Specifics of the legal status of the enemy’s property in war in light of Russia’s aggression against Ukraine

Abstract

The adoption of the Law of Ukraine “On the Basic Principles for the Compulsory Seizure in Ukraine of Objects of the Property Rights of the Russian Federation and its Residents” is a reaction not only to the Russian aggression that began on February 24, 2022, but also to the systematic violations by this state of the principles and norms of international law. The provisions of the Law are unconventional for the private law of Ukraine, since they provide for a mechanism for forced, gratuitous nationalization of property belonging to a foreign state and its residents. It should be noted that this Law does not yet launch this mechanism, for this it is necessary that public authorities take a number of administrative and administrative-economic actions. However, in the case of practical implementation of the provisions of the law, the norms of customary international law on the immunity of property of a foreign state, as well as the provisions of the Agreement on Mutual Protection of Investments concluded in 1999 between Ukraine and Russia, will be violated. In this regard, the article examines the possibility of unilateral termination of this Agreement in connection with a fundamental change in circumstances. After all, in the conditions of aggression by the Russian Federation and the systematic violation of the latter norms of international humanitarian law, in particular, in relation to the civilian population and civilian objects, Ukraine cannot provide either Russia or its residents with the same favourable regimes that it provided under the conditions of the regime friendship, cooperation and partnership. The article also draws attention to the need to fi nd alternative ways of such treatment of the property of Russia and its residents, which would not allow its owners to receive profi t in Ukraine. Key words: nationalization, immunity of property of a foreign state, foreign investment, termination of an international treaty, rebus sic stantibus.