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Rebuilding Economic Prosperity and Opportunity for Ukrainians Act (Public Law No. 118-50) (U.S.)

Published online by Cambridge University Press:  27 December 2024

Thomas Weatherall
Thomas Weatherall*
Affiliation:
Attorney-Adviser, Office of the Legal Adviser for Diplomatic Law and Litigation, U.S. Department of State, United States. JD, Ph.D. (Cantab), M.Sc. (Oxon), BA. The views expressed herein are the author's own and not necessarily those of the Department of State or the U.S. Government.
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Extract

Following Russia's full-scale invasion of Ukraine in February 2022, a number of countries, including the United States, froze Russian sovereign assets (RSA) within their respective jurisdictions. It is estimated that some US$300 billion of RSA are immobilized worldwide. A fraction of those frozen assets, approximately US$4–$5 billion, are thought to be subject to the jurisdiction of the United States. On April 24, 2024, President Biden signed H.R. 815 into law, which included the Rebuilding Economic Prosperity and Opportunity for Ukrainians Act (REPO Act). The REPO Act broadly provides for the “repurposing” of RSA within the jurisdiction of the United States to facilitate assistance to Ukraine in response to Russia's unlawful invasion.

Type
International Legal Documents
Information
International Legal Materials , Volume 64 , Issue 1 , February 2025 , pp. 187 - 202
Copyright
Copyright © The Author(s), 2024. Published by Cambridge University Press on behalf of American Society of International Law

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References

ENDNOTES

1 P. L. No. 118-50, Div. F, Title I, § 101(a)(8) (“REPO Act”).

2 Id.

3 P. L. No. 118–50, Div. F.

4 Id. § 103(a).

5 Id. § 103(b)-(c).

6 Id. § 104(a)(1)-(2). See 89 Fed. Reg. 60568 (July 26, 2024) (discussed infra).

7 Id. § 104.

8 Id. § 104(b)(1). The REPO Act defines “Russian aggressor state” to mean the Russian Federation and “Belarus, if the President determines Belarus has engaged in an act of war against Ukraine related to Russia's ongoing February 24, 2022, invasion of Ukraine.” Id. § 2(1). “Russian aggressor state sovereign asset” is defined to mean “Russian sovereign assets or any funds or property of another Russian aggressor state determined by the President to be of the same sovereign character as the assets described” at § 2(6). Id. § 2(2).

9 Id. § 104(b)(4).

10 Id. § 104(c).

11 Id. § 104(b)(2).

12 Id. § 104(k)(2)(A).

13 Id. § 104(k)(2)(B).

14 Id. § 104(d).

15 Id. § 104(f).

16 Id. § 104(f)(3).

17 Id. § 104(h).

18 Id. § 104(g).

19 Id. § 104(i).

20 Id. § 105.

21 Id. § 105(a)–(d).

22 Id. § 105(e)–(g).

23 Id. § 106.

24 Id. § 107(a).

25 See, e.g., Andrea Shalal, Yellen: Moves to unlock value of frozen Russian assets ‘necessary and urgent’ (Feb. 27, 2024), https://www.reuters.com/world/europe/yellen-moves-unlock-value-frozen-russian-assets-necessary-urgent-2024-02-27/; Hanna Ziady, The West is tapping Russian money to arm Ukraine. Much more could follow (May 25, 2024), https://www.cnn.com/2024/05/24/business/russian-frozen-assets-g7-ukraine/index.html (U.S. Treasury Secretary Yellen: It is “vital and urgent that we collectively find a way forward to unlock the value of Russian sovereign assets immobilized in our jurisdictions for the benefit of Ukraine[.]”);

26 Memorandum on Delegation of Certain Functions and Authorities Under the Rebuilding Economic Prosperity and Opportunity for Ukrainians Act, DCPD-202400635 (July 22, 2024).

27 89 Fed. Reg. 60568 (July 26, 2024).

28 Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, I.C.J. Reports 2012, p. 99, ¶¶ 114-118, esp. ¶ 118 (“Indeed, it suffices for the Court to find that there is at least one condition that has to be satisfied before any measure of constraint may be taken against property belonging to a foreign State : that the property in question must be in use for an activity not pursuing government non-commercial purposes, or that the State which owns the property has expressly consented to the taking of a measure of constraint, or that that State has allocated the property in question for the satisfaction of a judicial claim.”). See also Hazel Fox and Phillipa Webb, The Law of State Immunity 479-508 (OUP 2013).

29 REPO Act, § 2(6). See, e.g., UN Convention on Jurisdictional Immunities of States and Their Property art 21(c) (not yet in force).

30 ILC Articles on State Responsibility art. 49.

31 Id., Commentary, ¶ 6.

32 ILC Articles on State Responsibility art. 54 (Measures taken by States other than an injured State). See, in particular, Miles Jackson and Federica I. Paddeu, The Countermeasures of Others: When can States Collaborate in the Taking of Countermeasures, 118(2) AJIL 231 (2024); Oona A. Hathaway, Maggie M. Mills & Thomas M. Poston, War Reparations: The Case for Countermeasures, 76 Stanford L. Rev. 971 (2024).

33 REPO Act, § 101(a)(7), (b).

34 See Lauren Dubois & Sam Fleming, The Legal Case for Seizing Russia's Assets, Fin. Times (Dec. 20, 2023), https://www.ft.com/content/adb09fd6-e5f7-4099-9994-806814b4c9b4 (reporting that the United States contemplates a theory of injury as a State “specially affected” by Russia's aggression).

35 See Factory at Chorzów (Merits), PCIJ, Series A No 17, Judgment No 13, 47 (Sept. 13, 1928).

36 See ILC Articles on State Responsibility arts. 49, 51.

37 Gabčíkovo-Nagymaros Project (Hungary / Slovakia), Judgment, ICJ Rep 1997, 7, ¶ 87. See ILC Articles on State Responsibility art 49, Commentary, ¶ 9 (“However, the duty to choose measures that are reversible is not absolute.”).

38 REPO Act, §§ 103(a)(2)(B) (Prohibition on release), 104(l)(3) (Sunset).

39 It has been suggested that the strongest rationale under international law for the freezing and seizure of RSA is as a collective countermeasure to induce compliance with the secondary obligation of reparation arising from breach of an obligation erga omnes: see Oona A. Hathaway, Maggie M. Mills & Thomas M. Poston, War Reparations: The Case for Countermeasures, 76 Stanford L. Rev. 971, 1023-1037 (2024).

40 REPO Act, § 101(a)(8)–(9).

41 G7 Apulia Leaders’ Communiqué (June 14, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/14/g7-leaders-statement-8.

42 Cf Julia Payne & Jan Strupczewski, EU Unlikely to Confiscate Russian Central Bank Assets – Officials, Reuters (Jan. 23, 2024), https://www.reuters.com/world/europe/eu-unlikely-confiscate-russian-central-bank-assets-officials-2024-01-23; Lauren Dubois & Sam Fleming, The Legal Case for Seizing Russia's Assets, Fin. Times (Dec. 20, 2023), https://www.ft.com/content/adb09fd6-e5f7-4099-9994-806814b4c9b4.