
Three months ago, we argued in Lawfare for making use of Russia’s frozen sovereign assets to fund a program to compensate Ukrainian victims of Russia’s invasion. Essential to our argument is a judgment that the REPO Act introduced in the Senate does not adequately do the job. It contains too many loopholes and raises too great a risk of blocking a settlement to this conflict. Yuliya Ziskina has published a response, relying in part on a study directed by Laurence Tribe published last month. The Tribe study restates, at considerably greater length, the arguments he made on this forum more than a year ago.
There is much in Ziskina’s post with which we agree, although we think she does not accurately convey what one of us (Stephan) has said about these matters in earlier publications. (Stephan has never opposed the lawful forfeiture of Russian assets, taking into account the prospects of a settlement of the conflict, or insisted that the assets should go to arbitral award holders instead.) We agree, for example, that the frozen Russian assets should be confiscated and made available for the reconstruction of Ukraine. And we agree that this confiscation should occur now and not be deferred until the hostilities end. We disagree with Ziskina on the legal theory under international law that would support such a confiscation, on how the confiscated funds should be administered, and on whether the REPO Act as currently drafted is the right vehicle for this purpose.