The most recent illustration of the EU leaning into emergency powers is its reliance on an emergency provision in the EU treaties, Article 122 of the Treaty on the Functioning of the European Union (TFEU), to indefinitely immobilize roughly $246 billion in Russian Central Bank assets and reserves held by European financial institutions, and prevent the enforcement of contrary judgments. The EU also contemplated, but did not ultimately pursue, a follow-on measure that would allow it to borrow against those assets to provide loans to Ukraine to support its reconstruction. Instead, an overwhelming majority of European States agreed to borrow over $100 billion for Ukraine against the EU budget, to be repaid only once Russian reparations arrive. These moves raise serious questions under both international and EU law, and they have quickly triggered a strong political and legal response.

Those concerns notwithstanding, many have sympathized with the desire of major EU players to find creative ways to support Ukraine. We have argued in our article, Emergency Powers for Good, that certain measures at odds with the current international and domestic legal framework could nevertheless be justified. We developed a test that upholds some emergency measures that transform a society rather than returning it to the status quo before the emergency. Our test to justify transformative emergency measures requires a genuine emergency, broad consensus, protection of particularly vulnerable groups, and time limits.

Most U.S. emergency measures that pushed even the limits of the permissive U.S. emergency framework—such as President Joe Biden’s student debt forgiveness plan and Trump’s border wall project—do not pass this stringent test. We had to go back to President George W. Bush’s bailout of the auto-industry, with the support of Democratic congressional leadership and both the outgoing and newly elected-president, to find an emergency measure that would pass our test.

In contrast, we favorably assessed key EU emergency responses to the Covid pandemic, such as the transformative one trillion New Generation EU stimulus package that reshaped the EU economy. Now, we’re revisiting our analysis for the current emergency the EU faces: the growing threat from Russia and the Trump administration’s rejection of the Transatlantic Alliance in favor of peace with Moscow. We argue that although it would have been difficult to justify borrowing against Russian assets, not only because of the strong international law protections for sovereign funds—but also because of forceful opposition from a sizeable minority of European States—the alternative plan to borrow against the EU budget to help Ukraine passes our stringent test.

The “Sleeping Beauty” of the EU Treaties?

Until recently, the EU—ostensibly a creature of limited competences—hardly ever relied on residual emergency authority to make new law. But in the wake of Covid and the Russian invasion of Ukraine in 2022, the EU rediscovered a forgotten emergency provision in its founding treaties: Article 122 TFEU. Article 122(1) provides that

… the [EU] Council, on a proposal from the Commission, may decide… upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy.

Article 122(2) further provides that

[w]here a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council, on a proposal from the Commission, may grant… Union financial assistance to the Member State concerned.

The main advantage of using Article 122 over standard sources of authority is that it allows a super-majority of member States to circumvent more complicated EU lawmaking procedures. Of particular relevance here is the fact that most EU Council decisions related to EU Common Foreign and Security Policy (CFSP) must be adopted unanimously. By contrast, Article 122 only requires a super-majority of member States for a regulation to be approved. Additionally, fewer EU institutions need to opt in for a regulation to be passed under Article 122. Both the EU Council and the Parliament need to agree with the Commission’s proposal in the ordinary legislative procedure.

The appeal of relying on Article 122 should be clear. Unanimity is elusive in a body consisting of 27 member States. Several members have become regular spoilers that effectively veto major EU initiatives or constantly extract exorbitant concessions in return for their vote. And Parliament operates under a different incentive system than the more technocratic Commission and Council.

Yet it was only recently that Article 122 came to the fore of EU lawmaking. Since the current version of the EU treaties entered into force in 2009, the EU invoked Article 122 a total of 22 times. Seventeen of those regulations were enacted after 2020. The EU relied on Article 122, among other instances, to effectively double the EU budget and realign EU investment and energy policies. This was in response to the economic damage wrought by Covid, and the threat to EU energy supply after the Russian invasion of Ukraine. Alberto Gregorio de Merino, the EU Commission’s top lawyer, has called Article 122 the “sleeping beauty” of the EU treaties; a provision that existed in some form since the 1950s, but was only recently rediscovered as a basis for far-reaching EU legislation under the guise of emergency.

More recently, the EU invoked Article 122 to address the war in Ukraine beyond the energy crisis. In March 2025, the Council relied on Article 122 to create the so-called SAFE instrument for the EU defense industry. SAFE provides financial assistance up to €150 billion to EU members to allow them to increase public investments in the European defense industry. The Council justified the use of emergency authority for this measure by citing “the current exceptional security context” and the “need to make urgent and massive investments in the EU’s defence manufacturing capacities.”

The use of Article 122 for this purpose did not go unopposed. The EU Parliament is pursuing   litigation against the Council and Commission, primarily challenging the decision to end-run Parliament by relying on Article 122. The objection is not to the substance of the measure, but rather the use of emergency authority and the truncated procedure it allows—at the expense of the only democratically elected EU body. What the Parliament seeks is for the measure to stay in place, and for member States to be able to borrow and build up their defense industries, until new legislation that accomplishes the same goal with EU Parliament input is passed.

The Russian Central Bank Measures

For some time now, there has been talk of permanently seizing the assets of the Central Bank of Russia or repurposing them to support the reconstruction of Ukraine. But the United States and the EU have stopped short of taking that step. Freezing roughly $300 billion in Central Bank assets between the United States, the EU, and other G7 members was already a stretch. An asset freeze may be justifiable under international law as a countermeasure against Russia’s many violations of foundational international law norms. Yet countermeasures must be temporary and reversible. Permanently seizing central bank assets is a different proposition entirely.

Under international law, central bank assets are immune from execution in foreign States. Unlike the broader law of State immunity, which has developed sizable exceptions for commercial activity over time, the immunity of central bank assets has only grown stronger. Underlying this protection is a combination of reciprocity concerns and respect for the special function central banks preform in national and international economies. The International Court of Justice’s recent ruling in Certain Iranian Assets (Iran v. United States) did not disturb this legal status quo. Although the Court effectively sanctioned the attachment of $1.75 billion in Iran’s Central Bank assets in the United States to satisfy domestic judgements issued in favor of victims of Iran-sponsored terrorist attacks, the ICJ skirted the substance of the central bank immunity question.

On the domestic level, senior members of the Biden administration officially stated they believed the United States lacked domestic or international legal authority to permanently seize Russia’s central bank assets and transfer them to Ukraine. The U.S. Foreign Sovereign Immunities Act explicitly recognizes the immunity from execution of central bank assets. U.S. domestic law gives the president extremely broad authority to regulate economic transactions if he declares a national emergency. But seizure (vesting) authority exists only during an armed conflict in which the United States is a direct participant. There are some relatively narrow exceptions, but none straightforwardly apply to wholesale confiscation of Russian Central Bank assets. Although the United States has certainly played a central role in the Ukraine war, it is highly doubtful it is in an outright state of war with Russia. Nor, we suspect, is this a legal position the Trump administration would be willing to embrace. The political and legal ramifications of the United States essentially declaring war on Russia are a strong deterrent.

By contrast, key EU members have increasingly shown flexibility with respect to the disposition of the Russian Central Bank assets held in EU financial institutions, primarily in Belgium. With the U.S. role and degree of support for Ukraine constantly shifting under Trump, and transatlantic relations in a deep state of disrepair, the EU has found itself isolated in its effort to prevent Russia from further increasing its hold on Ukraine and threatening EU members directly. Supporting Ukraine by tapping into the blocked Russian assets gained political traction.

As a first step, the EU in December again invoked Article 122 to indefinitely immobilize the frozen assets of the Russian Central Bank within its jurisdiction and prohibit their return to Russia. Until now, the EU had to periodically extend the measures freezing the assets, and securing the necessary support from member States each time became taxing and uncertain. Members friendly to Russia, such as Hungary and Slovakia, have separated themselves from the bloc on this issue.

The new immobilization regulation “establishes exceptional and temporary emergency measures addressing the serious economic difficulties within the Union caused by Russia’s actions … and the risk of further deterioration of the economic situation in the Union.” It states that the “measures aim to avoid a serious deterioration of the economic stability in the Union and its Member States by preventing significant resources being made available to Russia to continue its actions in the context of the war of aggression against Ukraine.”

In other words, the regulation frames the situation with Russia as constituting an economic emergency for the Union, and asserts a causal relationship between releasing Russian Central Bank assets and supporting Russia’s nefarious activities affecting the EU. At the same time, the Regulation makes clear that the measure does not alter the property rights in the assets. It highlights the temporary and reversible nature of the action, likely to address concerns under international law. The regulation also makes unenforceable in the EU arbitral tribunal decisions and court judgments that Russia might obtain, building on a controversial line of EU jurisprudence invalidating intra-EU investment arbitration.

While the indefinite freezing of the assets can by justified under international law, the use of Article 122 for this purpose raises substantial questions under EU law. Normally, economic sanctions measures are adopted under the CFSP chapter of the Treaty on European Union (TEU) and Article 215 of the TFEU, which governs economic sanctions (“restrictive measures” in EU speak). Under Article 31 TEU, an EU Council decision adopted unanimously is required as a first step. Clearly, the use of Article 122 in this instance was designed to circumvent opposition by member States more partial to Russia and immunize the immobilization of Russian Central Bank assets against future reversals. Critics within the EU again charged that powerful member States are using emergency authority to circumvent the appropriate, specific legal mechanism for amending EU sanctions.

The objections to the use of Article 122 proved powerful. EU members including Germany sought to rely on the provision to not only immobilize Russian assets, but also to borrow against them to provide forgivable loans to facilitate the reconstruction of Ukraine. That type of action would cross the legal line between temporary and likely permissible freezing of the assets to something that resembles permanent seizure. The EU proponents of the move tried to address the permanence and irrevocability concern by structuring the loans so that the money would be paid back eventually. But that would only happen after Ukraine receives reparations from Russia for the latter’s grave international law violations. We are not holding our breath.

Key EU actors like Belgium, where most of the assets are held, vehemently opposed the initiative and reliance on Article 122 to facilitate it. Scholars argued the move would be unlawful under EU law, because the Union would again be end-running the normal constitutional process specific to restrictive measures and excluding certain members. Eventually, the initiative failed. In late December, the EU approved €105 in loans for Ukraine without involving the Russian assets. Twenty-five of the EU’s 27 member States firmly supported this measure. It is unclear what legal authority the EU will invoke to operationalize such a plan. Article 122 is again a leading contender.

The Correct Role for Emergency Powers

Recent U.S. and EU practice on major regulatory initiatives reveals similar trends of fallback to emergency powers. Emergency authority, by its very nature, entails simplified procedures and broad discretion, giving executives substantial leeway to advance their desired policies when other legal routes are inconvenient or foreclosed. These trends are motivated in part by growing political polarization that makes legislative progress through standard routes difficult or entirely unattainable. They are also a product of increasingly powerful executives who have their own views about what the rule of law entails. And sometimes, they are necessary responses to true crises.

As a legal matter, borrowing against Russian frozen assets against an expectation of unlikely future Russian reparations is likely unlawful under international law. And it would be another untested extension of Article 122 that raises internal EU federalism and separation of powers issues. The latter problem would likewise arise if the loan to Ukraine that the EU Council just greenlit is grounded in Article 122. Although Article 122 broadly refers to measures “appropriate to the economic situation,” it specifies classic economic harms like supply chain disruption or energy crises. Collateral damage from the war in Ukraine and localized Russian aggression does not neatly fit in this category. Indeed, foreign and security policy is an area in which member States reserve their competence. Overriding member States with emergency authority seems to conflict with the limited nature of EU competence. At the same time, the current exceptional situation with Russia is exactly the kind of situation for which emergency authority exists. A broad reading of the text of Article 122 would extend it to this crisis.

That said, perhaps the best way to describe what we have here is an “unlawful but justified” situation. Our framework in Emergency Powers for Good would uphold a formally unlawful emergency measure under certain conditions: a real emergency, temporariness, protection for particularly vulnerable groups and broad consensus in support of the measure. In our view, an EU loan to Ukraine excluding Russian assets would easily meet those tests.

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These models, while divergent, underscore the centrality of responsibility sharing arrangements in the current migration and asylum policy debate. Responsibility sharing is about broadening the circle of actors that assume responsibility for asylum seekers beyond the State of arrival through hosting or other forms of support. But although both models could be deemed progressive under certain criteria, the EU’s model for Ukraine is far superior to the U.S.-Canada model from the vantage point of asylum seekers and host States alike because it does not hinge on an asylum seeker’s initial country of entry.

The U.S.-Canada agreement also highlights the shortcomings of the prevailing approach that only considers whether third countries that accept asylum seekers turned away by countries of arrival are safe. The Biden administration terminated similar Trump-era agreements with unsafe countries while expanding the one with Canada, and United Nations High Commissioner for Refugee’s (UNHCR) guidelines on safe third country agreements similarly focus on safety. But a broader perspective, one that accounts for today’s reality of mass influxes of migrants and asylum seekers in several regions of the world, is urgently needed. Responsibility sharing arrangements should not only consider the safety of third host countries. They should pull together resources and hosting commitments from multiples stakeholders to create better conditions for asylum seekers and host countries alike.

The U.S.-Canada Agreement

During President Biden’s first visit to Canada last month, the two countries announced a hitherto confidential 2022 pact to expand the existing Canada-U.S. Safe Third Country Agreement (STCA). The U.S. Department of Homeland Security then published the rule implementing U.S. commitments to the STCA shortly after the announcement. Originally signed in 2002, the agreement allows the United States and Canada to turn away asylum seekers who cross the border at a port of entry and instead requires them to apply for asylum in their first safe country of transit. The United States is the only country designated “safe” under the Canadian Immigration and Refugee Protection Act. According to the Canadian government, “[t]he Agreement helps both governments better manage access to the refugee system in each country for people crossing the Canada–U.S. land border.”

The recently negotiated additional protocol to the agreement and its implementing measures expand the scope of the original STCA by also covering asylum seekers crossing the border irregularly. If an asylum seeker crosses between ports of entry and seeks refugee protection less than 14 days after the day of irregular entry, they will be turned back to the country from which they had crossed. This expansion appears to have been driven by Canadian pressure to stem irregular land crossings from the United States. The agreement has been heavily criticized on the Canadian side for sending asylum seekers back to the United States, where they have faced harsh treatment including detention and family separations.

U.S. willingness to enter into an expanded safe third country agreement with Canada stands in sharp contrast with the Biden administration’s position on such agreements with other countries. Shortly after coming into office, the Biden administration suspended and then terminated three agreements of this type with Guatemala, Honduras and El Salvador. Officially known as Asylum Cooperative Agreements  (ACAs), these agreements were part of the Trump administration’s attempt to relocate asylum seekers and deflect applications to third countries in central America. The three countries agreed to accept asylum seekers from the U.S., process their applications, and ratchet up their efforts to address illegal migration to the United States through their territory. In return, they were promised economic benefits.

Yet, the “benefits” came after the Trump administration significantly cut aid to the three countries to pressure them into signing the agreements. Furthermore, the agreements were widely condemned for deflecting asylum seekers to unsafe, poor countries where they had little chance of receiving adequate protection. In previous work, we argued that these agreements were a far cry from genuine refugee responsibility sharing. They were in fact regressive instruments that represent what we call “responsibility dumping” – diverting asylum seekers to less affluent, less institutionally competent, less safe countries without contributing funds or assistance to ensure their safety.

In defending policies designed to deflect migrants and asylum seekers to central American countries, the Trump administration asserted that those policies were in line with similar policies of other liberal democracies, including EU member States. Such policies, it maintained, require seekers of international protection to apply for asylum in the first safe country through which they travel. UNHCR has accepted the practice of diverting asylum seekers to “safe third countries” in principle and has focused on setting out adequacy criteria for what would count as “safe.”

The EU Model

The EU Dublin Regulations, the instrument that allocates responsibility for processing asylum claims among EU member States, do in fact enshrine a similar principle requiring protection seekers to apply for asylum in the EU member State of first entry.

Yet, the context in which the Dublin Regulations operate is entirely different than the dynamic between the United States and Central American countries. The Dublin Regulations deflect applicants from one EU country to another. Even the weakest EU member States have resources, institutions, and safety conditions that are far superior to those of Guatemala, Honduras, and El Salvador. The Dublin Regulations are therefore far less regressive in relative terms than the Trump-era approach of Asylum Cooperative Agreements.

What is more, recent experience has shown that the Dublin system collapses under pressure. The EU has now suspended Dublin’s first country of entry principle several times in favor of more ambitious responsibility sharing arrangements to address migration crises that break with the first country of entry principle. In 2015, the EU decided to centrally relocate160,000 asylum seekers from Greece and Italy and distributed them among all member States based on an objective distribution formula. And most recently, responding to the mass displacement following the Russian invasion of Ukraine, the EU activated for the first time the EU Temporary Protection Directive, a 2001 directive issued in response to the war in the Balkans to address mass influxes of individuals fleeing conflict. The EU Council granted Ukrainian nationals and others fleeing Ukraine the right to live, work, and receive benefits in any EU country – regardless of initial point of entry. Thus far, EU member States have taken in an estimated 4 million Ukrainians under the Temporary Protection Directive.

Moving the Focus from Country of Initial Entry

The new iteration of the Canada-U.S. STCA is closer to the Dublin regulations than to the Trump era ACAs with the three central American countries. Like EU member States, the United States and Canada are comparatively affluent, institutionally robust and safe countries. The STCA is therefore considerably more progressive than the Trump-era ACAs.

Nonetheless, the comparison to the EU again raises questions about the inherent effectiveness of responsibility sharing models that hinge on the country of initial entry. An emerging EU model applied in 2015 and most recently in Ukraine is indifferent to the country of initial entry. In its most generous form, the EU responsibility sharing model even allows asylum seekers to decide for themselves where to go, potentially leading to better outcomes for individuals and integration in host countries.

Responsibility sharing models that do not hinge on country of initial entry help prevent a common pattern that emerges during times of crisis: one or several countries located closer to sources of migration and mass displacement must often process the bulk of asylum claims and shoulder housing responsibilities. The result of rapid arrival of migrants to frontline countries has often been the creation of refugee and displacement camps – including closed camps, which at times prevent residents from leaving. Camps often offer inadequate conditions for migrants and have negative impact on the surrounding area, attitudes toward migrants in border communities, and their access to legal protection. The European Court of Justice recently found one such camp on the Hungarian border, the Röszke transit zone, to be an unlawful detention site because of its prison-like characteristics and the fact that migrants were effectively not allowed to leave.

Under the analytical framework that we have proposed in previous work, the U.S.-Canada safe third country agreement and recent EU asylum and migration measures are both progressive responsibility sharing models in the basic sense. They shift asylum seekers from frontline host countries to countries that are at least as affluent, as institutionally robust and (arguably) as safe. But the EU model is a far better approach because it allows for more effective and planned-out distribution of responsibility among host States. It eliminates pathologies created by the emphasis in current migration and refugee law on the point of initial entry. Perhaps the objectives of the U.S.-Canada safe third country arrangements would be better served by a deeper mutual understanding about allocating responsibility and obligations for asylum seekers. It is unlikely to be advanced by myopic focus on asylum seekers’ choice of route.

IMAGE: Canada’s Prime Minister Justin Trudeau (R) walks with U.S. President Joe Biden after welcoming him at Parliament Hill in Ottawa, Canada, on March 24, 2023. (Photo by Mandel Ngan / AFP via Getty Images)

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In a new empirical and analytical paper, forthcoming in the California Law Review, we identify, describe, and rate new responsibility sharing arrangements across the world. Some arrangements are progressive, if second-best policy solutions, that transfer seekers of international protection to more affluent, safer, more institutionally competent states. Others are regressive, third-best mechanisms, that in fact constitute responsibility dumping.

Our metric builds on existing assessments of responsibility sharing in key respects. To start, we move from the realm of political theory and wishful thinking to assess current practices.  We also shift the perspective from obligations to individual asylum seekers to obligations host states have toward one another. Most existing assessments of responsibility sharing arrangements, including influential 2013 UNHCR guidance, have demanded compliance only with a legal minimum anchored in the non-refoulement principle—the obligation not to turn asylum seekers back to danger. Our analytic lens is much broader in comparison. What’s more, refugee scholars, advocates, and the news media have largely focused on the proliferation of regressive arrangements that externalize responsibility for asylum seekers, including widely criticized Trump administration policies. We instead argue that scholars, advocates, and others should also recognize and encourage the diffusion of progressive models, even when these have many shortcomings. We identify the EU migration solidarity mechanism as one progressive model that should inspire imitation.

We place various arrangements on a scale from progressive to regressive based on four parameters: (1) hosting commitments, (2) monetary component or equivalent non-monetary assistance and whether they reflect actual asylum seeker hosting costs, (3) bilateral versus multilateral arrangements, and (3) the existence of legally binding implementing instruments. First safe country arrangements, that is, ones that divert asylum seekers to the first “safe” country of transit, are frequently regressive under this logic because of geographic realities. Frontier countries bordering major producers of asylum seekers tend to be developing countries themselves suffering significant hardship.

One example of a regressive model is the Trump administration’s Asylum Cooperative Agreements (ACAs) with Guatemala, Honduras, and El Salvador. The agreements allowed the United States to transfer asylum seekers to one of those three countries instead of processing their asylum requests. Now terminated by the Biden administration, the agreements have been widely condemned on the ground that the United States failed to guarantee a safe and adequate environment for transferred migrants.  We find reasons to condemn the agreements beyond safety concerns. The agreements are highly regressive under our framework because they shift seekers of international protection to less safe, less institutionally competent, less affluent countries without adequate offsetting U.S. contributions. Those governments were effectively coerced by withholding U.S. aid. This example is therefore a striking example of responsibility dumping.

By contrast, the evolving EU Solidarity Mechanism is a highly progressive model. In response to the 2015 migration crisis, the EU adopted measures to transfer a total of 160,000 asylum seekers from the most heavily impacted member states—Greece and Italy—to the other EU members. The measures imposed binding quotas for the number of asylum seekers each state was required to accept, calculated according to an allocation formula based on objective parameters such as member state size and GDP. Despite uneven implementation and political backlash, 34,705 asylum seekers were relocated in this framework out of an eventual net target of 98,256. The EU model expands on U.S. efforts to relocate refugees from Indochina in the 1980s by addressing the much larger and more diverse category of asylum seekers—individuals seeking international protection who have yet to be granted refugee status. Separately, Germany famously voluntarily opened its doors to one million asylum seekers.

The EU has subsequently negotiated more permanent reform of its migration solidarity mechanism, expanding on the Dublin Regulations that determine which member state would be responsible for processing an asylum request (typically, the member state of first irregular entry). This effort produced the New Pact proposal in late 2020 and its comprehensive migration regulation. The proposal leaves greater leeway for member states to choose how to meet their allocated share of responsibility. Instead of binding hosting quotas, the New Pact allows member states to opt for monetary or equivalent contributions. Nonetheless, the New Pact solidarity mechanism is still based on a binding allocation formula imposing quantifiable obligations and grounded in objective parameters.

We argue that the EU model shows what is possible in the realm of responsibility sharing for asylum seekers. This mechanism goes well beyond other relatively progressive mechanisms like the Global Compact on Refugees, endorsed by the United Nations General Assembly in 2018. Instead of soliciting voluntary contributions from states—if you will, passing around the collective collection plate—the EU solidarity mechanism is a multilateral, binding, legal instrument that imposes measurable obligations on states under the New Pact proposal. The various versions of the obligation allocation formula consist of objective rather than politically negotiated criteria, which benefits the less powerful member states by isolating the allocation method from the contingencies of any given migration crisis. While the EU solidarity mechanism currently sits on one end of the spectrum, other examples we discuss in the research paper include progressive elements as well.

Our analytical framework aims to inform responsibility sharing norm development and guide domestic policymaking. As we begin to consider concrete norm development in this area, it is essential that commentary and reflection on these issues be grounded not just in theory but also in evidence about different responsibility sharing arrangements.

In the meantime, it is wise to pay close attention to responsibility sharing norm diffusion. We have seen an increase in the incidence of regressive policies such as flawed “safe” third country agreements and tactics for externalizing responsibility for international protection seekers by various states. Proliferation of such regressive arrangements should be discouraged, while diffusion of progressive arrangements like the EU solidarity mechanism across different jurisdictions should be recognized as such and encouraged. While the EU is institutionally unique, it can inspire other responsibility sharing arrangements, especially at the regional and subregional level.

Image: Migrants and refugees, some wearing facemasks for protective measures, queue in a makeshift camp next to the Moria camp on the Greek island of Lesbos on April 2, 2020. (Photo by MANOLIS LAGOUTARIS/AFP via Getty Images)

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