Developing. We are publishing this article as it is being written. Please check back for updates.

To see a list of previous articles, enter “Ukraine” in the Search Box on the upper right, and you will see a list in chronological order.

Dispatches

1) Cédric Pietralunga, “Guerre en Ukraine : Londres brise un tabou en livrant pour la première fois des missiles à longue portée à Kiev; Le Royaume-Uni s’est engagé à fournir des missiles air-sol Storm Shadow d’une portée de 250 km à l’Ukraine, à la condition qu’elle ne les utilise pas contre le territoire russe,” Le Monde, le 12 mai 2023 (modifié à 07h50);

2) Carlos Torralba, “El presidente de Lituania: ‘Occidente debe cruzar todas las líneas rojas en la guerra de Ucrania’; Gitanas Nauseda reclama que los aliados de Kiev envíen cuanto antes aviones de combate y misiles de largo alcance: “Si Rusia vence, otros países serán agredidos. Nadie en Europa podrá sentirse seguro’,” El País, el 11 de mayo 2023 (23:40, Actualizado: el 12 de mayo a las 02:17 EDT);

3) Edward Wong and Michael Crowley, “Ukraine’s Offensive Could Set Stage for Diplomacy With Russia, U.S. Officials Say; While exploring endgames, Biden aides say they reject any push for peace talks — including from China — that would freeze the current front lines and Russia’s gains,” New York Times, May 12, 2023 (Updated 1:52 p.m. ET);

Analysis

The White House persists in its belief that negotiations can lead to a ceasefire or settlement in the foreseeable future.

Wong and Crowley quote Secretary of State Antony Blinken as follows:

Mr. Blinken said on Tuesday at a news conference with James Cleverly, the British foreign secretary, that the Ukrainians have “what they need to continue to be successful in regaining territory that was seized by force by Russia over the last 14 months”

President Biden and his foreign policy team obviously don’t take seriously the arguments based on international law and the U.N. Charter we have repeatedly presented. In fact, it’s not even clear that they have heard them.

See, e.g., James Rowles, “International Law and the structural impediments to a ceasefire or peace settlement in Ukraine,” Trenchant Observations, November 8, 2022.

What this means is that the U.S. is driving a policy which either 1) has no chance of success, or 2) if implemented would have a disastrous impact on the ability of the U.N. Charter and international law to deter and end wars of aggression, including a potential Chinese invasion of Taiwan.

The peremptory norms of international law and the U.N. Charter (jus cogens) of particular relevance here are the prohibition of the threat or use of force against the territorial integrity or political independence of any state (U.N. Charter, Art. 2[4]), the principle that any international agreement secured by coercion of a state by the threat or use of force is void (Vienna Convention on the Law of Treaties, Art. 52), and the principle of non-recognition of any territorial gains achieved by military force (U.N. Convention on the Law of Treaties, Art. 53, U.S. Stimson Doctrine, U.N. General Assembly Resolution 2625 [XXV][1970], Declaration on Friendly Relations).

U.S. policymakers and leaders of other nations owe their citizens and the government and citizens of Ukraine a public explanation of how these norms apply to any ceasefire or settlement terms, and what the consequences for international peace and security would be of any agreement with Russia that ignores them.

These are norms of peremptory international law or jus cogens, from which there can be no derogation even by agreement.

Article 52 of the Vienna Convention provides:

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 Bations.

A norm of peremptory international law is defined in Art. 53 of the Vienna Convention as follows:

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 international law having the same character.

Regarding the non-recognition of territorial gains achieved by the use of force, the 1970 U.N. General Assembly Declaration on Friendly Relations, which is generally accepted as an authentic interpretation of the Charter, provides:

The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal…

The non-recognition doctrine has been U.S. policy since the Stimson Doctrine was adopted in 1932. The U.S. and the Latin American States codified this principle in Article 11 of the 1933 Montevideo Convention on the Rights and Duties of States, as follows:

The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by a state directly or indirectly or for any motive whatever even temporarily.

The Montevideo Convention was the product of Franklin D. Roosevelt’s Good Neighbor Policy, which signaled an end to U.S. military interventions in the region. It was a period in which the U.S. and the Latin American States assumed a leadership role in the development of international law and specifically the international law of non-intervention.

This same principle is restated in the 1948 Charter of the Organization of American States in Art. 21, as follows:

Article 21

The territory of a State is inviolable. It may not be the object , even temporarily, of military occupation or other measures of force taken by another State, directly ir indirectly, on any grounds whatever. No territorial acquisitions or special advantages obtained either by force or other means of coercion shall be recognized.

What this means is that any ceasefire or peace settlement which violates the above norms of peremptory international law will be void under international law even if Russia, Ukraine, the U.S. and other NATO countries are parties to the agreement.

Any such ceasefire or settlement will be legally void and consequently unstable, and will depend only on parties acting in violation of international law to enforce its provisions.

President Joe Biden and his foreign policy team, including in particular Secretary of State Antony Blinken, need to be briefed and to take into account the international law considerations outline above.

There is really no excuse for their pushing policies that do not take peremptory norms of international law into account. Legal principles such as the non-recognition of territories acquired by military force have been upheld by the United States for over 90 years.

Journalists, for their part, should insist on U.S. and other officials answering the questions set forth above in any discussion of possible negotiations and terms of a ceasefire or permanent settlement in the war in Ukraine.

The Trenchant Observer

***

A selection of the best articles from The Trenchant Observer is published on Tuesday, Thursday, and Saturday in the Trenchant Observations newsletter on Substack.

You may subscribe here,