U.S., France, U.K. and other members should vehemently oppose any Russian-backed Security Council resolution endorsing Minsk II agreement

News reports speak of the intention of Russia to bring a resolution to the U.N. Security Council which would incorporate the terms of the Minsk II agreement reached on February 12.

See

“Ukraine-Krise: Poroschenko will bei Scheitern der Waffenruhe Kriegsrecht verhängen,” Der Siegel, 14. Februar 2015 (18:30 Uhr).

“Russland brachte einen Resolutionsentwurf in den Weltsicherheitsrat ein, mit dem die Vereinbarungen der Minsker Friedensgespräche vom Donnerstag festgehalten werden sollen. Wie die Staatsagentur Tass berichtete, könnte das mächtige Uno-Gremium an diesem Sonntag darüber abstimmen. Frühere Uno-Resolutionen hatte Russland blockiert.”

While such a resolution endorsing the original Minsk Protocol might have been a good idea, the U.S., France, the United Kingdom and other Security Council members should oppose and vote against any resolution that would endorse the Minsk II agreement.

What is at issue is the fact that Article 2 paragraph 4 of the United Nations Charter prohibits “the threat or use of force against the territorial integrity or political independence of any state.”

This is a principle of jus cogens or mandatory international law to which there can be no exception, even by agreement. As we pointed out yesterday, this means that the provision in the Minsk II agreement that would delay restoration of control of the border to the Ukraine up to the end of 2015, contingent on the “separatists” agreeing to various measures called for in the Minsk II agreement, is null and void under international law.

Consequently, Russia is under an international legal obligation to withdraw its troops, tanks, artillery, irregular fighters and other war equipment immediately, and to halt its military aggression in the eastern Ukraine immediately.

If a U.N. Security Council resolution endorses or incorporates the terms of the Minsk II agreement, this could change. Security Council resolutions under Chapter VII of the Charter are binding on all member states.

If such a resolution were to be adopted, Russia could then argue that the Security Council had authorized it to remain in the eastern Ukraine until at least the end of 2015, and that the provisions requiring approval by the Donetsk and Luhansk “separatist” leaders were binding on all states under international law.

In this way, while the Western powers are asleep, Putin and Russia will have succeeed in creating  “a frozen conflict” that is backed by a legally binding Security Council resolution.

Some experts in international law might still argue that the Security Council had exceeded its powers, but this would be a purely academic debate of no relevance to the national decision makers responsible for acting to manage and resolve the conflict in the eastern Ukraine.

If states want to freeze the conflict in the eastern Ukraine by backing the Minsk II agreement with a binding Chapter VII resolution, they should vote with the Russians.

If they want Russian military aggression against the Ukraine to cease forthwith, they should vehemently oppose and vote against any such Russian-backed resolution.

Any Security Council resolution on the Ukraine should call for:

(1) the immediate withdrawal of all Russian forces and war machines and equipment from the eastern Ukraine;

(2) the immediate withdrawal of all other Russian irregular and special operations forces and equipment from the eastern Ukraine; and

(3) the immediate cessation of Russian supplies of weapons, machines of war and other equipment to the so-called “separatists” in the Donbas region of the Ukraine.

The Minsk II Agreement has a lot of well-sounding language in it, as did the original Minsk Protocol of September 5, 2014.

Putin through systematic violations of the Minsk Protocol, with the direct participation of Russian military forces and equipment in the fighting in the eastern Ukraine, has changed the facts on the ground, and forced Petro Poroshenko and his French and German supporters to make further concessions in the Minsk II agreement.

Virtually all of the changes from the original Minsk Protocol of September 5 and the implementing Minsk Memorandum of September 19 have been secured through further, intensified, and more transparent Russian aggression against the Ukraine.

This Russian perfidy should not be endorsed by the Security Council, or anyone else.

Russia needs to get its troops, weapons, special operatives and irregular forces out of the Ukraine along with all their weapons, to immediately halt their supply of weapons and equipment to the so-called “separatists”, and to comply fully with the ceasefire and heavy weapons withdrawal provisions of the Minsk II agreement.

Meanwhile, the U.S. the EU and NATO should prepare to ban Russia from the SWIFT international payments system, boycott or move the 2018 FIFA World Cup competition from Russia to a non-aggressor state, prepare crippling sectoral economic sanctions against Russia, deliver lethal defensive weapons to Kiev, and begin moving NATO troops to the eastern front with Russia, should Russia or the “separatists” (Putin’s puppets) fail to comply with the ceasefire, withdrawal and other provisions of the Minsk Protocol and the Minsk II Agreement of February 12.

Putin should have no illusions that continued military aggression against the Ukraine will be able to avoid a hardball conflict with the West, in which his tanks and war machines will prove no match for the economic weapons at the disposal of the West, which can bring the Russian economy to a halt.

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.