There are many causes of the current conflict in and around Ukraine. Due to the presence of all-pervading corruption that since 1991 has constantly increased from President to President, from administration to administration, and the absence of any meaningful efforts to bridge the potentially explosive historical, religious, ethnic and geographic divides of the country, Ukraine was on the edge of becoming a failed state even before it finally exploded on the Maidan. Neither the Ukrainian political elite nor those external actors, which have supported or continue to support the respective governments or oppositions, have ever acted in the best interests of the Ukrainian people as a whole.
Now, let us try to look at the developments in and around Ukraine through the prism of international law, which currently doesn’t work well as it’s turning into an instrument of political pursuits. Competing visions of the world are creating competing interpretations of international law and its à la carte application – bending and choosing whatever pleases one’s taste, i.e. vision of the world.
UKRAINE AND THE WEST
A short reference to a historic parallel may be appropriate. Ending his speech from the balcony of Montreal City Hall in July 1967 President de Gaulle of France became so carried away by the warm welcome by the Quebecois that he finished his speech by exclaiming: «Vive le Québec libre!» – the slogan used by the Quebecers who favoured Quebec sovereignty. Ottawa launched an official protest to the French Embassy and the relations between France and Canada remained strained for quite a while.
How minor looks this diplomatic incident in comparison with what was going on in the Maidan for many weeks, when it became a place of pilgrimage for U.S. and European officials coming to support Victor Yanukovich’s opponents.
When, after President Yanukovych’s U-turn on the Association Agreement with the EU, the mass protests in Kiev started (this would have been an internal matter for Ukraine), these were the representatives of Western states who completely ignored one of the cornerstone principles of international law – non-interference in the internal affairs of other states. Their ignorance of it was so natural that had somebody mentioned international law in the context of their speeches in support of the cause of the opposition or assistance promised to them by, for example, Senator John McCain or Assistant Secretary of State Victoria Nuland as well as by the host of officials from various EU member-states on the Maidan, they wouldn’t have probably even have understood the problem. However, such unconditional support of the opposition not only constituted a flagrant interference in the internal affairs of Ukraine but it also raised expectations and made uncompromising revolutionaries even more intransigent. Any compromises became impossible since revolutionaries believed, though their hopes of the scale of foreign support are usually misguided and exaggerated, that outsiders would do everything necessary for their cause to prevail. Therefore, any power-sharing deals, which are often the only way of avoiding conflicts in historically, ethnically and culturally divided societies similar to Ukraine, become impossible to achieve.
During the Cold War most experts and states at least paid lip service to the non-interference principle. When states intervened, as Washington and Moscow nevertheless did, and also in each other’s backyard, they usually did it surreptitiously, not proudly flouting their ignorance of or disrespect for international law. This in itself put some breaks to interventionist policies. Today, however, some politicians and experts consider this principle to be out-dated. If the world, as the Fukuyameans believe (notwithstanding that the author of the “end of history” doctrine has by now recognized its shortcomings), is indeed moving towards the worldwide triumph of liberal democracy, then the encouragement, assistance and support for those who undermine regimes that do not correspond to liberal-democratic standards is not an interference at all, since the only kind of interference is interference with the necessary and inevitable march of history.
However, there are at least two serious problems with such an approach. Firstly, long-term historical predictions have usually all been wrong and we really don’t know where world history leads us. No social, economic or political system has existed forever. There is nothing in the history of humankind that would indicate that liberal democracy and free market economy are exceptions to that. The Doubting Thomas may not be everybody’s hero but at least he seems to have been the world’s first social scientist. Secondly, if indeed liberal democracy were to be the Promised Land of quite a few societies that are not yet there, attempts to quicken its advance are wrought with serious conflicts and disturbances, including civil or even international wars. Instead of the expansion of liberal democracy the world may see its constriction. And though the observance of the non-interference principle may indeed help shield some dictators, this is a relatively small price to be paid.
Unfortunately, in the context of today’s geopolitical conflicts, legal arguments, due to such slight and even frivolous attitudes to international law give verbal ammunition to the current information warfare where the first victim, as always, has been the truth. Even in the West you have to be if not Henry Kissinger then at least John Mearsheimer to have one’s balanced views on matters of Ukraine expressed in the mainstream media. Only specialists read such quality sources such as Stratfor or The National Interest where in-depth analysis that goes beyond slogans and name-calling can be found. However, in general even Western media misinforms rather than informs the people about the developments in and around Ukraine. Western politicians, media and experts, accusing President Putin of living in an unreal world, also inhabit a world that is created by their own brainwashing system. Therefore, Henry Kissinger’s warning that “for the West, the demonization of Vladimir Putin is not a policy; it is an alibi for the absence of one” hits the nail on the head.
There has been already for some time a rather disturbing undermining of the principles of the non-use of force and non-interference in internal affairs of states. The latter principle seems to have altogether fallen into desuetude. Russia and the Western powers before the fall of President Yanukovych competed in a rush to intervene in Ukraine, reminiscent of the nineteenth century scramble for Africa by European empires. Don’t NATO countries understand that in a different context and in other places China, or Russia for that matter, may also resort to all the options if they are on the table? However, this is not the table of international law.
KOSOVO AND THE CRIMEA
The 16 March 2014 referendum on the status of the Crimea, the string of events that led to it, and the decisions of the Crimean and Moscow authorities that followed are all of doubtful legality. It is true that international law, though not encouraging secession (the right to self-determination and secession may overlap only partly), does not prohibit it either. In that respect the two referenda in Quebec and the forthcoming Scottish referendum indeed don’t violate international law (it deserves to be mentioned, however, that were third party states to recognize successful secessionist outcomes in such referenda before Canada or the United Kingdom had done, that would constitute interference in the latters’ domestic affairs).
In justifying its annexation of the Crimea, Moscow used the Kosovo precedent, which previously it had firmly (and justly) criticized as violating international law.
The recognition of the independence of Kosovo by the majority of Western states, notwithstanding a clause in all Security Council resolutions on Kosovo both before NATO’s invasion [Res. 1199 (23 September 1998), Res. 1203 (24 October 1998)] as well as after the invasion [Res. 1244 (10 June 1999)], emphasized the importance of guaranteeing the territorial integrity of Yugoslavia. For example, Resolution 1244 reaffirmed “the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2.”
The Advisory Opinion delivered by the International Court of Justice on 22nd July 2010 stating that Kosovo’s declaration of independence “did not violate general international law” (quoted by President Putin in his speech to the both Houses of the Russian Parliament on 18th of March), though formally correct, is anodyne in content, and potentially explosive in its consequences. The declaration of independence by Kosovo may not have indeed violated international law, but the fact that it became possible only as a result of NATO’s bombardment of Serbia adds credence to the idea that the declaration of independence of Kosovo is of doubtful legitimacy.
The referendum in the Crimea was also marred by the presence of the armed forces of the Russian Federation in the Crimea, even if we assume that only those forces that were stationed in Sebastopol in accordance with the Agreement between Russia and Ukraine were involved. One should only ask: would the 16 March referendum have been possible without Russian forces being in the Crimea (and not quietly sitting in their bases which would have been a necessary requirement if Russia indeed had done everything to avoid interference in Ukrainian affairs)? In the case of the no answer, and in my opinion this would be the only possible answer, Russia would be in breach of international law. Although there is no doubt that most Crimeans, like most citizens of Russia, welcome the reunification of the Crimea with Russia. In that respect this all may be even seen as legitimate, though contrary to international law.
Here too we see a clear parallel with NATO’s military intervention against Serbia over Kosovo in 1999 that the Report of the Independent International Commission on Kosovo headed by Judge Richard Goldstone defined “illegal but legitimate.” And, remarkably enough, Russia has also started to widely use the term ‘legitimacy’ instead of ‘legality.’ Legitimacy – a more illusive and subjective criterion than legality – is usually in the eye of the beholder.
Speaking of concrete legal norms breached by Russia I would, first, refer to the 1974 Definition of Aggression, which is also a part of customary international law. Article 3 provides that “any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of Article 2, qualify as an act of aggression: … (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.”
It is obvious that Russian armed forces in the Crimea have been used in contravention of the Agreement. And the 16 March referendum in the Crimea is deficient from the point of view of international law not because it breaches the Constitution of Ukraine or that the principle of self-determination of peoples is less applicable in the Crimea than in Scotland or Quebec. Its illegality stems from the fact that the referendum in the Crimea was held in the context of the violation of the principle of non-use of force by Moscow (as was the bombardment of Serbia of Kosovo and the recognition of the latter’s independence). Even the genuineness of the desire of the absolute majority of the Crimeans expressed, inter alia, at the 16 March referendum, to join Russia, does not make it lawful. At best, it may be considered as legitimate. There is little doubt, however, that the Crimea will stay a part of the Russian Federation, whatever the legality, illegality or legitimacy of the process of its annexation.
Recognition by NATO and EU member states of the declaration of independence of Kosovo made it easier for the Kremlin to recognize the two Georgian breakaway provinces as independent states. This, together with other gung ho approaches to international law, contributed to the undermining of the foundations of the latter.
That NATO’s concern in 1999 was not the fate of the Kosovars but something else is by now well documented, though it is not easy to find such documents or their analysis in the mainstream Western media. For example, it seems to be a generally accepted assumption that it was President Miloševiс’s refusal to sign the so-called Rambouillet agreement presented by Washington that led to the war. However, as the former U.S. Secretary of State Henry Kissinger declared, “The Rambouillet text, which called on Serbia to admit NATO troops throughout Yugoslavia, was a provocation, an excuse to start bombing. Rambouillet is not a document that an angelic Serb could have accepted. It was a terrible diplomatic document that should never have been presented in that form.”
Similarly, Lord Gilbert stated in the House of Lords of the British Parliament: “I think the terms put to Miloševi? at Rambouillet were absolutely intolerable; how could he possibly accept them? It was quite deliberate.” One can only conclude that it was not so much the humanitarian concerns as the wider intransigence of President Miloševi? of Yugoslavia that was the main cause of NATO’s bombardment of the FRY in 1999. As John Norris, Strobe Talbott’s Director of Communications during the Kosovo crisis, wrote, “It was Yugoslavia’s resistance to the broader trends of political and economic reform – not the plight of Kosovar Albanians – that best explains NATO’s war. Miloševi? had been a burr in the side of the transatlantic community for so long that the United States felt that he would only respond to military pressure.”
SPHERES OF INFLUENCE
In geopolitical terms, Washington’s, and more generally but also less pointedly, Western support for so-called “color revolutions,” and the 2014 Western activities in and around Ukraine are a continuing exercise in the containment of Russia, i.e. the attempt to encircle Russia, wherever possible, by Washington’s allies. Of course, the U.S. may say, and this is not completely wrong either, that it is not about geopolitics but about freedoms, democracy and economic development. It is difficult, even impossible, to deny that the former Soviet allies in Eastern and Central Europe as well as the Baltic states are today freer and more prosperous than before. And closer ties between Ukraine and the rest of Europe would, in principle, be beneficial to it. However, Ukraine doesn’t have, in the foreseeable future, any realistic chances of becoming a EU member (it may indeed sign only a political part of the association agreement).
Washington’s policies vis-à-vis Ukraine are less about democracy and freedoms, if they are about it at all. Washington has overthrown or helped overthrow democratically elected governments (Iran in 1953, Guatemala in 1954, Chile in 1973 to name but the few) and today it is closely allied with some of the worst autocracies (e.g., the Gulf monarchies). This is not to say that the U.S. has never or nowhere contributed to the advance of democracy and human rights. It has done also that but this has always been secondary or collateral to its geopolitical calculations.
Ukraine under President Yushchenko, like Georgia under Saakashvili, was about to sign with NATO a Membership Action Plan (MAP) that would have led to the full membership. NATO, in contradistinction to the EU, is a geopolitical and military alliance and its movement closer to Russian borders serves geopolitical aims. George Friedman writes: “There are those in the West who dismiss Russia’s fears as archaic. No one wishes to invade Russia, and no one can invade Russia. Such views appear sophisticated but are in fact simplistic. Intent means relatively little in terms of assessing threats. They can change very fast. So too can capabilities.” Things that don’t change as fast as intents and even capabilities are geography and geopolitics. They are relative constants of world politics and therefore Russia is certainly worried by NATO’s advance.
And Moscow is responding. In 2008 it did that in Georgia and now in Ukraine. This is in concreto. But in grosso modo Russia is responding to the encroachment of the United States and its NATO allies closer and closer to the Russian borders. As John Mearsheimer writes of the Ukrainian crisis, “Washington played a key role in precipitating this dangerous situation, and Mr. Putin’s behavior is motivated by the same geopolitical considerations that influence all great powers, including the United States.” And Russia, in responding to Washington is also breaching various norms of international law, as we have shown above. In that respect, i.e. bending and breaching international law, Russia has had good teachers.
If in geopolitical terms Washington has mostly got away with violations of international law (though in the longer term such policies have undermined its principles, and we already see their boomeranging effects), Russia will almost certainly suffer. And the main reason, in my opinion, is that Moscow is showing its teeth too early. In that respect it should have learned from its bigger neighbor – China and especially from the advice given by Deng Xiaoping to his successors: “Observe developments soberly, maintain our position, meet challenges calmly, hide our capacities and bide our time, remain free of ambition, never claim leadership.” This would have meant: develop economy, fight corruption, take care of “soft power” and then gradually increase the military budget, if necessary.
At the same time, it is necessary to recognize that Moscow is not Beijing and that Russia is not used to measuring time in centuries. Moreover, differently from China, which started flexing muscles in an attempt to enlarge its spheres of “vital interests” (a respectable term used by Washington when talking, e.g., about the Middle East or host of other regions), Moscow has had to struggle against the constriction of its spheres of “vital interests” close to its borders. Not responding now would have meant that later it would have been more difficult, if not impossible, to regain lost ground.
The truth is that nations react differently to attempts to “civilize” them, to induce them to correspond to a dominant trend. Quite a few would happily follow the lead, others do it grudgingly, but some others become prickly. One could have hardly expected from Russia to exercise the politics of bandwagoning that many smaller states have happily (or not so happily) done and continue doing today.
Vladimir Putin in his 2012 pre-election article wrote: “Russia has practically always had the privilege of pursuing an independent foreign policy and this is how it will be in the future.” The truth of the matter is that Russia is too big to be led by any outside power. This has to be understood; otherwise there would be constant misperceptions and conflicts. British expert Richard Sakwa already some years ago wrote: “The international system today does not have a mechanism for integrating rising great powers. This applies to China, as well as to Russia and some other countries.”
ORDER AND LAW
As the World Oceans are reflected in a drop of water, the scramble for Ukraine reflects a clash of competing visions for the future of the world.
On the one hand, there is a desire to force humankind to move towards a unipolar (or non-polar) world system ruled from one center (Washington, with the supporting role of Brussels). This path is expected to lead, through a string of regime changes, to a worldwide triumph of liberal democracy at “the end of history.”
Opposing this trend is the struggle of others to have a multipolar world where regional powers have their own respective spheres of influence, and the world order results from a kind of world concert somewhat similar to the nineteenth century post-Napoleonic “Concert of Europe,” which indeed guaranteed the longest peaceful period in the history of the continent (1815-1914). Naturally, there are various other players who like neither of these competing claims. Quite a significant number of smaller states (I would call them “anarchophiles”) fiercely protect their independence while some stateless nations try to achieve their statehood (like Catalonia, Quebec, Scotland, and the host of others) using the Kosovo and Crimean cases as precedents, while there are also “spoilers” who would prefer a world disorder to any existing or potential order to “fish in the muddy waters,” as a Russian proverb says.
In my opinion, the future of international law in its most sensitive and politically loaded areas (it works and hopefully will continue to do so relatively well on matters less sensitive and more technical) would depend on which kind of the two above-mentioned visions of the international system prevails. Will we have international law, i.e. law that is inter-state on its basic assumptions and characteristics, or do we have a kind of worldwide EU law, i.e. supra-national world law corresponding to a unipolar world?
One of the 20th century’s greatest legal minds, Wolfgang Friedmann of Columbia University, predicted as long ago as in the 1960s a trend towards the development of two strands in international law – the law of coexistence and the law of cooperation. If the first corresponds to the traditional inter-state international society where states, their sovereignty and independence from outside interference prime, while the latter would correspond more to, what Friedmann believed to be, an emerging world society where not only or not even so much states but also individuals with their rights and various other entities, including supranational ones, would be influential actors.
Since then the development of international law has indeed bifurcated. In Europe, instead of international law we have the EU law. And human rights are not any more, and not only in Europe but worldwide, a matter exclusively within states’ domestic jurisdiction; we have even international criminal courts and tribunals, though their functioning so far has also shown that mechanisms that work rather well within states have relatively limited, sometimes even distorted, effects when transplanted into the domain of international relations.
We live in a world that has become Lockean in some places (Europe) but remains Hobbesian in many other regions, or as Victoria Nuland’s husband Robert Kagan wrote, “Americans are from Mars, Europeans are from Venus.” If in Europe indeed the law of cooperation, even supranational law, has emerged, in the wider – Hobbesian – world where men from Mars act, the world still needs stricter observance of the law of coexistence. Otherwise this world would become even more Hobbesian where life, at least for many, would be even more “solitary, poor, nasty, brutish, and short.” For this kind of international law to work well one needs a kind of balance of power.
International law, especially in its most sensitive and politically loaded areas, doesn’t work well in a world with unipolar tendencies since in such a world international law (a result of bargaining and compromises) and its interpretation is dictated from a unipolar center. The world is not, if it ever will be (I doubt), ready for such an international system and consequently also for a world law. The world is simply too big, complex and diverse for that. Its rich tapestry cannot be flattened into a carpet where one pattern, be it of a Judeo-Christian, Anglo-Saxon, Confucian, Muslim or even secular liberal-democratic pattern. Therefore, the international law of coexistence, with its principles of non-use of force and non-interference in internal affairs, has to tame the Hobbesian world cautiously, helping it to move towards a Lockean one. Or maybe Confucian, who knows.