Berlin seeks to block NATO force deployments in East on fallacious legal arguments

Updated September 3, 2014

See

(1) “Ukraine-Krise: Merkel will an Nato-Russland-Verträgen festhalten,” der Spiegel, 3. September 2014 (16:13 Uhr).

Im Baltikum wächst die Sorge vor einem russischen Übergriff. Kanzlerin Angela Merkel verspricht Beistand – besteht aber auf dem Nato-Russland-Vertrag. Fest stationierte Nato-Truppen soll es daher nicht geben.

(2) “Berlin bremst bei neuen Nato-Plänen gegen Russland; Beim Nato-Gipfel will die Allianz neue Stützpunkte und Truppen für die östlichen Mitglieder beschließen. Die fordern noch mehr, doch Deutschland fürchtet, Verträge mit Russland zu brechen,” Die Welt, 31. August, 2014 (20:05 Uhr).

(3) “Abrogation of 1997 NATO Partnership Agreement with Russia urgently required — With excerpts from and link to text of Foundational Act,” The Trenchant Observer, August 26, 2014.

(4) “Putin’s War: the Russian invasion by regular troops and the West’s response—critical decisions loom (Updated August 30, 2014),” the Trenchant Observer, August 30, 2014.

Germany has cited the 1997 NATO-Russia Partnersip Founding Act as a legal impediment to basing NATO troops in the East in member countries bordering on Russia.

Berlin’s legal reasoning is totally fallacious, as Russia through its continuing invasion of the Ukraine and purported annexation of the Crimea has materially breached the treaty on which the Partnership is founded.

To insist now that the Foundational Act prohibits such forward basing of NATO troops is specious and constitutes a bad-faith legal argument.

Furthermore, even the deployments that are under discussion are ludicrously inadequate. NATO needs to deploy a force to the East that can actually deter or greatly slow a Russian military intervention the Baltics. 20,000 troops is a number that should be used as the starting point of discussion. Many more will eventually be needed.

600-1,000 troops will not deter Putin or Russia, though they may serve as a trip wire for nuclear confrontation. In other words, such an insignificant force would both be inadequate to the task of countering a “stealth invasion” by Russia such as it has conducted in the Ukraine, and increase the likelihood of nuclear confrontation between Russia and NATO due to the very inadequacy of such a small force to effectively repel an invasion.

The 1997 Partnership with Russia has already been abrogated by Russia.

NATO including Berlin needs to wake up to the new realities of an aggressive and xenophobic nationalism in Russia expressed in irredentist claims that forbode further invasions.

It is long past the hour when Berlin’s pacifist and appeasement approaches must be abandoned if the security of Europe is to be guaranteed.

The best hope for European and NATO security is for NATO to take extremely hard measures that might puncture the bubble of Russian war propaganda which feeds and maintains the illusions of an unchecked nationalism that defies the constraints of international law.

If Angela Merkel wants to hold out hope for a future change in course by Vladimir Putin and Russia, or Russia after Putin, she must understand that half-measures and appeasement only goad Putin on to expanded war aims and to commit further acts of aggression.

The only hope for bringing Russia back into the world of civilized nations who uphold the U.N. Charter and its prohibition of the use of force is to take really strong military measures within NATO that will force Russia’s military and Putin to pay attention and react to new counter-threats against its security.

The free ride the West has given to Putin’s aggression must end–NOW.

Taking hard military decisions in peacetime is difficult. But it is even harder, and more dangerous, in wartime.

It requires that the illusions of pacifists and appeasers in Europe be jettisoned. One of the strongest illusions is that the 1997 Partnership Agreement has any validity or viability in the face of brazen Russian military aggression within Europe.

Once Russia returns to a foreign policy of respect for international law instead of force, there will be plenty of time to resuscitate the 1997 Partnership agreement.

But not before.

Realistically, we need to understand that Russia could be in a phase of growing authoritarian dictatorship not unlike that in Germany in 1933, when the elected Chancellor Adolph Hitler proceeded to wipe out his opposition and build the military powerhouse of the Third Reaich that was to devastate Europe and unleash a World War that cost some 50 million lives.

One important difference is that Putin, unlike Hitler, has thousands of nuclear weapons aimed at the West.

If Angela Merkel wants to uphold an international legal obligation, she should think about upholding the United Nations Charter and its jus cogens (peremptory law) prohibition in Article 2 paragraph 4 of “the threat or use of force against the territorial integrity or political independence of any state”.

The Trenchant Observer

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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