cross-posted from: https://scribe.disroot.org/post/5239334
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State immunity — an international legal principle that normally protects states from having their assets seized — is often cited as a legal barrier. But experts say this is a flimsy argument.
“Russia normally is entitled to state immunity over those assets,” said Robert Currie, a professor of international and transnational criminal law at Dalhousie University.
“But Russia is breaching an international law norm … Other states are entitled to roll off the immunity [attached to those assets] temporarily while Russia continues its illegal invasion of Ukraine.”
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Since mid-2024, Europe has used a limited workaround to redirect some Russian money to Ukraine. Its Extraordinary Revenue Acceleration scheme has enabled it to send €50 billion in interest accrued on lapsed Russian bonds to Ukraine.
But the scheme depends on the EU renewing sanctions against Russia every six months.
Anton Moiseienko, a senior law lecturer at Australian National University who grew up in Ukraine, says the scheme is vulnerable.
If a single EU member state were to veto the sanctions — as Hungary’s pro-Russian leader Victor Orban could do — it could unravel the scheme.
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As a non-EU member, Canada does not face the same constraints of collective decision-making. Experts say Canada could set an important international precedent by taking the lead in sending its frozen Russian assets to Ukraine.
“Canada … is a single state … and one that’s shown leadership in supporting Ukraine,” said Moiseienko, of the Australian National University.
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And Canada already has the tools to do so.
Since 1992, Canada’s Special Economic Measures Act has allowed the federal government to freeze assets belonging to foreign states and connected individuals.
Following Russia’s 2022 invasion of Ukraine, Parliament amended this act to permit Ottawa to seek a court order authorizing the forfeiture and repurposing of frozen assets. The move made Canada the first G7 country to explicitly allow forfeiture of sanctioned assets.
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In May, [Canadian] Senator Donna Dasko introduced Bill S-214, a law that would amend the Special Economic Measures Act to allow for this.
“[Bill] S-214, would remove the uncertainty on the particularities of Canadian law,” said Currie. “[It would give] clear parliamentary authorization to do this, and Parliament’s feeling would be we are not breaching international law.”
The bill is awaiting second reading in the Senate.
“I hope we can get the bill to committee by early spring, but Senate public bills move slowly,” Dasko [said].
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Michael Cholod, executive director of The Peace Coalition, a non-profit coordinating international efforts to rebuild Ukraine, told Canadian Affairs during a recent meeting in Kyiv that he supports the change Bill S-214 aims to bring about.
But he favours the proposed amendments being fast-tracked into law. Parliament could do so, he says, by embedding them into the Budget Implementation Act, which will accompany the Nov. 4 federal budget.
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Cholod says using an executive order to seize Russian assets would be an appropriately targeted measure.
“If you’re just a regular slob, I’m not taking your money. This law isn’t for that,” he said. “If you are a genocidal maniac who’s already been convicted of breaking all of the UN Charter of Human Rights — yeah, you deserve to have your stuff taken.”
Canada has already committed nearly $22 billion in multi-faceted assistance to Ukraine since 2022.
“Now, the Canadian taxpayer doesn’t pay the next $22 billion worth of aid to Ukraine,” said Cholod.
“It comes out of Russia’s bank.”