Kosovo, South Ossetia, and Crimea: the Legal Rhetoric of Intervention, Recognition, and Annexation

by Chris Borgen

Following up on my previous post, I want to look at Russia’s rhetoric regarding Crimea and how it relates to its rhetoric regarding intervention and recognition in Kosovo and South Ossetia. While countries may use arguments that start to seem inconsistent, Russia’s use of “law talk” is especially striking because it uses legal rhetoric so often, even when it has rather weak arguments. While Russia deploys legal language, increasingly they are not the concepts of international law as generally accepted. Rather, Russia is building a revisionist conception of international law to serve its foreign policy needs regarding the states of the former Soviet Union.

But, first, let’s take a few steps back. For President Putin, the situation in Crimea has its roots in Kosovo. Kremlin watchers have argued that the loss of Kosovo was a traumatic experience for President Putin and Foreign Minister Sergei Lavrov. (For some background on the run-up to Kosovo’s declaring independence, please see this post.)

In his speech of March 18, President Putin revisited the disagreements Kosovo declaration of independence, even quoting the U.S.’s argument before the ICJ:

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote. They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

This idea that the residents of Crimea just want the same ability to become a country that those in Kosovo had is rhetorically appealing. (And keep in mind the combination of legal rhetoric with ethnic grievance in his quote, I want to come back to that.) But wanting to be a country does not mean you have the right to become a country. As discussed before, there is no general right to secession, regardless of referendum results.

However, there are many differences between the two cases: Kosovo had been under international administration for close to a decade, its final status was left open in the UN Security Council Resolutions, it was the site of significant ethnic violence. None of that is true in Crimea.

But what is especially interesting is how Russia has changed what it is describing as the lesson of Kosovo. In 2008, Russian Foreign Minister Lavrov called Kosovo’s potential separation from Serbia a “subversion of all the foundations of international law, . . . [a] subversion of those principles which, at huge effort, and at the cost of Europe’s pain, sacrifice and bloodletting have been earned and laid down as a basis of its existence.”

In his March 18 speech, though, President Putin took a different tack. While (Serbia’s) sovereignty and territorial integrity were the focus of Russian diplomacy concerning Kosovo, there is little talk now about protecting Ukraine’s sovereignty. Rather, President Putin spent the opening sections of his speech decrying the historical mistake of handing Crimea over to Ukraine “like a sack of potatoes.” And what of agreements, such as the Budapest Memorandum, recognizing the “existing borders of Ukraine,” respecting Ukraine’s territorial integrity, and reaffirming the obligation not to use or threaten to use force? President Putin explained “Russia seemed to have recognized Crimea as part of Ukraine, but there were no negotiations to limit borders.” (Emphasis added.) That is contradicted by the text they actually signed. What about sovereignty? “It is also obvious that there is no legitimate executive authority in Ukraine now, nobody to talk to.” (Perhaps he was confusing change of government with dissolution of a state.) And then “the residents of Crimea and Sevastopol turned to Russia for help in defending their rights and their lives…”

Once again, this is an argument based on irredentism and a sense that borders and sovereignty can become rather wispy and insubstantial when you hear the call of people of the same ethnicity or who speak the same language as you do. (Not necessarily the same citizenship, mind you: ethnicity and/or language.)

From here, he opens his view to the state of international law. Once again, a sense of grievance, but this time about NATO’s intervention and Kosovo, despite the lack of Security Council authorization:

We keep hearing from the United States and Western Europe that Kosovo is some special case. What makes it so special in the eyes of our colleagues?

After decrying the abuses of the U.S. and NATO in ignoring the UN, President Putin finds that:

Like a mirror, the situation in Ukraine reflects what is going on and what has been happening in the world over the past several decades. After the dissolution of bipolarity on the planet, we no longer have stability. Key international institutions are not getting any stronger; on the contrary, in many cases, they are sadly degrading. Our western partners, led by the United States of America, prefer not to be guided by international law in their practical policies, but by the rule of the gun. They have come to believe in their exclusivity and exceptionalism, that they can decide the destinies of the world, that only they can ever be right.

Similarly, the UN Press office summary of Ambassador Churkin’s remarks in the General Assembly debate on March 27th on the resolution against Russia’s annexation of Crimea are also silent on territorial integrity and sovereignty, but long on re-defining self-determination and addressing historical grievance :

Crimea had been reunified with the Russian Federation. “We call on everyone to respect that voluntary choice,” he said, adding that his Government could not refuse Crimeans their right to self-determination. Historical justice had been vindicated, he noted, recalling that for many years, Crimea had been part of the Russian Federation, sharing a common history, culture and people. An arbitrary decision in 1954 had transferred the region to the Ukrainian Republic, upsetting the natural state of affairs and cutting Crimea off from Russia.

Gone were the bright lines that Russia had said existed regarding Kosovo: that inasmuch as Serbia did not consent to an alteration of its territory and borders, there could be no legal recognition of Kosovar independence. Gone is the talk of obligations of non-recognition. Now we hear about returning things to their “natural state of affairs.” Natural to whom?

This reworked rhetoric is said to be quite popular in Russia and in ethnic Russian communities in other separatist regions, such as Transnistria.

But this shift in rhetoric did not suddenly happen due to Crimea. There was the Russian invasion of Georgia in 2008. Consider Foreign Minister Lavrov’s January 16, 2009 comments, which had to take into account both Russia’s position on Kosovo as well as Russia’s 2008 invasion of Georgia:

The year past was very complicated, at times dramatic, packed with major contradictory events which most gravely impacted the situation . . . [including] the unilateral—contrary to international law—recognition of Kosovo’s independence; and, of course, Georgia’s aggression against South Ossetia, which did not achieve its goals thanks only to the actions of Russia, which fully in line with our international obligations suppressed this illegal move.

[Russian Minister of Foreign Affairs Sergey Lavrov, Remarks and Response to Questions at Press Conference on 2008 Foreign Policy Outcomes at MFA, Ministry of Foreign Affairs of the Russian Federation (Jan 16, 2009)]

Russia constructed a justification based on self-defense and the defense of its co-nationals (an argument it would use again, at the beginning of its intervention in Crimea). And, it was an argument laced with a sense of grievance. Foreign Minister Lavrov, again from his 2009 statement:

We can’t understand why those who are talking about the responsibility to protect and about security of the person at every turn, forgot it when it came to the part of the former Soviet space where the authorities began to kill innocent people, appealing to sovereignty and territorial integrity. For us, the issue in South Ossetia was to protect our citizens directly on the borders of Russia, not in the Falkland Islands.

This idea of protecting Russians, who were once all part of the USSR but are now separated from Russia by these new boundaries since 1992 has become a recurring theme in Russian public diplomacy.

Gleb Pavlovsky, an former advisor President Putin had explained: “Russia is currently revising its policy in the post-Soviet space and the mechanisms of its implementation.” He stated that “any country [that would] promote the doctrine of Russia’s rollback will certainly create a conflict in relations with this country.” (As quoted in Graeme P. Herd, Moldova & the Dniestr Region: Contested Past, Frozen Present, Speculative Futures? Conflict Studies Research Centre, Defence Academy, UK, Central & Eastern Europe Series 05/07 at 14 (February 2005) available here.)

This may be rhetorically pleasing to some, but this is not the state of international law. Concern over the rights of people of the same ethnicity does not give a country a right to invade and dismember another country. And there is no right in international law to control spheres of influence over other sovereign states. (Although, Russia has denied that it is extending a sphere of influence.) You cannot unravel internationally recognized statehood with some vague references to your preferred historical “natural state of affairs.” To the contrary, international legal doctrines of sovereignty, effective dates of boundaries, and non-intervention deliberately do not give legal weight to such historical grievances because almost every country can point to some past wrong and some previous territorial distribution that they believe is more just. International law is not an invitation to troll through history and unilaterally change whatever territorial distribution you think is wrong.

Yet, even where Russia has an objectively weak legal argument, it nonetheless places the legal argument very near front-and-center. As a result of this, Russia, in terms of its public diplomacy, maintains a rhetoric that claims a concern for the norms of international law.

But it is actually a revisionist view of international law. It is skeptical not only of the U.S. and the EU, but of the current international system itself. It implicitly includes spheres of influence and broad rights of intervention. It speaks especially to the Russian minorities in the states that had formerly been in the USSR and to like-minded states that have been “outsiders” to the mainstream of international law. Russia has increased its use of international legal rhetoric because it is skeptical of political cooperation with the West and is defining its own set of rules for its “near abroad.”

The U.S., particularly under the Bush Administration, has been rightly criticized for avoiding discussing legal principles in relation to its actions. But, while Russia embraces “law talk,” its rhetoric is increasingly becoming an admixture of quasi-legal language, ethnic nationalism, territorial irredentism, and simmering grievance. A dangerous brew.

Even if Russia does not take one more meter of another country’s territory, the effects of its legal argumentation can be serious. The words of great powers are heard by all and perhaps have a disproportionate effect on the evolution of international law. Hopefully, these revisionist views will not.

http://opiniojuris.org/2014/04/02/kosovo-south-ossetia-crimea-legal-rhetoric-intervention-recognition-annexation/

3 Responses

  1. Setting forth a “conception of international law to serve its foreign policy needs” and that is not one that is “generally accepted”?  How shocking. 
    Perhaps Russia might consider using the Obama doctrine on self-defense, claiming (contrary to the text of UN art. 51 and generally accpeted meaning) that a state can engage in use of force in self-defense if there is merely an “imminent threat” of an armed attack, i.e., that there is not even a present threat, merely an alleged imminent threat (and not that the laughable Bush doctrine is met (i.e., that a “threat” to our security actually exists) or that there is an imminent attack (which might result in claims to engage in anticipatory self-defense)– see http://ssrn.com/abstract=2402414 ).  Could Russia benefit from use of such a U.S. claim?  Certainly not legally.

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