Germany adopts restrictive view on what constitutes a “threat to international peace and security” – when it suits

Published: 12 March 2021 Author: Stefan Talmon

On 25 April 2019, the Ukrainian Parliament adopted the “Law on ensuring the functioning of Ukrainian as the State language”. The new law regulated the use of Ukrainian as the sole State language in government functions and services, making it compulsory for politicians, judges, doctors, employees of the national bank and state-owned companies, officers in the military, teachers, and others. The law also requires that 90% of TV and film content be in Ukrainian and for Ukrainian-language printed media and books to make up at least 50% of the total output. The law had a considerable impact on Ukrainian society, in particular on the sizeable Russian-speaking minority. In March 2019, the Kyiv International Institute of Sociology published findings that 28.1% of Ukrainians spoke mostly or only Russian with their families, including 15.8% who exclusively spoke Russian. That compared with 46% who spoke mostly or only Ukrainian with their families, and 24.9% who spoke the two languages in equal proportion.

The language law was signed by Ukraine’s outgoing President, Petr Poroshenko, on 15 May 2019. Two days later, the Russian Federation requested the President of the UN Security Council to arrange for an open meeting of the Council on the new law, to be held at 3 p.m. on 20 May 2019. According to Russia, the language issue was one of the underlying causes of Ukraine’s internal conflict, and the law directly violated the spirit and letter of the Package of Measures for the Implementation of the Minsk Agreements endorsed by the Security Council in its resolution 2202 (2015). Russia further requested that the UN Under-Secretary-General for Political and Peacebuilding Affairs and the High Commissioner on National Minorities of the Organization for Security and Cooperation in Europe be invited to brief the Council.

Germany and five other Western members of the Council were opposed to holding the meeting on the date proposed, as it would have coincided with the inauguration of Volodymyr Zelensky as the new President of Ukraine. They considered Russia’s request a clear attempt to distract from the peaceful, democratic transfer of power happening in Ukraine and as an “act of intimidation” of the new Ukrainian President. Germany was not against holding a meeting on the language law as such and had therefore suggested the meeting to be postponed. Russia, however, pressed for the meeting to be held on 20 May 2019. The Russian representative on the Council stated:

“We firmly believe that every Council member has the right to submit for the Council’s consideration any issue that it believes could be a threat to international peace and security. A refusal to have that discussion today would not only be a gross example of double standards, it would also undermine the authority of the Security Council.”

The Western members of the Security Council called for a vote on the agenda for the meeting. As a procedural matter, the adoption of the agenda requires the affirmative vote of nine Council members. The Russian request received only five votes in favour, six votes against and four abstentions. The agenda, consequently, was not adopted and the new Ukrainian language law was not discussed. Russia thereupon accused the Western Council members of “double standards” and an “attempt to introduce censorship into the Security Council.”

The incident is notable for the reasons given by Germany for opposing the holding of the meeting on the date proposed by Russia. Besides the political reason of not holding a meeting on the day of the inauguration of the new Ukrainian President, Germany argued that the Ukrainian language law was not a matter for the Security Council, as it concerned an internal affair and did not pose a threat to international peace and security, and thus was outside the Council’s mandate. After the Council meeting on 20 May 2019, the German Permanent Representative to the UN and his French counterpart addressed the media, stating:

“Russia’s request to hold a public meeting on the law on what I call ‘the functioning of Ukrainian as the state language’, precisely on the day of the new Ukrainian president’s inauguration, has a specific reason. The Russian objective is to pursue its notorious policy of intimidation against Ukraine again. We therefore welcome the decision of the majority of member states not to support this Russian proposal. The law on ‘the functioning of Ukrainian as the state language’ does not need the immediate attention of the Security Council which clearly needs to focus on its core mandate – the maintenance of international peace and security – and matters where we urgently need progress, instead of taking up the internal affairs of a sovereign UN member state without any discernible effects on peace and security in the region. […].”

The Security Council eventually held an open meeting on the new Ukrainian language law on 16 July 2019, the date the law entered into force. It also heard the briefers suggested by the Russian Federation. In her presentation to the Council, the UN Under-Secretary-General for Political and Peacebuilding Affairs stated that the new law had raised concerns both within and outside Ukraine and that it “still raises concerns”, especially with regard to minority rights.

During the meeting, the German representative did not address the substance of the language law but stated that:

“from our perspective, the adoption or the discussion of a language law does not really constitute a threat to peace and security and does not need to be discussed in the Security Council. I see a very positive shift in the position of Russia, which until now has always insisted that questions that are not directly related to peace and security or to human rights issues be discussed in Geneva. So we welcome that.”

Indeed, the Russian Federation has usually taken a rather restrictive view of what constitutes a threat to international peace and security and falls within the mandate of the Security Council. For example, Russia opposed the discussion of the human rights situation in North Korea on the ground that human rights issues did not fall within the mandate of the Security Council, which was the maintenance of international peace and security. By arguing that the Ukrainian language law belonged to the “internal affairs of a sovereign UN member state” which did “not really constitute a threat to peace and security” and thus did “not need to be discussed in the Security Council”, Germany hoisted Russia with its own petard. By doing so, however, it called into question its own long-standing position of a rather broad understanding of “international peace and security” and the Council’s mandate. Only on 14 June 2019, Germany had argued to keep the situation in Burundi on the agenda of the Security Council because the “domestic political crisis” in the country was unresolved, even though the Government of Burundi, as well as several Council members (including Russia), had pointed out that the security situation in the country was calm and stable and did not pose a threat to international peace and security. While highlighting the inconsistencies in Russia’s position may have given Germany a cheap victory, the inconsistency in its own argument has exposed Germany to accusations of “double standards”.

The status of the Russian language in Ukraine played an important factor both in the illegal Russian annexation of Crimea and the separatist conflict in the Donbas region of eastern Ukraine. The Ukrainian law largely banning the Russian language from public life was thus clearly a matter for the Security Council. Germany did not call this into question. The German representative expressly stated, “we were not against the agenda item, we just wanted to postpone it.” If that was the case, it would have been better to use a different argument, rather than to claim that the Ukrainian language law had no “discernible effects on peace and security in the region.”

Category: United Nations

DOI: 10.17176/20220627-172951-0

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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