New Technologies in International Law / Tymofeyeva, Crhák et al.

2.

International Legal Aspects of EU Cyber Sanctions – Immunity Law

Cyber sanctions raise several issues from the perspective of international legal norms, immunity law being one of them. 542 One of the measures imposed in the context of cyber sanctions are asset freezes, which raises the question of immunity from jurisdiction/enforcement of States and its property in light of UNCSI (reflected as customary international law). First, according to Article 2(1)(a) of the UNCSI, the term “state” includes also “ agencies or instrumentalities of the State ”, other entities that are exercising sovereign authority of the State and also state officials. As already set out at above, EU cyber sanctions are imposed against state officials (and could be imposed against government agencies) that are undertaking de jure imperii functions. These restrictive measures fall into the category of financial sanctions (asset freezes), clearly affecting the property of these high state officials or government agencies, i. e. it can be said to constitute “measures of constraint”. 543 This much is not disputed as financial sanctions (in our case, asset freezes) are inherently constraining due to the fact that the individual cannot freely dispose with his or her property. However, as Tom Ruys observes, “ the question arises whether the circumstance that the property of a foreign State or its officials is being ‘affected’ and the ‘constraining’ nature of the sanctions suffices to trigger the application of the relevant immunity rules .“ 544 Now it is widely accepted that customary international law (as the UNCSI is not in force yet) distinguishes immunity from jurisdiction (protection from the civil and criminal jurisdiction of foreign States) and immunity from enforcement (protection from enforcement measures of a foreign State). Having said this, the restrictive measures imposed by the EU (including cyber sanctions) do not have a criminal character as mentioned above, but are administrative measures that are temporary (though in some cases, the asset freezes are in place for a rather long period). In any case, it may appear that asset freezes are clear violation of immunity from enforcement. However, the issue is somewhat more complicated and far from settled. The argument against this conclusion goes as follows: even though immunity of enforcement is clearly established under customary international law and asset freezes (or other acts) are deemed to be measures of constraint, this immunity only applies in connection with court proceedings, i. e. in line with the UNCSI, pre judgmental or post-judgment measures of constraints are covered by immunity law. We can further support this argument with other international instruments, e. g. the European Convention on State Immunity, the domestic legislation of US (United States 1976 Foreign Sovereign Immunities Act), UK (1978 State Immunity Act), as well as other states (Australia, Canada, Singapore, Argentina) or the scholarly work concerning the issue at hand. 545 All of the legal materials cited are formulated in a similar way, that is, immunity is linked to 542 Ibid. 543 UNGA, ‘United Nations Convention on Jurisdictional Immunities of States and Their Property’, A/ RES/59/38 (2004), Art. 18. 544 Ruys T, ‘Immunity, Inviolability and Countermeasures – A Closer Look at Non-UN Targeted Sanctions’ in Ruys T, Angelet N and Ferro L (eds), The Cambridge Handbook of Immunities and International Law (CUP, 2019), p. 676. 545 Ibid.

127