Editor’s note: This article is part of Just Security’s series on reparation mechanisms in the context of Russia’s war against Ukraine.
Russia is responsible for a war of aggression against Ukraine. As such, it is responsible for the damage caused to Ukraine and its people, including their property, by its unlawful war. In November 2022, the U.N. General Assembly recognised Russian responsibility and encouraged the creation of an international compensation mechanism as well as a register of damage (A/RES/ES-11/5). The Register of Damage has been established by the Council of Europe, and is expected to be fully operational in the spring of 2024.
There is no doubt that Russia owes compensation for the damage caused to Ukraine. But a key practical difficulty in achieving compensation for Ukraine and its people for the damage they have suffered is, of course, access to the required funds. As things currently stand, Russia will not voluntarily pay for the damage and will block any action by the United Nations Security Council (UNSC) to secure compensation. Attention has thus turned to the estimated $280 billion Russian State-owned assets held abroad, currently frozen. Could States in which the assets are located move, as the refrain has been, from “freezing to seizing” these assets and use them to compensate Ukraine, or to fund a compensation mechanism?
Transferring State-owned assets to a compensation fund (hereafter “Fund”) or to Ukraine or its people would most likely infringe international law. A variety of proposals have been discussed in academic commentary and various expert reports and legal memoranda, but the precise method for the implementation of the transfer, and its (potential) conditions, is not clear. Indeed, implementation may depend upon a variety of factors, including the type of asset, and various property, finance, and banking laws in different jurisdictions. It seems that, at a minimum, any proposed transfer would involve the confiscation of Russian assets, potentially in breach of immunities and the prohibition on unlawful expropriation. The transfer could, moreover, also violate treaty-based commitments existing between the parties involved. To justify these potential breaches, commentators and some States have turned to the notion of countermeasures.
The proposed transfer could satisfy most of the requirements of countermeasures, included in Articles 49-53 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARS). But disagreements remain on whether the proposed asset transfer would meet three key aspects of the countermeasures regime: whether States other than Ukraine (the injured State) can lawfully take countermeasures against Russia (the wrongdoing State); whether the proposed measures would meet the inducement-purpose of countermeasures; and whether it would meet the requirement of reversibility. In light of these disagreements, it is worth taking a step back, and exploring the scope of these requirements in some more depth.
1. Who can take countermeasures?
According to Article 49(1) of the ARS which reflects existing customary law, countermeasures can be taken by “[a]n injured State.” The injury is, indeed, the correlative of the “fundamental prerequisite for any lawful countermeasure”: the existence of a prior internationally wrongful act (ARS Article 49 Commentary, para 2). As relevant for present purposes, States are considered as injured by a breach if the breach affects an obligation owed to them directly or, if the obligation is owed erga omnes or erga omnes partes, when the breach specially affects a State to which the obligation is owed (ARS Article 42, paragraphs (a) and (b)(i)). As the ILC’s Commentary to this provision explains, a State is “specially affected” by a breach when it is affected “in a way that distinguishes it from the generality of other States to which the obligation is owed”, and this is a relative question to be determined on a case-by-case basis (ARS Article 42 Commentary, para 12). There is no doubt that Ukraine is an injured State, as it is “specially affected” by Russia’s breach of the prohibition of force. As such, it is a State entitled to take countermeasures.
The more difficult question is whether States that are not injured by the breach of an erga omnes obligation (because they are not “specially affected”), may nevertheless take countermeasures against the State responsible for that breach. The ARS do not settle the question: after States’ cool reception of a proposal to this effect in the Sixth (legal) committee of the UN General Assembly in 2000, the ILC resolved to adopt a savings-clause, now in Article 54. Since the adoption of the ARS in 2001, the question whether States other than an injured State, who are entitled to invoke the responsibility of the wrongdoing State (in accordance with ARS Article 48), may take what are variously termed “collective countermeasures” or “countermeasures in the general interest” has remained vexed.
States have often adopted measures against perceived violations of erga omnes obligations by other States, and the recent round of sanctions taken by several (though mainly western) States in response to Russia’s aggression against Ukraine is the latest example (for a detailed analysis of earlier practice see Tams, Katselli Proukaki, and Dawidowicz). But, as Miles Jackson and I note in a forthcoming article, uncertainties remain as to the recognition of these measures in customary law. It is often difficult to establish whether the various “sanctions” are inconsistent with obligations owed to the sanctioned entity. Often, too, these measures will amount to acts of retorsion – unfriendly, but nevertheless lawful acts . Perhaps most crucially, the evidence of opinio juris (namely, States’ acceptance of this entitlement as a matter of customary law) is limited, and as far as available it is mixed. For the most part, States tend not to label their sanctions as countermeasures. And while contextual factors could assist in classifying the measure as a countermeasure (for example, if States meet the requirements of countermeasures), it remains the case that as a default legal views should not be ascribed to States which they have not themselves formulated (Nicaragua, para 266). Recent statements by States show the variety of views on the matter. Canada, China, and France have all opposed this notion. Algeria, Denmark, the Netherlands, Russia and (seemingly) the UK have expressed doubts as to their legality and noted continued disagreements. In turn, Costa Rica, Estonia, Ireland, Italy, and Poland have endorsed the permissibility of these measures. New Zealand has supported the notion, but in more aspirational terms. Most States have, so far, remained silent on the matter: and much care must be taken when characterizing this silence as acquiescence.
It is telling that States that frequently take restrictive measures against perceived violators of erga omnes obligations – including against Russia’s aggression – are among those that reject, doubt, or have remained silent on the permissibility of these measures. In relation to the transfer of Russian assets in particular, the United States has been reported as endorsing countermeasures adopted “by states ‘injured’ and ‘specially affected’ by [the Russian] aggression” against Ukraine. It has included in this category “allies of Ukraine who have bankrolled its economy and military during the war.” Without entering into its merits, this approach arguably reveals uncertainty as to the customary recognition of countermeasures in the general interest: it bypasses the notion entirely, by placing the United States and other Ukraine allies into the category of injured States which, as noted, are entitled to take countermeasures.
Despite the existence of an increasing amount of practice, the limited and mixed evidence of States’ opinio juris casts doubt on the permissibility of countermeasures in the general interest in contemporary international law. As such, while Ukraine is entitled to take countermeasures against Russia, it is not currently certain whether, as a matter of customary law, Ukraine’s allies which are not “injured” by Russia’s aggression are entitled to take countermeasures against it.
2. The inducement purpose
Countermeasures are intended to induce the responsible State to comply with its obligations of cessation, if the wrongful act is continuing, and reparation (ARS Article 49(1)). They do this, essentially, by attaching a cost to the responsible State’s continued defiance of its obligations (in the form of non-performance of obligations owed to it), all while preserving the possibility of its removal. The temporariness of the measure, and its reversibility (more on which shortly) are thus closely connected to this requirement. After all, once the responsible State complies with its obligations, the countermeasure can no longer be justified: it must be terminated as soon as possible (ARS Article 53). In this sense, countermeasures work by a combination of stick (the cost) and carrot (the possibility of its later alleviation). It is through the combination of stick-and-carrot that they pressure, or persuade, the responsible State to change its behaviour and return to compliance with its obligations. For this reason, “inducive” countermeasures are also often referred to as “coercive” (e.g., Gianelli and Cannizzaro).
Although the verb induce may also mean “to bring something about”, the inducement purpose of countermeasures as expressed in Article 49 does not extend to cover measures taken by an injured State to bring about compliance: that is, measures that directly secure the fulfilment of its rights, even without the cooperation of the responsible State. For example, the taking the wrongdoer’s assets to satisfy a claim of compensation. To persuade someone to do something is not the same as bringing about that something – even though both might be meanings of the same verb. We might refer to the former as the “agency” meaning, as it refers to the sorts of reasons that might bear on an agent’s decision-making (to induce someone), and to the latter as the “causal” meaning, as it refers to cause-effect relations between an action and the impact it has in the real world (to induce something). Article 49 ARS uses the verb “induce” in its “agency” sense: it speaks of inducing the responsible State (someone), not of inducing reparation (something). This “agency sense” is clearly conveyed by the ICJ in Gabčíkovo-Nagymaros which renders the verb “induce” used in the English-language judgment with the verb “inciter” (meaning to incite or encourage) in the French-language version (para 87). Besides, countermeasures are not a mechanism of substitute performance of the responsible State’s obligation by the injured State (or by a State other than an injured State entitled to take countermeasures).
The inducement purpose adopted in the ARS reflects a narrow conception of countermeasures: certainly a narrower conception of this institution than that prevalent in the past. Historically, countermeasures performed a variety of different functions that allowed a more tailored response to breaches of the law: among others, as mechanisms to directly secure fulfilment of the obligation (including the bringing about of cessation and reparation), to re-establish the balance between the parties, to pressure the wrongdoer to comply, or to impose some punishment or retribution. These various purposes were considered by the ILC in its early work (see reports by Riphagen and Arangio-Ruiz). But by the time of the second reading of the Articles, these functions had been narrowed to one only: inducement. The ILC had good reasons to limit countermeasures to an inducement purpose: above all, a desire to avoid punitive action, to prevent the abuses inherent in self-judgment and self-help, and to limit the aggravation of disputes. But the whittling down of countermeasures to this single purpose was never fully resolved (see Brownlie, 2649th meeting, ILC Yearbook vol I, 301, paras 90-91). At any rate, the choice was supported by States at the time and has since been endorsed in their practice and in the decisions of international courts and tribunals (see, e.g., Archer Daniels v Mexico, paras 149-150; Interim Accord, para 164).
3. Reversibility
Since countermeasures are temporary measures, that are justified only as long as the wrongdoing State remains in defiance of its obligations, countermeasures must be reversible. Reversibility is a complex aspect of the countermeasures regime (the notion of irreversibility being, itself, a difficult one). Unlike most of the other requirements in the ARS, which were debated at length over years, reversibility was only added by the ILC in the final stages of its work on the Articles – in response to developments at the ICJ. In Gabčíkovo-Nagymaros (para 87), when addressing Slovakia’s countermeasures argument in respect of the so-called “Variant C” (the unilateral diversion of the river Danube), the Court noted that countermeasures must be reversible. This requirement is now included in ARS Article 49(3) which provides that countermeasures must be taken, as far as possible, so as to permit the resumption of performance of the obligations affected by the measure.
The ARS do not provide a test for assessing (ir)reversibility. In fairness, it is not clear that such a test could be provided. In a strict sense, few harms are irreversible: death and some forms of personal injury (physical and psychiatric), harm to cultural heritage and the environment. But this does not seem to be what the ILC had in mind when codifying this requirement. After all, as I’ll note shortly, the destruction of an embassy was said to be irreversible during the discussions (at para 326). But surely a structure can be rebuilt, to the same specifications? Moreover, it may not have been wise to specify a test considering the variety of countermeasures that a State can adopt (within, of course, the limits set out in the ARS). Indeed, as Crawford had noted before he became Special Rapporteur, “what is irreversibility for this purpose needs to be viewed broadly” (at 68). The discussions on Article 49(3) in the ILC, and its Commentary, do provide some considerations which may bear on the assessment of this requirement:
First, reversibility does not imply that the obligations targeted by the countermeasures are suspended and subsequently revived: these obligations remain in force throughout. What is suspended is their performance, and the obligation provides a benchmark against which to judge the countermeasure. After all, countermeasures, like all other circumstances precluding wrongfulness, are shields and not swords: they cannot extinguish or suspend the targeted obligations (and correlative rights).
Second, what needs to be reversible is the measure itself. The suspension of a license can be revoked, a frozen asset unfrozen. It is by means of revocation, cancellation, or termination of the measure that performance of the obligation is resumed. But it is not necessary that the countermeasure disappears “without a trace.” For example, suspension of an air services agreement may cause loss of revenue to an airline (indeed, even drive it to the point of insolvency). These losses are effects, or consequences, of the license suspension and will persist even after the suspension is lifted. The persistence of these effects does not render the countermeasure impermissible.
Third, since reversibility is closely connected with the requirement that countermeasures be temporary (ARS Article 53), it is most likely met by measures that are provisional in character. Countermeasures that cannot be suspended or terminated are unlawful. Thus, permanent measures are, in contrast, more likely to be irreversible. This said, “provisional” and “permanent” are no more obvious than “reversible” or “irreversible.” It seems safe to assume that a measure that creates a fait accompli is both permanent and irreversible.
Fourth, reversibility requires a return to the status quo ante: both legally (a return to compliance) and factually (the termination of the state of affairs created by the measure). Thus, compensation in lieu of revocation or termination of the measure should be excluded. (Where the countermeasure cannot be reversed, then compensation will be due as reparation for a wrongful act.) Matters are less clear with respect to restitution. The revocation of a license-suspension can be a form of restitution. But can restitution be made by the issuance of a new license, where a prior one was canceled? Writing before becoming Special Rapporteur (and before the ICJ’s judgment in Gabčíkovo-Nagymaros), Crawford had suggested this would be possible. But such a possibility was not later discussed in the ILC, and examples provided in the discussions – noted shortly – seem to militate against it.
Fifth, reversibility is only required “as far as possible.” The Commentary explains that if a State has a choice of effective countermeasures, it should select one that permits resumption of compliance with the obligation. Whether this allows the taking of irreversible measures, if there are no effective reversible measures, is unclear. The discussions leading to this proviso tended to focus on the effects of countermeasures, suggesting that the Commission was seeking to create some elbow room for irreversible consequences of reversible measures, and not for irreversible measures as such.
Finally, punishment is excluded. Because of its finality, an irreversible countermeasure is more likely to be punitive: irreparable damage “could amount” to punishment (ARS Art 49 Commentary, para 9). But irreversibility does not entail punishment nor, indeed, does irreversibility depend on the punitive character of the measure. A measure can be irreversible even if it is not punitive, just as a reversible countermeasure can be punitive if it is, for example, excessive.
The ILC discussions also provided examples of reversible and irreversible measures. Reversible measures included asset freezes and sequestrations, suspensions of licences, operations or overflight, and trade embargoes. In turn, the destruction of an embassy was deemed irreversible, and the confiscation of assets was “[o]f course … excluded entirely as a countermeasure because it would be irreversible” (Crawford, ILC Yearbook (2000), vol I, 2645th meeting, 267, para 82).
Practice has so far tended to reflect the ILC’s examples. For the most part, States have invoked countermeasures to suspend treaty-based obligations (such as overflight bans and the imposition of taxes), and sanctions regimes have focused on economic restrictive measures, primarily asset-freezes and trade-bans. Asset-takings to satisfy compensation claims were the most common form of reprisal (the ancestor of today’s countermeasures) for many centuries. Indeed, the term reprisal is said to have derived from the Latin reprehendere, which meant to take back what was one’s own (Wampach, 20). But there seem to be no instances of a State confiscating assets of a responsible State as a countermeasure since, at least, 1945. Even in the literature, few authors accepted sovereign asset takings as a countermeasure by the end of the 20th century, and those that did, accepted them only in narrow circumstances: to enforce an award of compensation issued by an international court or tribunal against a recalcitrant State (e.g., Sicilianos, 268-271, for whom these irreversible measures are “corrective”, rather than “inducive”).
4. The way ahead
There are genuine doubts as to whether the proposal to transfer Russian-State assets to Ukraine, as compensation for the damage caused by Russia’s aggression, would meet the requirements discussed here. There may be plausible technical work-arounds to make the proposal meet these requirements, but they may involve some straining of the rules set out in the ARS. At the very least, the implementation of this proposal would be a break from the settled practice of not confiscating assets of the wrongdoing State as a countermeasure.
The rules on countermeasures in the ARS reflect a careful balance between facilitating enforcement, and restraining abuse. The ARS regime is, moreover, intended to apply across the range of different situations: where there are disagreements as to the prior wrong, where neither party is entirely blameless, and also where a party clearly in the wrong. So they impose restrictions which may seem superfluous, and even unfair, where – as with Russia’s aggression – a party is blatantly and egregiously in breach of international law. To be sure, it is most unsatisfactory, to put it mildly, that international law contains no effective mechanism to provide redress for Ukraine that does not rely, in some measure, on the consent of its aggressor (either to pay, or for any enforcement action by the UNSC). The possibility that the extensive harm to Ukraine and its population might go unredressed as a result is very difficult to countenance – viscerally so. And so the current situation should provoke wider reflection on the scope of permissible countermeasures in contemporary international law in at least two respects.
First, the current situation provides a good opportunity for States to clarify the status of countermeasures in the general interest in contemporary international law: either to endorse the notion, if they wish to take otherwise illegal measures against Russia; or to reject it, and thus remain within the bounds of lawful reactions (retorsions). These measures, especially when adopted through institutional means, as suggested by Mills, Poston and Hathaway, in their opening post of this symposium, may be more effective in pressuring States to return to compliance with their erga omnes obligations, and provide reparation.
Second, it provides an opportunity to consider whether a richer variety of responses may be needed in cases of aggression. While the ILC had good reasons, as noted earlier, to limit countermeasures to an inducement purpose, it may be that these reasons do not hold in cases where a State is manifestly committing aggression. Indeed, it may be that in different rules are needed for countermeasures against aggressors in light both of the gravity and the manifest character of their wrongdoing. International law “outcasts” aggressors, and as a result of this several areas of international law already treat aggressor States differently. Under the law of treaties, for example, treaties procured through aggression are unlawful (Article 52 Vienna Convention on the Law of Treaties), and the ILC Draft Articles on the Effect of Armed Conflicts on Treaties do not permit a State to rely on its aggression to withdraw from, terminate or suspend treaties (draft Article 15). Perhaps a different balance between facilitating enforcement and avoiding abuse is necessary in these cases, one that allows scope for a wider variety of responses. These may include what we might call “compensatory” countermeasures, adopted to secure payment for the damage caused by aggression through the aggressor’s assets located abroad. Of course, legal development requires broad support. Unilateral action, by a few powerful (and mostly western) States, is unlikely to be conducive to consensus, more so when it relies on strained, and unprecedented, interpretations of accepted and established rules.
Whether Ukraine’s allies will move towards the transfer of Russian State assets is likely to turn, in the ultimate analysis, on a variety of considerations which may include, but go beyond, questions of law. Putting this plan into effect will in all likelihood contribute to escalating the conflict in the short term: Russia has already threatened to respond to any confiscation of its assets. But it may also have long term consequences for the international legal order (and not only: economists have discussed, and disagreed over, the impact such measures would have for the international financial system). How these States present and justify the asset transfer legally will be of fundamental importance. It will be key to avoid perceptions of bias and selectivity in the interpretation and application of established legal rules, and avoid the rhetoric of exceptionalism to side-step those same rules. Above all, it will be crucial to avoid being perceived as attempting to have it both ways: to take countermeasures despite not being injured by the breach, while maintaining that countermeasures by States other than an injured State are not permissible; to take a corrective and irreversible countermeasure, while maintaining that countermeasures must be inducive and reversible; to undermine established rules of the legal order, while maintaining they are acting in its defence. More importantly, these States must accept that they (and all of us) will have to live by the precedents they set.
My thanks to Robyn Wickers for her research assistance.