Ukraine War, November 6, 2022 (II): International Law and the structural impediments to a ceasefire or peace settlement in Ukraine

Analysis

Most commentators, politicians, and even policymakers who urge a negotiated ceasefire or peace settlement in Ukraine tend to assume that achieving such a goal is simply a matter of Russia and Ukraine sitting down at a table and freely settling their differences, making concessions where needed.

They also tend to assume that in these negotiations Ukraine is free to make “territorial concessions”, which is simply a euphemism for Ukraine agreeing to cede territory to Russia which it has conquered by military force.

In proceeding on these assumptions, politicians, commentators and even government officials are fundamentally mistaken.

We should think of the negotiations as having one more party at the table: the United Nations Charter and international Law. Sitting behind this third party to the negotiations are all the countries in the world who believe upholding the U.N. Charter and international law is critically important, and not subject to negotiation.

Two principles which are part of the DNA of this third party at the negotiating table are the following:

1) No territorial acquisition through military conquest in violation of the prohibition of the illegal use of force in Article 2 paragraph 4 of the U.N. Charter can ever be recognized.

The U.S. has adhered to this principle since adoption of the Stimson Doctrine in 1932 when the U.S. refused to recognize the Japanese puppet state of Manchuko, established following the Japanese invasion of Manchuria in China in 1931.

The doctrine has now become a norm of peremptory international law or jus cogens, that is, mandatory international law from which there can be no exception, not even by agreement.

The second principle is that no treaty obtained through coercion can be recognized under international law, and that any treaty concluded under such circumstances

is void ab initio. This second principle is also a norm of peremptory international law or jus cogens, from which there can be no exception, not even by agreement.

While many political scientists and even policymakers believe international law has no real force, in point of fact it has real teeth.

A small example drives home this point. Assume for a moment that Ukraine were to agree to make “territorial concessions”, recognizing the recent Russian “annexation” of Luhansk, Donetsk, Zaporizhzhia, and Kherson provinces, in addition to the Crimea which Russia “annexed” in
2014.

Because this hypothetical ceasefire or peace settlement would violate the mandatory provisions of international law described above, no ships desiring to transport grain from these provinces under Russian control would be able to obtain insurance for such transport.

In effect, grain shipments from Russian-occupied territories in Ukraine, and from Russia itself, would not be possible through Russian-occupied ports on the Sea of Azov or the Black Sea.

No insurance would mean there would be no grain exports from Russian-occupied areas or through Russian-occupied ports in Ukraine. The same would be true with respect to international air transportation.

International law, despite widespread beliefs to the contrary, has real teeth.

So, returning to the negotiating table, we can see that one of the parties, the U.N. Charter and international law, backed by many countries throughout the world, cannot accept any “territorial concessions”.

At the moment, Vladimir Putin is indicating he is open to negotiations with Ukraine, provided Ukraine accepts Russian annexation of the four provinces in the South plus the Crimea.

This Ukraine does not want to do. This Ukraine could not do even if it wanted to. The U.N. and international law, the third party in any negotiations, will block any such ceasefire or peace settlement.

From this short analysis we can see that no negotiations aimed at a ceasefire or peace settlement in Ukraine are at present possible.

The third party in the negotiations will block any agreement containing “territorial concessions” to Russia. Moreover, the third party in the negotiations is not free to waive these two principles of mandatory international law.

Consequently, so long as Putin and Russia insist on these “territorial concessions”, no ceasefire or peace settlement is possible, and negotiating to achieve these objectives under these circumstances makes no sense.

The current situation is not like that in the October 1962 nuclear confrontation between the U.S. and the Soviet Union.

In that case, a U.S. undertaking to end the naval quarantine, a commitment not to invade Cuba, and a secret agreement to withdraw nuclear missiles from Turkey in exchange for withdrawal of Soviet missiles from Cuba formed the basis for a “deal” which ended the Cuban Missile Crisis.

See Martin J, Sherwin, Gambling with Armageddon; Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (New York: Alfred A. Knopf, 2020).

None of the actions in that deal were proscribed by international law or by principles of peremptory international law (jus cogens).

Indeed, the deal which ended the Cuban Missile Crisis was entirely consistent with international law.

No ceasefire or peace settlement in Ukraine containing “territorial” concessions” would be consistent with international law. Any such agreement, even if Ukraine accepted its terms, would be void and produce no legal effects.

Negotiations with Putin would be pointless as long as he insists on recognition of Russian “annexation” of provinces seized by aggression and military conquest.

The Trenchant Observer

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