Europe’s Ukraine war financing issues expose the trickiness of international sanctions laws

In recent weeks, officials in Europe have debated the idea of confiscating frozen Russian assets and using the money to fund Ukraine’s ongoing war effort. During his visit to the US last month, French President Emmanuel Macron said that frozen Russian assets held in the Brussels-based financial clearing house Euroclear should be “part of the negotiation at the end of the war” but has stopped short of advocating redirecting them.

Proponents of such tactics argue that they are necessary to exert pressure on governments that violate international norms. But critics caution against potential breaches of international law and the precedent these measures set for state sovereignty.

Sanctions are a pivotal instrument in international relations and diplomacy, enabling countries to apply pressure without resorting to military force. The aim is to promote behavioural change while minimising any direct harm to civilian populations. But the effectiveness of sanctions is often contested, partly because they can lead to unintended consequences and typically require the co-operation of many countries to achieve significant outcomes.

International law around the use of force is clear: military action, except in cases of self-defence, is explicitly prohibited in the UN Charter. But the laws around economic coercion, and how states can appropriately respond to it, are much less clear.

For instance, could sanctions justify a right to self-defence for the targeted states? To what extent does sovereign immunity normally enjoyed by central banks – and their assets – protect them from sanctions or other forms of economic coercion? What happens when sanctions affect a third country, which may have a trade agreement with the targeted country? Can one country claim responsibility to protect another from sanctions, the way it might intervene to protect it from an invasion?

Some scholars argue that economic pressure does not break international law or trigger international responsibility, provided the specific actions it consists of don’t break other laws. Sanctions, specifically, can be imposed by the UN Security Council, or autonomously by states, or as countermeasures against wrongful acts. Regional organisations can also impose autonomous measures against member states, provided these actions align with their founding documents and customary international law.

It is important to note that some measures may violate certain norms, yet they may still be legal if they qualify as countermeasures. The problem is that the evidentiary standards are unclear. Judicial review is usually only possible in cases where there is a Bilateral Investment Treaty or some other governing document in force that contains an arbitration clause. But in most cases of sanctions being applied autonomously by one country, judicial review is highly unlikely.

In recent decades, the EU has increasingly resorted to sanctions, but its implementation needs improvement. Certain aspects of implementation, including the determination of penalties and exemptions, remain in the hands of individual EU member states’ authorities. Those individual member states are often not on the same page about these things – something we can already see with respect to sanctions against Russia.

Another problem area – extraterritorial legislation – has become increasingly relevant because of the US’s behaviour. Washington often attempts to impose an obligation on other countries to comply with sanctions it has enacted unilaterally. This creates tensions between the US and other entities, including the EU, when their respective sanctions do not align. Consequently, efforts should be made to regulate this issue at the international level.

There are always concerns that economic sanctions may cause serious and widespread harm to civilian populations. Smart or targeted sanctions are meant to be a solution to that problem, but they raise their own set of questions concerning potential violations of individual rights. Individuals being singled out on a sanctions list – often along with their entire families – raises issues of respect for personal and family life, as well as property rights.

The EU’s sanctions and seizure of assets targeting Russia following the latter’s full-scale invasion of Ukraine in 2022 have introduced a complex array of legal, political, economic and practical challenges.

Legally, the principle of sovereign immunity protects a state’s assets. While the EU may consider its freezing of Russia’s €260 billion ($283 billion) defensible, an outright seizure of these reserves remains contentious under international law. Moreover, confiscating assets belonging to Russian businessmen and women could infringe on property rights and set a precedent that might undermine trust in western financial systems.

Such measures could also pose economic challenges for the EU. For instance, Moscow’s potential retaliatory measures could pose a threat to EU assets, while the evasion of sanctions through supposed “shadow fleets” diminishes their effectiveness. Divisions within the EU, particularly over concerns among German and French policymakers about the euro’s stability, complicate efforts to achieve a resolution on the matter. This is all the more so, with the bloc coming under pressure to continue funding Ukraine even without American assistance.

Practically, the legal complexities of seizing personal assets like yachts, coupled with the mixed outcomes of sanctions – evidenced by Russia’s economic growth in 2023 – raise doubts, particularly amid the economic strain already being felt by EU citizens.

Potential solutions include better co-ordination among G7 nations; the use of profits derived from the aforementioned Russian assets instead of their outright seizure; and providing subsidies to citizens to alleviate domestic dissatisfaction in the event of retaliatory measures from Russia. The bloc also has solutions in the legal domain. It can codify asset seizure as a countermeasure; establish a sanctions tribunal; broaden exceptions to sovereign immunity in cases of aggression; and define clear criteria for the seizure of private assets.

The challenge for the EU is in balancing actions that can lead to behavioural change from Moscow, with continued support for Kyiv while trying to mitigate the risk of destabilising its own systems. A cautious, multilateral strategy coupled with some legal reforms could help achieve this.

Balancing punitive actions against adherence to the law is always a complex issue. What is needed, then, is a nuanced approach that considers both the effectiveness and legality of such measures in the global arena.