Below is the abstract for “The Freezing and Confiscation of Foreign Central Bank Assets: How Far Can Sanctions Go?,” available for download on SSRN.
The freezing of $350 billion in Russian central bank assets in the aftermath of Russia’s full-scale invasion of Ukraine has lent new urgency to the issue of the extent to which international law protects such property from freezing and/or confiscation. On the one hand, there is general agreement that sovereign immunity shields central bank assets from attachment or confiscation in satisfaction of court judgments. On the other hand, few governments have described the freezing of Russian central bank assets – or similar measures taken in the past in relation to other states’ central banks – as a violation of sovereign immunities.
This gives rise to a host of issues under international law, such as: Do sovereign immunities apply to both the (temporary) freezing and (permanent) confiscation of central bank property? If so, how do they interact with the law of state responsibility, and in particular the law of countermeasures, which allows temporary deviation from international obligations vis-à-vis another state in response to its own breaches of international law? Or, alternatively, do sovereign immunities only apply to the enforcement of court judgments so that measures ordered by the executive branch fall outside their ambit, regardless of whether they involve freezing or confiscation of central bank property?
As if those doctrinal matters were not difficult enough in their own right, there are further layers of complexity to consider, such as: the EU’s position that it may transfer the interest earned on Russian central bank assets to Ukraine while leaving the principal untouched; the absence of any directly comparable precedent of states seizing a foreign central bank’s assets in the interests of a third state; and, assuming that confiscation is available, the question of the precise conditions in which it can take place.
Despite the emergence of some academic and policy-oriented commentary on the future of frozen Russian assets, no study to date deals comprehensively with all those legal and policy aspects of freezing or confiscating a foreign central bank’s assets. This article fills that gap by exploring the legal and policy merits of freezing and confiscating such assets to provide reparations to a third state (e.g., Ukraine), which would also be relevant to other similar situations in the future.