Про конфіскацію російських державних активів простими словами

1. Good afternoon, Artem! Thank you for agreeing to answer our questions. 

Today, the NGO "Progresylni" is conducting an open-ended media campaign, the main message and hashtag of which is #russiamustpay. Its aim is to convince the national and Western elites of the non-alternativeness and the necessity of confiscating Russian assets for the benefit of Ukraine as soon as possible. 

Observing various activities focusing on the issue of Russia's responsibility, we noticed your interest in this topic. Meanwhile, your scientific experience begins in a different area. 

In 2020, you defended your doctoral dissertation on the topic: "Conceptual and legal principles of land use for urban planning needs." Until then, your scientific interests were also associated with land relations. So the question which logically arises is what provoked your interest in the subject of anti-russian sanctions and confiscation of the aggressor's assets?

Sure, the war changed my priorities as a scholar and a practicing lawyer. International law is very specific and multifaceted, but without it there is no way to bring the aggressor to justice. Those who make decisions about the supply of weapons and financial aid to Ukraine, as well as the future use of Russian state assets, listen to scientists' and analysts' opinion. Decisions are made carefully, taking into account the provisions of international law, both those recorded in conventions and treaties and those established in customs. Therefore, it is important to lobby, in the good sense of the word, the interests of our country not only at the level of politicians, diplomats and officials, but also at the academic level, to exchange information with the so-called epistemic community of the EU, the USA and other countries, and not only Western countries.

2. In June, your text "Should Third States Follow Ukraine's Lead and Confiscate Russian State Assets?" was posted on the international law blog Völkerrechtsblog. Am I correct in understanding that sovereign Russian assets are "not really sovereign" as they are positioned today in political and media discourse? 

Speaking briefly – yes, they are. In more detail, they are a priori sovereign and "untouchable", like the assets of any other state. This is recognized because all states are sovereign and equal and one has no power over the other. At least this is how the civilized world should be built, and the guarantee for this is (or should be) international law and international organizations, with the central role of the UN. But, if one state commits an open act of aggression against another sovereign state, it obviously loses the right to many privileges that international law gives it. Agree, it is strange to expect a state that defends itself from an aggressor state to respect the property sovereignty of the aggressor. I think this thesis sounds logical on an intuitive level for each of us. Let me illustrate: the Russian "sovereign" bank quietly continues to work in Ukraine, sending money to Russia so that you and I can continue to be shelled and killed. And this is exactly how it should be if the doctrine of absolute immunity is taken literally. I will say more, even the thesis that Ukraine has an inalienable right to confiscate the aggressor's property and use it for state needs, including defense needs, causes many objections from the world academic community. And it is not only representatives of Asian and African countries who historically gravitate towards the concept of absolute immunity, but also lawyers and scientists from the USA and the EU. But there are counterarguments here. Each state, as well as each person, has an inalienable right inherent in the very existence of these subjects - the right to self-defence. It does not require separate recognition or "donation", it makes the very independent existence of the state and, accordingly, of man possible, albeit under certain conditions that protect against abuse. After the introduction of a new system of international security after WW2, this right is directly mentioned in Article 51 of the UN Charter. States have the right to defend themselves until the UN Security Council resolves the conflict. Unfortunately, the UN Security Council cannot and will not do anything about Russian aggression until the entire structure of the UN is changed. Therefore, Ukraine must defend itself, together with other states. 

3. In a blog on Völkerrechtsblog, you conclude that confiscation of Russian state assets by third countries would be a legitimate measure of (collective) self-defense. However, some comments in the EU, in particular by Ursula von der Leyen, speak only about the possibility of transferring to Ukraine the profit from the use of the frozen assets of the Russian Central Bank, instead of their confiscation. In your opinion, why is the EU taking a less decisive position today? 

The EU and the rest of Ukraine's allies want to remain within the legal field and are still worried not only about their relations with Russia, but also about other states keeping their foreign assets in euros or dollars. A separate powerful player here is Switzerland, which largely dictates the rules of the game for the EU and the whole world. They do not want to confiscate Russian state and private assets, or even disclose information about them. Surprisingly, until now there is no complete and reliable data on Russian state assets and their previous use, that is, the history before they were "frozen" due to sanctions. Therefore, the EU says about the possibility of such palliative measures which, although they violate international law, are not serious; they will help Ukraine, but also not very much, namely by several billions per year, with a total need for recovery of more than 300 billions. In my opinion, this decision will not be the most successful. Russia will appeal it if it wants, as well as the decision on the confiscation of assets, and unfortunately, these funds will not help Ukraine to fully recover and prevail. However, frankly speaking, we should not expect other, more radical decisions regarding Russian state assets from the EU in the near future, despite the fact that there are legal grounds for this. This is collective self-defense, mentioned in the same Article 51 of the UN Charter, that is, the right to defend oneself not only by the state under attack, but collectively. This protection can take different forms – from joint armed resistance, to assistance in a non-military way, without each of the states receiving the status of a party to a conflict. Such a scenario could currently work with Ukraine. To confiscate assets, for example, in the EU and to transfer them to Ukraine to finance legitimate defense. However, both the USA and the EU countries hesitate to explicitly call their aid to Ukraine "collective self-defense." States also have the right to take countermeasures, including collective ones, as a reaction to Russia's violation of international law. This is a different doctrine, it has certain limitations in its application. Thus, there are legal grounds, but there is a lack of political will. 

4. Thank you, we formulated the next question by analogy. It seems that in the case of providing the necessary weapons to Ukraine, the determination of some one country was needed, which would be the first to decide on the transfer. For example, Poland was the first to announce the transfer of Leopard tanks to Ukraine, and its initiative was already supported by other countries, which later allowed us to talk about a "tank coalition". So, can a positive "confiscation" case of one of the Western countries become an example for other states to be more decisive? 

Of course. The examples can be the USA or Great Britain. In the EU, these issues are resolved unanimously by member states under a special procedure provided for by the EU's common foreign and security policy, which, of course, complicates decision-making. In the USA and Great Britain, relevant bills have already been prepared and submitted to the parliaments, there are all technical and infrastructural possibilities, but there is still no political will, projects are blocked by the executive power. If the USA and Great Britain set an example, there would be very few "political arguments" staying in the EU, while before the war, Russia significantly reduced foreign reserves in dollars and pounds to a minimum (fearing a harsh reaction from these countries), giving preference to yuan, gold and .... euros, so more than 200 billion Russian state assets are stored in the EU. 

5. How do you assess the success of the Ukrainian government on the confiscation track? What can be considered achievements, and what may have been lacking? 

It is difficult for me to speak for the entire Government, let alone provide some kind of "expert assessment". I see the work of individual officials of the Ministry of Justice (Iryna Mudra), of course – the teams of the Ministry of Foreign Affairs, the sanctions working group (the so-called "Yermak-McFaul" group), which issue a lot of analytics and do a lot of invisible work in communicating with partners, giving them all the information required and conviction in the sanctions decisions necessary for Ukraine. In many ways, this work is based on the enthusiasm of individual specialists who know the problem quite well. As such, the government must ensure the trust of its partners that the transferred money will not be peculated – this is its most important task in my opinion. Unfortunately, there are problems with this. In addition, law enforcement agencies must be coordinated to ensure a unified result, there are failures here. In my opinion, neither the Government nor the Prosecutor General does this effectively. The departmental disparity of law enforcement officers: the State Bureau of Investigation, the Bureau of Economic Security, the National Anticorruption Bureau of Ukraine, the police, the lack of experience in confiscation cases and the lack of adequate coordination lead to the fact that cases are brought to the register of investigations, attachments are made, but nothing further happens, or there is a specific "extortion" of property and blackmail. This is a separate and complex issue that requires a separate discussion. 

6. Thank you, and our last question. It is obvious that in the case of bringing the aggressor to justice, it is worth combining the efforts of the state and civil society. So the question is: do you communicate your civic and scientific position to the government? Maybe share your own experience with colleagues-scientists? 

Of course. I'm trying I am in regular contact with individual Ukrainian officials, scientists and activists. I communicate a lot with lawyers and representatives of the academy from the EU, Great Britain, the USA and Canada. I keep my own blogs in Ukrainian and English and plan a series of further publications. I believe in our victory! 

7. Thanks for the answers, and I wish you success! 

Thank you!