International law needs more teeth. This conclusion has been made painfully clear over the last four years as Russia has continued its war against Ukraine. Despite the fact that Russia’s actions blatantly violate international law’s prohibition on the use of force, and may violate additional provisions of the law of armed conflict, neither the International Court of Justice nor the international community have been able to end Russia’s assault through the non-military coercive measures allowed under international law. The international community has thus been placed in a Catch-22: either stand-by while international law is violated, or violate international law themselves to stop Russia’s ongoing violation.
In November 2023, a group of eight leading international law scholars and practitioners took on this problem in a published legal memorandum, offering one possible solution. Addressing the growing desire to seize the roughly $300 billion in frozen Russian assets held around the world as both a way to coerce Russia and to compensate Ukraine, the group argued that such an action would be lawful under the international law doctrine of countermeasures. This article disagrees with the groups’ proposal because, it argues, the seizure of the assets for compensatory or punitive purposes is neither permissible nor desirable under the law of countermeasures. The article also contends that the proposed seizure would violate the legal requirements that the countermeasure last only as long as the state’s unlawful behavior continues, and that the countermeasure is reversible. In presenting this argument, the article contributes to the global discussion of this topic that is happening in real time in national capitals around the world.
The article then offers a new, alternative approach to solving the Catch-22: by enabling the enforcement of international court judgments at the domestic level. Presently, sovereign immunity usually precludes a judgment holder from being able to domesticate and execute on a judgment against a sovereign judgment debtor. To remove this obstacle, the article argues through descriptive and normative analysis that the international law of sovereign immunity should be evolved further so as to no longer block enforcement of a judgment from an international tribunal for a violation of public international law. Such an evolution, the article contends, matches the general movement of international law away from a sovereign-centric model to one that recognizes other interests as capable of trumping a state’s sovereign shield. This evolution would be consistent with the history and doctrinal foundation of the law of sovereign immunity, while also strengthening international law more generally by equalizing the international arena. The article also explores how the proposed evolution could be formalized, both within countries like the United States, where the law of sovereign immunity has been codified, and others where the law is derived from international custom.