The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, Deputy Chairperson N.A. Karpovich, judges A.N. Bodak, T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, L.G. Kozyreva, V.N. Ryabtsev, L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov

considered the case “On the compliance with the generally recognized principles and rules of international law of acts, adopted (issued) by the European Union and some foreign states and their government bodies, imposing restrictive measures against the Republic of Belarus” in open court session.

The court session was attended by:

Chairperson of the Standing Commission on Law of the House of Representatives of the National Assembly of the Republic of Belarus
S.A. Lyubetskaya – plenipotentiary representative of the House of Representatives of the National Assembly of the Republic of Belarus at the Constitutional Court;

Chairman of the Legislation and State Building Commission of the Council of the Republic of the National Assembly of the Republic of Belarus S.M. Sivets – plenipotentiary representative of the Council of the Republic of the National Assembly of the Republic of Belarus at the Constitutional Court;

First Deputy Minister of Justice of the Republic of Belarus
N.N. Filippova – plenipotentiary representative of the Council of Ministers of the Republic of Belarus at the Constitutional Court.

1. In accordance with article 147 of the Law of the Republic of Belarus “On the Constitutional Proceedings”, the President of the Republic of Belarus, the House of Representatives of the National Assembly of the Republic of Belarus, the Council of the Republic of the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus are entitled to submit a proposal to the Constitutional Court to state the position of the Constitutional Court on the compliance of an act adopted (issued) by a foreign state, an international organization and (or) their government bodies and affecting the interests of the Republic of Belarus with the generally recognized principles and rules of international law.

The proceedings were initiated by the Constitutional Court on 24 November 2021 in accordance with article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges, articles 32 and 147 of the Law of the Republic of Belarus “On the Constitutional Proceedings” on the basis of the proposal of the Council of Ministers of the Republic of Belarus submitted to the Constitutional Court.

As indicated in the proposal of the Council of Ministers of the Republic of Belarus, the European Union (hereinafter, the EU), as well as some states, including Great Britain, the United States of America, Canada, have introduced restrictive measures against Belarusian natural and legal persons or entities.

Thus, implementing decisions of the Council of the EU 2020/1388 of 2 October 2020, 2020/1650 of 6 November 2020, 2020/2130 of 17 December 2020, 2021/2125 of 2 December 2021 implementing Decision 2012/642/CFSP concerning restrictive measures against Belarus, Council Decision (CFSP) 2021/1031 of 24 June 2021 amending Council Decision 2012/642/CFSP, as well as Council Regulations (EU) 2021/907 of 4 June 2021 and 2021/1030 of 24 June 2021 amending Regulation (EC) No. 765/2006 concerning restrictive measures in respect of Belarus, Council implementing regulations (EU) 2021/997 of 21 June 2021 and 2021/2124 of 2 December 2021 implementing Article 8a(1) of Regulation (EC) No. 765/2006 concerning restrictive measures in respect of Belarus prevent the entry into, or transit through the EU territory for certain individuals; provide for freezing of assets, prohibit the provision of funds or economic resources to natural and legal persons or entities included in the “sanctions lists” of the EU, the provision of technical assistance related to military goods and technologies; prohibit the export of equipment, the provision of appropriate technical assistance, brokerage services, financing or financial assistance to legal persons or entities; prohibit flying over the territory of the EU for any aircraft operated by Belarusian air carriers; provide for restrictions related to the arms trade; trade restrictions on petroleum products, potassium chloride; restrictions on the access of the Government of Belarus, as well as Belarusian state financial institutions and organizations to the EU capital markets and some other restrictions.

Regulations No. 922 of 5 August 2021 made by the Secretary of State of Great Britain provide for restrictive measures against individuals and organizations of the Republic of Belarus, as well as targeted economic measures, in particular, the freezing of assets, restrictions on the provision of economic resources in the interests of certain persons, restrictions in the areas of finance, trade in certain goods, technologies, services, restrictions with respect to aircraft.

The American “Belarus Democracy Act of 2004” (amended by the 2020 Act), the Executive Order of the President of the United States of 9 August 2021 provide for the refusal to enter the United States for certain individuals; prohibit lending and investment; limit financial support; provide for freezing assets, termination of operations with the participation of JSC “Belaruskali”, freezing assets and blocking the property of natural and legal persons operating in certain sectors of the Belarusian economy and some other restrictions.

According to the Council of Ministers of the Republic of Belarus, the restrictive measures against the Republic of Belarus affect the rights of natural and legal persons, as well as certain sectors of the national economy (finance, insurance, oil market, potash fertilizers, tobacco products, Internet and telephone communications, military and dual-use goods and technologies, air operations) and contradict the generally recognized principles and rules of international law.

In support of its position, the Council of Ministers of the Republic of Belarus notes that the acts of the EU and some states, imposing restrictive measures, violate the provisions of the Charter of the United Nations (hereinafter, the UN Charter) on the mechanism of preventive and enforcement measures against the state, a set of generally recognized principles and rules of international law enshrined in the UN Charter, the Universal Declaration of Human Rights of 10 December 1948, the International Covenant on Economic, Social and Cultural Rights of 16 December 1966, the International Covenant on Civil and Political Rights of 16 December 1966 and other international legal instruments.

2. When considering the case “On the compliance with the generally recognized principles and rules of international law of acts, adopted (issued) by the European Union and some foreign states and their government bodies, imposing restrictive measures against the Republic of Belarus”, the Constitutional Court proceeds from the following provisions of the Constitution of the Republic of Belarus:

the Republic of Belarus is a unitary, democratic, social state based on the rule of law; the Republic of Belarus exercises supreme control and absolute authority over its whole territory and implements an independent domestic and foreign policy (articles 1.1 and 1.2);

the Republic of Belarus shall be bound by the principle of supremacy of law; the State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith (articles 7.1 and 7.2);

the Republic of Belarus shall recognize the supremacy of the generally recognized principles of international law and shall ensure the compliance of laws therewith (article 8.1);

in its foreign policy the Republic of Belarus shall proceed from the principles of equality of states, non-use of force or threat of force, inviolability of frontiers, peaceful settlement of disputes, non-interference in internal affairs and other generally recognized principles and norms of the international law (article 18.1);

the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State's international obligations (article 21.3);

the State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (article 59.1).

The Republic of Belarus is one of the founders of the United Nations (UN), which signed the UN Charter in October 1945, and as a sovereign independent state and a full-fledged subject of the world community, it exercises supreme and full power, independently implements domestic and foreign policy.

The Constitutional Court states that the national interests of the Republic of Belarus are to ensure independence, sovereignty, inviolability of the constitutional order; sustainable economic development and high competitiveness of the Belarusian economy; achievement of a high level and quality of life of citizens, observance of constitutional human rights and freedoms.

The Constitutional Court considers that the acts adopted by the EU and some foreign states in relation to some natural and legal persons or entities of the Republic of Belarus create certain difficulties for business entities in various sectors of the economy, impede the exercise of economic, social and civil rights and freedoms of citizens provided for by the Constitution of the Republic of Belarus and fundamental international legal instruments, which eventually affects the national interests of the Republic of Belarus.

3. When analyzing the acts of the EU and some foreign states and their bodies, imposing restrictive measures against Belarus, in terms of their compliance with the generally recognized principles and rules of international law, the Constitutional Court is guided by the following.

The basic principles of international law are enshrined in the UN Charter and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by the resolution 26/25 (XXV) of the UN General Assembly on 24 October 1970 (hereinafter, the Declaration on Principles of International Law), as well as in the 1974 Charter of Economic Rights and Duties of States, the 1981 Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States and other international legal instruments.

The generally recognized principles of international law are sovereign equality of States; fulfillment in good faith of obligations under international law; peaceful settlement of international disputes; refraining in international relations from the threat or use of force; non-intervention in matters within the domestic jurisdiction of any State; co-operation among States; equal rights and self-determination of peoples; territorial integrity of States; inviolability of frontiers; respect for human rights and fundamental freedoms (paragraphs 1–4 of article 2 of the UN Charter, paragraph 1 of the Declaration on Principles of International Law).

The universally recognized human rights-related principles and rules of international law are enshrined in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.

The Constitutional Court draws attention to the fact that the common values and principles of the construction and functioning of the EU are established in the Treaty on European Union. Under this Treaty the EU shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter (paragraph 5 of article 3).

The Treaty on European Union stipulates that the Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law (paragraph 1 of article 21).

In doing so, the Constitutional Court points out the priority for States of their obligations under the UN Charter over obligations under any other treaty as enshrined in article 103 of the UN Charter. According to it in the event of a conflict between the obligations of the Members of the United Nations under the Charter and their obligations under any other international agreement, their obligations under the Charter shall prevail.

In a systems analysis of acts adopted by the EU and some foreign states and their government bodies, imposing restrictive measures against the Republic of Belarus, the Constitutional Court proceeds from the generally recognized principles and rules of international law and, above all, from the principles of the UN Charter. In the context of the development of regional subsystems of international relations, including the European one, these principles are the basis for a present world order, with the central role of the UN in the universal system of international legal regulation.

4. The legal grounds for imposing restrictive measures are established in Chapter VII of the UN Charter. Thus, with a view to develop the provisions of articles 39 and 40 of this Charter, according to which the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken to maintain or restore international peace and security, including provisional measures, it is stipulated in article 41 what measures not involving the use of armed force are to be employed. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

A number of the UN General Assembly resolutions, which represent the will of the entire international community, call for elimination of unilateral coercive measures that do not express the will of the UN bodies and are incompatible with the principles of international law set forth in the UN Charter. Such resolutions adopted by the UN General Assembly include the following: “Elimination of unilateral extraterritorial coercive economic measures as a means of political and economic compulsion” of 16 October 2002; “Unilateral economic measures as a means of political and economic coercion against developing countries” of 20 December 2017; “Human rights and unilateral coercive measures” of 18 December 2019; “Unilateral economic measures as a means of political and economic coercion against developing countries” of 19 December 2019; “Human rights and unilateral coercive measures” of 16 December 2020.

These resolutions provide that unilateral coercive measures:

are unlawful and contrary to international law, international humanitarian law, the UN Charter, the principles of the sovereign equality of States, non-intervention in their internal affairs;

threaten the sovereignty of States;

are considered as being tools for political or economic pressure against any country, adopted with a view to preventing those countries from exercising their right to decide, of their own free will, their own political, economic and social systems;

impede the full realization of social and economic development and hinder the well-being of the population in the affected countries;

impede the full realization of the rights set forth in the Universal Declaration of Human Rights and other international human rights instruments, in particular the right of individuals and peoples to development;

run counter to the principles of free trade and hamper the development of trade relations.

In view of the foregoing the Constitutional Court notes that the acts of the EU and some foreign states, imposing restrictive measures against the Republic of Belarus, are contrary to the provisions of Chapters VI and VII of the UN Charter, which establish a mechanism for the application of preventive or enforcement measures against any state only by decision of the UN Security Council to maintain international peace and security.

5. The obligations of States to respect the principle of non-intervention in matters within the domestic jurisdiction of any State and the principle of sovereign equality of States are enshrined in the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, the 1970 Declaration on Principles of International Law, the 1974 Charter of Economic Rights and Duties of States.

The Declaration on Principles of International Law embodies the basic principles of international law and appeals to all States to be guided by these principles in their international conduct and to develop their mutual relations on the basis of the strict observance of them. These principles include among others the principle of non-intervention in matters within the domestic jurisdiction of any State and the principle of sovereign equality of States. So, according to paragraph 1 of this Declaration, no State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.

The Constitutional Court notes that the principle of sovereign equality of States includes the following elements: States are judicially equal; each State enjoys the rights inherent in full sovereignty; each State has the duty to respect the personality of other States; the territorial integrity and political independence of the State are inviolable; each State has the right freely to choose and develop its political, social, economic and cultural systems; each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.

The Constitutional Court draws attention to the fact that the principle of non-intervention in matters within the domestic jurisdiction provides that no 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; all forms of interference against the personality of the State are in violation of international law.

The Constitutional Court deems that the application of restrictive measures against the Republic of Belarus in violation of the procedure established by the constitutive act of the UN is interference in the internal affairs of a sovereign state and is contrary to paragraphs 1 and 7 of article 2 of the UN Charter.

According to the Charter of Economic Rights and Duties of States, no State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights (article 32); every State has the right to engage in international trade and other forms of economic co-operation irrespective of any differences in political, economic and social systems; no State shall be subjected to discrimination of any kind based solely on such differences (article 4).

The principle of equal rights and self-determination of peoples, declared by the UN General Assembly, in unity with such principles as the duty of States to co-operate with one another in accordance with the UN Charter and the principle of free international trade, prescribe that States shall conduct their international relations in the economic, social, cultural, technical and trade fields in accordance with the principles of sovereign equality and non-intervention.

Assessing the acts of the EU and some foreign states and their government bodies, imposing restrictive measures against the Republic of Belarus, in terms of their compliance with the generally recognized principles of international law, the Constitutional Court concludes that these acts are inconsistent with the principle of co-operation among States, the principle of equal rights and self-determination of peoples. By virtue of the latter, in pursuit of the exercise of their inalienable right to self-determination all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development (paragraph 1 of the Declaration on Principles of International Law).

6. The principle of respect for human rights and fundamental freedoms, in unity with the principle of the duty of States to co-operate with one another in accordance with the UN Charter, provides that, in accordance with the Declaration on Principles of International Law, States shall co-operate in the promotion of universal respect for, and observance of, human rights and fundamental freedoms for all.

The acts of the EU and some foreign states and their government bodies, imposing restrictive measures against the Republic of Belarus, directly affect economic, social and civil human rights, including the right to property, the right to engage in economic activity, the right to freedom of movement, the right to freedom of opinion.

The Universal Declaration of Human Rights stipulates that everyone has the right to own property alone as well as in association with others (paragraph 1 of article 17).

The Constitutional Court notes that the right to own property embodies free disposal of one’s property and is the most important condition for the unimpeded engagement in economic activities which are not prohibited by law in order to enhance the well-being of individuals.

The International Covenant on Civil and Political Rights provides that all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law; in no case may a people be deprived of its own means of subsistence (paragraph 2 of article 1).

The Constitutional Court believes that the people of the Republic of Belarus disposes of the wealth and resources of its country that embodies the right to free trading in them of mutual benefit in order to enhance the economic potential and promote the sustainable social and economic development of the Republic of Belarus.

The Constitutional Court considers that the individual restrictive measures of the EU and a number of states aimed at freezing (blocking) the assets of the natural and legal persons or entities, included in the “sanctions lists”, as well as the trade restrictions, impede free disposal of assets, trade in natural resources and negatively affect the living standards of individuals and the economic activities of legal persons or entities. These measures therefore violate the provisions of the Universal Declaration of Human Rights (paragraph 1 of article 17) and the International Covenant on Civil and Political Rights (paragraph 2 of article 1).

The Constitutional Court notes that the right to move freely is essential for any democratic society and by its nature shall be considered as integral to the freedom and self-determination of the person. Freedom of movement is a necessary condition for the exercise of other human rights and freedoms, including the right to freedom of opinion, the right to free development of the person.

As provided in paragraph 1 of article 2 of the International Covenant on Civil and Political Rights, each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The UN Human Rights Committee noted that article 2 of the International Covenant on Civil and Political Rights prohibits discrimination in law or in fact in any field regulated and protected by public authorities (paragraph 12 of the General Comment No. 18 (1989) “Non-discrimination”).

The Constitutional Court deems that the individual restrictive measures, imposed by the acts of the EU and some foreign states, preventing the entry into the territory of the EU and the said states of some persons, are incompatible with other human rights, recognized by international legal instruments, including the right to freedom of opinion. These measures also violate the principle of non-discrimination on the ground of political or other opinion.

The Universal Declaration of Human Rights stipulates everyone’s right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment; the right of everyone who works to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity (paragraphs 1 and 3 of article 23); everyone’s right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services (paragraphs 1 of article 25). In accordance with the preamble and article 28 of the said Declaration, proclaimed as a common standard of achievement for all peoples and all nations, everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

The International Covenant on Economic, Social and Cultural Rights establishes that the States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts (paragraph 1 of article 6); the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions (paragraph 1 of article 11).

The UN Committee on Economic, Social and Cultural Rights in its General Comment No. 8 (1997) “The relationship between economic sanctions and respect for economic, social and cultural rights” expressed concern over economic sanctions that are being imposed with increasing frequency, both internationally, regionally and unilaterally. It pointed out that they almost always have a dramatic impact on the rights recognized in the International Covenant on Economic, Social and Cultural Rights; the sanctions often cause significant disruption in the distribution of food, pharmaceuticals and sanitation supplies, jeopardize the quality of food and the availability of clean drinking water, severely interfere with the functioning of basic health and education systems, and undermine the right to work.

The Constitutional Court, based on the international legal instruments of the UN as a universal international organization that has established at the international level the legal grounds and procedure for the application of restrictive measures, considers that the acts of the EU and some foreign states and their government bodies, imposing restrictive measures against the Republic of Belarus, affect to a certain extent the rights and legitimate interests of the citizens of the Republic of Belarus, enshrined in the Constitution of the Republic of Belarus and fundamental international legal instruments. They affect the rights to work and to just and favourable conditions of work ensuring everyone’s rights to a decent standard of living, to health care, to education, the right to engage in economic activities and are therefore inconsistent with the generally recognized principle of respect for human rights and fundamental freedoms, provided in the UN Charter (paragraph 3 of article 1), the Declaration on Principles of International Law (paragraph 1), the provisions of articles 23, 25 and 28 of the Universal Declaration of Human Rights, articles 6 and 11 of the International Covenant on Economic, Social and Cultural Rights, articles 1 and 5 of the International Covenant on Civil and Political Rights.

Considering the above, guided by article 116 of the Constitution of the Republic of Belarus, articles 22 and 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, articles 74 and 152 of the Law of the Republic of Belarus “On the Constitutional Proceedings” the Constitutional Court of the Republic of Belarus

RULED:

1. Acts, adopted (issued) by the European Union, some foreign states, including Great Britain, the United States of America, Canada, and their government bodies, imposing restrictive measures against the Republic of Belarus:

do not comply with the generally recognized principles of sovereign equality of states and non-intervention in matters within the domestic jurisdiction of any State, co-operation among States in accordance with the UN Charter, fulfillment in good faith of obligations under international law, equal rights and self-determination of peoples, respect for human rights and fundamental freedoms stipulated by the UN Charter (paragraphs 1, 2 and 7 of article 2), the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (paragraph 1), the 1974 Charter of Economic Rights and Duties of States (article 32);

do not comply with the generally recognized principles and rules of international human rights law established by the 1948 Universal Declaration of Human Rights (article 2, paragraph 1 of article 17, paragraphs 1 and 3 of article 23, paragraph 1 of article 25, article 28), the 1966 International Covenant on Economic, Social and Cultural Rights (article 1, paragraph 2 of article 2, paragraph 1 of article 6, article 7, paragraph 1 of article 11), the 1966 International Covenant on Civil and Political Rights (paragraphs 1 and 2 of article 1, paragraph 1 of article 2);

do not comply with the UN Charter, which establishes the mechanism of preventive and enforcement measures against the state only by decision of the UN Security Council in order to maintain international peace and security (articles 33–38 of Chapter VI and articles 39–41 of Chapter VII of the UN Charter).

2. State bodies, officials, heads of organizations should, within their competence, take the necessary measures to protect the national interests of the Republic of Belarus, constitutional rights and freedoms of citizens based on the values ​​and goals of the Constitution of the Republic of Belarus, the generally recognized principles and rules of international law. 

3. To publish the present Decision in accordance with legislative acts.

Presiding Officer –

Petr Miklashevich,

Chairman

Constitutional Court

Republic of Belarus