Germany is considering confiscating Russian assets if other countries do the same. Estonia is preparing a bill that will allow seizing the assets of Russian oligarchs worth tens of millions of euros. The Government of Canada has begun preparations for the seizure of $ 25 million by the Russian sanctioned oligarch Roman Abramovich. Sounds optimistic, but still too cautious. To achieve true effectiveness, you need to act decisively and right now.
Hundreds of billions of dollars of sovereign assets of Russia and its citizens who are under the influence of sanctions are the main resource for compensation and compensation for damage to Ukrainians caused by the actions of the aggressor.
Assets should not just be confiscated, but confiscated in order to send them to the Compensation Fund, which will be an integral part of the International Compensation Mechanism, provided for by the UNGA resolution, and a source of monetization of the decisions of the Compensation Commission. In short, we need to quickly create both the mechanism and the fund, confiscating assets to fill it. In the meantime, it is necessary to amend the national legislation of the countries so that such confiscation becomes possible when the mechanism works.
The main obstacle to this is the established approaches in international law, which above all place immunity for states on their property. But while Western countries hesitate, Ukrainians continue to suffer from rocket and artillery strikes, Russian war crimes.
The precedent for the seizure of the assets of the Russian Federation is not a change in the general rule of sovereign immunity, but rather its confirmation. Protection should be for those who follow accepted norms, and do not violate them, endangering the whole world. The fact that governments are publicly talking about the possibility of such a solution is an important indicator. But discussion must be translated into action. Such a decision is important, both directly for the restoration of Ukraine, and as a signal for the Russian Federation – they will have to come to terms with the fact that without the withdrawal of their troops and the payment of reparations, they will not be able to return to the negotiating table and business relations.
Russia has challenged the world legal order and the global security system. Delaying an adequate response is tantamount to demonstrating weakness, and that is exactly what she is waiting for. The Russian economy has enough reserves to “wait out” the sanctions, i.e. the calculation in the aggressor country is still that the world will gradually get tired, the pressure will begin to weaken, and business can again be conducted as before. This is what gives hope and self-confidence to the leadership of the Russian Federation. The longer the discussions go on, the fears and possible risks are spoken out, the more confidently Russia continues the war, killing Ukrainians.
Leaving this unanswered is a much more ominous precedent than yet another exception to the immunity of foreign assets. Why one more? Because such exceptions already exist.
July 10, 2018 DC decidedthat the exception to the expropriation of sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA”) extends to the sovereign taking the property of its own citizens in an act of alleged genocide. Same case – Philipp v. Federal Republic of Germany, 894 F.3d 406, 410-14 (DC Cir. 2018) (based on Simon v. Republic of Hungary, 812 F.3d 127 (DC Cir. 2016)) – Considered by the U.S. Supreme Court. And on February 3, 2021, the Court unanimously ruled that the expropriation exception applies only to the sovereign’s seizure of the property of a foreign citizen, and not of its own citizens.
This case shows that there are no unshakable norms, especially when it comes to unprecedented events, and the Russian attack is definitely just that. You won’t be able to play by rules that your opponent openly laughs at and expect them to suddenly come to their senses and listen.
Unfortunately, the aggressor country is still represented in the UN Security Council, still has nuclear potential, still receives sub-sanctioned dual-use goods, and still kills Ukrainians on a daily basis. For serious victories in the legal and economic field, traditional tools are not enough. Attachment to complex bureaucratic procedures and the desire to constantly delay the necessary decision is what makes the West weaker and allows Russia to remain strong.
Recently the President of the United States Joe Biden successfully commented on the fake “Christmas truce” allegedly announced by Russia. He then said that the President of the Russian Federation Vladimir Putin looking for some oxygen. And this is a very accurate remark – the Russian Federation is beginning to suffocate, their attempts to circumvent sanctions and wait out concerns from the EU and the United States are gradually failing.
But this means that the pressure needs to be increased right now. In military terms, we are already seeing results – arms supplies are increasing. Now steps are needed in legal terms – it is important to confiscate the assets and send them to compensate the affected Ukrainians. This is the only way to realize the principle of justice.
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