As Russian troops mass near the border with Ukraine, New Zealand’s lack of teeth when it comes to sanctions is set to be exposed, Robert Ayson writes

Comment: If Russia invades Ukraine, New Zealand would be certain to join a largely Western chorus of condemnation.

Gone are the days when Jacinda Ardern had a foreign minister with a soft spot for Moscow. In early 2018, Winston Peters ensured that New Zealand’s initial reaction to the poisoning of Sergei and Yulia Skripal, an assassination attempt in the United Kingdom that was widely attributed to Russia’s intelligence service, was bewilderingly meek. But Labour ceased subcontracting foreign policy to New Zealand First after the 2020 election. Peters’ quest to advance free trade discussions with Russia and its Eurasian economic partners, which was written into the 2017 coalition agreement, is now history.

Almost any sign in the coming weeks that Russia is staging an offensive into neighbouring Ukraine is likely to trigger coordinated diplomatic responses that New Zealand can attach itself to in some way. One of these protests is likely to come from the Five Eyes countries. Partway through 2021, Nanaia Mahuta – Labour’s replacement for Peters – publicly expressed concerns about Five Eyes auspices being used to criticise the human rights records of other governments (in this case China). But whatever remains of that sentiment is unlikely to stand in the way of New Zealand joining a Five Eyes statement condemning a Russian invasion. Such an act of military aggression by one sovereign state on another is a good fit with the group’s traditional intelligence and security agenda. And in any case, just before Christmas Mahuta lent her name to a terse Five Eyes statement which presented serious criticisms of Beijing’s clampdown on civil liberties in Hong Kong.

Winston Peters displayed a soft spot for Moscow during the last term of government, Robert Ayson writes. Photo: Lynn Grieveson.

But it won’t just be New Zealand’s closest security partners that get into the act. Russian aggression against Ukraine would pose a serious challenge to security interests across Europe, and certainly of almost every member of NATO. A larger selection of countries than the Five Eyes, the sort of grouping that New Zealand is sometimes more comfortable working with, is likely to issue statements that the Ardern government might be part of. Valued partners from New Zealand’s own wider region could also be expected to participate, including Japan and perhaps the Republic of Korea.

Vladimir Putin must know that he will face a fusillade of diplomatic criticism, at least from some parts of the world, should he decide to use force against Ukraine. But it’s hard to imagine he will be concerned about these objections. In its efforts to deter a Russian invasion, the United States (with the support of several allies) wants Russia’s leader to know that he won’t just face a concerted telling off. In the build-up to the recent talks with Russian representatives which have ended unpromisingly, Antony Blinken warned that Russia would face “massive consequences” should an invasion occur.

By invoking that ominous turn of phrase, which also appeared in statements from the EU and G7 nearly a month earlier, the US Secretary of State was not suggesting that Moscow should prepare itself for a tit-for-tat military response from NATO. His boss Joe Biden had already said that the US was not intending to go to war against Russia over Ukraine, which is not a member of the trans-Atlantic alliance and does not therefore enjoy the promises of military assistance contained in the 1949 Treaty. There may be some reinforcement of NATO forces, including to shore up allies close to Ukraine, which Moscow might still treat as highly escalatory. But Washington will be relying mainly on a new set of economic sanctions to endanger Russia’s financial position and its connections to the global economy.

These measures would be on top of the sanctions levelled against Russia after Putin ordered the last major campaign against Ukraine, which began with the annexation of Crimea in early 2014 and extended to an unofficial war in parts of Eastern Ukraine. Eight years later, additional steps might include barring Russia from the SWIFT international payments system, export controls on high technology components destined for Russia, tightened restrictions on Russian banks, oligarchs and leaders, and depending on the position of German Chancellor Olaf Scholz’s new government, suspending plans to open the Nord Stream 2 pipeline which will bring Russian natural gas west to Germany.

Veto powers stifle UN action

Any such measures won’t be mandated by the United Nations Security Council: Russia would surely use its veto power to make that impossible (and informal ally China might do the same). Moscow’s representatives are also likely to put up a brick wall in New York preventing the council from proper consideration of yet another Ukraine crisis – a familiar approach that frustrated New Zealand when it was a temporary member. Instead the measures aimed at Russia’s economy and leadership will rely on the autonomous sanctions capacities that many of New Zealand’s close partners have at their disposal.

That includes Australia, which used its 2011 autonomous sanctions legislation to erect a series of sanctions against Russia just a few years later. A useful chart on the Department of Foreign Affairs and Trade website indicates that all of those measures were autonomous sanctions, and none of them came with the imprimatur of the Security Council. Australia has also recently passed its own version of the Magnitsky Act which gives the Morrison government (and its successors) more precise autonomous sanctions tools.

As I argued last year, it was misleading for the Ardern government to imply that New Zealand has no unilateral sanctions capacity. For example, New Zealand employed some (limited) sanctions against the Fijian government and armed forces after Frank Bainimarama’s 2006 coup, including travel restrictions. In March 2014 Murray McCully announced that New Zealand had imposed travel sanctions “against specific Russian and Ukrainian individuals” involved in the crisis. The Key government also discouraged New Zealand exporters from exploiting market opportunities that had opened up after exports from Australia and other sanctioning countries were banned by Russia. In 2018, once wisdom had eventually prevailed upon Peters, the Ardern government indicated that Russia could forget about the free trade deal.

Despite their evident limitations, sanctions provide a middle ground option when governments want to do more than issue a wrap over the diplomatic knuckles without risking a war through military escalation.

But without dedicated legislation, New Zealand’s autonomous sanctions options are severely restricted. Given the ad hoc measures Wellington put in place against Russia for its earlier misdeeds, it will be very difficult for foreign affairs officials to identify other measures that might be proposed to ministers, assuming they take an interest in what might be done as well as hearing from officials what is happening. Limits on government-to-government interactions (such as they occur) might be the most likely prospect. Russian leaders who had no real intention of visiting New Zealand may find that hypothetical prospect has been removed. Aside from that, New Zealand would be unable to join in on most of the concrete sanctions being considered by other countries.

That’s not to suggest that sanctions are effective, even when applied uniformly. In a general sense, the scholarship on sanctions suggests they have a mixed record at best in eliciting the behaviour that the sanctioners desire. And in this specific case, the odds are stacked against additional sanctions being decisive for Putin’s calculus either before or after the invasion. The KGB-trained autocrat does not seem to care very much about the damage they may cause, and the painful consequences may not be as “massive” as Washington and its partners intend.

Despite their evident limitations, sanctions provide a middle ground option when governments want to do more than issue a wrap over the diplomatic knuckles without risking a war through military escalation. That middle ground is exactly where the Biden administration and its NATO allies will want to be, and Washington and its European allies will have reason to expect other governments who take international rules seriously (which New Zealand does) will come on board with that response. We aren’t talking about a small breach of the rules: the prohibition on states invading other states is at the heart of the United Nations Charter. But when it comes to sanctions, which will be the main game in Western strategy, New Zealand is unlikely to be present.

There is no excuse for not looking directly at the glaring sanctions gap in New Zealand’s foreign policy toolkit and doing something to fix it.

New Zealand’s aversion to autonomous sanctions is unconvincing. The principle often held out is that the only satisfactory sanctions are those approved explicitly by the Security Council, and when sanctions are mandated by the council it is New Zealand’s task to implement them, including on North Korea. But a UN-only sanctions policy means that Russia and China (and any of the three other permanent members of the council) are being given a veto on New Zealand’s choices. That’s unwise and short-sighted. There will be times when a New Zealand Cabinet will want sanctions in place that Moscow and/or Beijing oppose. And there will be times when the officials advising ministers will want to have autonomous sanctions among the range of policy options presented.

In recent years New Zealand has had ample opportunity to develop autonomous sanctions legislation. Soon after Australia had passed its own legislation, MFAT was working on a New Zealand version. But that legislation, which at one stage was listed alongside the name of Winston Peters MP, remained stymied in Parliament. A subsequent effort by the National Party was dismissed in November by a joint Labour-Greens determination that autonomous sanctions do not fit their high-minded approach. That legislation may not have been perfect, but it was a starting point for a conversation on the floor of the House and in select committee that needs to happen. How do today’s parliamentarians make sure that tomorrow’s Cabinets have real foreign policy options for challenges the world will face?

The build-up of Russia’s forces has been occurring for the best part of a year, and Washington recently suggested Moscow may be ready to attack as soon as the middle of this month. There is no certainty at this stage that Putin will take the momentous decision to invade Ukraine. Knowing as he does that NATO will not grant him the security guarantees his country seeks, Russia’s leader may still resort to new measures in and around Ukraine (and further afield) below the threshold of actual and obvious armed violence. At least for the time being, a second New Zealand foreign policy embarrassment in the last five years precipitated by Kremlin decision-making may be averted. But there is no excuse for not looking directly at the glaring sanctions gap in New Zealand’s foreign policy toolkit and doing something to fix it.

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