No Rights for the Wicked (Part II)

Canvassing the Case for Countermeasures

By: Jared Sloan (1L)

Credit: Deposit Photos

This article reflects the views of the author alone, not the International Human Rights Program, nor the Rights Review Editorial Board members.

On February 16, 2024, it was reported that Alexei Navalny had died in an Arctic penal colony, aged 47, survived by his wife and two children, and forever a heroic figure to all those who believe in freedom and democracy. As Joe Biden fittingly said of Navalny in a tribute speech, he was all the things that Vladimir Putin is not. And Biden made sure to put the blame squarely where it belongs: “Make no mistake, Putin is responsible for Navalny’s death. Putin is responsible.”

You may recall that in 2021, Biden threatened consequences “that would be devastating for Russia” if Navalny were to die in prison. With all that has happened in the intervening time, the idea of Putin ever being truly held to account by the U.S. (or anyone else) can feel dishearteningly remote, particularly as Ukraine struggles to secure the funds, weapons, and soldiers it needs to continue defending its territory. But as the death of Russia’s most famous dissident was reverberating around the globe, another prominent Kremlin critic chimed in with perhaps the best option available to Western governments at this moment. Garry Kasparov, the former World Chess Champion and chairman of the Renew Democracy Initiative, wrote on X:

Today would be a good day to seize $300 billion in Russian assets and give it to Ukraine.

This proposal is, of course, the central motivation for this series. Part I provided an introduction to the legal theory behind it, and the current efforts of Senator Ratna Omidvar to have Canada set an example for other countries in turning this idea into real policy. Part II was set up as a more detailed examination of the doctrine of countermeasures in international law, and how it would apply to the present context. 

As mentioned in Part I, one of the most helpful sources in understanding this subject matter has been the white paper on Senator Omidvar’s proposal, written by three internationally-based attorneys. Upon rereading their carefully developed legal arguments, it seemed to me that the best use of this space would simply be to present the case – or at least an abridged casebook version, if you will – as written by the professionals. So, with full credit to the three authors – Jamison Firestone, Tetyana Nesterchuk, and Yuliya Ziskina – I have tried to piece together a faithful representation of their expert legal opinion. I hope you will find the arguments as compelling as I do (not to mention Joe Biden and Nikki Haley, who have both embraced a similar bill advanced by the U.S. Senate Foreign Relations Committee). And if so, I hope you will consider ways to express your support for Senator Omidvar’s efforts to pass Bill S-278. As Dennis Aftergut recently wrote in The Bulwark, we need not all demonstrate the courage of Alexei Navalny, but surely we can all “do what the martyred Russian opposition leader asked—play whatever small part we can in preserving our own freedom.”


PART 2. Analysis of International Law Supporting Confiscation of Russian State Assets 

1. Russia has an obligation to pay reparations under international law. 

[24] The UN International Law Commission’s (“ILC”) Articles on State Responsibility   (“ARSIWA”) reflect the customary international law obligation that states that commit an   internationally wrongful act must “make full reparation for the injury caused by the intentionally wrongful act.” […] Importantly, the obligation of the responsible state may be owed to the international community as a whole, depending on the character and content of the obligations (for instance, an obligation under a treaty concerning protection of human rights or the UN Charter itself may exist towards all the other parties to a treaty or the charter). Finally, there is no requirement for the responsible state to consent before reparations, including compensation, are made. 

[25]This means that Russia’s obligation to make reparations to Ukraine is owed to the entire international community and the international community is able to enforce such an obligation without Russia’s consent. In other words, states not directly injured by Russia’s conduct may seize and transfer Russian state assets to Ukraine without any form of agreement from Russia.

[26]There is no real dispute that Ukraine and probably other states are entitled to    compensation from Russia. It is undeniable that since 22 February 2022 (and arguably, since its invasion and annexation of Crimea in 2014) Russia has violated numerous international laws, including Article 2(4) of the UN Charter (generally considered the cornerstone of the charter) which provides that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State”, the ruling of the International Court of Justice dated 17 March 2022 ordering that the Russian Federation “shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine”, as well as multiple provisions of the European Convention on Human Rights and the Genocide Convention. As such, Ukraine and other parties to the UN Charter and the Genocide Convention, which include Canada, have the obligation to do what they can to stop these actions and hold Russia accountable for committing them, including by transferring Russia’s frozen sovereign assets to Ukraine. 

[27]Given the existence of this obligation, Russian frozen assets can, and indeed, must be seized and transferred to Ukraine in satisfaction of Russia’s existing obligation to make reparation. Any subsequent amount of reparation paid by Russia would be reduced by the amount of Russian confiscated assets already transferred to Ukraine. 

2. The international law principle of state countermeasures permits other nations to confiscate Russia’s assets to compensate for losses caused by Russia’s unlawful actions. 

[31]In international law, a state may take countermeasures in response to the internationally wrongful act of another state, which is intended to induce the latter state to comply with its international legal obligations. Countermeasures are, by definition, state acts that would ordinarily be unlawful, and thus would attract international legal responsibility (liability), if not taken in response to an internationally wrongful act by the offending state in order to achieve a specific objective: namely, cessation and/or reparation. The purpose of countermeasures is the need to restore the equality between sovereign states and to re-establish the balance that has been disturbed by the commission of the internationally wrongful act. Although the analogy is imperfect, countermeasures operate much like justifications or excuses found in criminal law. 

a. “Countermeasures” are distinct from “sanctions,” and it is time to move from sanctions to countermeasures. 

[35]The sanctions construct is appropriate for freezing Russian assets, which has  accomplished the goals of constraining Russia’s access to its financial resources and hampering its economic growth and ability to attract foreign capital. Yet sanctions alone have proven to be ineffective in persuading Russia to call off its war, much less to deliver reparation to Ukraine and other states for the moral and material damage Russia’s war has caused and continues to cause. Thus, countermeasures are the most appropriate tool in the international law arsenal which could and should be used to enforce Russia’s compliance with its obligations to cease its breaches of international law and make reparations for the injuries caused by its actions. 

3. Transfer of sovereign assets to Ukraine is a justified and permissible countermeasure against Russia. 

[41]A lawful countermeasure should only seek for cessation and/or to obtain reparation for the injury caused. A lawful countermeasure has to fulfil several additional prerequisites: such a countermeasure must be: 1) taken in response to a previous international wrongful act of another state, 2) directed against that state, 3) taken after a prior call upon the responsible state and prior offer to negotiate, and 4) such a measure must be proportionate. 

[42]Additionally, the countermeasure must be: 1) temporary and, “as far as possible, be taken in such a way to permit the resumption of performance of the obligations in question” (also known as the “reversibility” requirement), and 2) not imposed when the dispute is pending before a court or tribunal.

[43]The transfer of Russia’s sovereign assets is a valid countermeasure under these conditions. 

1) First, Russia is plainly in breach of international law. 

2) Second, the countermeasure of transferring Russia’s sovereign property satisfies the common-sense concept of proportionality and is not gratuitous. In effect, this countermeasure would constitute a narrowly limited abrogation of Russia’s property interest in certain sovereign assets. In any event, Russia could make a claim for the return of its seized property, but any such claim would be offset against a credit Russia would receive for payments already made to Ukraine out of its seized sovereign assets against Russia’s total liability for full reparation. Russia would only be entitled to a return of its assets from transferring or recipient states if the transferred funds exceeded its total liability for reparations. In practice, that will almost certainly not be the case since even conservatively estimated damage caused to Ukraine by Russia far exceeds the amount of its frozen sovereign assets. 

3) Third, the international community has already put Russia on notice—indeed, has done so repeatedly—that it is in breach of obligations owed to the international community.

4) Finally, it satisfies the reversibility requirement: the transfer operates as a temporary and narrow de-recognition of the obligations concerning Russia’s property that Canada ordinarily owes to Russia. Once Russia resumes compliance with international law, and complies with its own international law obligation to make reparation, that de-recognition would be reversed, any payments already made to Ukraine out of Russia’s sovereign assets by third party states, such as Canada, would be credited against the debt Russia owes Ukraine, and Russia’s legal relations with Canada and other nations would be normalized.


[58]In short, if Canada and other Western states want to face fewer crises like that in Ukraine, they should send the unmistakable message to the international community that Russia’s conduct will not be tolerated, and should avoid sending the aggression-encouraging signal that such conduct will be met with hesitation and appeasement. 

[59]Last, if Canada or other countries are worried about the precedent they may set and are dissatisfied with the limitations already written into law, the solution is to narrow the effect of the precedent that is set, not to abstain from action altogether.