{"id":4004,"date":"2024-09-02T11:23:38","date_gmt":"2024-09-02T09:23:38","guid":{"rendered":"https:\/\/www.rivistaeco.com\/?p=4004"},"modified":"2024-09-02T11:23:38","modified_gmt":"2024-09-02T09:23:38","slug":"why-not-finance-ukraine-with-seized-russian-assets","status":"publish","type":"post","link":"https:\/\/www.rivistaeco.com\/en\/2024\/09\/02\/why-not-finance-ukraine-with-seized-russian-assets\/","title":{"rendered":"Why Not Finance Ukraine with Seized Russian Assets?"},"content":{"rendered":"

The sanctions that Western countries have imposed on Russia include the freezing of assets belonging to the Russian Central Bank. Can these assets be used to finance military and civilian support for Ukraine? So far, the West has moved very cautiously on the possibility of confiscation. But the issue seems more political than related to international law.<\/span><\/i><\/p>\n

The Russian aggression against Ukraine began in 2014 with the illegal annexation of Crimea and military interventions in the Donetsk and Luhansk regions. In response, in March 2014, the United States, the European Union, and their allies imposed various types of sanctions against Moscow. On February 24, 2022, Russia launched an unjustified and unprovoked large-scale intervention against Kyiv, to which the European Union responded by adopting new sanctions. As of June 2024, the European Union has enacted 14 more sanctions packages against Russia, including various financial measures such as disconnecting some Russian banks from the Swift messaging system and imposing an oil price cap, as well as measures against disinformation and war propaganda.<\/span><\/p>\n

Frozen Russian Assets<\/b><\/h3>\n

Among the various types of sanctions, several involve asset freezes. One category targets the assets of Russian oligarchs and other individuals supporting Russian aggression. For example, in Italy, according to statistics provided by the State Property Agency responsible for managing them, 300 million euros have been frozen from Russian oligarchs, along with movable and immovable assets worth over 2 billion euros. The management costs of these assets for the Italian state amount to 317 million euros.<\/span><\/p>\n

But one of the most discussed and controversial measures concerns the freezing of the assets and reserves of the Russian Central Bank. With the decision of February 28, 2022, the European Union Council banned any transaction related to the management of the reserves and assets of the Central Bank, including transactions with any legal person, entity, or body acting on its behalf or under its direction. Consequently, the relevant assets held by financial institutions in EU member states were immobilised (\u201cfrozen\u201d). Given the specificity of these assets and the legal issues related to their sovereign nature, we will focus here on the reserves of the Central Bank (CBR).<\/span><\/p>\n

How Much Are the Russian Central Bank’s Reserves in the West?<\/b><\/h3>\n

First, it is important to determine the amount of frozen assets. Governments have been cautious in revealing details about the foreign reserves of the Russian Central Bank, including quantities, forms, and locations. For example, some countries only began mapping Russian assets in the spring of 2023, a year after the invasion of Ukraine. Others, like France, Belgium, and Switzerland, have released information on the amount of reserves but not on their form.<\/span><\/p>\n

Financial Times journalist Martin Sandbu states that the most reliable estimate comes from the 2021 annual report of the Russian Central Bank itself, indicating that $350 billion in reserves are immobilised in sanctioning jurisdictions (at the exchange rate at the end of February 2022). About 70% of all immobilised Russian assets in the West are held at Euroclear, a Belgian financial services company, which holds the equivalent of 190 billion euros in various securities and cash from the Russian Central Bank.<\/span><\/p>\n

However, not everyone agrees with these numbers. For example, according to the Financial Times, internal European Commission documents use a figure of only 260 billion euros, corresponding to about 280 billion dollars at today’s exchange rate (70 billion dollars less).<\/span><\/p>\n

It is worth noting that frozen Russian assets generate interest. On May 21, 2024, the EU Council adopted a series of legal measures allowing the redirection of net profits from unexpected and extraordinary revenues (windfall profits) flowing to central securities depositories (CSDs) in the EU towards military support for Ukraine. During the G7 meeting in Italy in June 2024, countries then agreed to issue $50 billion in loans for Ukraine, which will be guaranteed by the profits generated by frozen Russian Central Bank assets in the West: these are expected to amount to about 2.5-3 billion euros per year. However, these funds represent only a fraction of the total damage inflicted on Ukraine by Russian aggression: the Rapid Damage and Needs Assessment report indicated an amount exceeding $486 billion as of December 31, 2023.<\/span><\/p>\n

That’s why the issue remains one of the Russian Central Bank’s assets, rather than the interest they generate.<\/span><\/p>\n

Most of the frozen Russian assets are in Belgium (in billions of euros)<\/b><\/p>\n

\"\"
Source: Financial Times.<\/figcaption><\/figure>\n

The Different Options on the Table<\/b><\/h3>\n

Since the freezing of Russian Central Bank assets is a temporary measure that does not involve their use for two years, G7 countries are discussing further actions to take. Here are some of the options considered.<\/span><\/p>\n

Confiscation<\/b>: Ukraine and its most resolute supporters (such as the United Kingdom, Japan, and Canada) propose direct confiscation. The arguments for this step are based on the obligation to pay reparations for violations of international law. For example, after the invasion in 1990, Iraq was required to pay substantial reparations to Kuwait. However, confiscation encounters legal obstacles related to the sovereign immunity of state assets. Some scholars have therefore proposed alternatives that do not involve direct confiscation but instead focus on the use of assets for reinvestment or as collateral.<\/span><\/p>\n

Use of Central Bank Reserves as Collateral<\/b>:<\/span><\/h3>\n
    \n
  • Reinvestment of CBR assets in Ukrainian “catastrophe bonds”<\/b>: Europe could order the reinvestment of frozen Russian funds in Ukrainian war bonds. The securities could be structured as Ukrainian catastrophe bonds (Cat bonds). These are instruments generally used in the case of natural disasters and represent high-risk investments where bondholders risk losing their capital if the event occurs.<\/span><\/li>\n
  • Issuance of a G7 loan to Ukraine using CBR assets as collateral<\/b>: The G7 (or a larger group of allies) could issue a syndicated loan with limited recourse to Ukraine using future reparation claims against Russia as collateral. For example, a similar proposal was made by Belgium in February 2024. This means that the delivery of collateral would fully extinguish the loan. In this case, the compensation is different from confiscation as mutual claims between two parties cancel each other out.<\/span><\/li>\n
  • Special Purpose Vehicle (SPV) to issue bonds with frozen assets as collateral<\/b>: The coalition of states that issued the sanctions could establish a special purpose vehicle to organise international financing for Ukraine’s reconstruction with the frozen assets serving as collateral. The vehicle would be linked to an institution that would oversee the distribution of funds for Ukraine’s reconstruction. The institution would be authorised to borrow from financial markets by issuing bonds guaranteed by sovereign guarantees from Ukraine’s allies, modelled after the European Financial Stability Facility of the Eurozone. The main advantage of using an SPV is that the risk associated with the loan is transferred from the G7 states to private investors, while the G7 states, as owners of the SPV, would retain control of the loan.<\/span><\/li>\n
  • Placement of CBR assets in an escrow account to be used as collateral by Ukraine<\/b>: The immobilised reserves could be transferred to an escrow account accessible by the Ukrainian Ministry of Finance to be used as collateral for new bonds issued by Ukraine. If Kyiv manages to repay the debt over a period of 10-30 years, the frozen assets could be returned to Russia. If Ukraine is unable to repay the collateral (CBR assets), it would have to be transferred to investors, meaning the permanent confiscation of assets accompanied by related legal problems. The idea is inspired by “Brady bonds” guaranteed by US Treasury securities that allowed US banks to restructure Latin America’s debt in the late 1980s.<\/span><\/li>\n<\/ul>\n

    As Daniel Franchini and Astrid Iversen wrote, the issue of using CBR assets as collateral is closely linked to that of risk allocation, and in these cases, some measure of risk is inevitable. Using immobilised assets during a war with uncertain outcomes inherently involves the risk that confiscation may eventually become inevitable, even if some countries do not want to go that far.<\/span><\/p>\n

    What Are the Legal Issues?<\/b><\/h3>\n

    Proposals to confiscate Russian state assets face complex legal issues, particularly concerning sovereign immunity, which can hinder judicial actions on these assets. That said, there are also solutions to overcome these obstacles. For example, Professor Philippa Webb of King’s College London has drafted a report for the European Parliament analysing the options provided by international law for confiscating Russian state assets.<\/span><\/p>\n

    In summary, under international law, there are two forms of immunity: jurisdictional immunity and enforcement immunity. Under jurisdictional immunity, state-owned assets located on foreign territory are protected against coercive measures imposed through judicial actions. Enforcement immunity serves as a procedural barrier rooted in the principle of sovereign equality between states.<\/span><\/p>\n

    However, in certain situations, violations of sovereign immunity rules or exceptions to immunity can be justified. For example, a European Parliament study identifies two promising options in terms of compliance with international law: (i) states justify the confiscation of CBR assets as a third-party countermeasure with a conditional aspect, such as the use of CBR assets as collateral for a loan to Ukraine, repayable in principle if and when Russia fulfils its obligation to provide full reparation; (ii) states confiscate CBR assets based on an exception to enforcement immunity under international judgments ordering damage reparation.<\/span><\/p>\n

    The study also indicates five other options with a “medium-low” risk in terms of compliance with international law. For example, states could confiscate CBR assets through executive or legislative, not judicial, processes to avoid invoking state immunity. For instance, Canada has a similar provision.<\/span><\/p>\n

    The West’s Prudence<\/b><\/h3>\n

    As evident, legal obstacles to confiscation exist, but there are practical solutions to overcome them. It seems that the main challenge lies in the lack of political will and excessive caution from G7 countries. The caution stems from the fear that major non-Western nations\u2014like China or Saudi Arabia\u2014might withdraw their reserves if the West dares to seize Russia’s assets. Even European Central Bank President Christine Lagarde has expressed concerns about confiscation.<\/span><\/p>\n

    However, Financial Times journalist Martin Sandbu argues that the threat of an exodus from Western assets by emerging countries is unfounded. Implementing it would require political and economic decisions far beyond a simple financial reallocation choice.<\/span><\/p>\n

    In essence, the EU and G7 countries seem to be in an unsustainable situation requiring more decisive action. As Martin Sandbu states, “For now, the only question is whether they are more selfish than cowardly or more cowardly than selfish. What is not in doubt is the bad faith of their arguments.”<\/span><\/p>\n

    To summarise, the confiscation or use as collateral of Russian Central Bank assets is more of a political issue than a legal one. If the West truly wants Russia to pay for its illegal war, decisive measures must be taken. After all, Moscow shows no hesitation in continuing its illegal war or confiscating the assets of Western companies.<\/span><\/p>\n

    Bio<\/b><\/p>\n

    Viktoriia Lapa<\/strong> is a professor at the Department of Law at Bocconi University and an affiliated scholar at the Centre for Constitutional Studies and Democratic Development in Bologna.<\/span><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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