Aotearoa has officially condemned Vladimir Putin's decision to wage war in Ukraine, but our hands are tied in some areas where others are taking action. Sam Sachdeva explains the ins and outs of autonomous sanctions.
As the world condemns Russia’s invasion of Ukraine, governments – including New Zealand’s – are scrambling to take whatever action they can to encourage or force an early end to the conflict.
On Tuesday, Parliament passed a motion condemning the invasion and calling on the Russian government to end all military operations in Ukraine. But where we have lagged behind some of our usual partners is on the matter of sanctions.
The National Party has repeatedly called on the Government to pass an autonomous sanctions law and take action against Russia, while a petition on Parliament’s website calling for MPs to urgently enact such a regime has been signed by 627 people since it was launched on Monday.
If you’re not up to speed, here is a brief rundown of the key things you need to know.
► What exactly are autonomous sanctions, and what’s the point of them?
As the Ministry of Foreign Affairs and Trade puts it, sanctions are “a common tool for seeking to influence foreign governments and individuals to change their behaviour”.
They can cover a range of different realms, from economic (freezing the financial assets of individuals or organisations, restricting the movement of funds and blocking others from trading with them) to diplomatic (expelling representatives of an offending country and cancelling cooperation) and military (placing an embargo on the sales of weapons).
Even sports comes into the mix: protests over the 1981 Springbok tour of New Zealand were in part sparked by the government’s decision to ignore a Commonwealth agreement to discourage sporting contact with South Africa over its apartheid regime.
As for the ‘autonomous’ part, that simply refers to the ability of a country or organisation to take action without the approval of others.
► Well, Aotearoa is an independent country so we can do that, right?
Actually, no we can’t. The United Nations Act from 1946 means we are unable to impose sanctions unless they have been adopted by the UN Security Council.
We can take a number of more limited actions without the council’s sign-off (such as putting travel bans in place, expelling diplomats and cancelling aid funding) but not anything that targets the wallets of those who may have ties to New Zealand.
► What’s the problem with that?
The five permanent members of the Security Council (China, France, Russia, the United Kingdom and United States) were given special veto powers when the UN was first created, having threatened to kill off the organisation otherwise. (It's worth noting New Zealand vehemently opposed such veto powers at the time, and abstained on the final vote).
The P5 nations, as they are known, have used their veto powers 264 times since 1946, with the frequency picking up in recent years. Russia has been a particularly prolific user, accounting for nearly half of those vetoes (120 times, a large proportion of those when it was still the Soviet Union) and funnily enough blocked a February 25 resolution "to hold Russia accountable for its aggression against Ukraine”.
Australia, Canada, the UK and US – New Zealand’s other partners in the Five Eyes intelligence alliance – all have autonomous sanctions legislation allowing them to take action outside the UN, as does the European Union.
► So why don’t we?
Governments have considered introducing an autonomous sanctions regime in the past. Work started on a draft law in 2012 under the National government, but it didn’t actually make it onto Parliament’s order paper until May 2017.
Even then, it didn’t get a first reading before the 2017 election – and when Jacinda Ardern’s Labour rose to power, the legislation gathered dust for three years until finally being put out of its misery after the 2020 election (leading Victoria University of Wellington law professor Geoff McLay to dub it “the least successful piece of legislation in New Zealand history”).
The law did get a swift second chance at life, when National foreign affairs spokesman Gerry Brownlee had a nearly-identical bill drawn from the member’s ballot last year – but it failed its first reading with 77 votes opposed (from Labour, the Greens and Te Paati Māori) and just 43 in favour (National and ACT).
► Why didn’t it get across the line, and what’s the broader argument against autonomous sanctions?
Speaking against Brownlee’s bill, Foreign Affairs Minister Nanaia Mahuta raised some concerns with its wording; namely, that the law did not have any provisions for sanctions over human rights violations, a focus on the Asia-Pacific was too narrow, and it did not take into account emerging risks like cyber-security threats.
But the wider case against the idea tends to form three pillars. The first, more principled one is that setting up an autonomous regime would undermine the work of the UN and confidence in the wider rules-based order, which New Zealand relies on significantly as a smaller country.
“It sounds good, it sounds like, you know, 'New Zealand's gonna stand its ground', but … when we act unilaterally, we set a precedent for others acting unilaterally, which is what led to the Iraq and Afghanistan invasions,” Greens global affairs spokeswoman Golriz Ghahraman told Newsroom in 2020.
Then there is concern about whether sanctions actually punish the politicians and powerful figures actually responsible for such wrongdoing, or whether they end up hurting the innocent public.
The third, more practical argument is that giving ourselves such powers could lead to problems when our international partners come knocking and demanding action. It would be easy enough to punish Russia given our limited relationship and the near-universal condemnation – but what if the US wanted us to sanction China, or vice-versa, and we felt we couldn’t say no?
► OK, so we should chuck it in the bin then?
Well, the supporters of autonomous sanctions have counter-arguments to those alleged flaws.
When it comes to the issue of undermining the UN and other international groupings, proponents such as American businessman Bill Browder argue an autonomous regime would simply be a supplement to, not a substitute for, multilateral action.
Browder has successfully convinced the US and 30 other countries to pass so-called “Magnitsky laws”, intended to provide a more surgical means of punishing the perpetrators of abuses without affecting a regime’s victims (that second area of concern).
“It's kind of like the modern-day cancer drug. It used to be [that] to kill the cancer, you'd have to almost kill the patient, whereas you can now just seek out the cancer cell and leave everything else alone – that's what the Magnitsky Act does very successfully,” he told Newsroom last year.
And on the issue of bigger nations leaning on us to impose sanctions when we wouldn’t want to, Brownlee has described that as “a logic born out of weakness”. What’s the point in trumpeting your independent foreign policy far and wide, after all, if you don’t trust yourself to stay truly independent when the heat comes on?
► If the Government is opposed, then that’s pretty much the end of the conversation right?
Not so fast: while Mahuta and Prime Minister Jacinda Ardern have both seemed dismissive of the need for autonomous sanctions in the past, Vladimir Putin’s flagrant violation of Ukraine’s sovereignty seems to have changed the equation.
Asked about the prospects for autonomous sanctions legislation on Monday, Ardern said a law change might not be the most timely approach but added the Government was “considering all of the options that are on the table for us”.
During Question Time on Tuesday, she went further and said the Government was seeking advice on “a specific Russian sanctions bill”, which would likely be limited to those involved in the current invasion. But it wouldn’t be a surprise to see a more wide-ranging law considered further down the line, given ministers won’t want to draft and pass new legislation every time they wanted to impose sanctions.
► So what next?
Officials will be frantically drafting up some Russia-specific legislation, which would likely go through Parliament under urgency and with unanimous support given the gravity of the situation.
It’s hard to know exactly who will be targeted on the Russian side and what sort of sanctions they will face, but any sanctions would almost certainly cover all of those currently subject to travel bans.
Victoria University of Wellington strategic studies professor Robert Ayson has been keeping track of the areas where our partners have moved but we have not, including sanctions on Russian banks, freezing the assets of officials and oligarchs, and limits on other financial transactions.
Russia’s ambassador may yet be expelled from New Zealand too, although Ardern has suggested there may be a higher threshold for that action given the likelihood of retaliatory action against Kiwi diplomats in Russia, which would cut off consular support to those in the region.
One action you can take off the table is supplying any weapons or military equipment, as Ardern has already ruled that out (in part due to our relatively small defence force).
