New Scholarship on Sanctions and Central Bank Immunity
April 5, 2023
Ingrid has a new paper out on recent developments in central bank immunity, focusing on sanctions by the United States and other countries involving Russian, Afghan, and Venezuelan central bank assets and their relationship to immunity. Some of the issues addressed in the paper involve transnational litigation in U.S. courts, including the entitlement of sovereign wealth funds to central bank immunity under international (and U.S.) law, and the fate of the Afghan central bank assets in litigation brought by victims of terrorism.
Courts in some countries, including the U.S., have conferred broad immunity based in part upon their governments’ efforts to attract the investment of foreign central bank assets to their jurisdiction. On the other hand, central bank assets make an attractive target for those seeking financial compensation from foreign governments. Efforts to confiscate Russian central bank assets invested abroad to compensate Ukraine serve as one example; the turnover of Iranian central bank assets to U.S. judgment creditors serves as another. The paper argues that freezing assets – as opposed to seizures or confiscations – generally does not implicate immunity. But those measures against Russian central bank assets that would violate immunity (including most methods of confiscation) cannot be legally justified as countermeasures, contrary to what others have argued. Efforts to expand the customary international law of countermeasures in order to make the confiscation Russian central bank assets legal should be resisted.
Central bank assets held in foreign countries are entitled to immunity from execution under international law. Even as foreign sovereign immunity in general has become less absolute over time, the trend has been towards greater protection for foreign central bank assets. As countries expand their use of central banks, however, recent cases have limited immunity for certain kinds of sovereign wealth funds held by central banks. Sanctions on foreign central bank assets have also become more common, raising issues about the relationship between central bank immunity and the recognition of governments, the relationship between immunity and executive actions, and the denial of central bank immunity as a countermeasure.
This symposium essay explores recent developments in central bank immunity focusing on sovereign wealth fund litigation in Sweden, U.S. sanctions on Afghan central bank assets, and the global response to sanctions imposed on Russian central banks following the invasion of Ukraine. Some of these actions and cases do not and should not implicate foreign sovereign immunity. However, proposals to confiscate Russian central bank assets and U.S. litigation to turn Afghan central bank assets over to private plaintiffs, even if presented as countermeasures to secure reparations, would undermine significantly one of the increasingly rare areas of international economic law around which there is a global consensus: the immunity of foreign central banks from measures of execution.