The current geopolitical and military troubles between the West and the Russian Federation are simultaneously also international legal troubles.
One of the interesting aspects of the Western sanctions against Russia since 2014 has been that Moscow has criticized them as ‘illegal’. There are two elements in Moscow’s unexpected argument. On the one hand, Moscow denies any wrongdoing, from international legal perspective, in Ukraine. For most Western observers, the 2014 Russian military intervention in Crimea is an indisputable fact but it also remains a fact that in the context of international law, the Russian government denies any wrongdoing. Perhaps this much can be expected because governments who undertake these kinds of steps as Russia has carried out in Ukraine since 2014 are typically not eager to admit to their wrongdoings. Rather, they wait and see whether they can get away with them.
Furthermore, on a more principled level, the Russian government has advanced the argument that only the UN Security Council can decide on sanctions, and if it has not done so, any sanctions adopted would, by definition, be unilateral and illegal. However, to accept this argument would imply that there could never be legally adopted sanctions against a permanent member of the UN Security Council since their veto power would make sure that there could never be a collective decision of the SC (no one state can reasonably be expected to harm oneself, criticize oneself as ‘aggressor’, etc.).
It is difficult to say how seriously Moscow takes its own arguments on the issue of sanctions. It can also be that their main purpose is to confuse and distract the attention – let’s not discuss the illegality of Russia’s actions in Ukraine, let’s rather discuss the illegality of Western sanctions.
From the Western viewpoint, sanctions are legal and certainly legitimate countermeasures to the Russian military intervention against Ukraine, covered by the Articles on State Responsibility that were adopted in 2001. Moreover, the idea that UN Security Council members could in principle annex their neighbors’ territory with impunity – because they could by definition not commit aggression or no sanctions could legally be adopted against them – strikes one as utterly pre-modern, even slightly absurd, in the 21st century. The leadership and special rights of the UN SC permanent members must also imply their accountability; the P5 cannot be completely outside rules that international law stands for.
Thus, the paradox is that since 2014, Russia is two things at once: major violator of international law vis-s-vis Ukraine as well as still major stakeholder in international law, already since 1945. The Russian position reveals that global arrangements and consensus regarding international law, peace, and security are currently in a quite precarious position. The international legal order that the states agreed upon in 1945 when adopting the UN Charter, has been presented with a serious challenge. The USSR, the predecessor of the Russian Federation in the context of international law, was one of the architects of the legal order of 1945 and the arrangement with the veto power of permanent members of the Security Council has even been called the Yalta formula (since decided during the Yalta conference in Crimea in early 1945).
Moscow’s point on the ‘illegality’ of Western sanctions can also be seen as a tactical rhetorical maneuver in a much wider normative bid in which stakes are actually elsewhere. It is probable that Moscow would relatively easily abandon the argument of the ‘illegality’ of Western sanctions if her wider expectations regarding the future of international law would be met. Moscow’s broad normative goal is that the global international legal deal of 1945 would remain intact in its core elements, especially the part of the UN Security Council’s permanent members’ veto power. That much was already clear before 2014 when Moscow vocally criticized the West for Kosovo, Iraq, and Libya.
But the events in Ukraine since 2014 also reveal Moscow’s renewed claims for an extended sphere of influence. Moscow’s criticism that NATO should not extend to its borders is simultaneously a claim for a sphere of influence or at least military neutral zone. Needless to say, this view denies the right of immediate neighbors to make their own sovereign geopolitical choices – and in this sense, goes against the UN Charter principle of the sovereign equality of all states. Since 2014, Moscow has tried to undo and reverse certain elements of what was decided when the USSR disintegrated in 1991 and in the early 1990s, and to which Moscow earlier even if reluctantly acquiesced.
Thus, with Western sanctions and the policy of non-recognition of the Russian annexation of Crimea, much more is at stake than the fate of Ukraine. It is a protracted debate on how the future of international law, at least in Eastern Europe, will look like. Should the message prevail that it is possible to accomplish things and gain geopolitical advantage with military force and annexation, it would not mean the restoration of Moscow’s geopolitical position of 1945 as it may dream, but rather a weakening of the arrangement that the UN Charter has been.
Featured image credit: “Saint Petersburg” by IgorShubin. CC0 Public Domain via Pixabay.