"The primordial interest of the United States [...] has been the relationship between Germany and Russia because united they are the only force that could threaten us, and to make sure that doesn't happen" is an assessment by American scholar and geopolitics expert George Friedman in 2015. While the quote, marked by a certain martiality and drasticness, sparked numerous conspiracy theories, it is hard to argue that the transatlantic partnership between the two NATO members Germany and the United States of America does not bear significance for the US American geopolitical power and that a shift in alliances towards a German-Russian partnership would be detrimental to the American geo strategic sphere of influence.
It comes to no surprise under these conditions, that the USA has been highly critical of the Nord Stream 2 pipeline cooperation between Russia and Germany. In the last decade, European-American relations had already taken a heavy toll after the election of Donald "America First!" Trump and the subsequent failure of the Transatlantic Trade and Investment Partnership ("TTIP") agreement. The final realization of the Nord Stream 2 partnership between Germany and Russia furthers this disruption of the historical bond at an unfortunate time: The world is still at the beginning of the more cooperation-oriented Joe Biden's presidency, whose inauguration had sparked hope around the world that a restoration of the bygone era of transatlantic was imminent.
Instead, the world is facing animosity and even the threatening of sanctions by the United States against a state that, ever since the end of World War 2, was considered one of its most loyal allies. While it is clear that such sanctions would be a breach of the previously established relationship between the two states, it is up for debate if international law even allows the USA to enact measures of this severity. In the following I will illustrate the requirements of sanctions under international law, assess the United States' perspective on enacting them, and come to a conclusion as to whether the USA has the right to sanction the Nord Stream 2 project.
Sanctions under International Law
The International Law Commission ("ILC") classifies sanctions as "reactive measures applied by virtue of a decision taken by an international organization following a breach of an international obligation having serious consequences for the international community as a whole, and in particular for certain measures which the United Nations is empowered to adopt, under the system established by the Charter, with a view to the maintenance of international peace and security" and is thereby following a narrow definition of the term. A wider approach would more so include measures by states to the detriment of other states, that target a change in that state's behavior.
Therefore, key requirements that international law poses for international organizations as well as states are: A reactive measure, following a breach of an international obligation by the sanctioned state, which caused consequences of a certain sufficient severity to the international community. This measure must moreover be generally in line with the objective of maintaining international peace and security. In the event that no breach has preceded the sanction, states may still enact sanctions, as long as these are not infringing upon international law themselves. The ICJ has ruled in its "Nicaragua" advisory opinion that such a sanction would not in itself be a violation of the principle of non-intervention. However, a sanction that does pose an infringement of international law, would in this context need a legal justification to not constitute an unlawful intervention.
Grounds for justification may be contractual in nature, for example, Art. 41 UN-Charta, or be reactions to a violation of international obligations, in which case the international regime on state responsibility. provides the legal framework. Here, Art. 48 Articles on Responsibility of States for Internationally Wrongful Acts ("ARISWA") rules on which states may invoke state responsibility while Art. 54 ARISWA determines which states can take countermeasures, which must be "lawful." Regardless of the grounds of justification, the principle of proportionality, as well as the maintenance of peace and security, must be taken into account.
US Sanctions and Nord Stream 2
The USA, the largest military and economic power in the world uses its influence by sanctioning states around the world. States with US sanctions currently in place include North Korea, Russia, and many middle eastern states, but no Western European states.
This however could be changed since the inauguration of the Protecting Europe's Energy Security Act ("PEESA") and the Protecting Europe's Energy Security Clarification Act ("PEESCA"). These statutes allow for the USA to specifically sanction Russian energy pipelines in Europe. Legislators justify this by pointing to the increase in influence such pipelines give Russia by creating dependence in different states. In addition to these measures, the US Congress has just passed the Ukraine Security Partnership Act, which grants 300 million US dollars to Ukraine in its national security efforts against the Russian-supported Separatists. Thereby, the Biden administration is on the fence against Russian influence in Europe in a two-fold way.
Sanctions against Nord Stream 2 - Are they justified?
As displayed above, the grounds for any sanction must be a breach of an international obligation, that furthermore must have" serious consequences for the international community as a whole."
The first criterion is already a questionable point. Not only is there no obligation to Russia and Germany that directly prohibits cooperating on a pipeline, but even implicitly, international law is the law of relations between states and thereby generally encourages them to flourish. The USA might argue that the now greater influence of Russia in Germany could constitute a violation of the non-intervention principle, but as the Nord Stream 2 relationship is one Germany entered into consensually, this loss of independence comes at the free decision of a state, and, more importantly, at the sight of great advantage for the central European contract partner. The USA might furthermore argue that the Russian influence gained by Russia poses a violation by Germany of its "Responsibility to Protect" its citizens from infringements of their rights. This could lead to a right to sanction Germany through the law of State Responsibility. However, a Responsibility to Protect, which is already a shaky construct dogmatically, is not quite at risk here. The influence which Russia gains through Nord Stream 2 is insignificant compared to the cumulative financial and economic power of the German state, which, in the event of total failure would still be capable of protecting its citizens' basic needs. Therefore, a violation of an international obligation is already not posed in the current scenario.
Even if one assumed the position that Nord Stream 2 violates an international obligation, the consequences of this violation would still need to be "serious" for the "international community as a whole." This can be realized by the growing influence of Russia on the German economy, and the project's role in contributing to Russia's international policy, which includes violations of international law like its involvement in Ukraine or the annexation of Crimea. As for the first point, the consequences for the non-german international community are already marginal. And even within Germany, the market share of Nord Stream 2 energy is not decisive enough to even pose any consequence for the German people. Additionally, it is highly likely that the influence Russia did gain with the project will never be abused to even try to harm Germany and its people.
The second point is more abstract. While supporting a world power like Russia, in general, will always imply some effect on the international community, and Russia has used its influence in violation of international law in the past, it is highly questionable if the effect of this particular project is strong enough to even change Russia's policy towards a more contrarian course. If anything, a common economic endeavor will lead to a more amicable discourse between Russia and Germany, and in turn, western Europe.
And this factor cannot be left out of the equation. While Nord Stream 2 might have some negative consequences, its positive consequences for the international community are glaring. While the USA calls the pipeline a gain of influence on the Russian side, this relationship might more generously be described as the interlinking of the global economy as an instrument of diplomacy and peace. With the pipeline intact, both Germany and Russia win an incentive to not oppose each other in international policy, leading to a more consensus-oriented solution-finding. Therefore, while the negative outcomes of Nord Stream 2 are rather small, the project opens up an opportunity for more cooperation and consensus in continental Europe. Therefore, the consequences are mixed, but definitely not clearly disadvantageous for the international community.
For these reasons, the USA is generally not justified in enacting far-reaching sanctions against Nord Stream 2. They however retain the right to react within their discretion as a foreign state with measures that do not violate international law, such as travel bans. However, these sanctions must still be in accordance with the ILA's commitment to "peace and security". And in this light, the USA sanctioning a project with the potential to create and not endanger peace and security seem problematic, to say the least.
The USA should not sanction Nord Stream 2. While explained by American legislators with the growing influence of Russia, a state, that has not always respected its international obligations in the past, the sanctions are actually directed towards a project that is not only beneficial in an economic way but incentivizes cooperation and amicable solutions in the future.
All the while it is the USA furthering its influence in Ukraine, a state that has endured attempts of coercion by former US President Donald Trump in 2019. This shows that it is not a general idea of self-determination of peoples or security that drives the sanction policy of the United States of America. It is one state using its economic arsenal to strengthen its position in the game of global politics. It is more contrarian than peace-seeking and more "America First!" than in line with the principles of international law. Currently, yet another crisis surrounding the treatment of oppositional activist Alexey Navalny proves that the international community still has to improve the democracy and human rights situation all over the world. But this can be achieved only through careful peacebuilding and diplomacy, and not "America First!".
July 03, 2021