Nikolay Shevchenko is a Ph.D. student at Doshisha University in Japan, researching Russian foreign and security policy
Resume: Moscow’s recent bold foreign policy moves in Ukraine and Syria might have a significant impact on the future direction of international law.
Moscow’s recent bold foreign policy moves in Ukraine and Syria might have a significant impact on the future direction of international law.
Russia is becoming more active in the conduct of its foreign policy. Suffice it to point out that support of the Crimea referendum and the peninsula’s subsequent incorporation into Russia constituted an unprecedented foreign policy move.
Moscow also played an active role in negotiating the Minsk agreements aimed at finding a settlement for war-torn eastern Ukraine. Most recently, the Kremlin stepped up to take control of chaotic developments in the Middle East, sanctioning the country’s air and naval forces to conduct strikes against the Islamic State of Iraq and the Greater Syria (ISIS), while simultaneously working on a political settlement for the country.
Observed cumulatively, Russian latest foreign policy moves signify a willingness of its political elites to play a more proactive role in shaping both the country’s immediate surroundings and the international system. A period of a rather inactive foreign policy seems to be giving way to a transformed approach where initiative and assertiveness are its main characteristics.
If Moscow capitalizes on its recent proactive foreign policy moves and transforms them into a greater impact on the international system, it would inevitably exercise a broader influence over the theory and practice of international law since the origins of international law, based on custom and precedent, make it easily amendable to changes in international politics.
Moreover, if Moscow transforms the results of its foreign policy into greater influence at the United Nations, Russia may aim to impact the theory and practice of international law in ways worth anticipating. Below are three possible developments that might happen in the international law arena if Russia continues its current foreign policy trajectory.
A principal question of jurisprudence is why must individuals — or states for that matter — abide by law. Scholars fall into two camps over the question. “Naturalists” seek the authority of law in external sources collectively known as “natural law.”
An external source granting earthly law its authority was sought in morality by the ancient Greeks, divine religious authority by the Roman Empire, reason by Europe during the Enlightenment and Renaissance, and globally shared moral values in the modern world.
An alternative theory advocated by “positivists” ties the binding power of law to an existing authority that is willing and capable of enforcing it.
The difference between the two camps is a difference between utopians who see law as a guiding-star illuminating a way to a better society and realists who see it as a formal registration of existing power relations.
If Russia capitalizes on its expanding initiative on the global stage and drives the agenda in the realm of international law, the “positivist” attitude will prevail in theory and practice of international jurisprudence: International law will reflect existing power relations, moral incentives will cease to be a criteria for compliance, and, most significantly, enforcement mechanisms will receive much more scrupulous attention from lawmakers.
Although not entirely dismissive, Russian political elites are cautious of legalizing international norms and resolutions that contain no explicated implementation clauses. Russian envoys are reluctant to accept resolutions that set lofty moral standards for states but fail to design functional enforcement mechanisms.
For example, Moscow voted negatively on the U.N. Security Council resolution condemning genocide in Srebrenica during the Bosnian War, resolution condemning the government of Zimbabwe for human rights abuses and perennial violence, and numerous resolutions on Syria, all containing either no or insufficient provisions for their practical implementation.
Russia is notorious for its frequent vetoes in the U.N. Security Council — the sole international body that possesses legal authority to issue binding international legislation. However, when other ways of obstruction are exhausted, Russians resort to their veto power with no apparent hesitation. While Western diplomats portray Moscow’s frequent resorts to veto as a cause for chronic stalemates in the Security Council, Russians stick to their guns when it comes to passing aspirational resolutions that lack roadmaps for practical enforcement.
Russian Foreign Minister Sergey Lavrov thus commented on the subject: “The veto was introduced, again, by the American insistence to make sure that decisions to be taken which have direct influence on international peace and security, that these decisions are viable and implementable. It was clearly understood by those who wrote the UN Charter that if one of the great powers objects, then the decision would not really be made because it wouldn't work.”
In regard to international lawmaking, Russia does not see eye to eye with its Western partners because a majority of states on both sides of the Atlantic tacitly adopt the “naturalist” belief that countries must abide by international law merely because its authority rests on high moral standards shared by all representatives of humanity.
Political elites in Moscow understand that international law derived from the highest moral standards crumbles into pieces confronted with political reality, where brute power dictates its rules. In their judgment, an ability of states to create enforcement mechanisms and ensure those are being followed is why international law works.
This might not be the view shared by everyone, but Russia’s political elites are convinced that the authority of international law must be based upon willingness and capability of states to enforce international legislation.
Practically, if Russia drives international legislation in the future, there will be less global norms and resolutions adopted. At the same time, those adopted will prove more feasible and hence will constitute a much more workable international regime.
One may also assume that Russia is likely to push for new regional law enforcement mechanisms that would be responsible for implementing decisions adopted at the level of the U.N. Security Council. The Collective Security Treaty Organization (CSTO) with its rapid reaction force may constitute a template for other law enforcement structures spread throughout the globe but united at the level of the U.N. Security Council.
In jurisprudence, much depends on who is recognized as possessing legal rights and duties under international law. An answer to the question developed first in Europe of the 17th century, when the political architecture of European states absorbed preceding religious conflicts and turned religious violence into an institutionalized practice of war between European belligerents. Recognition conferred upon European monarchs by their peers not only gave birth to the law of war as we know it today, but also moved the sovereign state to the center of international jurisprudence.
A major shift to this state of affairs occurred when the Minority Treaties entered into force as a result the Paris Peace Conference in 1919. A collection of the League’s mandates, bilateral treaties, and unilateral declarations, the Minority Treaties pierced the untouchable institution of sovereignty and allowed issues related to minorities and human rights to be brought to an international authority represented by the League of Nations.
Soon thereafter the world witnessed the emergence of international humanitarian law, such principles as human security and the Responsibility to Protect, various human rights regimes, and the UN conventions against genocide and torture. Individuals challenged the monopoly of sovereign states in international law by acquiring a legal status of their own.
Today, a number of international norms blur the distinction between individuals and states as subjects of law, thus causing profound disagreements about what a certain norm actually prescribes.
The concept of Human Security provides a useful example. Introduced in 1994 in the United Nations Development Program’s Human Development Report, the concept reconfigured classic categories of security thinking and introduced individuals into analysis of (in)security matters. The concept triggered a number of subsequent reports and norms issued at the UN level.
Collectively, this paperwork constitutes an attempt to transform the international system from a society of states to a society of individuals, according to Joseph Nye’s Understanding International Conflicts: An Introduction to Theory and History.
In case Russia is in a position to set the agenda in international law, it will try to restore sovereign states to the center of international jurisprudence and to halt the penetration of individuals into international legislation.
While Russia is not against acknowledging the importance of individuals per se, Moscow considers sovereign political institutions, not international norms shattering state sovereignty, as the only way to create a workable legal humanitarian regime.
On May 7, 2012, Vladimir Putin signed a demonstrative decree, “On measures for implementing foreign policy course.” In fact, he ordered Russia's Foreign Ministry “to conduct active work in the sphere of human rights protection, [but also] to counter attempts to use human rights conceptions as an instrument of political pressure and interference into internal affairs of states.”
Since eventual implementation is a major criteria Russia uses to evaluate usefulness of global norms, all provisions of international law initiated by Moscow are likely to be anchored to entities that are able to ensure their enforcement, i.e. sovereign governments. As a result, the global legal regime will focus on channeling rights to individuals solely via respective governments, while the practice of addressing individuals directly from the global stage while bypassing governmental institutions will cease.
An ongoing debate in international jurisprudence is whether international lawyers should be dispassionate interpreters of existing body of rules that constitute international law or whether they should issue politically oriented verdicts that are based upon judges’ vision of moral and political factors involved in a case at hand. The latter schools of thought envisions international lawyers as practical lawmakers, the former sees them as impartial interpreters of existing rules.
When moral concerns penetrate legal considerations, champions of the “policy-oriented jurisprudence” portray the end result as a creative contribution to international law. A foreign policy move previously unacceptable in existing international environment becomes an established legal practice of clear origins.
NATO’s bombardment of Yugoslavia in 1999 is one of the most recent examples of such an approach: The military campaign executed without the sanction of the UN Security Council constituted a violation of international law; nonetheless, branded as a fight for justice against genocide, the campaign acquired a degree of moral justification in minds of its supporters and allowed them to overlook an apparent violation of the legal code.
Appealing to a number of loopholes, the International Court of Justice did not issue an injunction to the NATO states bombing Yugoslavia, thereby virtually permitting them to set a precedent in international law. After a number of reoccurrences, the practice of humanitarian intervention gained substantial ground in international jurisprudence and transformed into an elaborate “Responsibility to Protect” norm in 2005.
By now it’s so thoroughly settled in international law that even Russia, a zealous adversary of the practice, appealed to it during its conflict with Georgia in 2008. What yet in 1999 constituted a crooked twist of international law gave an impetus to its “dynamic” development fully realized only several years later.
Russia remains suspicious of any dynamic development of international law that has not yet been formally registered with existing international legal institutions.
Speaking at the 67th Session of the U.N. General Assembly, Foreign Minister Lavrov thus commented on the Russian position towards the development of international law:
“No doubt, the legal norms in international affairs will be further adjusted as necessary. But these transformations should be treated with utmost responsibility and full realization of serious risks associated with them. Only consensus can be the criterion for their adoption. Violations of international law should not be portrayed as their ‘creative development.’”
It’s safe to assume that if Moscow gains more power on the international stage, it will not skimp on its efforts to suppress attempts of other states to add to the existing body of rules in a “creative” manner.
Most likely, the UN Security Council will remain the only institution responsible for global legislation in a static and rigid manner, while the number of instances where moral considerations trigger actions beyond the scope of international law will decrease.
International law is an ambiguous subject provoking debates among scholars and practitioners alike. Still there are no authoritative answers to such questions as: "Why must states abide by international law?” or “Who must be its primary subject?” or “Should legality be stripped of moral and political concerns?”
Nevertheless, discourse of Russian political elites and their moves on the international stage make it possible to grasp the Russian stance towards international jurisprudence.
Assuming that Russia is able to transform its recent foreign policy moves into a greater influence over both international law based on custom and law-making institutions, certain developments are likely to occur: There will be fewer international norms adopted; enforcement of existing global norms will be observed fervently; and structures enforcing mandates of the UN Security Council will spring forth in various regions.
In addition, legal rights granted to individuals will be channeled only via respective governments; development of international law will become more rigid due to removal of moral concerns from legal practices; and, finally, instances of unlawful but morally justified actions will almost certainly cease on the international stage.