Funding reparations to Ukraine: the international law framework

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FUNDING REPARATIONS TO UKRAINE: THE INTERNATIONAL LAW FRAMEWORK

A.І. Ripenko, D.Sc., advocate

This comprehensive article ventures into the multifaceted dimension of funding reparations to Ukraine and the Ukrainians, particularly confiscating Russian state assets, a topic that has gained profound relevance in the wake of Russia's unexpected military aggression against Ukraine on February 24, 2022. Undertaken through an elaborate research approach, the study encompasses methods such as formal legal analysis, hermeneutics, comparative legal studies, historical analysis, and systematic review to unravel the intricacies of the matter.

Central to the discourse is Ukraine's imperative need for post war reconstruction, a monumental task estimated to cost beyond a staggering 400 billion USD. With such an enormous financial burden at hand, the study critically examines potential rapid compensation avenues, spotlighting assets tied to the Central Bank of Russia and other pivotal state-owned corporations and enterprises. Historically, these assets have been enveloped in a protective layer, safeguarded by customary international law principle of sovereign immunity. This immunity, widely recognized in international and domestic legal frameworks, offers an almost impenetrable shield. In addition, the article presents a perspective, postulating that Russia's overt aggressive actions might provide a legitimate avenue to pierce this protective veil. It introduces the potential for Ukraine, backed by its international allies, to invoke the right of (collective) self-defence. Such an approach not only provides a legal rationale to lawfully seize these assets but also underscores the urgent need for international cooperation in the face of blatant disregard for global peace and security.

Furthermore, the narrative offers an in-depth examination of Ukraine's experience during the armed conflict and discusses the procedure of confiscation as a third-party countermeasure. It delves into the doctrine of individual and collective selfdefence, investment protection and other issues.

Key words: assets, confiscation, armed conflict, third States, self-defence.

А.І. Ріпенко

Стаття глибоко поринає у багатоаспектну проблему фінансування репарацій для України та постраждалих осіб, зокрема за рахунок конфіскованих активів Російської Федерації, що набула особливої актуальності після початку повномасштабної військової агресії РФ проти України 24 лютого 2022 року. Дослідження спирається на такий методологічний арсенал, як формальний правовий аналіз, герменевтика, порівняльні правові дослідження, історичний аналіз та системний огляд для розкриття всіх нюансів цього питання.

У центрі уваги дискусії знаходиться нагальна потреба України у відбудові, завдання безпрецедентних масштабів, вартість якого оцінюється в понад 400 мільярдів доларів США. Маючи на увазі таке величезне фінансове навантаження, у дослідження критично розглядаються потенційні механізми швидкої компенсації, основна увага при цьому приділяється активам, пов'язаним із Центральним банком Росії та іншими ключовими державними корпораціями та підприємствами. Традиційно ці активи знаходяться під захистом, забезпеченим принципом суверенного імунітету, який визнається міжнародними та національними правовими рамками.

Стаття пропонує новаторський погляд, стверджуючи, що відкрита агресія РФ може надає законні підстави реагувати, у тому числі у вигляді конфіскації активів держави - агресора. Вона вказує на потенційну можливість для України, підтриманої її міжнародними союзниками, звернутися до права (колективної) самооборони. Такий підхід не лише надає правове обґрунтування для законної конфіскації державних активів РФ, але й підкреслює нагальну потребу у міжнародній співпраці в умовах очевидного ігнорування агресором основ глобальної безпеки.

У статті наводиться докладний огляд досвіду України під час збройного конфлікту та обговорюється процедура можливої конфіскації активів як контрзаходів, застосованих третіми державами від. Дослідження заглиблюється у доктрину індивідуальної та колективної самооборони, захисту інвестицій та інші актуальні проблемні питання.

Ключові слова: активи, конфіскація, збройний конфлікт, треті держави, самооборона.

Introduction

On February 24, 2022, Russia launched a full-scale attack against Ukraine. Reconstruction and recovery needs are estimated at over 400 billion USD [49]. 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 [19], and other Russian state assets, including those owned by state corporations and enterprises - potential `alter egos' of Russia [32]. 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, States can lawfully confiscate the aggressor's assets by invoking (collective) self-defence.

Literature Review

The issue of confiscation of Russian assets frozen in the world has not been actually resolved. During the first months of the war, it was generally referred to as something distant and incomprehensible. Only in June, the Canadian Parliament amended the national legislation, providing for the possibility of confiscating the assets of states and individuals, who have committed significant violations of the international legal order, human rights, or considerable corruption offenses. Thus, in December, the Minister of Foreign Affairs of the country, Melanie Jolie, announced the arrest and demand for the confiscation of 26 million dollars of the company Granite Capital Holdings Ltd, which belongs to the Russian oligarch Roman Abramovich [37]. That is, it is only a question of drafting a submission on confiscation in court.

In November, the UN General Assembly adopted a resolution authored by Ukraine and half a hundred other states, which calls on Russia to compensate for the damage caused. 94 countries voted in favour of the resolution, and 14 against, while 73 abstained. Among those who indirectly supported the aggressor's actions in this way are the Bahamas, Belarus, China, Cuba, North Korea, Eritrea, Ethiopia, Iran, Mali, Nicaragua, Russia itself, Syria, the Central African Republic and Zimbabwe.

As stated in the declaration, «the Russian Federation should be held accountable for all violations of international law in Ukraine or against Ukraine, including its aggression against the Charter of the United Nations, as well as violations of international humanitarian law and human rights. It bears the legal consequences of all internationally illegal acts, including compensation for damage caused by such acts». It is also recognized the need to create, in cooperation with Ukraine, «an international mechanism for compensation for damage, losses or harm that is a consequence of the illegal actions of the Russian Federation in Ukraine or against Ukraine». According to the decision, an international register of losses is created to record the evidence caused to all interested individuals and legal entities, as well as to the state of Ukraine as a result of the illegal actions of the Russian Federation [47].

But it is impossible to simply take the «frozen» money and transfer it to Ukraine or to the accounts of special funds that have already been created and will be created for its reconstruction. Moreover, there was a clarification by the International Court of Justice (2012) of the United Nations that no country can legally seize the assets of another - even if it is guilty of war crimes.

It is easier with private money and property. But in this case new legal mechanisms are needed as well so that national courts can make relevant decisions. Ideally, their approval at the level of the UN or a group of states, and then implementation and detailing at the national level.

As Alan Riley (2022), a senior researcher at the Atlantic Council, points out, according to the norms of international public law, in order to use such a mechanism, Russia's consent is not required and there is no need for a complete military defeat of Moscow and the occupation of Russian territory. Instead, it will be necessary to conclude an International Agreement on Reparations, which will provide for the agreement of the signatory states to identify, freeze and confiscate Russian assets and transfer them to a compensation fund. First of all, all state assets of the Russian Federation in the territories of the parties to the agreement (money, precious metals and securities of the Central Bank, assets of the state-owned enterprises «Gazprom» and «Rosneft», etc.) can be seized. Private assets will also be subject to seizure if their connection with the Russian Federation is clearly proven.

According to Politico, legal options for the confiscation of Russian state and private property as payment for the restoration of Ukraine are currently being studied by the European Commission. However, apparently, it is only about the first steps on this path: «determining ways to strengthen the tracking, identification, freezing and management of assets as preliminary steps to potential confiscation» [44].

«The most obvious principle of natural justice is that those individuals and legal entities who financed the brutality directed against Ukraine and Ukrainian people are ultimately the ones who must then bear the heaviest burden of payment, costs for the reconstruction and restoration of this country,» - emphasized James Cleverley (2023), speaking during a debate in the House of Commons.

Methodology

Methodology is a conceptual statement of the purpose, content, and methods of research that ensure obtaining the most objective, accurate, systematized information about the problem under consideration. Achieving the goal and objectives of scientific research largely depends on a clear definition of the methodological basis.

The research methods were chosen considering the purpose and tasks of this work.

Thus, formal and legal (dogmatic) method was applied in course of legal analysis of international and Ukrainian legal instruments governing the procedure of confiscating State assets.

Hermeneutic method was helpful when establishing the content of certain legal concepts («confiscating assets», «self-defense», « third-party countermeasure»).

Comparative and legal method was used when comparing domestic and international legal instruments regulating the issue of confiscation of the State assets.

Historical and legal method made it possible to study the State practice of confiscating assets of another country under an administrative act or without any formal act.

System analysis method helped to investigate the procedure of confiscating assets as a third-party countermeasure.

With the assistance of logical method, the Ukraine's perspectives in confiscating Russian State assets were examined.

Modeling method was used for predicting the influence of confiscation on investment protection, including bilateral investment treaties between Russia and third states.

With the help of summarization method, the relevant conclusions were presented.

Results and Discussion

The term «reparations» carries multiple meanings under international law. War reparations are paid after the end of an armed conflict, from one state to another, under the law of state responsibility. Victims of Russian aggression in Ukraine, on the other hand, have a right to receive reparations from Russia for violations of human rights and international humanitarian law. Both types of reparations require funding. This article focuses solely on the disposal of Russian state assets. However, it should be noted that the assets of Russian oligarchs or entities that support the Russian military machine could also be subject to disposal as reparations under specific circumstances. Up until now, the main source considered for funding reparations has been frozen Russian state assets.

Main Proposals on Using Russian State Assets

The main proposals concerning the use of Russian state assets are intertwined with discussions on the legality and economic consequences of confiscating these assets. The options on the table include:

Confiscating sanctioned Russian state assets and allocating them for the reconstruction of Ukraine (through a Claims Commission and Reconstruction Fund, directly to the Ukrainian government, or other means). A Register of Damage has already been initiated as the first step toward a future compensation mechanism.

Keeping the assets frozen until the end of the war, thereby securing reparations that Russia should eventually pay. Investing frozen Russian state assets and directing the profits to Ukraine.

Taxing frozen Russian state assets (including clearing companies like Euroclear).

Both the option of investing and using the proceeds for compensation to Ukraine, as well as imposing a special tax directly on these assets, stop short of ultimately disposing of the assets. These options, however, challenge Russian sovereign immunity and other protections that may exist under international law. The questions that arise are: How does disposing of benefits generated from investing Russian state assets differ from direct confiscation, from a legal standpoint? And what would be the grounds for taxing frozen Russian assets?

In the sections that follow, we explore ways to circumvent immunities and other forms of international law protection granted to Russian state assets.

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) [46], 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 postjudgment measures of constraint (Article 19), granting immunity from execution, with near absolute immunity [50] for central banks' assets. However, the Convention does not cover [51] 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) [4], it is noteworthy that Ukrainian courts have recently formed consistent practice of denying the aggressor's sovereign immunity from adjudication [25]. 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 [34].

The state practice of confiscating assets of another state under an administrative act or without any formal act is mainly confined to wartime [34]. 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 [22]. However, during World War I [7], World War II [34], and the Korean War [30], 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 [34]. Thus, in practice, the principle of sovereign immunity has been relented during armed conflicts [13].

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 (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 [11] and Ukraine's inherent (`sovereign' in the literal translation) right of self-defence. The earlier Law № 1644-VII (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 (2022), the assets of two Russian banks [18] 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 [28]. Russian banks initiated an investment arbitration [39] on the grounds of provisions from the Russian Federation - Ukraine bilateral investment treaty [14]. To date, a final award on the only known relevant dispute has not been issued [24].

According to the Ukrainian Government, confiscating 903 other Russian objects (state enterprises, aeroplanes, cargo vessels, vehicles, etc.) is being considered [41]. The detailed information on these assets is restricted and cannot be obtained also not through public information requests. According to the analytical group Trapaggressor [53], this pool entails inhomogeneous assets belonging to different subjects, including, e.g., 100% of Brocard Ukraine LLC, owned by a Cypriot company and (presumably indirectly) controlled (presumably indirectly) by the Russian Ministry of Trade, and 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 [20]. Following Russia's breach of obligations erga omnes [1], 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 [5]. 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 [10].

Concerning the requirements for lawful countermeasures, the International Law Commission (2001) 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 [43; 33; 52]. The main `stumble block' is the temporariness requirement of countermeasures (which extends to the third-party countermeasures), 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.) [35]. 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 [35] (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) [23]. 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 [45], 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) [23]. 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) [38]. 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 [6]) 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 [2]. Ukraine's forcible (military) and non-forcible (sanctions, confiscation etc.) [6] responses meet the above-mentioned criteria [12]. Various third States have assisted Ukraine at its request with military and non-military help to stop hostilities and restore peace and security [29]. Usually, these States avoid referencing any explicit justification for their assistance [2]. 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 [3].

However, the third states regularly coordinate their efforts to assist Ukraine [31]. 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) selfdefence 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 [48]. In general, the necessity criterium [16] and other criteria of lawful self-defence should be considered regarding the Latin maxim in eo quod plus sit semper inest et minus [6], 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 it 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 [8]. 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' [17] (affected most by Russian aggression, e.g., the EU states as neighbouring states etc.), albeit this doctrine is not broadly acknowledged [36].

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) [42]. It has been further questioned [34] 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.

Conclusion

As the analysis above suggests, confiscating Russian state assets by Ukraine or third states and disposing them in an appropriate way 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.

armed conflict confiscation investment

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