Russia’s annexation of Crimea in 2014 was a watershed in international relations because with this act, Moscow challenged the post-Cold War international order. Yet what has been fascinating is that over the last few years, Russia’s President and Foreign Minister have repeatedly referred to ‘international law’ as one of Russia’s guiding foreign policy principles. This is awkward because in 2004 Russia had ratified a bilateral treaty with Ukraine — not to mention the 1994 Budapest Memorandum on Security Assurances (based on which Ukraine gave up its nuclear weapons and in return Russia participated in guaranteeing Ukraine’s territorial integrity along the Soviet-era borders).
So is the Kremlin’s talk of Russia’s support for ‘international law’ all empty or is there something perhaps less visible to the eye behind this claim? I would argue that major nations inside and outside the West to some extent understand international law differently from each other. Aspects such as how one’s civilization is constructed and how does the country do on the scale of democracy versus authoritarianism play a major role in its understanding and use of international law.
Regarding Russia’s re-conquest of Crimea, realists would of course argue that this is what Great Powers do – that they use the rhetoric of international law as fig leaf in their pursuit of power. Indeed, the idea of balance of power seems very prominent in Russia’s thinking on the United Nations, NATO, and international law.
In Russia’s case, one important aspect is that Russia imported the discourse of international law from Western Europe only in the 18th-19th centuries, i.e. several centuries later than international law came to be practiced and theorized in the West. International law came to Tsarist Russia to some extent as foreign language. Although Russian scholars and diplomats like Martens learned to speak this language well, it didn’t grow out naturally from Russia’s own domestic legal ideas and practices.
Furthermore, the whole Communist period (1917-1991) was a legal-normative turning of the back towards the West and ‘Europeanization’. Moscow insisted that it had created for Eastern Europe a unique ‘socialist international law’ which differed from international law of the capitalist West. Thus, Russia’s historical ambivalence regarding Europe and the West has had an impact on the country’s use of international law as (to some extent) a foreign language in which words hide and confuse as much as they reveal.
Moreover, a country’s approach to international law reflects its domestic concepts of law and the relationship between the government and the individual. If a country’s legal culture has been criticized as ‘nihilist’ by its own leaders, contradictions in its international legal arguments should not surprise us so much. If law is a means rather than high societal value in itself, it is not so awkward to use contradicting arguments.
Compared to the West, anthropocentric liberal ideas haven’t until now become predominant in Russia. This also mirrors in the theory of international law. For example, the leading post-Soviet international law theoretician, Stanislav Chernichenko, rejects the idea that individuals could be subjects of international law besides the states, and propagates the theory of dualism that rejects direct applicability of international law. Russian experts writing on international law often distinguish between the Western and the Russian doctrines assuming that these might be different to some extent.
The main difference between Russian and Western approaches to international law is an axiological one; it concerns the question of which values in international order are prioritized and which ones are secondary. In Russia, ideas emphasizing state sovereignty rather than human rights, not to speak of democracy, are constantly reflected in the state practice. Russia’s record in the European Court of Human Rights has clearly been among the weakest, and more importantly, problems have been of a systemic, not accidental nature. But Russia has also been an under-performer in international investment law because it has rejected the idea that the capital recipient state and the foreign investor might settle their dispute in binding investor-state arbitration – a practice that has become standard in the West.
Perhaps the broadest and most fascinating dynamic in Russia’s recent use of the language of international law has been the idea that it represents a distinct ‘civilization’ and thus no longer is part of ‘Europe’. References to Russia as unique (and, of course, non-Western) ‘civilization’ have penetrated international legal rhetoric and theory in the country.
Altogether, the West has made a mistake over the last decade of failing to pay enough attention to what the Russians thought about international law and order. Moreover, the West wasn’t concerned enough about the potential precedent value of the use of military force against Yugoslavia (1999) and Iraq (2003); Moscow in turn has used these conflicts as a pretext for using military force itself.
The general ramifications in public international law has put the whole UN system in serious turmoil. A lot is at stake. In order to make realistic policy choices regarding challengers to international law (like Russia), a sense of from where all major players historically and normatively come is urgently needed. Perhaps then it will be possible to take other nations outside the West in the way that they actually are, not how we would like them to be.
Header image: Russian Honor Guard. Public Domain via Pixabay.