From Freezing to Seizing? A Critical Analysis of State Immunity in Relation to Seizing Russian Central Bank Assets for Ukraine

Sammanfattning: In response to Russia’s aggression and illegal use of force against Ukraine in 2022, in violation of the UN Charter, the EU and other partners adopted sanctions immobilising or freezing the assets of the National Central Bank of Russia, assets possibly amounting to over €300 billion. The war has caused enormous and incalculable damages to Ukraine and its infrastructure, economy and people. Suspected international crimes and serious violations of peremptory (jus cogens) norms may also be attributable to Russia. This has led to a discussion, for example within the EU, concerning a potential seizure, or confiscation, of the frozen Russian central bank assets, and their transfer to or use for Ukraine and its people as reparations for Russia’s violations of international law. While these options seem attractive at face value from a moral perspective, taking into account Ukraine’s damages and right to reparations, many have been sceptical and asked whether such a measure would violate customary international law of State immunity. This thesis, using a legal dogmatic method, critically analyses State immunity from enforcement, from a theoretic perspective of justice and accountability, to examine whether a seizure of Russian central bank assets would be incompatible with the law of State immunity or could be justified under existing or emerging exceptions, and whether State immunity from enforcement would apply to measures taken outside of judicial proceedings. Central bank assets and foreign currency reserves specifically, are protected by near-absolute immunity under customary international law and they would not fall under exceptions for non-sovereign, or commercial, purposes. For a long time, there has been proposals for and discussions concerning an exception to State immunity for serious violations of jus cogens, as part of the growing emphasis on accountability and justice for individuals. Such an exception was rejected by the International Court of Justice in the Jurisdictional Immunities case, which was heavily criticised but is seen as authoritative. It is argued in the thesis, however, that while there is currently not enough support in State practice for an exception, the seizure of Russian assets presents an opportunity for willing States to advance a principled and reasonable exception in a contested, incoherent, and largely unsettled area of international law. Finally, it is concluded that it is nonetheless entirely possible that State immunity from enforcement does not apply at all to a seizure of Russian assets, if it is sufficiently “non-judicial”, in line with a growing practice of sanctions and freezes of central bank assets. While this potentially lawful but unexpected solution may not make as much sense as a jus cogens exception, from a perspective of justice and accountability, it may fit the international legal system of State-centric enforcement of human-centred interests and values.