Should Third States Follow Ukraine’s Lead and Confiscate Russian State Assets?
On February 24, 2022, Russia launched a full-scale attack against Ukraine. Reconstruction and recovery needs are estimated at over 400 billion USD. A potential source for rapid compensation is the confiscation (i.e. the forcible seizure with no compensation) of the assets of the Central Bank of Russia, and other Russian state assets, including those owned by state corporations and enterprises – potential ‘alter egos’ of Russia. In the context of confiscating Russian state assets and sending them to Ukraine, the sovereign immunity protection of these assets could be an obstacle. Besides, state assets may be protected under investment and other treaties or States’ domestic legislation. The present blogpost argues that, under the circumstances mentioned below, third States can lawfully confiscate the aggressor’s assets by invoking collective self-defence.
Are Russian State Assets Unequivocally Immune?
State-owned assets are covered by (foreign) sovereign immunity under customary international law, partially codified in the U.N. Convention on Jurisdictional Immunities of States and Their Property (Convention), which is not yet in force. Under the Convention, immunity is granted only from the jurisdiction of the courts of another State, i.e., of any organ with judicial functions (Articles 1,5). The Convention also protects state assets from the post-judgment measures of constraint (Article 19), granting immunity from execution, with near absolute immunity for central banks’ assets. However, the Convention does not cover executive actions not based on a judgement like unilateral sanctions (restrictive measures) or even a confiscation of assets of a foreign state. While this blogpost does not focus on sovereign immunity issues in case of adjudicative confiscation of Russian state assets following jus cogens violations (which would have been covered by the scope of the Convention), it is noteworthy that Ukrainian courts have recently formed consistent practice of denying the aggressor’s sovereign immunity from adjudication. The practice of unilateral sanctions, imposed mostly by Western states as executive actions (i.e., under administrative acts of an authorised body of the state), seems to indicate the absence of a customary rule on immunity protection from such executive actions.
The state practice of confiscating assets of another state under an administrative act or without any formal act is mainly confined to wartime. International humanitarian law (also called the law of armed conflict) sets out rules on war booties, property in occupation, seizure and destruction of property on the battlefield, as well as private property protection but with no special regulations regarding the sovereign immunity protection for assets of the belligerent states. However, during World War I, World War II and the Korean War, States’ confiscating efforts reached not only the state property on the battlefield but also other state assets (banks, factories, monetary gold etc.), as well as commercial and other private property. In that context, legal arguments on States’ sovereign immunity issues regarding actions of states based on their administrative acts or in the absence of any formal act of an authorised body rarely arose. Thus, in practice, the principle of sovereign immunity has been relented during armed conflicts.
The Ukrainian Experience of Confiscating Russian State Assets During an Armed Conflict
There are no Russian central bank assets placed in Ukraine, but other Russian state assets are. Law № 2116-IX, adopted on March 3, 2022 provides for the seizure of the Russian state assets and the assets of Russian residents placed (registered) in Ukraine for reasons of social necessity, including (meaning not exclusively) when strongly demanded by military necessity. As stated in the preamble of the Law, the international law grounds for its adoption were the provisions of the Hague Convention IV with Respect to the Laws and Customs of War on Land and Ukraine’s inherent (‘sovereign’ in the literal translation) right of self-defence. The earlier Law № 1644-VII, adopted on August 4, 2014, also refers to the inherent (sovereign) right of Ukraine of self-defence and its exercise inter alia through the imposition of special economic and other restrictive measures (sanctions). Notably, the forcible seizure of property belonging to the Russian Federation and its residents in Ukraine set forth by Law № 2116-IX is carried out without any compensation for their value. None of the abovementioned Ukrainian laws directly mention Russia’s sovereign immunity. The procedure adopted via Law № 2116-IX envisages no trial or court decision permitting the seizure of assets and is merely administrative.
Following Law 2116-IX, the assets of two Russian banks have been confiscated so far based on the National Security and Defence Council’s decision issued on May 11, 2022, which was put into effect by the Decree of the President of Ukraine and later endorsed by the Ukrainian Parliament. Russian banks initiated an investment arbitration on the grounds of provisions from the Russian Federation – Ukraine bilateral investment treaty (1998). To date, a final award on the only known relevant dispute has not been issued.
According to the Ukrainian Government, the confiscation of 903 other Russian objects (state enterprises, aeroplanes, cargo vessels, vehicles, etc.) is being considered. The detailed information on these assets is restricted and cannot be obtained also not through public information requests. According to the analytical group Trapaggressor, this pool entails inhomogeneous assets belonging to different subjects, including, e.g., 100% of Brocard Ukraine LLC, which is owned by a Cypriot company and (presumably indirectly) controlled by the Russian Ministry of Trade, as well as other corporate rights belonging to different subjects, which have different protection under international and domestic law. This is the very reason why the confiscation effort has been delayed.
In line with the above, to repel the Russian armed attack, Ukraine has invoked its right to self-defence and confiscated the aggressor’s assets. The following section will examine whether third states may also recourse to (collective) self-defence or take third-party countermeasures to justify confiscating the assets under international law.
Confiscating Assets as a Third-Party Countermeasure
Countermeasures aim to induce the State responsible for an internationally wrongful act to comply with its obligations. Following Russia’s breach of obligations erga omnes, States other than the one injured can recourse to third-party countermeasures. Indeed, scholars argue that third-party countermeasures are permissible under general international law. However, state practice of imposing unilateral sanctions, including sanctions imposed on Russia since the start of the aggression in 2014 by States that were not directly injured, in the absence, for the most part, of reasonable objections and appeals from the sanctioned states, supports the lawfulness of third-party countermeasures when obligations erga omnes are breached.
Concerning the requirements for lawful countermeasures, the International Law Commission (ILC) has highlighted that they shall be temporary and reversible as far as possible in their effects (ARSIWA Commentaries, p. 76, para. 6). Although temporary blocking (freezing) of Russian state assets may meet those criteria, confiscation may not. Being catalysed by the Russian aggression, the scholarly discussion on the legitimacy of confiscating state assets as a countermeasure has been recently unfolded (here and here as opposed to here and here). The main ‘stumble block’ is the temporariness requirement of countermeasures (which extends to the third-party countermeasures), as it may not be met in the case of Russian state assets’ confiscation. Another concern is the legality of disposing the confiscated state assets as war reparations, which are usually paid after the end of an armed conflict (along with restitution etc.). That concern stems from the premise that the sole function of countermeasures is to induce compliance by a state acting in breach of international law, rather than serve as a means of self-help (albeit the ILC states that non-forcible countermeasures could be taken in order to procure cessation of an internationally wrongful act and to achieve reparation for the injury, ARSIWA Commentaries, p. 75, para. 1). However, it is arguable whether the confiscated assets could be sent directly to Ukraine as countermeasures. The broader question arising even in this case is whether sending confiscated Russian state assets to Ukraine as countermeasures satisfies Russia’s legal obligations under international law to pay reparations (not only to the Ukrainian State but also to the injured persons).
Individual and Collective Self-Defence
The doctrine of self-defence has obtained lesser attention from scholars seeking to justify Russian state assets’ confiscation. According to Article 51 of the UN Charter, individual or collective self-defence is an inherent right of the State(s) during an armed attack, as well as a circumstance precluding the wrongfulness of otherwise unlawful conduct (ARSIWA Article 21). In the latter meaning, lawful self-defence is an excuse precluding the wrongfulness of a collateral damage that may have been caused by a self-defensive action (e.g., unpredictable damage caused by shooting down a missile, or third parties losses caused by confiscating the aggressor’s state assets). Meanwhile, forcible and non-forcible measures of self-defence (whether the states are entitled to take non-forcible means along with using force in self-defence is subject to discussion) aimed to repel an armed attack are initially deemed legal. Therefore, the claim of the aggressor state to compensate for any material loss should be dismissed.
For the exercise of self-defence, whether individual or collective, to be lawful, it should be a necessary, proportionate and immediate reaction to repel an armed attack. Ukraine’s forcible (military) and non-forcible (sanctions, confiscation etc.) responses meet the above-mentioned criteria. Various third States have assisted Ukraine at its request with military and non-military help to stop hostilities and restore peace and security. Usually, these States avoid referencing any explicit justification for their assistance. Nonetheless, some States have expressly denied exercising collective self-defence supporting Ukraine, while others have relied solely on Ukraine’s right to individual self-defence.
However, the third states regularly coordinate their efforts to assist Ukraine. The collective reaction of states against the background of the UN Security Council’s inability to stop the aggression underlines the Russian breach of obligations erga omnes. Hence the international law grounds for third states adopting (amending) domestic legislation allowing for confiscating Russian state assets could be found in their inherent right of (collective) self-defence or even in assisting Ukraine in exercising its individual right to self-defence. Meanwhile, regarding Russia blocking the Security Council’s resolutions, immediate reporting to the Security Council of self-defensive measures taken (Article 51 of the UN Charter) is far more questionable in terms of the effectiveness.
One can inquire whether confiscating Russian state assets by the third states as a non-forcible measure of self-defence would have met the necessity and proportionality criteria. Due to the scale of Russia’s illegal acts, the proportionality requirement is likely to be easily met. In general, the necessity criterium and other criteria of lawful self-defence should be considered regarding the Latin maxim in eo quod plus sit semper inest et minus, meaning the right to use force in self-defence must include the right to use non-forcible measures in self-defence. Hence non-forcible measures of self-defence, up to and including confiscation as an exceptional non-forcible measure, would meet all the criteria mentioned above, if they aimed at repelling an armed attack, with the third states sending the confiscated assets to Ukraine to strengthen its military potential.
Notably, confiscating Russian state assets is irrelevant to future war reparations for the damages caused by the aggression. In other words, this does not preclude further reparations from being paid by Russia, and thus the amount of confiscated assets (at least disposed to strengthen the defence of Ukraine) should not be the offset in the armed conflict’s aftermath. As mentioned above, the States’ silence to address sovereign immunity issues seems to be proving the absence of (foreign) sovereign immunity protection in case of self-defensive confiscation of the assets under an administrative act as an emerging customary rule. The assets of central banks are not excluded from the rule. However, some exceptions, like the inviolability of diplomatic assets, must be provided. Confiscation of assets in collective self-defence is finally subject to the political will of a state, enshrined in an administrative act issued by an authorized body.
To confiscate Russian state assets based on collective self-defence, a group of states allied to Ukraine may conclude a multilateral treaty, optionally based upon the UN General Assembly resolution. Concluding a treaty could have supported an emerging customary rule by the ‘specially affected states’ (affected most by Russian aggression, e.g. the EU states as neighbouring states etc.), albeit this doctrine is not broadly acknowledged.
The Concerns with Confiscation
A separate concern is investment protection, including bilateral investment treaties between Russia and third states. However, whether the Central Bank of Russia assets receive the appropriate protection as ‘investments’ should be carefully evaluated. It is arguable whether the bilateral investment treaties or other investment treaties protect the assets of states used or intended to be used for governmental purposes (acta jure imperia). It has been further questioned whether a possible confiscation of Russian state assets, including the central bank’s assets, would breach the minimum standard of treatment afforded to foreign property as a customary rule of international law or constitute an unlawful expropriation. However, a separate study of the provisions of relevant treaties, including BITs, is needed.
As the analysis above suggests, confiscating Russian state assets by Ukraine or third states would be a lawful measure of (collective) self-defence. It is argued here that sovereign immunity does not apply to the aggressor’s assets and thus cannot exclude their confiscation.