The Crimea, Compliance, and the Constraint of International Law

by Chris Borgen

[I ended my previous post stating that I would next consider the options available to Russia, Ukraine, the EU, and the U.S. But then this conversation started… I’ll come back to the “next steps” question in a following post.]

Julian, Eric Posner, and others look to Russia’s intervention in Ukraine and its takeover of Crimea and see the limits of international law.  But, even in this case, international law and legal rhetoric play a broader, and perhaps more subtle, role in foreign policy than being a brick wall blocking invading armies. (And nowadays brick walls don’t work too well, either.)

Yes, there are the ongoing difficulties of enforcement in a pluralist international community (and, as Peter notes, there are also significant enforcement and compliance problems in domestic societies). But international law and legal discourse also frame expectations and viable policy options in such a way that can have greater long-term constraints on state practice than may be appreciated by international legal skeptics. However, even for this constraint to work, there still needs to be political will to enforce legal rules. And here I think we are all in agreement.

As I mentioned in my previous post, and in various other posts, Russia (and states, in general) cloaks its actions in “law talk” to foster a reputations of being a lawful actor, even-or perhaps especially-when it is not. (Andrew Guzman has written extensively on the role of reputation as a prod towards compliance to international rules. See Andrew T. Guzman, ‘Reputation and International Law,’ 34 Ga J Intl & Comp L 379 (2006).)  How states and other actors use language—what are the bounds of “self-defense,” when may a state legally intervene, what is “self-determination,” and so on—plays an essential role in defining expectations of how states and others will act.  How they use these terms inform other actors as to which arguments may or may not be made legitimately.

This is especially powerful in international law. Regardless as to whether Russia (or any other state) uses legal rhetoric, but especially when it does, it becomes bound-up by the expectation of legal compliance in general.  Invoke the law, get bound by the law.

Yet, just as the lack of a single sovereign means that enforcement is difficult, the pluralist nature of international law means that in most cases there is no final interpreter of what law is. Moreso than the ICJ, the most important interpreters of international law are the states themselves. Their interpretations are in part based on their short-term interests, but also on their long term concerns. These interpretations, in turn, affect international relations. Politics affects international law, which then affects politics, and so on.

International law has thus become a consensual vocabulary and grammar for how states talk about international relations. In short, how we talk about terms like “self-defense” can affect legal substance of what “self-defense” is. Legal rhetoric can frame policy options.

While Eric and Julian focused on the inability of international law to stop Russia from sending troops into Crimea, it is important to keep in mind that the use of force issue is embedded in a much bigger dialogue about the future of Ukraine. It is an argument over self-determination: Ukraine’s and Crimea’s. It is also a dialogue over the relationship of states with different levels of power, of which military force is just one aspect of the power dynamic.

The language of international law can provide a vocabulary by which states and other actors may frame their arguments in an attempt to persuade other international actors. As it is a normative language, it is also provides a context against which arguments, claims, and positions may be assessed. Bargaining in the shadow of international law may make it more difficult to maintain positions that are clearly against the consensus of the international community.

And this is where Russia may find itself in a bind. If it tries to sit on a piece of Ukraine’s territory, it may find significant push-back from many states, going beyond those most directly involved in the Ukrainian crisis, because although many states may not have a geopolitical interest in the Crimea, many states do have an interest in how norms of military intervention and self-determination are interpreted.  Russia is embedded in international institutions; those institutions provide methods of response via economic and diplomatic sanctions. International law frames certain expectations of behavior; international institutions such as the G8, the UN, the WTO, the World Bank and the IMF provide options for enforcing those expectations.

And, no, this is not automatic, such sanctions are still dependent on the political will of states. But it is international law that contextualizes and frames that political will and gives a means of persuading other states to coordinate such responses due to a language that goes beyond immediate geopolitical self-interest and gives many states a stake in preserving community norms.

Because it has flouted those norms, the community will be less willing to “do business” with Russia.

International law does not erase military facts. It is exceedingly difficult to oust the Russian military from Crimea by force of arms.  But the expectations of international law can also make it exceedingly costly for Russia to try to maintain control over Crimea or eastern Ukraine.

We need to give international law a chance to work and recognize that sometimes its significant effects are in ways that are not immediately obvious.

In my next post, I will come back to the issue of international law and institutions and the strategic options of Russia and other actors at this point.

http://opiniojuris.org/2014/03/03/crimea-compliance-constraint-international-law/

8 Responses

  1. The UN Security Council Meeting was interesting in this regard today. Reportedly, the Russian Ambassador to the UN stated he received a letter from the former President of Ukraine dated 1 March requesting intervention of the Russian army in Ukraine. 
    It seems that the Russians believe they need to frame their own arguments regarding intervention with at least a fig leaf of international law. 
    Link below:
    http://news.yahoo.com/russia-yanukovich-asks-putin-russian-military-ukraine-211358499.html

  2. NL- Thanks for the link.

    So, assuming for the sake of argument that Yanukovich did ask for military intervention, we have the question of where is the actual government of Ukraine and the related legal issue of the recognition of governments.

    In a State Dept press conference on Friday, the spokesperson said:

    We are in the same place we have been in, which is that we don’t – we believe that Yanukovych has lost his legitimacy as he abdicated his responsibilities. As you know, he left Ukraine – or left Kyiv, and he has left a vacuum of leadership. So we continue to believe that he’s lost legitimacy and our focus remains on the path forward.

    http://www.state.gov/r/pa/prs/dpb/2014/02/222750.htm#UKRAINE

    I take that as an indication that the the US government would not take any further statements or actions by Yanukovich as being actions of the government of Ukraine, in part because the Yanukovich regime has fled and no longer has effective control of the country.

    (Russia, clearly, disagrees.)

    For about 40 years, the U.S. has moved away from focusing on the recognition of governments. It may or may not have diplomatic relations with various governments, but in most cases did not emphasize the recognition of a government.

    This issue came back up in Libya, though, and (although the language of recognition is being skirted) is at issue here, in relation to this supposed request for Russian intervention.

     

  3. I was thinking, in far less dramatic circumstances, of the Muslim Brotherhood’s brief to the ICC accepting jurisdiction of the Court as the legitimate government of Egypt that was covered here on Opinio Juris. 
    If I am not mistaken, the other issue is that there was a bill in the Ukrainian Parliament, which ousted Yanukovich. If that act was legal under domestic law, I wouldn’t see a reason a foreign government could simply ignore it.
    http://www.bbc.com/news/world-europe-26304842
     

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