Non-Recognition

With Russian troops pouring into Ukraine today in the aftermath of President Putin’s open questioning of Ukrainian statehood, there is an immediate danger that the international community of States, international organizations, and non-State actors will treat this situation as one involving some kind of factual ambiguity, first requiring prudence on the part of third States to pause before reaching their own legal characterization of Russian actions in Ukraine.  After all, in Georgia v. Russia, while the International Court of Justice saw fit to issue provisional measures in 2008 as Russian military troops and tanks openly entered South Ossetia and Abkhazia, the new majority in the Court would then turn around in 2011 and decline to hear jurisdiction in the case mainly for alleged lack of evidence on the existence of ethnic cleansing as to bring the dispute within the ambit of the International Convention on the Elimination of Racial Discrimination (ICERD).  Judge Bruno Simma, for whom I clerked at that time at the Court, certainly thought there was no such alleged evidentiary ambiguity and wrote an extended separate opinion assessing all documentary and other evidence in the case upholding the preponderance of the existence of ethnic cleansing in this dispute.  The alleged equivocal language in the many pronouncements by Russian state organs was enough, at the time, for the Court majority to cast doubt on whether there was a legal dispute involving racial discrimination and ethnic cleansing between Georgia and Russia.

That ambiguity does not exist anymore today in Ukraine.  Russian annexation of Crimea in 2014 led to the unequivocal and united position of the international community that this was an ongoing glaring illegality representing continuing serious breaches and violations of the Charter of the United Nations and international law (as reiterated in a long series of UN General Assembly resolutions, see among others here, here, and here).  The International Court of Justice ordered provisional measures in 2017 in Ukraine v. Russia and declared it had jurisdiction in 2019 to hear the dispute under both the ICERD and the International Convention for the Suppression of the Financing of Terrorism.  

President Putin’s televised address yesterday is equally unequivocal that this is a unilateral act by the head of State of the Russian Federation to disregard the statehood and territorial integrity of Ukraine, and to act unilaterally to send Russian troops into Ukraine, with Russian lawmakers publicly giving permission to Putin to use military force outside Russia, with Putin’s address putting forward international law justifications for this unilateralism through an exceptionalist theory of remedial secession, as Marko Milanovic discussed yesterday.  All of the unilateral actions to use military force are now being taken without any reference to the United Nations Security Council, and certainly without any qualms about complying with the Charter of the United Nations on its foundational jus cogens principles of territorial sovereignty, the prohibition against the use of force, the principle of non-intervention, and Charter duties to respect human rights and cooperate with the United Nations and all its Members in respecting human rights.  Unlike previous eras of exceptionalism by the United States in Iraq and Afghanistan, Russian annexations in Ukraine are very distinct, in that they are deliberately and now openly premised on a State purporting to militarily assert the widest extreme of the right to self-determination of a people (e.g. Russian-backed separatists), while intentionally ignoring the right to self-determination of all others within Ukraine’s territory or established processes under international law for peoples (and not States) to assert their right.  The Russian Federation openly appointed itself as the unilateral arbiter of what amounts to self-determination and who is entitled to self-determination, using force to cram down its view of that right. There can thus be no ambiguity today that the ongoing annexation of Ukraine is just as internationally unlawful as the annexation of Crimea in 2014.

In this post, I focus on the obligation of third States not to recognize internationally unlawful situations, and why Germany’s first salvo today of suspending approval of the completed Nord Stream 2 gas pipeline – while potentially implicating investment treaty obligations under the 1989 Germany-Russian Federation BIT – could be seen as an example of third States implementing their duties not to recognize unlawful situations.  It behooves third States in the world to examine how they are now discharging their own obligations not to recognize the unlawful situation of continuing unilateral Russian annexation actions in Ukraine.

Non-Recognition of Unlawful Situations as an International Obligation

To recall, Article 41 in relation to Article 40 of the International Law Commission’s 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts provides for particular consequences for serious breaches of peremptory norms of general international law:

“Article 40
Application of this chapter
1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general
international law.

2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.

Article 41
Particular consequences of a serious breach of an obligation under this chapter
1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40.

2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.

3. This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this chapter applies may entail under international law.”

The International Court of Justice categorically emphasized these obligations in its 2004 Wall Advisory Opinion, warning that Israel’s actions (even if equivocal) could still amount to de facto annexation in Palestine, and that all States bore duties not to recognize this unlawful situation even if Israel gave assurances that there was no annexation taking place:

“121. Whilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature (see paragraph 116 above), it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. The Court considers that the construction of the wall and its associated régime create a “fait accompli” on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation…

…159. Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in imaintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by lsrael with international humanitarian law as embodied in that Convention.

160. Finally, the  Court is of the view that the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.” (Emphasis added.)

The non-recognition obligation, as noted by the International Law Commission’s own analysis of State practice in its commentaries to the 2001 Draft Articles, acquires particular salience in situations where a State’s serious breaches of peremptory norms involve unlawful situations resulting from the prohibited use of force to acquire territory.  The International Court of Justice was instructive as to the broad scope of express and implied actions covered by the duty of non-recognition of acquisitions of territory through prohibited use of force, as it discussed in its 1971 Namibia Advisory Opinion:

“118. South Africa, being responsible for having created and maintained a situation which the Court has found to have been validly declared illegal, has the obligation to put an end to it. It is therefore under obligation to withdraw its administration from the Territory of Namibia. By maintaining the present illegal situation, and occupying the Territory without title, South Africa incurs international responsibilities arising from a continuing violation of an international obligation. It also remains accountable for any violations of its international obligations, or of the rights of the people of Namibia. The fact that South Africa no longer has any title to administer the Territory does not release it from its obligations and responsibilities under international law towards other States in respect of the exercise of its powers in relation to this Territory. Physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States.

119. The member States of the United Nations are, for the reasons given in paragraph 115 above, under obligation to recognize the illegality and invalidity of South Africa’s continued presence in Namibia. They are also under obligation to refrain from lending any support or any form of assistance to South Africa with reference to its occupation of Namibia, subject to paragraph 125 below.

120. The precise determination of the acts permitted or allowed, what measures are available and practicable, which of them should be selected, what scope they should be given and by whom they shouid be applied-is a matter which lies within the competence of the appropriate political organs of the United Nations acting within their authority under the Charter. Thus it is for the Security Council to determine any further measures consequent upon the decisions already taken by it on the question of Namibia. In this context the Court notes that at the same meeting of the Security Council in which the request for advisory opinion was made, the Security Council also adopted resolution 283 (1970) which defined some of the steps to be taken. The Court has not been called upon to advise on the legal effects of that resolution.

121. The Court will in consequence confine itself to giving advice on those dealings with the Government of South Africa which, under the Charter of the United Nations and general international law, should be considered as inconsistent with the declaration of illegality and invalidity made in paragraph 2 of resolution 276 (1970), because they may imply a recognition that South Africa’s presence in Namibia is legal.

122. For the reasons given above, and subject to the observations contained in paragraph 125 below, member States are under obligation to abstain frorn entering into treaty relations with South Africa in all cases in which the Government of South Africa purports to act on behalf of or concerning Namibia. With respect to existing bilateral treaties, member States must abstain from invoking or applying those treaties or provisions of treaties concluded by South Africa on behalf of or concerning Namibia which involve active intergovernmental co-operation. With respect to multilateral treaties, however, the same rule cannot be applied to certain general conventions such as those of a humanitarian character, the non-performance of which may adversely affect the people of Namibia. It will be for the competent international organs to take specific rneasures in this respect.

123. Member States, in compliance with the duty of non-recognition imposed by paragraphs 2 and 5 of resolution 276 (1970), are under obligation to abstain from sending diplomatic or special missions to South Africa including in their jurisdiction the Territory of Namibia, to abstain from sending consular agents to Namibia, and to withdraw any such agents already there. They should also make it clear to the South African authorities that the maintenance of diplomatic or consular relations with South Africa does not imply any recognition of its authority with regard to Namibia.

124. The restraints which are implicit in.the non-recognition of South Africa’s presence in Namibia and the explicit provisions of paragraph 5 of resolution 276 (1970) impose upon member States the obligation to abstain from entering into economic and other forms of relationship or dealings with South Africa on behalf of or concerning Namibia which may entrench its authority over the Territory.

125. In general, the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.”  (Emphasis added.)

While the line of non-recognition can be difficult to draw in concrete cases, the most obvious instances where the International Court of Justice has erred on the side of expansive non-recognition are circumstances involving unlawful acquisition of territory through use of force, whether in the form of de facto annexations (as in the Wall Advisory Opinion) or illegal occupation (as in the Namibia Advisory Opinion).  The same could be said today of the (now obviously unambiguous, due to President Putin’s televised address questioning Ukraine statehood) continuing Russian annexations in Ukraine.

Broad Scope of Non-Recognition vis-a-vis Investment Obligations

The broad scope of what non-recognition can encompass, including abstaining from economic relationship or dealings with the State that is breaching serious peremptory norms and where the economic relationship or dealings could entrench the illegal action, is something third States can take guidance from today in relation to the Russian Federation’s continuing annexation actions in Ukraine.

Germany can argue that its suspension of the Nord Stream 2 gas pipeline fulfils its Article 41(2) duties not to recognize the unlawful situation created by the Russian Federation’s continuing annexation actions in Ukraine, as well as not to render aid or assistance to the Russian Federation in maintaining the annexation actions through the estimated economic benefits to be derived from the Nord Stream 2 gas pipeline project.  The Nord Stream 2 gas pipeline is estimated to bring about 55 billion cubic meters of natural gas from Russia to Germany every year, and was still awaiting final approval from German regulators before it could be permitted to operate.  By withholding final approval of the estimated $11 billion construction project for the Nord Stream 2 gas pipeline, Germany ensures that it does not, deliberately or inadvertently, contribute its own public funds and future pipeline use payments in any manner that assists with the Russian Federation’s ongoing annexation actions in Ukraine.  Additionally, Germany is well-positioned to characterize the project suspension as a permissible and proportional countermeasure to induce Russia’s compliance with the Charter of the United Nations and jus cogens prohibitions against unilateral use of force and continuing forcible annexation of territory in Ukraine.

One can well anticipate that Gazprom could, down the line, bring Germany to investor-State arbitration under the 1989 Germany-Russian Federation BIT, alleging possible damages from investment treatment obligations of Germany relative to the suspension of the Nord Stream 2 gas pipeline.  While that in itself could be the subject of a much longer analysis on interacting treaty obligations of host States (and we welcome further discussion and analyses on these points as well) as this crisis unfolds, it would nonetheless be significant to our ongoing analysis to be able to characterize current actions such as Germany’s temporary suspension of the Nord Stream 2 gas pipeline as well within the general international law duty of non-recognition of illegal situations, especially in cases of jus cogens breaches such as forcible annexation.