Seizure of Russian Assets

I've been a bit skeptical about seizure of Russian assets, mostly on pragmatic grounds: Seizing a sovereign's money when one is not yet actually at war with the sovereign strikes me as a perilous matter, not quite as much as seizing the sovereign's territory but still a big deal. I was also unsure that this sort of thing is even allowed under generally accepted international law principles.

I personally don't view such principles as binding, when we're talking about disputes among adversaries. (Among friends or at least generally peaceful trading partners, I think they are extremely important, because there are huge practical benefits from everyone knowing the rules and following them.) But I do think that even when dealing with adversaries, there are practical reasons to at least pay some attention to them.

When this came up in conversation last week with my colleague here at Hoover, Philip Zelikow, he told me that such seizure is indeed consistent with international law, though of course that doesn't resolve the pragmatic question of whether it's wise. There's a report on the subject on which he is one of the authors, "On Proposed Countermeasures Against Russia to Compensate Injured States for Losses Caused by Russia's War of Aggression Against Ukraine" (May 20, 2024), which I thought I'd pass along for those of our readers who are interested; naturally, I'll be glad to post serious arguments on the other side as well. An excerpt:

For the reasons set out below, the authors of this Memorandum – experienced public international lawyers and practitioners from Belgium, France, Germany, Japan, the Netherlands, Nigeria, the United Kingdom, and the United States – having given their most serious consideration to this issue, conclude that it would be lawful, under international law, for States which have frozen Russian State assets to take additional countermeasures against Russia, given its ongoing breach of the most fundamental rules of international law, in the form of transfers of Russian State assets as compensation for the damage resulting directly from Russia's unlawful conduct. Only Russian State assets would be affected. No new measures would be imposed on assets that are genuinely privately owned….

There is no doubt about the illegality of Russia's invasion of Ukraine, occupation of Ukrainian territory or annexation of large parts of it. By these actions, Russia has violated the most fundamental rules of international law, enshrined, inter alia, in the United Nations Charter, Article 2, paragraph 4, which prohibits the use or threat of force against the territorial integrity or political independence of another State. The principle is embodied in UN General Assembly ("UNGA") resolution 2625 (1970), the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, which reflects customary international law and declares unlawful and inadmissible the acquisition of another State's territory by force. These
rules are a cornerstone of the post-World War II international legal order; indeed, they are indispensable to the foundation upon which the entire rules-based order is built….

In the face of [Russia's] blatant violation of a State's international legal obligations, international law permits other States to respond with "countermeasures". Lawful countermeasures are measures that would be unlawful if imposed against an innocent State, that is, one that has not violated its international obligations, but are permitted if they are taken against an offending State and are intended to induce the offending State to cease its unlawful conduct, and comply with its obligation to compensate States that have been injured by that conduct, including to effectuate that compensation with the offending State's assets….

There's much more at the link.

Comments

[JoeFromtheBronx]

The excerpt has a facial logic to it.

Why should seizure of assets only be something done for someone we are at war with? After all, we seize a person or institution's assets for a variety of reasons in other cases.

The pragmatic value of it in individual cases is of course up to debate.

[Rossami]

With due process controls and protections, yes. What due process protections are in place (or even could be in place) for a sovereign nation? What court has a jurisdiction competent to adjudicate disputes between nations? Hint: It sure ain't the misnamed "World Court". And it can't be your nation's courts either - there's too much inherent conflict of interest.

No, seizure of a sovereign's assets is a naked act of force. The article is uncompelling to me. Seizure of assets is an act of war. That act of war may well be justified but don't euphamize it as anything less than it really is.

[Bob from Ohio]

"Seizure of assets is an act of war."

Yes. It may be that the US and EU should do it but its a risk based on practical considerations of gain versus risk, "law" has nothing to do with it.

[JoeFromtheBronx]

Hint: It sure ain’t the misnamed “World Court”

I will need more than that. The World Court has tried quite a few cases. Regarding countries of the world with international judges. According to the agreements of the parties themselves.

It can’t be your nation’s courts either – there’s too much inherent conflict of interest.

A country’s courts have regularly also had jurisdiction to rule upon foreign assets. Basic rules of quid pro quo over history have led to some degree of equity.

Seizure of assets is an act of war.

Certain things are “acts of war” that are not full-fledged war. And, they can be just actions. But merely seizing assets without more being an act of war is a stretch.

Assets are seized for a variety of reasons in other contexts, including to pay a debt and as a penalty. It is not “warfare” to do so in each case.

I will leave the international law arguments of the article specifically to those who are experts. But, as a general matter, having international obligations under current international law is acceptable. Russia does not purport to be free from all rules. It is a member of the U.N. and agrees to certain general principles.

This is true even if people don’t think the principles are sensible.

[Rossami]

Foreign assets of a company or person that either explicitly or implicitly consented to the jurisdiction of the host country's courts, yes. Foreign assets of a sovereign who does not consent? I am aware of very few precedents and even those are on very weak ground.

re: seizure of assets as an act of war - the relevant precedents that I know of go back to the 17th and 18th centuries. And at that time, seizures even to pay alleged debts was an act of war. It was sometimes done - and sometimes the infringment on sovereignity was tolerated. Yes, it's lower on the spectrum of 'acts of war' than a physical invasion of sovereign soil but it's on the spectrum.

Which brings me back to your first point. As you say, any court competent to assert jurisdiction over competing sovereigns must either do so with the consent of both sovereigns (or be imposed under threat of force by a third sovereign - which doesn't apply here so we'll set it aside). The problem is that unlike citizens whose consent is unrevokable, the consent of a sovereign nation is expressed only through treaty - and treaties can be abrogated at will by either party (subject only to the ability of the other party to enforce consequences for that action). Because the consent is ephemeral, so is the claim of jurisdiction.

To your World Court counter-examples, there are very few that are sovereign vs sovereign (which, for eample, excludes the trial of Slobodan Milošević who was no longer sovereign by then). The ones I'm aware of have all been either examples of the court's failure (no consequences despite the court's ruling) or instances of the special case I excluded above (consequences imposed under the threat of force by outside parties).

[JoeFromtheBronx]

Your comment suggests that in certain cases -- where there is consent -- seizure might be appropriate.

I'm interested in current practice -- not what happened in the 18th century -- and the article addressed that.

A treaty-based consent is not "ephemeral." International relations involve treaty-based law regularly. There are various ways to "enforce" consequences.

There is "due process" involved. Specific open procedures are followed. Russia has the means to challenge a wrongful seizure.

If Russia is going to engage with nations in a way to leaves funds liable to be seized, it has due warning that they are part of an international system of law where the funds might be seized legally in certain cases.

In the alternative, push comes to shove, if this is legally an "act of war," so be it. But, in principle, I stick by my previous comment.

[Martinned2]

I was also unsure that this sort of thing is even allowed under generally accepted international law principles.

I think the word you're looking for is customary international law. And no, you're not supposed to seize assets belonging to another state, certainly not outside of a commercial dispute.

https://www.justsecurity.org/92531/sovereign-immunity-and-reparations-in-ukraine/

The countermeasures theory explains why this rule would not apply to Ukraine, but it is less convincing when applied to states who have not themselves been wronged by Russia. As usual, a Security Council resolution would clarify matters, but is unlikely.

[Martinned2]

For the record, to the extent that Russia has violated erga omnes obligations, such as the obligation not to engage in genocide, all states are wronged and are entitled to take (proportionate) countermeasures. But the question of whether Russia has done so is still pending before the ICJ: https://www.icj-cij.org/case/182

I would not have thought that the provisional measures in that case provide any legal basis for asset seizures by anyone.

[Lee Moore]

Russia has not ratified the ICJ treaty.

[Martinned2]

I'm not sure what you mean by "the ICJ treaty", but it certainly has ratified the statute of the ICJ. All UN Members have.

And even if it hadn't, that doesn't really matter for the case we're discussing here. If the ICJ says that Russia has violated an obligation erga omnes, that's a good enough basis for the US to take countermeasures. As long as the ICJ is satisfied that it has jurisdiction over the case, that's good enough for the US (and others).

[Lee Moore]

Sure, and if the Republic of Somaliland thinks the USA has violated an obligation erga omnes according to the laws of the Republic of Somaliland that's good enough for the Republic of Somaliland.

What's good enough for State X is what State X's laws say. What's good enough for State Y is what State Y's laws say. After that - it's enforce your law as you may.

[Mr. Bumble]

Given Russia's veto, quite unlikely.

[Martinned2]

Exactly.

But one should never exclude the possibility of creativity. The Security Council authorised the Korean War because Stalin was boycotting the Security Council and Taiwan was voting for China.

With respect to countries like Afghanistan, Myanmar, and Venezuela there have been suggestions that the General Assembly's power to assess the credentials of each state's representation at the UN could be used to give a state's seats to the democratic government in exile (if any), rather than to the dictator. I'm not a fan of that suggestion, but it's an example of the sort of thing that might be used to evade Russia's veto.

https://www.ejiltalk.org/could-russia-be-suspended-from-the-united-nations/

[Krayt]

That is an interesting idea. No ethical problems as dictatorships are not even legitimate governments. Bank robbers don't become legitimate when the amount of territory they seize becomes greater than a building.

One deals with them for practical reasons, not because there's some mysterious high ethical principle one has the honor of lording over your fellow men. This may be a stumbling block as the only recourse outside of war are those practical things, like whether to trade, or not.

(BTW, just to irritate people, the defining trait of legitimacy is freedom, not democracy. Democracy is the tool of freedom, the servant of freedom, not the other way around. Democracy out of control, usually at the prompting of some demagogueling with the gift of gab, does not legitemize its overreach just because the number of mini-dictators skyrockets.)

[Lee Moore]

I don’t think this is a plausible theory of government, since it proposes that there were no “legitimate governments” before about 200 years ago. This seems a somewhat anachronistic take.

I think most folk can accept that liberal (in the proper sense) democracies are nicer places to live in than dictatorships, but that’s a different question from legitimacy.

[Jmaie]

It would be quite the rabbit hole if we decided that governments were illegitimate based on whether they were one man “lording it over his fellow men." If dictatorships are by this definition illegitimate then so would kingdoms be. Add in the Saudi’s bombing of Yemen and that might be considered egregious enough to justify seizure…

[Brett Bellmore]

Of course there were no legitimate governments before about 200 years ago. There aren't any legitimate governments today. Government isn't grounded in legitimacy, it's grounded in power.

Democracies just gloss over that a bit.

[Martinned2]

Jefferson would be very disappointed in you...

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

Apart from Jefferson, you might want to ask Nicolae Ceaușescu how it worked out for him when he lost legitimacy as a ruler.

[Bob from Ohio]

"legitimacy"

He lost power.

legitimacy comes from the barrel of a gun, his guns would no longer obey his commands.

[Martinned2]

(Assuming you mean Ceaușescu by "he".)

Ceaușescu wasn't holding the guns anyway. The army was. The police was. The Securitate was. And for decades they all did what he said. And then suddenly they didn't.

[Bob from Ohio]

"Ceaușescu wasn’t holding the guns anyway."
A man can only shoot at most two at a time.

"The army was. The police was. The Securitate was. "

I though the dictator totally rule alone. First I heard that he had help.

[Sarcastr0]

legitimacy comes from the barrel of a gun,

Legitimacy is about perception. It comes from lots of places. Guns are one of the more, but not 100%, effective sources.

Not all influence is control.

[Martinned2]

The defining trait of legitimacy, we learned from Max Weber, is the perception of legitimacy. Whatever the people believe to be legitimate, is legitimate, for so long as they believe it to be legitimate.

That perceived legitimacy, in turn, can come from democracy, or from tradition, or from charisma (the three options discussed by Weber), but also from what modern political scientists call 'output legitimacy', i.e. getting sh*t done. Output legitimacy is, for example, why the CCP is still in power. Chinese people think Communist Party rule is better for them, as a practical matter, than the alternative(s).

[Brett Bellmore]

IOW, “legitimacy” isn’t a property of governments in the first place. Which is my position: Governments aren’t “legitimate” any more than chocolate is good tasting.

“Legitimacy” is an opinion of people about governments. Different people have different opinions about the same thing, so those opinions can’t be properties of the thing, they are properties of the individual people.

"Chinese people think Communist Party rule is better for them, as a practical matter, than the alternative(s)."

Where the practical alternative is the Communist party still ruling, but their being dead...

[Martinned2]

IOW, “legitimacy” isn’t a property of governments in the first place. Which is my position: Governments aren’t “legitimate” any more than chocolate is good tasting.

Now you're just playing word games.

[David Nieporent]

Now you’re just playing word games.

Also, chocolate is good tasting.

[Martinned2]

Where the practical alternative is the Communist party still ruling, but their being dead…

There's 1.4bn of them. In theory there are about 100m members of the Chinese Communist Party. But how many would fight for the Party if the people rejected it?

The problem, as in Romania, is one of coordination. If the people rebel all at the same time, only extreme Syria-style cruelty ('the Stalin option') can put that genie back in the box, and even then only to a degree.

[Riva]

The Chinese people are actually victims of the totalitarian CCP. They don't have the option of choosing an alternative. If you need an analogy to better understand the totalitarian mindset, think of the CCP like the DNC and its dismissal of the democrat primary selection process.

[Brett Bellmore]

While entirely ignoring WHY Russia has a veto: Because they're a nuclear power that is dangerous to piss off.

Remember when Taiwan's seat was taken away and given to the dictators in Bejing? No coincidence it happened just a few years after mainland China became a nuclear power.

[Krayt]

Dictatorships are kleptocracies. They won't stand up to anyone who can put up a fight, much less end them. That would break their business model of cushy palaces.

[Brett Bellmore]

Dictatorships are notoriously lousy at risk analysis, probably because only one guy is doing it, and people are reluctant to disagree with him.

[Lee Moore]

This may be true of many dictatorships, but it isn't a general rule. The Estado Novo in Portugal was hardly a kleptocracy - the dictator was an ascetic Catholic.

No doubt there were instances of corruption in the lower ranks, but we can hardly claim that such things are absent in democracies.

You might say that thieves are naturally attracted to government bureaucracies, for reasons that Willie Sutton could have explained, and if the polity resists the regular purging of the bureauracy , then corruption will become endemic. But again this is hardly particular to dictatorships.

[Martinned2]

You might say that thieves are naturally attracted to government bureaucracies

You might say that, but I see no basis for believing that government bureaucracies are different from other bureaucracies in this regard.

[Lee Moore]

Well I agree that all bureaucracies are vulnerable to corruption, because bureaucracies have :

(a) access to funds other than their own
(b) power to hand out favors, or punishments

Private sector bureaucracies are somewhat less vulnerable because the owners have a personal interest in having their funds spent on themselves, and in ensuring that any favor giving or punishment giving powers are exercised in the owners' interests.

The larger the business the more remote the owners are from the bureaucracy controlling it, so that large businesses are more vulnerable than small ones. Also older businesses are more vulnerable than new. Parasites breed over time. But even large businesses are exposed to the profit imperative - they can get bought and the thieves can be fired.

So yes all bureaucracy is prone to corruption. Big bureaucracy is more prone. And bureaucracy not exposed to the cold cruel winds of commercial competition is even more prone. Pronest of all is government bureaucracy since it combines all the pronity of a large private sector monopoly, but a thousand times the size of any private monopoly, with the power of the state, which large private monopolies don't have.

Given the advantages of a corruption-slot in the government bureaucracy compared to a slot in a private sector bureaucracy, one would naturally expect the most eager and energetic parasites to congregate in the former.

[Martinned2]

Private sector bureaucracies are somewhat less vulnerable because the owners have a personal interest in having their funds spent on themselves, and in ensuring that any favor giving or punishment giving powers are exercised in the owners’ interests.

If ownership is widespread, as with listed companies, this is equivalent to the interest of voters/taxpayers to make sure there isn't too much theft.

[Lee Moore]

Not equivalent, but analagous to.

Listed companies are exposed to the risk of takeover, or senior management being replaced if the earnings are poor. And when that happens you the grifter in the bureaucracy are at great risk of being fired.

Government bureaucracies are less vulnerable. Even when senior management changes, hardly anyone gets fired, and if money is short, the preservation of the bureaucracy takes precedence over all other spending priorities.

Businesses and government are different animals.

[David Nieporent]

While entirely ignoring WHY Russia has a veto: Because they’re a nuclear power

Russia's veto (well, the Soviets' veto) predates their nuclear capability.

No coincidence it happened just a few years after mainland China became a nuclear power.

It was, of course, more than "just a few years."

[Brett Bellmore]

Disputing easily verified facts is something of a trope with you, isn't it?

Taiwan's seat was taken away and given to mainland China's dictators in late '71. So, when did China become a nuclear power?

Their first nuclear test was in '64, which is the absolute earliest you could claim they were a nuclear power. Realistically it was several years later before they could actually threaten anybody with nukes.

So, it's your assertion that 7 is a large number?

[Martinned2]

The PRC got China's seat (not Taiwan's!) as part of the Nixon/Kissinger efforts to repair relations with the PRC. Whether Nixon went to China to avoid anyone getting nuked is a question probably better left to greater experts than any of us.

[Brett Bellmore]

Yeah, I think it's pretty clear that we didn't care if our relations with mainland China were bad, so long as they weren't a military threat.

[Martinned2]

China was a military threat to US interests in Korea, Japan, and Vietnam long before it acquired nuclear weapons.

[SimonP]

Disputing easily verified facts is something of a trope with you, isn’t it?

And sliding right past being shown to have your whole ass hanging out is something of a trope with you.

[bernard11]

You skipped right over the business about the USSR, I note.

[David Nieporent]

My assertion is that 7 is "more than 'just a few years.'" Which is why I said that.

[Voize]

They have a veto because they are a permanent member of the Security Council. They became a permanent member when the list was created in 1945 because they were among the major belligerents on the winning side of WWII. At that time only the US had the bomb, Russia's first nuclear weapon test was in 1949.

If having a veto depended on having nuclear weapons then the list would also include India, Pakistan, North Korea, potentially Israel, with Iran on the threshold.

[Brett Bellmore]

It depended on being dangerous to piss off. Nuclear weapons just are the express ticket to that status.

[Sarcastr0]

It's really who was a player in 1945.

[Martinned2]

Exactly, and there is a permanent attempt to kick out the UK and France and replace them with people who are allegedly players today. That may well happen, but Russia will probably keep its veto for the foreseeable future, even though its economy is smaller than that of the Benelux countries.

[Brett Bellmore]

At least until they try to use one of their nukes, and it fails to go off.

[Don Nico]

It was part of the agreement at Yalta between Roosevelt, Churchill and Stalin. Indeed that preceded the USSR having nuclear weapons. Also part of that deal was that Ukraine and Belorus would have separate votes in the UN General Assembly. In that way the USSR had 3 GA votes to balance the US, UK, and France.

[Voize]

Nuclear weapons just are the express ticket to that status.

It’s like the words just sail past your eyeballs without making any impression.

If nuclear weapons are “the express ticket”, why aren’t Pakistan and North Korea on board?

[Don Nico]

Because nuclear weapons are not the "express tickets." That status was a post-WWII deal.

[Martinned2]

While entirely ignoring WHY Russia has a veto: Because they’re a nuclear power that is dangerous to piss off.

The Soviet Union already had a veto before it had nukes, and I don't think anyone is worried that the UK or France would start nuking anybody if they didn't have a Security Council veto.

[Brett Bellmore]

That's why, as a historical matter, the Soviet Union got their veto in the first place. The reason it got passed on to Russia, rather than just going "poof" when the USSR fell apart, is because they were dangerous to piss off.

[Martinned2]

In the 1990s people didn't mind pissing off Russia so much. But they did try to flatter Yeltsin. And, as a matter of law, Russia is the successor state to the Soviet Union, so it gets all the legal goodies the Soviets used to have.

[Don Nico]

No, Brett. It was because Russia was considered the natural possessor of several attributes held by the USSR, including all Soviet nukes.

[Voize]

Russia succeeded to the USSR's Security Council seat in 1991, but did not possess "all Soviet nukes" at the time. Ukraine, Kazakhstan, and Belarus had some and only later agreed to give them up.

[Don Nico]

It is not possess, but the GA voted that Russia was the natural heir to the nukes. Moreover, Ukraine, Belorus, and Kazakhstan had never controlled the nuked on their territory. They were always controlled by Russian officers. And in that sense they never "owned" those weapons, certainly not in the view of Russia
You are correct the the formal transfer was codified in the Lisbon agreement.

[Dan Schiavetta]

In (partial) response to the Iranian hostage crisis, Carter seized Iranian assets in 1980. Has this been forgotten?

[Frank Drackman]

Worked really well, didn't it?

[Frank Drackman]

Another example of Roosh-a playing Chess, Amuricans playing Poker (and badly) (HT H. Kissinger)

Frank

[Frank Drackman]

Just asking, hasn't Amurica invaded other countries in the last homminahomminahommina 34 years? I know I was there for one of them.

Frank

[Brett Bellmore]

Yeah, but our invasions don't count, for reasons.

[Bob from Ohio]

"for reasons."

The strong do what they can and the weak suffer what they must.

[Martinned2]

You realise that the Athenians were not the good guys in that story?

[Bob from Ohio]

So what. Its still accurate, then and now.

[Martinned2]

You will note that that story was written by Thucydides, as he was trying to piece together why the Athenians got crushed by the Spartans in the Peloponessian War. In fact, in all likelihood the Melian Dialogue was a relatively late addition, because it doesn't fit at all with the surrounding parts of the text. So it's better thought of as part of Thucydides's conclusions. The Athenians were arrogant and cruel, and that's one of the reasons why the lost everything.

(The other reason that Thucydides focused on was, of course, that the Athenians were swayed by populist politicians like Alicibiades.)

[Bob from Ohio]

"part of Thucydides’s conclusions"

Of course it was him speaking. Its still an accurate statement of how international relations operate.

"Athenians were arrogant and cruel"

So unlike the Spartans, humble and kind people.

[Brett Bellmore]

Arrogant: "having or revealing an exaggerated sense of one's own importance or abilities."

The Spartans, demonstrably, were cruel, but they weren't arrogant, they were merely confident.

[Bob from Ohio]

"weren’t arrogant, they were merely confident."

Hm, if you say so but it is a fine distinction. Killing Persian ambassadors seems more than just confidence.

[Lee Moore]

It's an English irregular verb :

I am confident
You are over confident
He is arrogant

[Lee Moore]

"International law" is law to the extent that a state chooses to make it so, under its own domestic law. Consequently "international law" differs from state to state.

Aside from that part of domestic law that derives from international agreements and customs, which has been adopted by the procedures for making domestic law, the rest is bloviation by self interested parties - ie how nice for folk who do not choose to finance their own army to try to order, by paperwork and "international courts", the affairs of states who do so choose.

That said, from a practical point of view - if you do not want your state assets in other lands to be seized by other states pursuant to "international law" or indeed any other kind of law or whim, it is wise to order your polity so that you can respond in kind, by seizing the property of other states on your own territory.

If you have already expropriated or otherwise got your grubby mitts on the property that foreigners have bought or created in your own territory, then your capacity to retaliate is reduced. There is nothing worth buying in Russia, except the oil (the herpes they can keep) and since the oil has all been expropriated already, they have no bargaining chips.

[Martinned2]

“International law” is law to the extent that a state chooses to make it so, under its own domestic law.

Not really. You can't really make international law on your own.

“international law” differs from state to state

Well yes, because different states have ratified different sets of treaties.

[Bob from Ohio]

"You can’t really make international law on your own."

As the arbiter of " international law" since 1945, we regularly do this.

[SimonP]

Go back to your blocks, Bob. You clearly have no idea what you're talking about.

[Bob from Ohio]

I just don't subscribe to the myth that international "law" is "law" at all.

[Martinned2]

That's OK. International law exists whether you believe in it or not.

[Bob from Ohio]

People believe in Big Foot also.

[apedad]

People believe in God also.

FTFY since your point was about people believing things.

[SimonP]

I challenge you to define "law" in a way that isn't question-begging, then.

[Bob from Ohio]

Law exists when a sovereign [more or less} abides and is bound by it and effectively enforces it on the populace.

US domestic law has validity because we do this, plenty of third world countries have laws that are on words on paper. The government ignores it when convenient and the people either ignore or bribe their way out of it.

[Sarcastr0]

The sovereign being bound by the law is a relatively new concept. It is not required for law to exist.

[Bob from Ohio]

"relatively new concept"

Around 800 years in Anglo-American law. I think its an established feature by now.

We are talking now, not what kings did 5000 years ago.

[Sarcastr0]

Magna Carta ain’t it. In just about every area that matters, The king wasn’t bound by the same law everyone else was.

That’s also a big part Hobbes’ point in The Leviathan – the necessary alienation of being the sovereign.

Even today, the default is for the ruler to be elevated above the people. That’s just not how it is where you and I sit because we were born lucky (but see Presidential immunity).

[Martinned2]

As the arbiter of ” international law” since 1945, we regularly do this.

I fail to see in what sense the US has been the arbiter of international law. Throughout the post-war period, and particularly since 1990, the US has basically acted as if a law-based international order is not in its strategic interest. (Presumably based on a Melian Dialogue sort of logic, see above.) The rest of us have continued to develop international law, but the US has only done the bare minimum for much of the last 80 years.

[Bob from Ohio]

Its only "law" if we abide by it. When we do not, its nothing.

Lilliputians can "develop" whatever they want.

[Sarcastr0]

It’s only food if I eat it. If I don’t, it’s nothing.

Just like people, countries do stuff for all sorts of reasons other than base utility.

And democracies? Even more so.

But even from a base utility perspective, going full imperial ‘I am the Law’ would be a bad idea

[Bob from Ohio]

" going full imperial ‘I am the Law’ would be a bad idea"

Agreed, that's why we dissemble and pretend a "rules based international order" exists.

[Martinned2]

You should try harder at dissembling

[Bob from Ohio]

I'm not Secy of State, I don't have to lie.

[Sarcastr0]

So that doesn't sound like we're dissembling. There is a law; it hurts not to follow it. So we follow it.

I don't know what platonic Law you're going in on but this walks and quacks like law.

[Don Nico]

"It’s only food if I eat it. If I don’t, it’s nothing."
If you don't, you're missing out.

[SimonP]

“International law” is law to the extent that a state chooses to make it so, under its own domestic law. Consequently “international law” differs from state to state.

This fundamentally misconceives what "law" and "international law" is.

It is perfectly fair, and probably right, to say that "international law" is just that body of law that states recognize as binding upon them, and that recognition is typically determined according to the legal systems of those states. But that's no different from how national legal systems work - whatever the "law" is, is just what officials recognize as being the law that binds them.

[Martinned2]

As per Schumpeter (quoting from memory): "Law is a pattern of behaviour, the violation of which is met with organised resistance."

[Lee Moore]

Your first sentence disagrees with me.

Your second agrees with me.

You have allowed yourself to become confused.

[ReaderY]

There’s certainly a lot of precedent. The British commissioned privateers to raid Spain’s treasure ships in time of official piece, seizing its money the old-fashioned way, boarding ships and hauling off chests of doubloons and pieces of eight. I’m not sure that this is any different. It’s just the modern equivalent.

It’s not exactly legal under international law. But the Constitution specifically authorizes it. It’s what the “letters of marque and reprisal” are about. They authorize a broad variety of war-like acts short of formal war.

Seizing other countries’ money on the side without a formal war is a straightforward example with a very long history. If the US hired hackers to hack into Russian banking systems and remove the electronic cash, it would be doing the exact modern equivalent of the British privateers seizing those chests on the Spanish main, the same way the electronic internet is the modern equivalent of the physical press and post roads.

I think that traditionaly, hundreds of years of tradtion, the question to ask in these matters is not what’s legal, but what you can get away with.

[David Nieporent]

It’s not exactly legal under international law. But the Constitution specifically authorizes it. It’s what the “letters of marque and reprisal” are about. They authorize a broad variety of war-like acts short of formal war.

No. They authorize private parties to engage in war-like acts during war.

[ReaderY]

It’s unconstitutional for the CIA to engage in covert actions through private parties, as it often does, in time of peace?

I think the critical modern relevance of the clause is that it requires Congress to authorize these sorts of acts, either through a standing authorization or separate ones each time as Congress sees fit. It means the President doesn’t have power to do these things himself without Congress’ blessing. This is a different division of powers from the British monarchy of the time, where the King could do these sorts of things unilaterally. And I think this division of powers is very relevant to today, where there is a lot more informal cold-war conflict going on than formal war. I see no more reason to limit “letters of marque and reprisal” to the traditional use at the time of the founding than limiting terms like “post roads” and “press” to their traditional use. As I see it, the Clause fairly covers all future ways, including ways not yet conceived at the time of the Founding, to achieve a similar purpose.

[Bob from Ohio]

"The British commissioned privateers to raid Spain’s treasure ships in time of official piece [sic]"

It was an act of war. England officially denied this to avoid war.

Seizure of Russian state assets is also an act of war.

[ReaderY]

However characterized or interpreted, it was done. And not infrequently either.

[TwelveInchPianist]

"Seizing a sovereign's money when one is not yet actually at war with the sovereign strikes me as a perilous matter..."

There's an easy way to fix that.

[Bob from Ohio]

"international law"

Good lord. Its totally a practical decision. The unicorn of international law doesn't matter at all.

[apedad]

Just say all law doesn't matter at all.

As Brett notes above (with whom I partially agree with here), "law" is nothing but power.

[Bob from Ohio]

Domestic law matters if the sovereign effectively enforces it.

"“law” is nothing but power"

Of course. That's what our Dutch friend does not understand.

[Martinned2]

Where does power come from, if not law?

[Lee Moore]

Men with guns. Or these days it could be women with drones.
Either way it comes from the ability to make things go bang, to break bones and to grab you and stuff you in jail.

Lions exercise power over wildebeest. Law doesn't come into it.

[Bob from Ohio]

"Political power grows out of the barrel of a gun." Mao

Bad man but correct here.

[Sarcastr0]

There are lots of ways International law has an effect beyond calling out the guns.

1. Soft power - countries liking you or not based on how well you play with others can mean opportunities...or isolation.

2. International legitimacy allows one to project one's own soft power in the future. Useful for when you want to be a scalpel not a hammer.

3. People who vote like the idea of not acting like an International bully. “Democracy is incapable of empire” so there is also domestic political pressure.

4. National leaders don't like to piss off their peers.

5. Cooperation regimes set expectations and make dealing with shared resources a lot easier. Broadcast spectrum. Goesync spaces. Overflights. Patents.

None of these are dispositive, especially in extremis. But ignoring International law is like ignoring tact and courtesy among individuals. Sure it's not always going to drive behavior, but it's a pretty big part of interaction.

[Don Nico]

"“Democracy is incapable of empire” "
The was UK's empire was healthy while the UK was a democe=racy. There was no public pressure against it. The Empire could not sustain the realities brought on by WWII; again public opinion in Britain had little to do with that.

[Swede425]

Not opposed per se.
But what does Russia do in response?
They are not the formidable military everybody (including themselves) thought they were. They can't even invade a smaller, weaker neighbor the way they thought they could.
What happens when, realizing they don't hold the cards they thought they had, they're left with only one card. And it's a big, glowing mushroom card.
I think they're more dangerous now because their options are so much more limited than they thought they were.

[Martinned2]

Who in a position of power in Russia might think that it was in their personal interest to nuke something? Even if Putin thought that he might lose power, which he doesn't, he has children who he would presumably prefer not to see die in a global thermonuclear war.

[Swede425]

I won't disagree but the option has to be considered.
And reasonable people could agree that the probability of the Russians exercising the worst option is miniscule.
But if you thought you had 15 options but now realize you only have 2, does that change/alter how quickly you get to the worst option?
Going back to my original question: what do the Russians do in response to another country seizing their assets?

[Martinned2]

Pay Trump to give those assets back, presumably.

[Swede425]

Brilliant.
Moron.

[Lee Moore]

He's right - he just got the President wrong.

https://apnews.com/united-states-government-fd4113419276444eba1d2a46d5c29752

[The Margrave of Azilia]

We’re *not* at war with Russia?

Can we at least say “quasi war”?

[M L]

Not cold or hot, it's lukewar.

[Don Nico]

We are in a proxy war with Russia. Most political scientists admit to that. Mr Putin does see himself as being in a proxy war with the West.
S_0 is free to disagree, but his opinion is uneducated (product of living in a US bureaucratic bubble) about this matter.

[Kleppe]

This is your daily reminder that there is no such thing as international law.

[Jason Cavanaugh]

It's about time to be checking yourself into a nursing home. I'd suggest one with some kind of daycare classes where you might start to build an education.

[Commenter_XY]

To be clear: Confiscation of assets is an act of war. There will be a response. Note we confiscated Iranian assets in 1979 and they have retaliated for 40+ years, killing many Americans.

The practicality aspect greatly outweighs the legal niceties. When you take people's stuff, don't assume you know how they will react, or for how long.