Reports that Merkel is negotiating a settlement with Putin that would recognize Russian annexation of the Crimea, in violation of peremptory norms of international law

Forbes describes reports that German Chancellor Angela Merkel and Russian President Vladimir Putin are working on “a closed-door peace plan” that would recognize Russian annexation of the Crimea in exchange for securing the border between Russia and the Ukraine. According to Forbes,

Germany’s chancellor Angela Merkel and Russian president Vladimir Putin are reportedly working on a closed-door peace plan that involves securing the border and acceptance of Russia’s March 17 annexation of Crimea, a former Ukrainian autonomous region in the Black Sea. Germany is keen on ending this ordeal. Russia supplies 40% of Germany’s imported natural gas.

–“How The Ukraine-Russia Crisis Might End,” Forbes, August 5, 2014 (4:23PM).

If there is any substance to the reports, Merkel would be well-advised to bring in her international lawyers from the foreign ministry, who might be able to educate her regarding the fact that any such agreement, to recognize the acquisition of territory acquired by the illegal use of force in violation of Article 2 paragraph 4 of the U.N. Charter, would be null and void under the international law principle of jus cogens.

Jus cogens is mandatory or peremptory law, from which there can be no derogation by agreement. It is universally recognized that Article 2(4) is a norm of jus cogens under international law.

On a political level, it is distressing in the extreme that due to President Barack Obama’s inability to lead the Atlantic Alliance, Merkel and other European leaders feel free to engage in free-lancing by negotiating directly with the aggressor, Vladimir Putin, instead of adopting a united front among NATO, the EU, the U.S., and other allies.

The results are clear to see.

So far, Putin has been able to achieve his objectives in pursuit of policies characterized by xenophobic nationalism and aggression, war propaganda in the mold of the Third Reich and Joseph Stalin, and the coordination of thugs, mercenaries and irregular Russian forces in the eastern Ukraine who have systematically violated the fundamental human rights of the inhabitants of the region.

If Merkel thinks she can cut a deal with Putin that recognizes the military invasion and annexation of the Crimea, she had better study some basic principles of international law before proceeding further. She might also reflect on the fact that Article 25 of the German Grundgesetz or Constitution requires Germany to comply with norms of customary and general international law, including jus cogens norms.

The Trenchant Observer

Der Scharfsinniger Beobachter
L’Observateur Incisif
El Observador Incisivo

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and 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. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , 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, Dr. Rowles 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. Dr. Rowles 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.=LL.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, Dr. Rowles 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 some the best articles that have appeared in the blog.