Ukraine: U.S. policy on "territorial concessions", peremptory norms of international law, and the history of U.S. policy over the last 90 years
Doctor of Juridical Science (SJD) in International Law, Harvard University
Adapted from The Trenchant Observer, May 12, 2023
The White House persists in its belief that negotiations can lead to a ceasefire or settlement in the foreseeable future.
Edward Wong and Michael Crowley, writing in the New York Times,1 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”
This statement suggests the White House does not support the expulsion of Russian troops from all Ukrainian territory and imagines that negotiations can lead to a ceasefire that leaves Russia in possession of the Crimea and the parts of the Donbas they brought under their control through their invasion in 2014.
President Biden and his foreign policy team obviously don’t take seriously the arguments based on international law and the U.N. Charter that we have repeatedly set forth.2 In fact, it’s not even clear that they have heard them.
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
1) the prohibition of the threat or use of force against the territorial integrity or political independence of any state,3
2) the principle that any international agreement secured by coercion of a state by the threat or use of force is void,4 and
3) the principle of non-recognition of any territorial gains achieved by military force.5
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, not even by agreement.
Article 52 of the Vienna Convention on the Law of Treaties 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 Nations.
Under the Vienna Convention, a “treaty” is any international agreement in written form intended to be governed by international law.
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.6
The Montevideo Convention was the product of Franklin D. Roosevelt’s Good Neighbor Policy, which signaled an end--at least under Roosevelt and Truman--to U.S. military interventions in the Latin American 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 in general and specifically the international law of non-intervention.7
This same principle of non-recognition is restated in Article 21 of the 1948 Charter of the Organization of American States.8
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 would be legally void and consequently unstable, and could depend only on parties acting on a political basis 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 outlined above.
There is really no excuse for their pushing policies that do not take peremptory norms of international law into account.
Moreover, as noted above, the legal principle of non-recognition of territories acquired by military force has been espoused and upheld by the United States for over 90 years. Significantly, the United States never recognized the Soviet military conquest and annexation in 1940 of the Baltic countries of Estonia, Latvia, and Lithuania.
Journalists, for their part, should insist on U.S. and other officials answering hard questions based on the considerations set forth above in any discussion of possible negotiations and possible terms of a ceasefire or permanent settlement in the Ukraine war.
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).
See, e.g., James Rowles, “International Law and the structural impediments to a ceasefire or peace settlement in Ukraine,” Trenchant Observations, November 8, 2022.
U.N. Charter, Art. 2 (4) provides:
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.
Vienna Convention on the Law of Treaties, Art. 52 codifies for all states the principle of non-recognition first contained in Article 11 of the 1933 Montevideo Convention on the Rights and Duties of States, which was applicable to the United States and countries in Latin America.
U.N. Convention on the Law of Treaties (1969), Art. 53, U.S. Stimson Doctrine, U.N. General Assembly Resolution 2625 (XXV), “Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations (1970)” (hereafter “Declaration on Friendly Relations”).
Art. 11 of the Montevideo Convention on the Rights and Duties of States 1933) establishes:
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.
Despite their illegality, U.S. interventions resumed during the Cold War, e.g.., in Guatemala (1954), Cuba (1961), the Dominican Republic (1965), Nicaragua (1981-1985), Grenada (1982)), and Panama (1989). The U.S. also intervened in Haiti in the 1990’s. These interventions were generally of short duration except in Haiti and in the case iof the covert war against Nicaragua. None involved any claim to the acquisition of territory.
The 1948 OAS Charter provides:
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.
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See also,
1)”Ukraine War, May 11, 2023: Britain sends long-range missiles to Ukraine; U.S. says South Africa sends arms to Russia; Extraordinary video of Russian soldier pleading for mercy, and being escorted by drone to point of safe surrender,” The Trenchant Observer, May 11, 2023.
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See also “Why I care about the war in Ukraine,” Trenchant Observations, June 26, 2023.