This article was originally published in Policy Magazine.
As has been widely reported, the House of Commons recently passed Bill C-19, a budget implementation act that also contains measures empowering the Canadian government to create special economic sanctions related to Russia’s invasion of Ukraine. This mechanism originated in work done by the World Refugee & Migration Council (WRMC), which underpinned a bill of more general application that was put forward by Senator Ratna Omidvar several months ago. However, the government’s specific goal with this newer version is to seize assets belonging to the Russian government, citizens or residents, liquidate them, and use the proceeds to aid Ukraine.
A recent CBC story quoted a European international law expert to the effect that doing this would cause Canada to breach international law. The argument appears to be that the sanctions themselves would normally be illegal but, under the international law of “countermeasures,” they can be justified as a way of compelling Russia to stop its illegal invasion. However, once Russia changes its behaviour, the argument goes, Canada would be obliged to end the sanctions and restore the assets to their owners. Since the assets would be liquidated, there could be no restoration, and thus Canada would have breached international law.
Canada is usually quite a good citizen in terms of complying with international law, but is the first G7 country to bring in measures to repurpose the assets in this way (though others, including the US, are preparing to do so as well). Would these measures turn our country into some kind of international legal rogue? In my view, there are a number of problems with this contention.
First, it is important to focus on the main breach of international law that gives rise to all of this: Russia’s invasion of Ukraine. There is controversy around what acts constitute “the most serious violations of international law,” but this one is pretty much at the top of the list. Refraining from aggressive war is a core rule of international law, often referred to as a “peremptory norm,” which means that there is no way to make a breach of the norm legal. Genocide, which has been credibly alleged against Russia, has the same status and is the basis for a case brought against Russia by Ukraine at the International Court of Justice.
Importantly, the law of state responsibility (the same body of law, by the way, from which the idea of “countermeasures” emanates) says that countries are obliged to “cooperate to bring to an end through lawful means” illegal acts that breach peremptory norms. In this case, Canada is acting in concert with other countries to enact sanctions against Russia, and just the first out of the gate regarding the liquidation and repurposing regime. So, as a starting point, international law suggests that Canada is obliged to do what it’s doing, or at least to do something. And sanctions are, in fact, the mechanism by which state-level responses to illegal acts are often implemented.
As a starting point, international law suggests that Canada is obliged to do what it’s doing, or at least to do something. And sanctions are, in fact, the mechanism by which state-level responses to illegal acts are often implemented.
So far, so good. The next point is that the law of “countermeasures” invoked in the CBC article does not actually kick in unless Canada’s action—confiscation, followed by liquidation and distribution of assets—is itself illegal. If confiscation itself is unlawful, Canada is in fairly good company; as the World Refugee & Migration Council has documented, the US, Switzerland and a number of other states have been doing this for years. The assets that are subject to this regime also include those which can already be frozen under the Magnitsky Act, another measure Canada has taken in conjunction with like-minded allies.
Moreover, international practice around expropriation is extremely unsettled. There are some bright-line rules in the arena of international trade law, but those rules are subject to a broad exception regarding national security and preservation of human life in time of war or other emergency. This situation clearly qualifies.
The one instance where Canada’s measures might begin to take on an illegal taint is if the government tries to confiscate assets belonging to the Russian government, which, as a starting point, are covered by the law of state immunity. But that, too, is a fairly complex legal question which exists in an area of customary international law that is still evolving. In any event, the government of Canada and its partners have seemed cool to this idea, since the sanctions are targeting the Russian oligarchs whose riches rest on the support of the Putin regime.
Let’s assume, however, that the asset seizure and liquidation breach some rule of international law, and the rules about countermeasures do kick in. The idea of countermeasures is that one state (here, Canada) can stop complying with some obligation it has under international law, in a way that is directed at persuading the offending state (here, Russia) to stop its own breach (here, the invasion of Ukraine). The point is that, once Russia withdraws from Ukraine, Canada would be obliged to stop the confiscation regime, again on the questionable basis that it is somehow illegal.
But the law of countermeasures is quite specific: they must be taken “in such a way as to permit the resumption of performance of the obligations in question,” once the offending state stops its own conduct. Whether there is necessarily an obligation to restore anything that was taken away as a result of the countermeasure is a more nuanced issue than the CBC story suggests; a country couldn’t destroy a holy site that it had an obligation to protect, for example, since that would mean that there would be no way to go back to complying with the obligation. But it is not at all clear that confiscated monies or property would have to be returned. It is highly arguable that all Canada would be legally required to do is simply cease the sanctions, which would constitute “resumption of performance of the obligations in question.”
It is worth remembering that, were the offending state here not a member of the United Nations Security Council and thus possessing a veto, that body could easily pass a resolution authorizing these measures and even some that would be much harsher. Beyond that, international law is a complex arena, one in which there is a lot of nuance and give-and-take. In this situation, Canada’s measures may be creative, but they are by no means obviously illegal. And they serve a larger purpose of the entire international legal order, which is to prevent states from making aggressive, destructive war on each other, with all of its attendant fallout. Canada certainly has the spirit of the law, at least, on its side.