War Reparations: The Case for Countermeasures

81 Pages Posted: 24 Aug 2023 Last revised: 9 May 2024

See all articles by Oona A. Hathaway

Oona A. Hathaway

Yale University - Law School

Maggie Mills

Yale Law School

Thomas M. Poston

Yale Law School

Date Written: November 8, 2023

Abstract

Who pays for the terrible destruction wrought by war? This problem is far from new, but it is currently receiving renewed attention as a result of the war in Ukraine. The options currently available to states, like Ukraine, that are the victims of unlawful wars in the postwar era are limited. There has been a spate of proposals to address the shortfall by seizing frozen Russian assets outside the ordinary civil forfeiture process. A bill introduced in the U.S. Congress in June 2023, the Rebuilding Economic Prosperity and Opportunity (REPO) for Ukrainians Act, would enable the U.S. President to confiscate frozen Russian state assets and use them to support Ukraine. A similar bill has already been adopted in Canada, and the European Commission has proposed investing frozen Russian assets and transferring proceeds from the investments to Ukraine. These proposals, however, risk running afoul of well-established rules of international law, including the doctrine of sovereign immunity. Put simply, they would attempt to cure one international legal violation by engaging in another.

In this Article, we offer another way forward for Ukraine and for any other state that might find itself in this same situation in the future: grounding the effort to obtain reparations in what is known as countermeasures doctrine. We argue that Ukraine may deploy countermeasures by freezing Russian assets in response to Russia’s injurious and illegal conduct against it. Going a step further, we argue that frozen or seized assets need not be returned to Russia at the close of the war as long as Russia has failed to pay reparations. That is because the failure to pay reparations is itself an unlawful act for which countermeasures (continued freezing of assets) may be kept in place even if the unlawful war has ceased. We also argue that other states may join Ukraine, putting in place collective countermeasures, sometimes called “third party” countermeasures. That argument, if adopted, could have implications beyond Ukraine, extending not only to future war reparations but also to international responses to cyber operations, human rights violations, or violations of environmental law obligations.

The current challenge must be addressed not as a one-off problem but as a systemic one. We should therefore aim for a solution that will benefit not just Ukrainians but others who find themselves in the same situation in the future. This is yet another reason that existing ad hoc legislative proposals to seize Russian assets are inadequate—they might provide money to Ukrainians now, but they will undermine the international legal system while doing little to help future victims. Keeping the larger picture in view is not only important as a matter of equity and justice, it is also in the best interests of Ukraine, which must maintain unprecedented levels of global support for its ongoing defensive effort and to hold the architects of this illegal war accountable for the extraordinary harm they have done. This Article’s proposal meets this challenge, offering a proposal for reinforcing the reparations obligation in a variety of circumstances beyond the present conflict.

Keywords: international law, reparations, war, Ukraine, United Nations, General Assembly, countermeasures, collective countermeasures, sovereign immunity

JEL Classification: K33

Suggested Citation

Hathaway, Oona A. and Mills, Maggie and Poston, Thomas, War Reparations: The Case for Countermeasures (November 8, 2023). Stanford Law Review, Vol. 76, No. 5, Forthcoming , Yale Law School, Public Law Research Paper, Yale Law & Economics Research Paper, Available at SSRN: https://ssrn.com/abstract=4548945

Oona A. Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

Maggie Mills

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

Thomas Poston

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

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