, like snow in summer.

” It was clear to everyone that sooner or later, we would have such a challenge sooner or later. And every sanctions package takes a long time to prepare, so Lithuanian representatives could and should have measured it against the scale of the Kaliningrad transit and, if necessary, reached a more precise wording.

Moreover, the practical application of the sanctions on iron and steel products was still three months away, so it was indeed possible to clarify all the related aspects, simulate and prepare for possible scenarios of Russia’s reaction and disinformation, and, finally, communicate well in advance about the future content of the EU’s sanctions, not Lithuania’s unilateral actions. I did not forget that sanctions are not a blockade or a ban on transit through Kaliningrad. However, the communication front seems to be defeated for now”, wrote Žalimas. 

He also missed political leadership and not succumbing to Russian propaganda clichés.

“For example, by publicly asking the European Commission for a “technical clarification”, Lithuania seems to be indicating that there is a severe problem that needs to be negotiated, perhaps even without Lithuania’s participation.

In this way, we may become passive observers of the emerging extra-territorial transit corridor through Lithuania. It seems that this position of waiting for a directive from Brussels also serves the Russian narrative of Lithuania as a temporary puppet state beholden to the ‘Western bosses’.

The Russian narrative is also served by saying at the highest level that sanctions must be aligned with international commitments. As if Lithuania has some obligations that it is violating”, he wrote. 

Politicians scared?

He also says Lithuania has no international obligations to Russia regarding the transit of all kinds of goods to and from Kaliningrad. But even if it did, they could be waived because that is the essence of sanctions under international law.

After all, sanctions are retaliatory measures – including possible legitimate non-compliance with international obligations in response to a breach of international law. Since, in the present case, the answer is to the most severe violation of international law (aggression), restricting the supply of goods does not in itself call into question the proportionality of such a measure.

“It should be added that Rogozin’s attempts to link the restrictions on the transit of goods to the Lithuanian-Russian border treaty also have no legal basis whatsoever because border treaties are specially protected by international law and cannot be unilaterally denounced under any pretext. <…> I do not know whether I am alone in thinking that some politicians in Lithuania have been frightened and have even started to advocate for Russia to find ways of ending sanctions on the transit of iron and steel products.

I have the impression that, in their mouths, allusions to national interests sometimes imply the public transit of Kaliningrad. I want to be wrong because this is not in line with the publicly declared support for Ukraine, nor, incidentally, with Lithuania’s security, among the risks of which Kaliningrad transit has been mentioned since 1996 when the National Security Framework Law was adopted. How it fits in with the determination to defeat the Russian regime is beyond me,” the lawyer wrote. 

According to the expert, this tension might not have existed. More precisely, he said, it could have been only external, linked to the predictable and inevitable Russian rhetorical reaction. If politics had not become so superficial and Facebook-like, there would have been more competence, more openness and more than just lofty courage.

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