05.09.2009
Towards Legal Universalism
№3 2009 July/September

Russian President Dmitry Medvedev made a proposal in June 2008
in Berlin to organize a conference on a new European security
treaty. The key ideas of this initiative clearly reflected the
principles that govern Russia’s position on the international stage
as formulated in Russia’s National Security Concept and confirmed
by the president. These principles include: commitment to the
peaceful resolution of disputes; the use of force as a last resort
and as permitted by international law; and the commitment to bring
international disputes in line with uniform legal norms.

The very idea of reviving the intergovernmental dialogue on
security in Europe reflects the legal universalism of Russian
politics that has been characteristic of this country throughout
almost all of its history since Peter the Great and that is typical
of Medvedev’s political style. Russia has long been critical of the
so-called double standards in international politics. Such
standards occur when, for one reason or another, a concert of great
powers denies one nation the rights that are granted to others. The
Russian idea of “pan-Slavism” came about in protest against such
double standards; in the final period of its existence those behind
this ideology in tsarist Russia considered it necessary to apply
its principles to Poland, which had been divided by three empires.
Also, Russia has always sought to limit the use of force by great
powers; it conceived of legal foundations that would reduce
arbitrary decisions motivated by the self-interests of great powers
and their imposition on other states. The disarmament and
peace-keeping initiatives of Nicholas II in 1899 were a graphic
example of Russia’s efforts to expand legal norms in a sphere
hitherto governed by pure force. Such initiatives laid the
foundations for international legislation concerning the principles
of modern warfare. In this context Medvedev’s proposal is a
consistent attempt to restore Russia’s lead in asserting the
supremacy of law in international life.

THE MOTIVES BEHIND THE INITIATIVE: EXTERNAL FACTORS

Medvedev’s initiative rests on awareness about the incompetence
of the Organization for Security and Cooperation in Europe (OSCE),
an institution founded in 1975 within the framework of the Helsinki
Accords. This fundamental document was signed – along with European
countries – by the Soviet Union, Canada and the U.S. and fixed the
basic principles of peaceful coexistence in Europe, including the
inviolability of state borders and respect for uniform human
rights. It became a sort of a prototype of a hypothetical Greater
Europe – “from Vancouver to Vladivostok” – that would stand above
military blocs such as NATO and economic unions such as the EC,
which eventually transformed into the European Union.

However, the activities of the OSCE caused clear dissatisfaction
among Russian politicians for several reasons. First and foremost,
the OSCE turned out to be a weak and politically ineffective
organization that was deprived of any real mechanism for upholding
the principles fixed in the Helsinki Accords.

Second, in Russia’s opinion, OSCE representatives were too
preoccupied with the third – humanitarian – set of issues of the
Helsinki Accords, to the detriment of the first two, which
concerned military and economic security.

The third reason for Russia’s dissatisfaction with the OSCE came
from the previous one: contrary to the letter and spirit of the
Helsinki Accords, the borders of European countries continued to
change, and not always as a result of an agreement by the two sides
on a civilized separation, but rather due to support for the
demands of separatists. The national sovereignty of states and
their territorial integrity were thus no longer secured. The
graphic example is Yugoslavia, where the region of Kosovo was
practically sawn off by force and transformed into an independent
state.

Finally, since the end of the Cold War, Russia’s leaders have
openly accused the OSCE of partiality and of turning into an
instrument of control for the “victors” (that is, the countries of
the West) over the “losers” (Russia and its allies in Europe).
Russia came to the conclusion that, instead of counterbalancing the
“bloc mindset,” the OSCE in fact added to that same imbalanced
construction that took shape after 1991 – a world divided into
NATO, the EU and all the rest, with the OSCE virtually turning into
a kind of EU agency to deal with “the rest.”

If the rationale behind Medvedev’s initiative had boiled down
exclusively to Russia’s dissatisfaction with its position in
Europe, then we could expect that the EU would easily ignore both
Russia’s complaints and proposals. However, the point is that
Medvedev’s initiative is also based on recognizing the vacuum in
international law that Europe has found itself in since the
collapse of the Soviet Union and Yugoslavia. The most obvious signs
of this vacuum are the double standards used by Russia and Western
countries alike with regards to the so-called unrecognized states.
The year 2008, when Medvedev announced his initiative in Berlin,
saw the recognition of an independent Kosovo by a majority of
Western countries, as well as the recognition of an independent
South Ossetia and Abkhazia by Russia and a few other non-European
states. Meanwhile, the bases for the recognition in both cases were
actually the same: genocide by the ethnic majority against the
minority, acts of armed aggression, and the unwillingness of an
insurgent enclave to live in a single state with the nation that
had been subjecting it to mass slaughter. And yet the likelihood
that the EU will recognize the independence of the two Caucasian
republics is as difficult to imagine now as Russia recognizing the
independence of Kosovo.

There are no clear-cut legally-binding recommendations about how
international society and the OSCE should act in the event of, say,
Moldova’s attempting to take control of Transdniestria by force; or
in the event of an armed conflict between Greek Cypriots and the
Turkish Republic of Northern Cyprus. In the absence of a solution
to these fundamental issues international law hangs in mid air, for
it is unclear what it protects – the current state formation, the
tight ethnic community, or the rights of every single
individual.

Thus Medvedev’s initiative sets a wider range of international
relations issues – namely, the problem of state sovereignty and the
right to use force against sovereign states. With both Russia and
the West, the solution to these problems has often been affected by
political considerations. Experts would fiercely defend state
sovereignty whenever the threat to this sovereignty came from the
opposite side. And they would fiercely assert the need to
reconsider the principles of the Westphalian system when it was
their country or its allies that were behind the threat. For
example, the Bush administration’s decision in 2002 to intervene in
Iraq quickly activated the PR activities of a group of
neoconservatives, who insisted that defending all of the principles
of international law worked in the interests of “dictators” opposed
to “humanitarian intervention.” Earlier, during U.S. interference
in the conflict in Kosovo, the concept of “liberal imperialism”
became widespread in the U.S. and Europe. According to this
concept, imperial intervention in the affairs of “problem” Third
World countries should be an imperative for both the U.S. and an
expanding Europe.

In the same way, Russia’s intervention in Georgia was used as a
pretext for political conceptions that called for a revaluation of
the Westphalian model of state sovereignty. Several influential
experts began to say that the time of unconditional recognition of
sovereignty had come to an end and that Russia should finally adopt
the European approach towards national statehood and the priority
of the rights of ethnic and other minorities.

These ideas, as it happens, did not gain popularity in Russian
society, nor among the ruling class. In his speech on October 8,
2008 at the World Policy Conference in the French town of Evian,
Medvedev proposed five principles which Russia regards as
fundamental for the future security treaty. The first point that
would define international security was “respect for the
sovereignty, territorial integrity and political independence of
states; respect for all other principles, which follow from the UN
Charter.” In such a way, the Russian leadership defined its
principal view on not only security in the Euro-Atlantic region,
but also what it saw as an acceptable world order. In this world
order, the territorial sovereignty of nation-states should retain
the utmost importance.

It goes without saying that many Western experts saw Medvedev’s
initiative as the perfect chance to expose Russia as the only
guilty party to have broken the Helsinki Accords. Stephen
Sestanovich, a well-known American expert on Russia, said that
accepting Medvedev’s initiative would play into the hands of
Washington and its policy of containment towards Russia. He wrote
in the recent article What Has Moscow Done?: “It is not easy to
imagine a European security conference, now or in the future, in
which Russia would not be isolated due its own behavior. Would
anyone but Russia oppose the principle that all states are free to
join alliances of their own choosing?” (Foreign Affairs, Nov/Dec
2008).

Yet firmly insisting on the respect of the third principle put
forward by Medvedev would help avoid the conference turning into
yet another tribunal aimed at condemning Russian policies. This
principle suggests reducing the role of NATO and other blocs in
guaranteeing European security. According to the proposals put
forth by Russia, it is necessary to adhere to three “no’s”: not to
seek one’s own security at the expense of that of others; not to
allow actions by one or another military union or coalition that
would weaken the unity of the common security space; and not to
allow the expansion of military unions at the expense of the
security of other participants in the Agreement. Medvedev
emphasized the necessity of reiterating in the Agreement the idea
that no state (including Russia) and no international organization
may have the exclusive right to enforce peace and stability in
Europe. In other words, according to the president of the Russian
Federation, should both sides agree that the territory “from
Vancouver to Vladivostok” be free of military blocs (including both
NATO and the Collective Security Treaty Organization) capable of
using force in Europe without consulting with the other
participants in the proposed Agreement, Russia will not have to
fear the transformation of “Helsinki II” into a trivial
anti-Russian political instrument. Russia will also renounce the
right to unilateral action in Europe, provided a similar
renunciation comes from its European partners.

Finally, the least immediately pressing, but by no means the
least important aspect of Medvedev’s initiative, is the European
energy security issue. At the EU-Russia summit held in Khabarovsk
in May this year, the sides – following Russia’s proposal – again
addressed the question of signing the Agreement. This was
necessitated by the ineffectiveness of existing international
legislation in guaranteeing Europe’s energy security while taking
into account the interests of both energy producers and consumers.
The EU insisted – not for the first time – that Russia ratify the
Energy Charter, which would guarantee energy supplies to consumer
countries by producer countries. In Moscow’s opinion, European
energy security should be considered in a wider context,
reconciling the interests of all the participants in the deal.
Russia is concerned, above all, about persistent attempts by some
European countries to secure energy supplies for themselves in
bypass of Russia. It is also concerned about the unreliable
behavior of transit countries, which have been profiting from their
geographical situation. Therefore, Russia considers it necessary to
create a new document in addition to the Energy Charter. Here
Russia has again succeeded in gaining certain political advantages
by turning the discussion into the legal domain and by pointing out
that the solution to political disputes lies not in unilateral
actions, but in the confirmation of mutually acceptable norms.

INTERNAL FACTORS

After the break up of the Soviet Union and Russia’s realization
of her position as the “loser” in the Cold War, two “parties” – for
want of a better word – emerged in Russia’s social and political
space among intellectuals. Both “parties” tried to formulate a new
code of behavior for Russia in the “post-Malta world,” in which the
stakes were definitely made to her disadvantage.

The first “party” insisted that Russia adapt to the existing
world order in view of its pre-eminence, or considering – a more
frequent and easier to justify view – Russia’s own weakness. At
first, discussions would center on Russia’s acceptance of the legal
standards of the existing world order, but subsequently, after
Yugoslavia and Iraq, it became clear that those who considered
themselves to be the victors in the Cold War did not intend to
respect these standards themselves. At that point, the followers of
the adaptation concept had to choose between two options: either
demand – along with radical Westernizers – that Russia not only
accept a certain standard of political behavior on the
international stage, but also agree to recognize the right of
other, more powerful players to have their own personal “double
standards” (which meant that Russia agrees to accept Israel and
India into the club of nuclear powers yet exclude Iran, legalize
the independence of Kosovo, but refuse to recognize Transdniestria
and Nagorno-Karabakh, etc.), or, alternatively, they could take a
moral rigorist attitude towards their own country, and demand that
it act according to its own conscience (or rather, according to the
letter and spirit of international law), while ignoring the
behavior of others. While such an attitude may be very commendable
in private life, in state politics this rigorist moral stance
looked unconvincing, to say the least.

Staunch supporters of strong national statehood had a tough
response to the adaptation concept. They demanded that Russia
completely disregard international norms in planning its policies
and exclusively pursue its own national interest, or, more
precisely, national egoism. Consequently, since it is in Russia’s
interests to recognize South Ossetia and Abkhazia, it should
recognize them without regard for legal considerations, all the
more so that its Western partners are not acting any better
themselves. The supporters of this position often condemned
Russia’s foreign policy for its reactive “legitimism;” attempts to
respect the norms of international law even if doing so was of no
advantage to Russia. If the position of the first “party”
politically disorientated Russia, the second “party” was pushing
the country into an inevitable political deadlock. By
demonstratively rejecting any clear foreign policy motivations and
interests, Russia inadvertently facilitated a severe rebuff to her
actions by a coalition of powers that were equally uninterested in
strengthening Russia’s position as a revisionist power.

In some way, Medvedev’s Euro-Atlantic initiative disarmed the
internal conflict between these two equally ineffective Russian
foreign policy lines. It highlighted the need to work out a new
legal framework to resolve disputes in Greater Europe. Russia
refused to passively accept the rules that were widely used in the
world, and even more so to follow others in their double standards
that are essentially alien to Russia. At the same time, Russia
showed that using the current legal vacuum for its own self
interest is not a strategic priority. In doing so, Russia has
sketched out a new field in which political battles should be held
– new, adequate norms of intergovernmental interaction that agree
with 21st-century realities and form the basis of the legal order
in Greater Europe.