By Anton Moiseienko, ANU College of Law, the International Lawyers Project and Spotlight on Corruption.
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Abstract
Following Russia’s invasion of Ukraine, a significant amount of assets linked to Russia has been frozen around the world. Under international law, Ukraine is entitled to full reparations from Russia for the damage the latter caused. But there is no real prospect of Russia honouring this obligation. As a result, frozen Russian property overseas presents the only pool of assets that can realistically be used to compensate Ukraine.
There is, however, no existing legal framework for doing so. The freezing of the assets means Russia cannot use them, but it does not permit their confiscation or handover to Ukraine. This is notwithstanding the recognition by major sanctioning powers, including the US, EU and UK, that it is desirable for these assets to be disbursed for Ukraine’s benefit.
There are well-known and formidable legal challenges in the way of converting the temporary freezing of Russia-linked assets into their permanent seizure. State-owned property is shielded from enforcement by sovereign immunity rules. Meanwhile, the confiscation of private property gives rise to constitutional and human rights concerns. The objective of this paper is to present options for resolving these difficulties.
This paper is based on a workshop that brought together a group of academics, practitioners and civil society groups specialising in sanctions, asset confiscation and international law in April 2022. The authors alone are responsible for any errors and omissions, and they wish to thank everyone who has contributed to this collective effort.
Keywords: sanctions; asset recovery; non-conviction based asset forfeiture