I've been a bit skeptical about seizure of Russian assets, mostly on pragmatic grounds: Seizing a sovereign's money when one is not yet actually at war with the sovereign strikes me as a perilous matter, not quite as much as seizing the sovereign's territory but still a big deal. I was also unsure that this sort of thing is even allowed under generally accepted international law principles.
I personally don't view such principles as binding, when we're talking about disputes among adversaries. (Among friends or at least generally peaceful trading partners, I think they are extremely important, because there are huge practical benefits from everyone knowing the rules and following them.) But I do think that even when dealing with adversaries, there are practical reasons to at least pay some attention to them.
When this came up in conversation last week with my colleague here at Hoover, Philip Zelikow, he told me that such seizure is indeed consistent with international law, though of course that doesn't resolve the pragmatic question of whether it's wise. There's a report on the subject on which he is one of the authors, "On Proposed Countermeasures Against Russia to Compensate Injured States for Losses Caused by Russia's War of Aggression Against Ukraine" (May 20, 2024), which I thought I'd pass along for those of our readers who are interested; naturally, I'll be glad to post serious arguments on the other side as well. An excerpt:
For the reasons set out below, the authors of this Memorandum – experienced public international lawyers and practitioners from Belgium, France, Germany, Japan, the Netherlands, Nigeria, the United Kingdom, and the United States – having given their most serious consideration to this issue, conclude that it would be lawful, under international law, for States which have frozen Russian State assets to take additional countermeasures against Russia, given its ongoing breach of the most fundamental rules of international law, in the form of transfers of Russian State assets as compensation for the damage resulting directly from Russia's unlawful conduct. Only Russian State assets would be affected. No new measures would be imposed on assets that are genuinely privately owned….
There is no doubt about the illegality of Russia's invasion of Ukraine, occupation of Ukrainian territory or annexation of large parts of it. By these actions, Russia has violated the most fundamental rules of international law, enshrined, inter alia, in the United Nations Charter, Article 2, paragraph 4, which prohibits the use or threat of force against the territorial integrity or political independence of another State. The principle is embodied in UN General Assembly ("UNGA") resolution 2625 (1970), the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, which reflects customary international law and declares unlawful and inadmissible the acquisition of another State's territory by force. These
rules are a cornerstone of the post-World War II international legal order; indeed, they are indispensable to the foundation upon which the entire rules-based order is built….In the face of [Russia's] blatant violation of a State's international legal obligations, international law permits other States to respond with "countermeasures". Lawful countermeasures are measures that would be unlawful if imposed against an innocent State, that is, one that has not violated its international obligations, but are permitted if they are taken against an offending State and are intended to induce the offending State to cease its unlawful conduct, and comply with its obligation to compensate States that have been injured by that conduct, including to effectuate that compensation with the offending State's assets….
There's much more at the link.
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