Russian economic pressures and actions to force Ukraine not to ratify EU treaty violate international law principle of non-intervention (Updated November 27, 2013)

UPDATE

See

“Gescheitertes Abkommen: Merkel hält Ukraine die Tür für EU-Abkommen weiter offen, Der Spiegel, 27 November 2013.

Bundeskanzlerin Angela Merkel hat die Ukraine weiterhin zur Zusammenarbeit eingeladen. Präsident Janukowitsch hatte einem EU-Abkommen zuvor eine Absage erteilt. Mahnende Worte richtete die Kanzlerin aber an Russland: Von dort dürfe kein Druck auf die ehemaligen Sowjetrepubliken ausgeübt werden.

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It has been widely reported that Russia has threatened the Ukraine with and/or already undertaken severe economic measures, including curtailment of trade, to presure the Ukraine not to go ahead and sign a proposed trade treaty with the European Union which until recently the Ukraine was expected to sign at a conference in Vilnius, Lithuania later this week.

See David M. Herszenhorn, “Ukraine in Turmoil After Leaders Reject Major E.U. Deal,” New York Times, November 26, 2013. Herszenhorn reports:

At stake here is not just the fate of a free-trade pact but whether the hardball tactics of Russia, willing to use every bit of economic muscle — including trade threats and its stranglehold on energy supplies — to exert blunt force in negotiations, will prevail over the national aspirations of millions of people.

The effort to draw in Ukraine and other ex-Soviet republics is also crucial to Europe, which has invested heavily in it and can ill afford a humiliating defeat at a time when its stature is already being called into doubt by the continuing economic strains within the euro zone.

Calls for Europe to answer the Kremlin’s threats of retaliatory sanctions against Ukraine with sanctions against Russia are raising the prospect of a bitter trade war that could complicate numerous efforts by Western powers to cooperate with Russia on security matters.

These threats, and indeed actions that have already been taken, appear to constitute intervention in the internal affairs of the Ukraine in violation of the principle of non-intervention now established in customary international law.

(1) U.N. General Assembly Resolution 2625 (XXV) of 24 October 1970, (A/RES/25/2625) containing the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, provides as follows:

The principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.,,,

Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.

Nothing in the foregoing paragraphs shall be construed as reflecting the relevant provisions of the Charter relating to the maintenance of international peace and security.

(2) In addition, the U.N. General Assembly “Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States,” Resolution A/RES/36/103), adopted on December 9, 1981, specifically provides:

1. No State or group of States has the right to
intervene or interfere in any form or for any reason whatsoever
in the internal and external affairs of other States.

2. The principle of non-intervention and
non-interference in the internal and external affairs of States
comprehends the following rights and duties:

II

(k) The duty of a State, in the conduct of its
international relations in the economic, social, technical and
trade fields, to refrain from measures which would constitute
interference or intervention in the internal or external
affairs of another State, thus preventing it from determining
freely its political, economic and social development; this
includes, inter alia, the duty of a State not to use its
external economic assistance programme or adopt any
multilateral or unilateral economic reprisal or blockade
and to
prevent the use of transnational and multinational corporations
under its jurisdiction and control as instruments of political
pressure or coercion against another State, in violation of the
Charter of the United Nations;

Analysis

While the exact limits of the principle of non-intervention in the internal and external affairs of another state are not completely defined, in the present case where Russia has threatened or already implemented economic measures which whould have a crippling effect on the Ukrainian economy if the country signs the pact with the European Union, Russia’s threats and actions would appear to be well over the line and to constitute a clear case of intervention in the internal or external affairs of the Ukraine in violation of customary international law.

The Trenchant Observer

Note: U.N. General Assembly Resolution 2625 (XXV) of 24 October 1970, (A/RES/25/2625) is also of direct relevance to China’s recent claimed establishment of an aire defense zone in the area of the islands known as Senkaku in Japan and Diaoyu in China, in the East China Sea, as well as any military pressure it may exert in the future regarding territorial claims. Resolution 2625 specifically provides:

The General Assembly
1.Solemnly proclaims the following principles:

The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations

Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States. (emphasis added)

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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