Seizure of State-Owned and Private Property in International Law: Mapping the Applicable Legal Rules and Identifying Conditions that Frame and Limit the Seizure of Frozen Assets in the Context of the Situation in Ukraine

The war in Ukraine has led to the adoption of an unprecedented scale of sanctions against Russia, with the aim of achieving its compliance with the relevant international legal obligations. The extent of the freezing of state-owned and private funds and properties is incomparable to past instances of the adoption of sanctions, whereby the amount of frozen Russian assets worldwide is estimated to exceed $ 330 billion. What is more, the European Union (EU) and some states (e.g. the United States), have made an unprecedented move towards the seizure of frozen Russian property, intending to use seized funds for the reconstruction of Ukraine. In the US first seizure of private property, which will be used for the reconstruction of Ukraine, already materialized. On the other hand, some states, like Switzerland, have adopted a more cautious approach towards the seizure of Russian assets, expressly acknowledging that such measures would be contrary to their national laws and international obligations. At the EU level, different legal options are being explored to allow the seizure of frozen funds for the reconstruction of Ukraine. The move towards the possible seizure of frozen Russian property opens manifold legal questions, whereby unlawful seizure of property could have far-reaching consequences as it could potentially lead to large-scale compensation claims by states and private actors, leading to disruption of international relations, and possibly even further escalation of the conflict in Ukraine. The aim of this project is to address these legal questions by mapping out the existing international legal rules governing the seizure of property in international law to spell out conditions under which the seizure of property could lawfully be made. Based on a distinction between the seizure of state-owned property and the seizure of private property, the proposed research project aims to pursue the following main objectives: 1) Identify and analyse relevant international legal rules governing the seizure of state-owned property and clarify conditions that have to be met for the lawful seizure under these rules; 2) Identify and analyse relevant international legal rules governing the seizure of private property and clarify conditions that have to be met for the lawful seizure under these rules; 3) Analysis of the proposed EU regime for the seizure of frozen Russian property in light of the previously identified rules. It is around these three objectives, that the structure of this research project is articulated. The research proposal is divided into 4 working packages (WP) and further into specific sub-tasks under them. WP1 focuses on the seizure of state-owned property and its compatibility with the law of state immunity, focusing in particular on the possible exception to the immunity from execution, and the law of state responsibility with a focus on provisions on reparations and countermeasures. WP 2 is devoted to the seizure of private property and the analysis of three relevant sets of rules: the international investment law, with the emphasis on different institutes governing lawful seizure of private property (e.g. expropriation); the international human rights law, with the focus on possible lawful deprivation of property; and the seizure of criminal proceeds. Finally, WP 3 analyse the proposed new EU regime for the seizure of frozen Russian property in light of the previously identified rules. This objective will be pursued in two steps, whereby the first will entail clarification as to how relevant international rules, mapped under WPs 1 and 2, apply to the EU and its member states and the second analysis of the proposed EU seizure regime. The non-substantive aspects of the research proposal relating to the management of the project and dissemination of the results are foreseen in WP 4.