Emerging Voices: Promoting Threat? Assessing the Role of the European Union as an Enforcer of International Law in the Ukrainian Crisis

by Alexandra Hofer

[Alexandra Hofer is a Doctoral Researcher at Ghent University, GRILI member. The topic addressed in this post is based on a paper entitled Promoting Threat: The Effect of European Union Restrictive Measures on the Development of International Law’s Enforcement, a Sociological Approach. All websites were last accessed on 5 July 2016.]

The starting point of this post is related to the renewal of the EU’s economic and sectorial sanctions against the Russian Federation for its destabilizing policies in Ukraine. These restrictive measures were first adopted in July 2014 in reaction to the events in east Ukraine. The measures restrict financial exchanges with Russia and exports of technology needed for oil exploitation and production; they impose an embargo on arms, dual-use goods and technology. They aim at pressuring Russia into using its influence on the Ukrainian separatists and to prevent the transfer of heavy arms across the Ukrainian border. Their objective is to impose costs on Russia for its illegal and destabilizing conduct in Ukraine. (For example, see this.)

Since 2014, renewals have taken place despite signs of sanctions fatigue as certain EU Member States have suggested reconsidering the sanctions against Russia, arguing that the restrictive measures have been ineffective against the Kremlin. (Examples include Greece, Italy, Cyprus and Hungary; French President Hollande). At present, the lifting of the European measures is dependent upon Russia’s implementation of its obligations under the Minsk Agreements and its contribution to the peaceful settlement of the dispute with Ukraine.

This post considers whether such restrictive measures are an effective means for the EU to resolve the Ukrainian crisis and enforce international law. In order for this to be the case, the measures need to be successful in convincing (or pressuring) Russia to change its policy in east Ukraine and cease its wrongful act. Although the effectiveness of sanctions is generally an issue addressed by political scientists, it is an equally important question for international lawyers who are interested in ensuring compliance with international legal obligations. Can sanctions such as those imposed by the EU change Russia’s behaviour? We are therefore interested in these measures’ coercive effect (see Francesco Giumelli ‘How EU sanctions work. A new narrative’ (2013) n° 129, 13 EUISS Chaillot Paper).

It is relatively safe to say that the EU uses its sanctions policy in order to play out its role as a civil and liberal power (see for example Barbara Delcourt ‘Au nom de quoi sanctionner et punir?’ (2015/1) nº97 Revue internationale et stratégique 79). Not only is the EU’s external action guided by the norms that contributed to its creation, which are ‘democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’, through its international relations the organization seeks to advance them in the wider world (as illustrated by the Treaty on European Union, Title 1, Article 3 and Title V, Chapter 1 ‘General Provisions on the Union’s External Action’, Article 21).

It is within the scope of this role that the EU adopts restrictive measures. Accordingly, through these measures the EU seeks to enforce compliance with one of the most fundamental rules of international law by pressuring Russia into changing its behavior towards Ukraine and complying with the Minsk Agreements. Notwithstanding the high structural costs of the sanctions to Russia’s economy and the negotiation of a ceasefire, it would appear that the sanctions have not encouraged Russia to change its policy in Ukraine but have instead been used to enforce anti-EU propaganda and have further alienated Russia from the EU, resulting in a stalemate between the two parties. Russian high-officials have stated that the sanctions against it are illegal and that they have contributed to souring relations between the EU and Russia, leading to a new Cold War (See these two statements: 1 and 2.) Tit-for-tat sanctions have followed as Russia has adopted its own measures against the EU. Finally, Russia has avoided isolation by forging new alliances.

Acts of aggression and the imposition of sanctions do not come about in a vacuum. Instead, they are the product of an interaction between agents whose respective identities and perceptions of a situation cause them to act in a certain way. From a sociological perspective, it would appear that the EU’s coercive measures have not encouraged the Kremlin to change its policy in Ukraine and cease its wrongful conduct. Taking into account constructivist notions of State identity and norms, the sanctions may have had the effect of encouraging Russia to further pursue its destabilizing, and illegal, policies in Ukraine. This is because the restrictive measures cause Russia to continue to view the EU as a threat. In as much as this perception of threat caused the Kremlin to pursue its destabilizing policy in the first place, the restrictive measures are not giving Russia incentive to change its behavior.

Indeed, as argued by Hopf in a recent article (Ted Hopf ‘”Crimea is ours”: a discursive history’ (2016) vol. 30(2) International Relations 227), Russian policies in the Ukraine can be understood as the result of Russia’s identity as, inter alia, a regional power that has historical and fraternal ties with Ukraine and its interpretation of Western policies coupled with the circumstances that arose in Ukraine. Russia may have felt threatened by NATO’s expansion and by Ukraine’s turn to the EU, which would have been perceived as the broadening of Western influence in Eastern Europe. Indeed, President Putin has expressed misgivings about the military alliance’s turn to Eastern Europe, which prevents the European continent from uniting and moving away from the Cold War mentality (see for example, 1 and 2); this concern has been expressed over the years, as illustrated by Putin’s speech at the Munich Security Conference in 2007. Under these circumstances, Russia reacted dominantly, or aggressively. When Russian officials state that the restrictive measures bring EU-Russian relations back to the Cold War, this is an indication that the sanctions contribute to the perception that the EU poses a threat. The Kremlin therefore continues its destabilizing policies in Ukraine because they are believed to be necessary to safeguard Russian interests and standing in the region. In a way, not complying with the EU’s demands become a value to the Russian Federation, who would have too much to lose if it were it to give into Western pressure (such as, for example, its standing as a regional power).

In conclusion, the argument here is that the restrictive measures have been counterproductive because they have contributed to promoting a situation of mutual distrust between the EU and the Russian Federation. Each actor continues to view the other as a threat and bases its response on this perception. This would mean that contrary to encouraging Russia to cease its policy in the Ukraine, the sanctions give Russia incentive to continue its actions in the region, which gives the EU incentive to pursue its sanctions policy, etc. Russia’s interpretation of Western powers’ policies in Ukraine and NATO’s expansion towards the East caused Russia to feel its fraternal ties with Ukraine were threatened and act aggressively. In response, the EU believes the norms it wants to defend in the ‘wider world’ are threatened and responds – with Kiev’s approval (see 1, 2, and 3)– by adopting coercive measures; this also allows the organization to fulfil its identity as a civil and liberal power that aims at promoting peaceful relations between States (see TEU, Title V, Chapter 1, Article 21(2)(c)). In the EU’s view, ‘it has a special responsibility for peace, stability and prosperity in Europe’ (see this statement). Instead of feeling the negative costs of its actions, the ban on exportations to Russia in technology is used as an opportunity to develop Russian industry and steps are being taken to substitute former EU and American agricultural imports (see here and here). Instead of being enforced, international law is continuously violated. The challenge is to free both parties from the deadlock. Unfortunately, this is unlikely to occur with the breaking down of communication, the pursuit of NATO operations in Eastern Europe and the continuation of the sanction tit-for-tat. Given this counterproductive outcome, the EU’s role as an enforcer of essential legal norms is being undermined. Nevertheless, as Wendt wrote: ‘if states find themselves in a self-help system, this is because their practices made it that way’ (Alexander Wendt ‘Anarchy is what States Make of it: The Social Construction of Power Politics’ (1992) 46:2 International Organization 391, 407). Hence, if the EU and Russia want out of the stalemate, they need to change their practices. The EU should focus on tools that promote dialogue and communication, which would bridge the gap and help Russia no longer perceive the EU as a threat. This may then have the effect of encouraging Russia to demilitarize in Ukraine.

http://opiniojuris.org/2016/08/01/promoting-threat-assessing-the-role-of-the-european-union-as-an-enforcer-of-international-law-in-the-ukrainian-crisis/

7 Responses

  1. Response… Surely, an Invader is beyond a threat?

  2. Thanks for an interesting post. I certainly agree with your premise that sanctions are intended to change Russia’s behaviour, if at all possible. But they also signal the EU’s disagreement with and condemnation of Russia’s conduct, which means that it is difficult to measure their ‘effectiveness’ solely by reference to observable changes in Russia’s policy.

    You also go one step further and suggest that the EU’s sanctions are not just ineffective but counterproductive because they deepen the confrontation. Yet is it not at least equally pernicious to be too nice to Russia in the circumstances?

  3. Thank you for your comments. Russia’s military intervention in Ukraine undoubtedly goes beyond a threat, yet the EU is not directly affected by it.

    Clearly, the sanctions can also aim at signaling that the EU disagrees with Russia’s intervention and that it stands for specific legal norms; they can also serve the purpose of constraining Russia’s military capabilities. Here I focus on their coercive objective as I am interested in how these measures can enforce international law, thus influencing a State to cease its wrongful behavior. If I argue that the sanctions may be ineffective in coercing Russia, I am aware that they may be successful in signaling or constraining.

    I don’t think the idea is that the EU should be ‘nice’ or ‘mean’ but the organization should adopt the most effective policy that would allow it to reach its goal, i.e. solving the Ukrainian crisis. The idea behind this post is to have a better idea of the impact the sanctions are having on Russia. If it is demonstrated that the chosen tool is having a counterproductive effect, then it may become desirable to opt for a more effective option. I think it would be worthwhile to explore alternatives. I argue in favor of dialogue as I believe the main issue is related to a breaking-down in communication and misperceptions on both sides; however this is only a suggestion and is up to negotiation.

  4. I would deeply disagree with you. The situation is not about a breakdown of communications. Russianis pursuing a strategy that it has had since mid-1990’s: Maintaining the Russian sphere of influence in the “Near-Abroad”.

    This purpose is in stark contrast with the values that EU is promoting. The “Near-Abroad” includes a number of EU member states, and EU supports, as an issue of ideology, the right of all nations to choose their allies and trade partners. Acknowledging that there be a Russian legitimate interest that supercedes these rights would be undermining the basic foundations of our Union.

    Thus, the conflict between EU and Russia is not a temporary misunderstanding but a permanent state of geopolitics. There is no common ground for building true cooperation. Any cooperation and dialogue that takes place is temporary, and done out of convenience and tactical reasons.

    Thus, we are locked in a permanent conflict with Russia. The EU aim should be to leverage the economic might of the Union so that we can force Russia to accept our position by overcoming it with economic pressure. Ideally, the bad state of the Russian economy will cause the country’s facist, oligarchic regime to collapse, paving way for democracy.

  5. Dear Lurker,

    I do not have the impression that there is that much of a disagreement between both our understandings of the situation; the disagreement seems to lie in how we move beyond the ‘permanent conflict’, or what I have called a stalemate.

    Though I did not go into in my post, I do recognize that the misunderstandings between the EU and Russia are not temporary but that they have been deeply ingrained over the past decades. I agree with what you say about geopolitics and contradicting European and Russian interests/values, but these are not set in stone. By choosing to study the situation from a sociological perspective I am suggesting that it is possible to move beyond the current stalemate; the conflict does not have to be permanent.

    I agree that the EU cannot accept Russia’s policy of influence in the ‘Near-Abroad’ because these fundamentally contradict the EU’s identity and the values it wants to promote. These values include promoting peaceful relations between States and – as I quoted above – contributing to peace, stability and prosperity in Europe. Against this background, adopting a policy that (although indirectly and unintentionally) could promote tensions with Russia would go against European values and if pursued could have the potential of causing further destabilization in Eastern Europe. It may therefore be in the EU’s interests to consider changing strategies in order to have a more positive influence on Russian policies.

  6. Thank you very much for your kind and well-thought answer. I also am very concerned of the situation. EU is, as you said, built on the ground for ensuring that a permanent peace remains in Europe.

    However, I fail to see why an appeasement strategy would be useful from.a sociological point of view. We have been engaging Russia in close cooperation via several initiatives funded by EU and member states (e.g. Northern Dimension). We have supported the Russians in coming to closer association with the Union.

    However, these measures have been fruitless. During this millenium, Russia has back-tracked in its progress. Now, it is a militaristic, autocratically governed state where state security murders opposition figures at open daylight, and people are imprisoned for giving tweets “thumbs-ups”.

    Considering that country is governed by a group of current and former security service officers, it unlikely that these people would consider a more friendly approach as an open invitation for more aggression. At least, that is how Russia reacted after the non-response to the Georgian War.

  7. In answer to your second paragraph, instead of putting cooperation with Russia to the side on the basis that it has failed in the past, it would be interesting to understand what went wrong in order to see how it could work in the present. We have no choice but to work with what we’ve got. It is in the interest of understanding how policies come to be possible and how others are discarded that I decided to adopt a sociological approach. If taking into account Russian identities and perceptions enables us to realize that the EU’s hard stance against Russia has not had the desire effect, and as I argue may even be counterproductive, then – although it may appear counterintuitive – appeasement becomes worthy of consideration. I do realize that this may be challenging as it causes us to question our own perceptions and understandings of the current state of affairs.

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