Foreign companies that have located the production of medical oxygen in Russia may at any moment find themselves between the “hammer” of Western restrictions and the “anvil” of Russian legislation, which they are required to comply with. Thus, it is important to raise the fundamental question before Washington and Brussels of improving the exemptions to the sanctions regimes so that such “grey” zones do not interfere with the business of American and European companies, and most importantly, do not become a serious obstacle to saving people’s lives.
In the context of the COVID-19 pandemic, especially during periods when there is a surge in cases, we see a lack of medical oxygen in both in the world as a whole and in particular in Russia. At the same time, international companies, including those working in countries targeted by sanctions, may refuse to supply medical oxygen due to the restrictions imposed by the European Union, the United States and other countries. At the same time, despite the anti-Russian sanctions, a number of foreign companies (for example, the French company Air Liquide and the American company Air Products), that have located the production of medical oxygen in Russia, continue to operate (1, 2, 3). In order to remove obstacles to saving human lives, it seems necessary to improve the exemptions to Western sanctions regimes.
To partially improve this situation, the European Commission has introduced some humanitarian exemptions from the sanctions regimes, including medical oxygen, in the following areas:
EU counter-terrorism sanctions
(1) The sanctions laid down in the EU Counter-Terrorism Sanctions Regulations include an asset freeze and a prohibition on make any funds or economic resources directly or indirectly available to, or for the benefit of, natural or legal persons, entities or bodies; The EU Counter-Terrorism Sanctions Regulations do not cover medicine, medical equipment, and medical assistance provided to the population at large. (2) As such, medical equipment, including oxygen, respirators, personal protective equipment (PPE) and ventilators as well as medicines and other medical items required to fight the COVID-19 pandemic are not subject to restrictions on export, supply, financing or use under the EU Counter-Terrorism Sanctions Regulations;I
Iran
1) EU sanctions vis-à-vis Iran that are still in force after the lifting of restrictive measures under the JCPOA are focussed, have clear objectives and target specific persons, entities or goods, which are usually not involved in humanitarian aid or target specific individuals; (2) EU sanctions vis-à-vis Iran do not cover medicine, medical equipment and medical assistance provided to the population at large. (3) As such, medical equipment, including personal protective equipment (PPE), respirators, oxygen and ventilators, as well as medicines and other medical items required to fight the COVID-19 pandemic are not subject to direct restrictions on export, supply, financing or use in Iran;
Venezuela
(1) EU sanctions vis-à-vis Venezuela laid down in Council Regulation (EU) 2017/2063 were imposed in response to the continuing deterioration of democracy, the rule of law and human rights in Venezuela. (2) Sanctions include, among others, an embargo on equipment that could be used for internal repression, an asset freeze, a ban on the provision of any funds or assets, directly or indirectly, to the benefit of those responsible for serious human rights violations and undermining democracy and the rule of law in Venezuela , as well as persons associated with them. (3) The sanctions laid down in the Venezuela Regulation do not concern medicine, medical equipment and medical assistance provided to the population at large. (4) As such, medical equipment, including oxygen, respirators, personal protective equipment (PPE) and ventilators, as well as medicines and other medical items required to fight the COVID-19 pandemic, are not subject to direct restrictions on export, supply, financing or use in Venezuela
Nicaragua
(1) EU sanctions vis-à-vis Nicaragua include an asset freeze and a ban on the provision of any funds or assets, directly or indirectly, to persons responsible for serious violations of human rights and undermining democracy and the rule of law in Nicaragua, as well as persons associated with them (2) The sanctions laid down in the Nicaragua Regulation do not concern medicine, medical equipment and medical assistance provided to the population at large. (3) As such, medical equipment, including oxygen, respirators, personal protective equipment (PPE) and ventilators as well as medicines and other medical items required to fight the COVID-19 pandemic are not subject to restrictions on export, supply, financing or use in Nicaragua.
Syria
The Syria Sanctions and EU Sanctions concerning International Terrorism and Chemical Weapons (1) do not concern medicine, medical equipment and medical assistance provided to the population at large. (2) As such, medical equipment, including oxygen, respirators, personal protective equipment (PPE) and ventilators as well as medicine and other medical items required to fight the COVID-19 pandemic are not subject to direct restrictions on export, supply, financing or use in Syria. (3) Nevertheless, in specific cases, the export, supply, financing or use of these items may be indirectly impacted by other restrictions, such as the freezing of funds or economic resources of certain persons, entities and bodies subject to EU sanctions (“designated persons”) which happen to be involved in the relevant transactions. (4) As a general rule, Syria Sanctions allow for funds and economic resources to be made available to designated persons, where such funds or economic resources are necessary solely for the purpose of providing humanitarian relief in Syria or assistance to the civilian population in Syria. (5) In certain cases, a prior licence is necessary.
At the same time, there are no medical humanitarian exemptions, including medical oxygen, in the EU anti-Russian sanctions regimes related to the situation in Ukraine and Crimea.
Brussels says that the sanctions are not intended to hinder the provision of humanitarian assistance. Any action not expressly prohibited by the EU sanctions is considered permitted, unless otherwise specified by the competent national authority within each of the Member States; overcompliance should not lead to the disruption of humanitarian assistance. In the context of the COVID-19 pandemic, certain activities may be permitted on an exceptional basis, even in the absence of explicit exemptions, if there are no other means of securing humanitarian assistance. At the same time, humanitarian operators must prove that the conditions of existing exemptions are met, or, in the absence of such exemptions, that the only option available for providing humanitarian assistance to those in need is to resort to sanctioned activities.
In turn, the Office of Foreign Assets Control of the US Department of the Treasury, in connection with the Ukraine-related Sanctions Regulations [Office of Foreign Assets Control of the US 31 CFR Part 589], Executive Order of the President of the United States No. 13685 of December 19, 2014, on Blocking the Property of Certain Persons and Prohibiting Certain Transactions With Respect to the Crimea Region of Ukraine, published the General License No. 4 (for Ukraine / Crimea) and the list of medical products allowed for supply, in which there is no direct mention of medical oxygen, unlike the EU list. At the same time, relevant items are mentioned in the documents: “Medical flowmeters: oxygen and air”; “Oxygen apparatus, all”; “Cardiopulmonary oxygenation systems, devices, and monitors”. [Authorising the Exportation or Re-exportation of Agricultural Commodities, Medicine, Medical Supplies, and Replacement Parts; The Ukraine-related Sanctions Regulations, 31 C.F.R. Part 589 // List of medical supplies (updated August 12, 2016) defined in Ukraine General License 4] The General License No. 4 permits the export or re-export of medicine and medical supplies (without specifying medical oxygen) from the United States or by an American person, wherever located, to Crimea or to persons in third countries purchasing specifically for resale to Crimea, and carrying out related operations, including arranging for shipment and for the inspection of cargo, obtaining insurance, arranging financing and payment, shipping goods, receiving payments and entering into contracts. In March-April 2022, the US Department of the Treasury published General Licenses allowing transactions related to the supply of medicines, the provision of medical services, as well as activities to support non-profit development projects that benefit the people of Ukraine or the Russian Federation, including those related to healthcare, food security, water supply and sanitation, which also did not list medical oxygen (4, 5).
It is obvious that the regulation of the possible supply of medical oxygen to Crimea remains in the “grey” zone of Western sanctions regimes. Foreign companies that have located the production of medical oxygen in Russia may at any moment find themselves between the “hammer” of Western restrictions and the “anvil” of Russian legislation, which they are required to comply with. Thus, it is important to raise the fundamental question before Washington and Brussels of improving the exemptions to the sanctions regimes so that such “grey” zones do not interfere with the business of American and European companies, and most importantly, do not become a serious obstacle to saving people’s lives.
