Published on Medium on December 24, 2021.
1) Shane Harris and Paul Sonne, “Russia planning massive military offensive against Ukraine involving 175,000 troops, U.S. intelligence warns,” Washington Post, December 3, 2021 (7:00 p.m. EST);
2) Benoît Vitkine (Moscou, correspondant) et Piotr Smolar(Washington, correspondant), “Les options limitées de Washington face aux manœuvres de la Russie au seuil de l’Ukraine; Le président Joe Biden, qui doit s’entretenir mardi avec son homologue Vladimir Poutine, brandit la menace de sanctions économiques,” Le Monde, le 6 décembre 2021 (à 02h03, mis à jour à 10h37);
3) Benoît Vitkine (Moscou, correspondant), “Si l’Ukraine devient une plate-forme pour des forces hostiles, la Russie verra là une menace existentielle »; Pour Fiodor Loukianov, spécialiste des relations internationales, la solution aux tensions actuelles en Europe passe par une redéfinition de l’ordre mondial d’après-guerre froide,” Le Monde, le 6 décembre 2021 (à 18h55, mis à jour le 7 décembre 2021. à 01h47).
Vladimir Putin has laid down what he calls his “red lines”. The use of this terminology is unfortunate, as it harks back to the days before World War I when nations told other nations they would go to war if the other nations violated one of their own unilaterally imposed “rules”, or what some might call “red lines” today.
Putin’s meaningless “red lines” and the real “red lines” of the United Nations Charter and international law
Vitkine and Smolar describe what Putin has said about his “red lines” as follows:
D’un côté, ces messages clairs. De l’autre, des exigences publiques, revues à la hausse. Le 18 novembre, Vladimir Poutine constatait que « nos inquiétudes concernant l’expansion vers l’est de l’OTAN ont été totalement ignorées ». Non seulement la Russie demande à ce qu’une adhésion de l’Ukraine et de la Géorgie à l’Alliance soit exclue, mais elle refuse tout déploiement d’armements considérés comme hostiles, alors qu’il n’a jamais été question de missiles. En somme, elle souhaite la « finlandisation » de ces voisins, comme l’a écrit le chercheur Fiodor Loukianov, proche du Kremlin. Le 1er décembre, Vladimir Poutine a réclamé « des garanties légales et juridiques » sur ces points, ce qui « réduit la marge de manœuvre pour la diplomatie », note l’ancien diplomate russe Vladimir Frolov.
Informal English translation
(Google translation revised by author)
On the one hand, these clear messages. On the other, public demands, revised upwards. On November 18, Vladimir Putin noted that “our concerns about NATO’s eastern expansion have been completely ignored.” Not only does Russia demand that Ukraine and Georgia’s membership in the Alliance be excluded, but it refuses any deployment of weapons considered hostile, although there has never been any question of missiles. In short, Russia wants the “Finlandization” of these neighbors, as the researcher Fyodor Loukianov, who is close to the Kremlin, has written on December 1, Vladimir Putin called for “legal and legally-binding guarantees” on these points, which “will reduce the room for diplomatic maneuveing,” notes former Russian diplomat Vladimir Frolov.
Putin’s “red lines” have no meaning or significance under international law.
But Russia’s threats of an invasion of the Ukraine if it and NATO do not accede to Russia’s demands–for some kind of long-term and binding security arrangements to prevent Ukraine from joining NATO or the EU–themselves violate the most fundamental norms of the United Nations Charter and international law.
These might be called, in a non-technical sense, the real “red lines” in international relations–the “red lines” of the United Nations Charter and international law.
The prohibition against the threat or use of force
The prohibition against the threat or use of force embodied in Article 2 paragraph 4 of the United Nations Charter is a universally recognized norm of jus cogens or peremptory law (from which there can be no exception), under both the U.N. Charter and general international law.
United Nations Charter, Article 2 establishes:
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
(4) All Members 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 (emphasis added).
Russia is currently violating Article 2 (4) of the Charter by threatening, through its massive buildup of forces near the Ukrainian border, the use of force against the territorial integrity and political independence of Ukraine. Sending forces into Ukraine in the absence of an armed attack against Russia would violate the territorial integrity of Ukraine.
The threat of a military invasion to force Ukraine to accept some kind of treaty that would limit its freedom of action to join NATO or the EU violates Ukraine’s political independence. As a sovereign state, Ukraine is free to join any other group of states, including a collective self-defense organization such as NATO which under its Charter has purely defensive aims.
The Security Arrangements which Putin seeks would be void under international law
Vladimir Putin’s tactic of using the threat of force to “persuade” the U.S. and its NATO allies to enter binding agreements of any sort with Russia that would limit Ukraine’s sovereignty and freedom of action constitutes a blatant violation of Article 2 (4) of the United Nations Charter.
Any international agreement or treaty concluded under this threat of the use of force would be void and have no legal effect. Specifically, any such agreement concluded between the U.S. or NATO and Russia while Ukraine is under the threat of a military invasion would be void under international law. The drafters of the U.N. Charter clearly had in mind Adolf Hitler’s threat of a military invasion of Czechoslovakia, which was used to secure the agreement of Édouard Daladier (France) and Neville Chamberlain (U.K.) to the infamous Munich Pact which ceded the Sudetenland to Germany in October, 1938–without Czechoslovakia’s consent.
Articles 52 of the 1969 Vienna Convention on the Law of Treaties provides that treaties whose adoption has been procured by the threat or use of force are void.
Article 52: Coercion of a State by the threat or use of force
A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.
Article 53 defines jus cogens and provides that a treaty conflicting with a norm of jus cogens is void.
Article 53: Treaties conflicting with a peremptory norm of general international law (jus cogens)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
Biden should have been briefed by the Secretary of State and the State Department’s Legal Adviser on these legal limitations on what the U.S. and NATO could even potentially agree to. Russian Foreign Minister Sergey Lavrov is thoroughly versed in international law, and fully aware that Russia’s invasion of Ukraine in 2014 violated Article 2 (4) of the U.N. Charter and that its annexation of the Crimea is void under Articles 52 and 53 of the Vienna Convention on the Law of Treaties, whatever lies he may tell in defense of his country and his master, Vladimir Putin.
Should Putin invade Ukraine, the U.S. and its allies should expel Russia from the SWIFT international payments system, and impose other very heavy sectorial sanctions. On expulsion from SWIFT and other potential sanctions, see Vitkine and Smolar’s article in Le Monde, above.
*James Rowles received a Doctor of Juridical Science in International Law (SJD) from Harvard University, where he was also a Lecturer on Law. He is a graduate of Stanford and Stanford Law School, and a former professor of international law at various American universities.