An Analysis of Germany's Position against Nord Stream 2 under International Law

Germany backed out of the Nord Stream 2 pipeline project following Russian armed troops’ entrance to Ukraine thereby holding a clear stance against the unlawful use of force by Russia. The conduct of Germany is compatible with the customary international law norm of duty of non-recognition. However, the situation raises speculations about probable costs Germany may incur arising from the Russian - German bilateral investment treaty[1].

The territorial integrity of states and the prohibition of the use of force are peremptory norms of international law[2]. These principles are embodied in international law documents such as the UN Charter and the customary international law norms of Responsibility of States for Internationally Wrongful Acts (RSIWA). The illegality of the Russian invasion is undisputed as it does not fall within the ambit of exceptions to the prohibition of the use of force referred to in articles 42 and 51 of the UN Charter[3] or the doctrine of humanitarian intervention. According to these articles, states may only resort to armed conflict if they are protecting their own territory or the UN Security Council has issued a decision allowing them to do so. Additionally, the invasion constitutes a clear dismissal of the statehood of Ukraine and is a gross violation of international law.

The duty of non-recognition is the duty of states to not recognize substantial violations of peremptory norms of international law as legal[4]. This principle is stated in article 41 of RSIWA which clearly obliges states to cooperate to end such situations[5]. The UN Security Council established the compulsory essence of the rule in its Resolution 662 (1990) regarding the annexation of Kuwait by Iraq. The council affirmed that the annexation was not legally valid and called upon states to “refrain from any action or dealing that might be interpreted as an indirect recognition of the annexation”.[6] It bears importance that the council expected states to steer clear from actions that may even constitute indirect recognition when an unlawful annexation was in question. This situation might seem to hint that the scope of non-recognition is quite wide, albeit an absolute scope approach to the rule is rejected by the UN General Assembly. Therefore, the Friendly Relations Declaration does not define the exact extent of non-recognition. Such interpretation is done on a case by case basis[7].

Regarding the case of Germany, the German economy minister Robert Habeck stated that the ministry’s initial prerequisite report regarding Nord Stream 2 was affirmative. However, “geopolitics changed that assessment” and they were unquestionably supporting Ukraine.[8] By disallowing the operation of Nord Stream 2, Germany established that it would not directly or indirectly permit Russia to benefit from its public funds or future pipeline payments in any way to facilitate the annexation actions against Ukraine.[9] The gas pipeline was going to deny transit fees to Ukraine and potentially make it more vulnerable to Russia.[10] Therefore, the response of Germany constitutes a performance of the non-recognition obligation.

The only limitation to the non-recognition rule besides being applicable to violations of peremptory norms is expressed in ICJ’s Namibia Opinion. Treaties must generally not be applied under circumstances of unlawfully occupied territory according to this decision. However, treaties whose suspension will cause further suffering and detriment of the rights of peoples of the occupied territory remain applied. These treaties are ones that protect the fundamental rights of humans such as humanitarian law treaties. This provides derogation from the non-recognition rule therefore it must be interpreted in a strict manner. Investment treaties provide for the promotion and protection of foreign investments. They merely benefit citizens indirectly by allowing foreign investment into the country[11]. Similarly, the German - Russian bilateral investment treaty[12] binds the parties to protect each other’s investment and does not fulfill the humanitarian threshold criteria expressed in the Namibia Opinion.

Violations of jus cogens norms result in unrecoverable damages therefore the international legal community establishes mechanisms such as the non-recognition rule to prevent and remedy such illegal actions. Noncompliance with this rule is only permitted under a very exceptional circumstance where implementation of the rule would cause more harm than the non-implementation of it[13].  This is evidently not the case in the Nord Stream 2 example as giving precedence to the bilateral investment treaty would clearly increase the vulnerability of Ukraine and bring catastrophic consequences. Therefore, imposing penalties upon Germany would be inconsistent with the laws and essence of public international law.

Aysu Sarı, Legal Intern

BIBLIOGRAPHY

Agreement Between the Federal Republic of Germany and the Union of Soviet Socialist Republics Concerning the Promotion and Reciprocal Protection of Investments (Germany – Russian Federation) (adopted 13 June 1989, entered into force 5 August 1991)

Charter of the Unite Nations (1945) 1 UNTS 16

Crawford J, The Creation of States in International Law (2nd edn, OUP 2006)

Desierto D, 'Non-Recognition' (Ejiltalk.org, 2022) <https://www.ejiltalk.org/non-recognition/#:~:text=The%20non%2Drecognition%20obligation%2C%20as,from%20the%20prohibited%20use%20of> accessed 20 April 2022

Elliott S, and Franke A, 'Germany Says Nord Stream 2 Gas Pipeline Certification Cannot Now Go Ahead' (S&P Global Commodity Insights, 2022) <https://www.spglobal.com/commodityinsights/en/market-insights/latest-news/natural-gas/022222-germany-says-nord-stream-2-gas-pipeline-certification-cannot-now-go-ahead#:~:text=German%20Chancellor%20Olaf%20Scholz%20said,Luhansk%20regions%20as%20breakaway%20states.> accessed 22 April 2022

International Law Commission, 'Report Of The International Law Commission On The Work Of Its Fifty-Third Session, 23 April - 1 June And 2 July - 10 August 2001, Official Records Of The General Assembly, Fifty-Sixth Session, Supplement No.10' (2001) <https://legal.un.org/ilc/documentation/english/reports/a_56_10.pdf> accessed 26 April 2022

Lorenzmeier S, 'Chapter 11 The Duty Of Non-Recognition And EU Free Trade Agreements: Lessons For Investment Law From The Case Of Front Polisario In: Investments In Conflict Zones', Investments in Conflict Zones: The Role of International Investment Law in Armed Conflicts, Disputed Territories, and ‘Frozen’ Conflicts (Brill | Nijhoff 2022) <https://brill.com/view/book/edcoll/9789004442832/BP000015.xml> accessed 20 April 2022

Marsh S, and Chambers M, 'Germany Freezes Nord Stream 2 Gas Project As Ukraine Crisis Deepens' (REUTERS, 2022) <https://www.reuters.com/business/energy/germanys-scholz-halts-nord-stream-2-certification-2022-02-22/> accessed 20 April 2022

Responsibility of States for Internationally Wrongful Acts (adopted 8 January 2008 UNGA A/RES/62/61)

[1]Diane Desierto, 'Non-Recognition' (Ejiltalk.org, 2022) <https://www.ejiltalk.org/non-recognition/#:~:text=The%20non%2Drecognition%20obligation%2C%20as,from%20the%20prohibited%20use%20of> accessed 20 April 2022.

[2] International Law Commission, 'Report Of The International Law Commission On The Work Of Its Fifty-Third Session, 23 April - 1 June And 2 July - 10 August 2001, Official Records Of The General Assembly, Fifty-Sixth Session, Supplement No.10' (2001) <https://legal.un.org/ilc/documentation/english/reports/a_56_10.pdf> accessed 26 April 2022.

[3] Charter of the Unite Nations (1945) 1 UNTS 16

[4] James Crawford, The Creation of States in International Law (2nd edn, OUP 2006).

[5] Responsibility of States for Internationally Wrongful Acts (adopted 8 January 2008 UNGA A/RES/62/61)

[6]  Yaroslava Zahoruiko, Jurisdictional Implications of Non-recognition of Illegal Territorial Acquisition’s Obligation in Investment Treaty Arbitration (2019), Master’s Thesis.

[7]ibid.

[8] Stuart Elliott and Andreas Franke, 'Germany Says Nord Stream 2 Gas Pipeline Certification Cannot Now Go Ahead' (S&P Global Commodity Insights, 2022) <https://www.spglobal.com/commodityinsights/en/market-insights/latest-news/natural-gas/022222-germany-says-nord-stream-2-gas-pipeline-certification-cannot-now-go-ahead#:~:text=German%20Chancellor%20Olaf%20Scholz%20said,Luhansk%20regions%20as%20breakaway%20states.> accessed 22 April 2022.

[9] Desierto (n 1).

[10] Sarah Marsh and Madeline Chambers, 'Germany Freezes Nord Stream 2 Gas Project As Ukraine Crisis Deepens' (REUTERS, 2022) <https://www.reuters.com/business/energy/germanys-scholz-halts-nord-stream-2-certification-2022-02-22/> accessed 20 April 2022.

[11] Stefan Lorenzmeier, 'Chapter 11 The Duty Of Non-Recognition And EU Free Trade Agreements: Lessons For Investment Law From The Case Of Front Polisario In: Investments In Conflict Zones', Investments in Conflict Zones: The Role of International Investment Law in Armed Conflicts, Disputed Territories, and ‘Frozen’ Conflicts (Brill | Nijhoff 2022) <https://brill.com/view/book/edcoll/9789004442832/BP000015.xml> accessed 20 April 2022.

[12] Agreement Between the Federal Republic of Germany and the Union of Soviet Socialist Republics Concerning the Promotion and Reciprocal Protection of Investments (Germany – Russian Federation) (adopted 13 June 1989, entered into force 5 August 1991)

[13] Lorenzmeier (n 11).