Confiscation of Property in the Context of Sanctions Policy: Legal Aspects

Abstract

Western sanctions regimes show a high degree of coordination. This applies to almost all aspects of the sanctions policy, including approaches to the possibility of confiscating the property of persons subject to blocking sanctions. However, countries that support autonomous sanctions against Russia follow different paths towards the common goal. The emerging approaches to confiscation make it possible to single out two main areas of legal regulation of this issue. In the legislation of the respective country confiscation can be considered either as an instrument of sanctions legislation, or as a measure of responsibility for violating sanctions legislation. Only two countries have so far chosen to use confiscation as an independent instrument of sanctions policy: Ukraine and Canada. Perhaps the United States will join them, but at present, similar to Switzerland, they use confiscation only as part of countering illegal activities. The draft directives developed by the European Commission demonstrate the EU’s commitment not to jeopardize the obligation to protect private property and provide for the possibility of confiscation in exceptional cases as a measure of influence in the fight against criminal activity. Given the importance of protecting private property for a favorable investment climate, it is most likely that the second path will become dominant: asset confiscation will be seen only as a means of responding to violations of the laws of a country that supports autonomous sanctions.