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Europe

Engaging the Writings of Martti Koskenniemi

by Duncan Hollis

MK2r_hollis (2)

Last Spring, Temple Law School was pleased to host a two day workshop on the scholarship of one of international law’s true giants – Martti Koskenniemi (simply put, I’m a big fan). Organized by my colleague, Jeff Dunoff, it was a great event with a wide-ranging conversation launching off Martti’s works in international legal theory, international legal history, fragmentation, interdisciplinary scholarship, ethics and the future of international law.  

Given how great the workshop was, I could not be more pleased to note that the accompanying papers have now been compiled and published in a single volume of the Temple International and Comparative Law Journal (vol. 27, no. 2). The full table of contents for the Symposium Issue can be found here

The papers include Jeff Dunoff’s framing introduction, a fascinating paper by Martti on the historiography of international law, and a slew of papers by renowned scholars, including Kim Scheppele, Tomer Broude, Sean Murphy, Mark Pollack, Rob Howse and Ruti Teitel, Samuel Moyn, Jan Klabbers, Andrew Lang and Susan Marks, Frédéric Mégret, and Ralf Michaels.  These papers address a number of themes that run through Koskenniemi’s work, including international law and empire; the fragmentation of international law; interdisciplinary approaches to international law; reading – and misreading – the tradition; and the international lawyer as ethical agent.  Both individually and collectively, the papers represent a significant effort to engage, explore, and extend the ideas found in Koskenniemi’s writings.

The special symposium issue is the first of what will be a tradition of yearly Symposia that will be organized by Temple faculty and published in the Journal.  As such, the Symposia marks a new form of collaboration between Temple faculty and students, and represent an experiment in academic publishing designed to provide students the experience of editing papers on cutting-edge research, and at the same time injecting faculty expertise into the selection and substantive editing of papers.

Guest Post: The Russia-Crimea Treaty

by Gregory H. Fox

[Gregory H. Fox is a Professor of Law and Director of the Program for International Legal Studies at Wayne State University Law School.  I would like to thank my colleague Brad Roth for helpful comments on a draft of this post.]

The latest development in Crimea’s headlong rush out of Ukraine is an agreement, signed on Sunday, March 16, between the Russian Federation and the Crimea. While I have not found a full translation of the agreement from Russian, the full text is available on the Kremlin website (as is President Putin’s extended response to western international legal arguments, which is well worth reading in full).

In rough translation, Article 1 of the treaty provides that the “Republic of Crimea is considered to be adopted in the Russian Federation from the date of signing of this Agreement.”  The incorporation is “based on the free and voluntary will of the peoples of the Crimea.”  Article 2 announces the formation of two new entities, the Republic of Crimea and the “federal city of Sevastopol.”  Article 5 provides that residents of Crimea will become Russian citizens, unless within one month they choose another nationality. Article 6 describes a seven month transition period during which the economic, financial, credit and legal systems in Crimea will be integrated into those of the Russian Federation.”

The agreement has been accurately described as completing the annexation of Crimea.  Territory that thirteen of fifteen Security Council members believe is still part of Ukraine has been transferred to Russian control.  Let me make three quick observations about this agreement.
(more…)

From Intervention to Recognition: Russia, Crimea, and Arguments over Recognizing Secessionist Entities

by Chris Borgen

In a matter of days, we have gone from talking about the illegality of Russia’s military intervention, to issues of the Crimean referendum, to Russia’s recognition of Crimea as a new state. While these events have moved quite rapidly, they are not really surprising: arguments over attempted secessions often shift from the question of the legality of the secession itself (about which, as discussed in a previous post, international law is largely silent; although it is generally understood that secession is not a right), to the question of the legality of the recognition of the secession. That is a subtly different question.

By recognizing Crimea, Russia is attempting to shift the discussion off of the issue of military intervention and also, by its recognition, “create facts on the ground” that will at least help Russia;s own negotiating position, if not lay the groundwork for Russia annexing Crimea (by having a Crimean “sovereign state” ask to join Russia). To assess how Russia is doing this, this post will consider the law of recognition and the following post will consider how Russia has used arguments about recognition in relation to Kosovo and South Ossetia in comparison to what it is doing today regarding Crimea.

For this post, the underlying question is whether Russia’s recognition of Crimea was possibly an illegal act.

First of all, what is “recognition?” There are actually different types of recognition: recognition of statehood, recognition of a government, and recognition of a belligerency, recognition of territorial change. For the moment, we are talking about whether Crimea can and should be recognized as a state. In the days to come, we may be talking about issues of recognizing territorial change, if Russia attempts to annex Crimea.

States tend to view the decision to recognize or not recognize an entity as a state as a political decision, albeit one that exists within an international legal framework. That legal framework is in part the rules of statehood. The standard view in international law is that a state must have (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter relations with other states.

While entities that claim statehood often try to do a quick “check the box” summary of these criteria and claim they have all the requirements of statehood, the actual assessment is meant to be more rigorous than a soundbite. For Crimea, the problems include that its territory is completely contested—this isn’t an issue of where the border between Crimea and Ukraine should be, this is a dispute over the whole of the territory of Crimea. Moreover, whether Crimea has a functional government or the capacity to enter into international relations are both very much in doubt: Crimea as a supposedly independent entity would not exist but for Russian military intervention. The control of Crimean territory seems to be more under the command of the Russian President than the Crimean authorities. If you don’t believe me, ask yourself what would happen if the Crimean “president” said he wanted all roads to Ukraine reopened and the Russian barriers taken down. Would his command be decisive? Or President Putin’s?

These criteria are meant to reflect the nuts and bolts of sovereignty: an ability to stand on your own feet, make decisions for yourself, and undertake international relations. Crimea seems less like a sovereign than a hothouse flower: alive due to extraordinary intervention, surviving due to conditions carefully controlled by others, and with little real say in its destiny.

What does the law of recognition have to say about such a case, when it is doubtful that Crimea even meets the basic requirements of statehood? Can Russia just recognize it anyway?…         (Continue Reading)

Ukraine Insta-Symposium: Potential Non-recognition of Crimea

by Anna Dolidze

[ Dr. Anna Dolidze is an Assistant Professor in the Faculty of Law, the University of Western Ontario.]

On Sunday the inhabitants of the Ukrainian Autonomous Republic of Crimea voted in a referendum on whether Crimea should become part of the Russian Federation or regain the status under the 1992 Constitution as part of Ukraine. A March 11, 2014 Declaration of Independence by the Parliament of the Autonomous Republic of Crimea preceded the referendum. The Declaration specifically referenced the International Court of Justice’s decision in relation to the status of Kosovo. According to the preliminary results published by the Crimean authorities about 95% of voters voted in favor of the union with Russia, while the overall turnout was 81.%.

While the results were celebrated in Simferopol, Russia’s President Vladimir Putin signed a decree recognizing Crimea’s independence. However, this post argues that the Crimean Republic might become subject to the doctrine of non-recognition. The initial evidence suggests that it might follow the footsteps of other self- declared independent entities, including Abkhazia, South Ossetia, and Turkish Republic of North Cyprus (TRNC) that have declared independence, yet failed to attain statehood partly due to the application of the doctrine.

As Thomas Grant explains in his book The Recognition of States, Law and Practice in Debate and Evolution recognition has served international society as a device by which to respond to changes in the world public order and the emergence of new states. In the process of the disintegration of the Union of the Soviet Socialist Republics (USSR) and the Federal Republic of Yugoslavia (FRY) the principles on recognition acquired renewed importance. Professor John Dugard points out that the recognition by other states remains important even to those who share prevalence of declaratory doctrine of recognition, which maintains that a political community that meets the requirements of statehood automatically qualifies as a “State” and that recognition by other states simply acknowledges “as a fact something which has hitherto been uncertain.” For example, although the Supreme Court of Canada, discussing the legality of possible secession by Quebec from Canada, adopted the declaratory theory of recognition, it emphasized “the viability of a would-be state in the international community depends, as a practical matter, upon recognition by other states.” Although recognition of states is primarily a bi-lateral affair, as Professor John Cerone notes, collective recognition or non-recognition by an overwhelming majority of states may impact the question of the existence of a state by influencing the application and appreciation of the Montevideo criteria on statehood.The admission to the United Nations and the European Union (the European Communities previously) has been acknowledged as a form of collective recognition that significantly influences the statehood status.

The recognition of Kosovo is an interesting example in this regard. It might be argued that the recognition of Kosovo bears the traits of collective recognition, but in fact it remains to be an individualized affair among states….(Continue Reading)

Ukraine Insta-Symposium: Intervention and Colonialism as Responses to Alleged Fascism

by Boris Mamlyuk

[Boris N. Mamlyuk, Ph.D., is an Assistant Professor of Law at the University of Memphis School of Law.]

Julian Ku makes an interesting observation regarding Russia’s fact-based arguments in support of Crimea, versus what most commentators see as a weak legal case for self-determination.  Over the past week, I’ve tried to offer several mapping exercises in order to explore the expanding range of international law arguments and potential violations.  The purpose was by no means to describe a “Russian point of view,” or to criticize U.S. international law commentators, of which I am one.  Rather, the attempt was to assume in good faith the factual assertions proposed by Russia in support of Crimean independence, and then to explore the ramifications of the current standoff from the perspective of international law. 

Russia’s mounting argument for humanitarian intervention beyond Crimea, in Eastern and Southern regions of Ukraine, needs to be scrutinized carefully.  Thus far, Russia seems to be merely reserving the right to intervene, and to my knowledge, the Russian government has not articulated a standard for humanitarian intervention in Ukraine, or a ‘red line’ that would trigger an R2P intervention.  Short of that, we can consider the most recent standard for humanitarian intervention, formulated in the UK’s guidance document on the proposed intervention in Syria.  According to this guidance document, humanitarian intervention is permissible where:

(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).  (emphasis added).

These elements fall far short of the R2P ‘three pillar’ approach, which includes an express responsibility to prevent humanitarian catastrophe.  The current situation in Ukraine, while fluid and dangerous, does not seem to have risen to the level of extreme humanitarian distress required for intervention.  What Russia seems to be doing, then, is positioning itself for an intervention in the event of further escalation of violence… (Continue Reading)

Is the Crimea Crisis a Factual or Legal Disagreement?

by Julian Ku

University of Memphis law professor Boris Mamlyuk criticizes most U.S. international law commentary on the Crimea/Ukraine crisis for failing to take seriously the Russian point of view. I’ve noticed several commenters here have also complained about our pro-Western bias.  Part of the problem is that there is a dearth of international law commentators writing in English in favor of the Russian legal position. Even Prof. Mamlyuk’s short essay doesn’t try to defend or explain Russia’s legal position, except to point out that Ukraine may have committed some minor violations of its own.  But let me try to at least explore Russia’s position in more detail. The best defense I can come up with is that Russia is arguing the “facts” and not the “law.”

During today’s Security Council debate, Russia’s UN Ambassador Vitaly Churkin appears to have given a fuller defense of Russia’s legal position, at least vis-a-vis the upcoming Crimea referendum.

“Some dispute the legality of such a referendum, but it is unacceptable to manipulate individual principles and norms of international law, randomly pulling them out of context not only of the international law, but the specific political circumstances and historical aspects,” Churkin said.

In each case, the envoy believes, one should “balance between the principles of territorial integrity and the right for self-determination.”

“It is clear that the implementation of the right of self-determination in the form of separation from the existing state is an extraordinary measure. In Crimea such a case apparently arose as a result of a legal vacuum, which emerged as a result of unconstitutional, violent coup d’état carried out in Kiev by radical nationalists, as well as direct threats by the latter to impose their order on the whole territory of Ukraine.”

I am pretty surprised that Russia is  endorsing this expansive view of self-determination, which I think could be fairly invoked by certain parts of Russia itself (Hello, Chechnya!).  But I suppose the dispute here with the West could be understood as factual rather than legal.  Most scholars would accept the idea that self-determination is appropriate in certain exceptional circumstances, such as decolonization or when facing the threat of genocide or other mass killings. No one west of the Ukraine border seems to think Crimea qualifies (except the good folks at RT) because none of us think that the new Ukrainian government has threatened Crimea in any tangible way.  But Russia could be understood to be arguing the facts (see, Crimea really is threatened by the fascists in Kiev) rather than the law.  I think it is a pretty ludicrous factual argument, but there it is.

Russia’s position on the use of military force is also factual rather than legal.  It argues that there are no Russian forces in Crimea other than the naval forces that are stationed there by treaty right. It simply denies that the forces in control in Crimea are official Russian troops.  This appears to be an even more ludicrous factual claim, but it also would mean that Russia accepts that open displays of military force would be a violation of the Charter.

Russia’s shift to factual rather than legal arguments is smart because it parries US and EU criticisms about the “violation of international law.”  It doesn’t rebut those charges terribly well, mind you, but perhaps the argument is just strong enough to convince those who want to find ways to accept the legality of Russia’s actions.

Ukraine Insta-Symposium: Crimea, Ukraine and Russia: Self-Determination, Intervention and International Law

by Kristin Hausler and Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law and Professor of International Law and Human Rights at the University of Nottingham.]

Our responses to what has been happening in Ukraine and the reactions of various governments, may depend on how we view the politics of the region and the moral claims being made. The rule of law is also of direct relevance, as ‘[we] believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos. The law is still the law, and we must follow it whether we like it or not.’ These words are those of President Putin, written a few months ago in order to prevent the US, UK and other governments from intervening in Syria. International law is crucial to the situation in the Ukraine. It is of particular relevance to the right of self-determination of the people of Crimea and whether Russia can lawfully intervene on the territory of Ukraine.

The right of self-determination, as enshrined in the UN Charter and international human rights treaties, enables a people to determine for themselves their political, economic, social and cultural status. It has been applied in recent years in the former Yugoslavia, East Timor and South Sudan.  It is certainly arguable that the people in the Crimea have a distinct identity and territory, created over centuries and fostered by decisions of the USSR, Russia and Ukraine. This includes its status as an autonomous region within the state of Ukraine and by specific agreements about it between Russia and Ukraine.  It is not unlawful for it to have a referendum and declare itself independent (or that it wishes to merge with Russia), as this was allowed by the International Court of Justice in its (poorly reasoned) advisory opinion on the declaration of independence by Kosovo.

However, such a declaration of independence or merging is not effective in international law by itself. There are two key factors that are relevant: the actions of the state within whose borders the people live; and the responses of the international community. (more…)

Does It Really Violate International Law for Crimea to Hold a Referendum on Secession?

by Julian Ku

I am looking forward to the contributions to our “insta-symposium” on Ukraine and international law. I don’t have a tremendous amount to add at this point, except to point out that President Obama has been aggressive about accusing Russia of violating international law and about the importance of international law generally.  This has gone beyond merely charging Russia with violation of the prohibitions on aggression and the use of force contained in the U.N. Charter.  In his statement today, he took aim at the proposed referendum in Crimea on joining Russia:

He also said that a proposed referendum in Ukraine’s Crimea region — one that, as proposed by proposed by pro-Russian Crimean lawmakers, would ask residents whether Crimea should be part of Ukraine or Russia — would “violate the Ukrainian constitution and violate international law.”

Any discussion about a referendum must include Ukraine’s legitimate government, Obama said. Washington considers Ukraine’s legitimate government to be the one installed by Parliament after last month’s ouster of President Viktor Yanukovych following months of protests.

Putting aside the Ukrainian law question, it is interesting that the U.S. government is specifically condemning the proposed referendum as a violation of international law.  Why exactly would the mere referendum (as opposed to the act of secession) violate international law?

I look forward to the views of our contributors and my fellow co-bloggers on this point, but on my first reading, the claim that the referendum would violate international law is undercut by the ICJ’s Advisory Opinion on Kosovo’s Declaration of Independence.  In that opinion, the ICJ found (among other things) that general international law does not prohibit unilateral declarations of independence. I don’t see how the proposed referendum is really any different from a unilateral declaration of independence, at least from the perspective of international law.  The authors of the “unilateral” declaration of independence did not consult Serbian authorities (much less get its consent). Like the declaration of independence, the referendum does not by itself “secede” Crimea from Ukraine under international law.  And unlike the declaration of independence, the referendum could find support (if other conditions are met) in the law of self-determination.

I am personally sympathetic to the Ukrainian government here. But I am not sure President Obama is right about this legal point, and even if he is, I am not sure the U.S. ought to be committing itself to the position that this referendum is illegal.   If there is a deal to be made here (as Henry Kissinger recommends here), this statement seems to make it harder to get to that deal.

I have one final thought on why this statement might make sense. There is one country who is probably more opposed to a referendum on secession than the U.S: that would be Russia, which can’t exactly be ready to endorse this possibility for Chechnya or other restive Russian regions. Nor are the Chinese going to be excited by this referendum (think what a referendum in Tibet or Xinjiang would look like).  The President may be counting on the Russians to put a stop to the referendum, and maybe this statement would help them do that.  I hope that is the strategy, anyway.

Who Speaks for Ukraine?

by Chris Borgen

[Expanding and moving this up from the comments section of my previous post.]

In a comment to the previous post, reader “Non liquet” noted that:

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.

“Non liquet” also linked to this Yahoo News article, which reported that:

“The country has plunged into chaos and anarchy,” Russian Ambassador Vitaly Churkin read from an unofficial translation of the letter while speaking to reporters after an emergency meeting of the U.N. Security Council. “The country is in the grip of outright terror and violence driven by the West.”

“People are persecuted on political and language grounds,” he read. “In this context, I appeal to the President of Russia Vladimir V. Putin to use the armed forces of the Russian Federation to re-establish the rule of law, peace, order, stability and to protect the people of Ukraine.”

“Non liquet” makes a good point that this is an attempt at a legal fig leaf: arguing that any Russian intervention is not an invasion, but rather a lawful response to a request for assistance by a  government.

But this is predicated on the idea that Yanukovich was empowered to ask for Russian assistance and military intervention. And thus we have the question of where is the actual government of Ukraine and the related legal issue of the recognition of governments.

In a U.S. State Department press conference this past 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.

I take that as an indication that the the U.S. 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… (Continue reading)

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… (Continue Reading)

Russia Reminds the World (and International Lawyers) of the Limits of International Law

by Julian Ku

I agree with Peter that the mere breach of the international law governing the use of force does not mean that all international law is useless and meaningless. But I don’t think Eric Posner’s pithy challenge to the international law academy on Ukraine can be so easily dismissed. International lawyers need, especially in this area, to provide a meaningful theory as to why international law affects state behavior, and why (as in this case) it seems to be having very little impact on Russia’s decision to use armed force in Ukraine.  Contra Peter, the fact that sometimes constitutional or corporate law rules are ignored or violated doesn’t really answer the question here.  When those norms are widely ignored (as with constitutional law rules in countries like China), then it is rational for actors in China to ignore those rules in most circumstances and most legal theorists would not call it “law” in any meaningful sense.

Which brings me to the Ukraine crisis.  I agree with Erik Voeten that international law and institutions will be helpful in other ways.  And I think Chris provides very helpful analysis of how international law can shape official state rhetoric.  But the fact remains that the international law restraining the use of armed force has utterly and completely failed to constrain Russia’s actions in  Ukraine.  This is more than simply adhering to the legislative veto. This is a body blow to a foundational piece of the international legal system.

In academic terms, the failure of the Charter  is evidence for both realists (who think international law never matters), but also for rational choice theorists like Posner, as to how international law really works.  Rational choice folks think that international law works best (in fact, works at all only) when states have a rational self-interest to cooperate around certain legal norms and institutions.  But where states no longer have such a rational self interest, states will depart from those legal norms.  Compliance with international law for the sake of complying with international law is naive and unrealistic.

The Russia-Ukraine crisis also impacts real-world policymaking. If international law, or at least the Charter’s rule on the use of force, is very weak or non-existent as a tool for restraining state action, then policymakers should not rely on the Charter rule as meaningful protection against aggression.
A strong military or a network of alliances would probably have been a better idea.  States must not overestimate the impact or force of this species of international law (as Ukraine’s new government seemed to do) when making decisions.  And states like the United States should be careful incorporating this rule into its domestic legal processes, or over-privileging its role in its own domestic public debate.

I may be biased as an American, but the U.S. has about the right balance on this. It does not ignore the Charter, but it does not treat the Charter as having too much independent significance except to the extent it affects the actions of other states (especially its allies).  The key thing to focus on in this crisis are the interests of the different states (and leading groups within states).  State interests are driving actions here, and the Charter violation seems to be doing almost now work.

The fact that the Charter is plainly being violated will not necessarily mean that Charter proponents like France and Germany will get tough with Russia (in fact, both are going the other way by opposing sanctions or any NATO consultations).  The fact that the Charter is plainly being violated will not mean China (another big Charter proponent) will do anything other than closely watch developments and urging “all sides to comply with international law” without naming any country.

International law can be, and often is, a very important tool for facilitating international and transnational cooperation.  But it is not doing much to resolve to Ukraine crisis, and international lawyers need to admit that.

Russia’s Intervention in Ukraine: Legal Rhetoric and Military Tactics

by Chris Borgen

Saturday began with reports that Russia had seemingly used private security contractors to take control of the airport in Simferopol, Crimea. Then reports (like this one from CNN) of President Putin requesting from Russia’s Parliament an authorization to use military force in Ukraine because of “threats to the lives of Russian citizens and Russian military personnel based in the southern Crimean region.” Grigory Karasin, Putin’s official representative in the upper house of the Russian parliament, told the Russian government-funded news outlet Russia Today that The approval, which the president will receive, does not literally mean that this right will be used promptly.”

But, less than a day later it was becoming increasingly clear that those weren’t contractors. And Putin hadn’t been waiting. The New York Times:

Russian troops stripped of identifying insignia but using military vehicles bearing the license plates of Russia’s Black Sea force swarmed the major thoroughfares of Crimea, encircled government buildings, closed the main airport and seized communication hubs, solidifying what began on Friday as a covert effort to control the largely pro-Russian region.

So, why is Russia militarily intervening in Ukraine?  The quasi-legal arguments coming from Russia on Saturday  were the same basic arguments that Russia used in justifying its military intervention in Georgia in 2008. In that case, Russia argued that it was acting as a guarantor of peace in the region and had intervened to protect both South Ossetian civilians, Russian nationals, as well as the defense of its military units that were already in South Ossetia.

As for its actions in Ukraine, the reference to the defense  of the Russian forces in Sevastopol was probably meant to argue that Russia was not in violation of the Budapest Memorandum which states in paragraph 2:

The United States of America, the Russian Federation, and the United Kingdom of Great Britain and Northern Ireland, reaffirm their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except in self-defense or otherwise in accordance with the Charter of the United Nations.

[Emphasis added.] I don’t think anything that has occurred in Ukraine rises to the point of Russia have a claim to Article 51 self-defense, but at this point, this isn’t about adjudicating claims, the Russian strategy is about misdirection and wrapping what it does do in a mantle of (seeming) legality. Well, not so much a mantle as a fig leaf.

Consequently, given the centrality of the norm of non-intervention, the self-defense argument sounds weak to my ears. But consider how the situation in Ukraine is being reported by the Russian-government  funded news source, Russia Today:

The move is aimed to settle the turmoil in the split country.

The upper house of the Russian parliament has voted in favor of sending troops to the Autonomous Republic of Crimea, which would ensure peace and order in the region “until the socio-political situation in the country is stabilized.

…The common notion was that since the power was seized in Kiev, the situation has only been deteriorating with radical nationalists rapidly coming to power and threatening the lives of those opposing their actions, most notably the Russian citizens living in Ukraine.

The developments follow an appeal by the Prime Minister of the Autonomous Republic of Crimea, Sergey Aksyonov, who requested that Russia to help cope with the crisis and ensure “peace and calm” in the region.

Russia as stabilizing force, reacting to a “deteriorating” situation in a “split country” where “radical nationalists” are threatening the lives of Russian citizens.  And this is in response to a request from the Prime Minister of the Autonomous Republic of Crimea. Keep your eye on increasing references to Crimea’s autonomy.

As in the Georgian intervention, Putin focuses the need to protect Russian nationals and the importance of self-defense of Russian troops. But, as mentioned above, I have seen no credible reports that either the Russian naval base in Sevastopol or the majority ethnic Russian population of Crimea was ever threatened by the Ukrainian government.

So why intervene now? Perhaps more relevant to the actual reason for Russia threatening to act at this point is the February 27 announcement by the new Ukrainian government of its interest in signing the Association Agreement with the EU that President Yanukovich refused to sign at the last minute, triggering the unrest that has convulsed Ukraine. Russia had previously mentioned the issue of secessionism, before there was even any unrest, in the run-up to the EU’s Vilnius summit, when Ukraine was originally supposed to sign the Association Agreement with the EU. At that time, back in September, Russian politicians issued warnings that if Ukraine does not reject the EU association program, it would run the risk of Russia supporting the partitioning of  Ukraine to support Russian nationals there. Civil unrest was not at issue then, only Ukraine agreeing to sign the Association Agreement.  While Yanukovich actively courted Putin, and ultimately set aside signing the Association Agreement, Putin as of this past week was facing an interim government in Kiev with which he had no easy political levers to pull. And they said they wanted to associate with the EU. So, military intervention as an extension of politics.

What we saw on these last couple of days was one more example of Russia actively using legal rhetoric as part of its politico-military strategy. This “law talk” does have two potential effects: (a) it makes arguments to which other countries in the international community attempt to respond,  and (b) it reassures the Russian public of the rightness of their cause.  News cycles on Saturday were focused on the Russian domestic process of Putin seeking an authorization to use force and the international discussions and debates over the legitimacy of Russia using force unilaterally.

Meanwhile, there was some confusion about what was happening “on the ground.” Just who are those camo-wearing armed men? Locals? Contractors?  Oh, no. The Russian military.

This misdirection and confusion may be Russia’s third reason for using legal rhetoric in this case. Putin is allegedly an avid chess player. This was a lesson in using legal rhetoric as a feint, while the real action was elsewhere on the board.  You only grasped the new situation once the pieces were already in place.  But, while this was a tactically deft set-piece using coordinated law talk and military force, international law has a way constraining actions when and where people least expect it.  The efficacy of Putin’s longer-term strategy remains to be seen. Of course, this depends on Russia’s goal.

Putin would doubtlessly most desire Ukraine to turn its back on the EU and join the Russian-led Eurasian Customs Union. Given the popular protests of the recent weeks, that is an all but impossible at this point. Short of that, Russia could attempt to impede Ukrainian association with the EU and remain a necessary party in any discussion of Ukraine’s future. So what might be  Russia’s next moves? And what may be the roles of international legal argument and international institutions in the strategies of Russia, Ukraine, the EU, and the U.S.?

I will consider these questions in my next post.