[John H. Knox is the UN Independent Expert on Human Rights and the Environment, and the Henry C. Lauerman Professor of International Law at Wake Forest University School of Law.]

In 2012, the Human Rights Council appointed me to be its first Independent Expert on human rights and the environment, and asked me to clarify the human rights obligations relating to the enjoyment of a healthy environment.  To that end, I oversaw an extensive research project that surveyed a very wide range of sources, including the major human rights treaties (as interpreted by their treaty bodies), regional human rights tribunals, UN Special Rapporteurs, and international environmental instruments.

Today, I present the results of this mapping project to the Council.  The sources surveyed have reached remarkably coherent conclusions about the application of human rights norms to environmental issues, making it easy to summarize the principal conclusions.

First, there is no longer any serious question that environmental harm can interfere with the enjoyment of human rights:  not only the right to a healthy environment, which is widely but not universally accepted, but also human rights that are universally accepted, such as rights to life, health, food,  and water.

Second, the sources agree that States must adopt certain procedural safeguards in order to protect against environmental harm to these rights.  In particular, they must assess environmental impacts on human rights and make environmental information public, facilitate participation in environmental decision-making, and provide access to effective remedies.  The obligation to facilitate public participation includes duties to safeguard environmental defenders’ rights to freedom of expression and association against threats, harassment, and violence.

Third, States must adopt legal and institutional frameworks that provide substantive protections as well as procedural ones.  Although States have discretion to strike a balance between environmental protection and other legitimate societal interests, the balance cannot be unreasonable or result in unjustified, foreseeable infringements of human rights.  And States must protect against harm caused by corporations and other non-State actors.

Finally, States have a cross-cutting requirement of non-discrimination in the application of environmental laws, and additional obligations to members of groups particularly vulnerable to environmental harm, including in particular women, children, and indigenous peoples.

The report concludes:

Human rights obligations relating to the environment are continuing to be developed in many forums, and the Independent Expert urges States to support their further development and clarification.  But the obligations are already clear enough to provide guidance to States and all those interested in promoting and protecting human rights and environmental protection.  His main recommendation, therefore, is that States and others take these human rights obligations into account in the development and implementation of their environmental policies.

I now turn to identifying and compiling good practices in the use of human rights obligations for environmental protection.  I would be interested to hear any thoughts or questions you might have on that, or on the conclusions of the mapping report!

[Alexander Cooley is Professor of Political Science at Barnard College, Columbia University in New York and author of Great Games, Local Rules: the New Great Power Contest for Central Asia (Oxford 2012).]

Among the many political layers of the crisis in Ukraine, I am especially interested in how these unfolding events are part of a broader attempt by Russia to confront the West’s broadly “liberal world order.” By the term I mean not only its most visible organizations such as NATO or the EU, but also the broader system of international rules, organizations, non-governmental advocates, and normative assumptions that have underpinned Western political engagement with the post-Communist space since the Soviet collapse. In Ukraine, we are now seeing this order in open conflict with Russia’s revisionist “great power” legal and normative grammars, as Chris Borgen has described them, though Moscow’s brazen response in Crimea is more of an act of international desperation than we might initially realize.

From the outset of the 1990s, US policy has been to promote the “sovereignty and independence” of the post-Soviet states. These remain code words for extricating them from Soviet era legacies and ties to Russia, and integrating them into new international organizations, laws, infrastructures and governance institutions. The more advanced reformers applied for membership in the European Union and NATO, but throughout the region Western economic and legal advisors instructed governments in reform, while non-governmental organizations and regional bodies such as the OSCE assumed that a common normative space would be forged on the values of the Helsinki Accords themselves.

Vladimir Putin’s ascendency to the power in 1999 initiated a renewed bid to consolidate a hollowed out state power at home and elevate Russia’s global status by forging new forms of security ties to its former republics. After a brief period of cooperation following the events of 9/11, US-Russia relations steadily deteriorated in the 2000s as interests came into open conflict on important issues such as the US plans to deploy a missile defense system, NATO expansion, and the Iraq War.

But it was the so-called Color Revolutions in Georgia (2003), Ukraine (2004) and Kyrgyzstan (2005) that redefined the scope and terms of this new power politics within Eurasia itself…

(Continue Reading)

Russian Prime Minister Dimitry Medvedev yesterday announced a legislative initiative to fast-track citizenship for non-resident native Russian speakers. He didn’t single out ethnic Russians in Ukraine, but the context says it all. The citizenship shift (variations of which have been floated since the Maidan erupted last month) would allow Russia to amplify its protective justification for the action in Crimea. It wouldn’t just be protecting co-ethnics, it would be protecting fellow citizens. Russia similarly put citizenship policy to use in the South Ossetia action in 2008.

Three thoughts:

1. The citizenship policy would be consistent with international law. The only constraint on the extension of citizenship after birth is that it be volitional on the part of the individual. Russia couldn’t simply impose Russian citizenship on Ukrainians en masse, for example. Otherwise, citizenship policies can be as relaxed as a country wants them to be (it’s when they are too tough that international norms come into play). Russia certainly has a closer link to Russian speakers in Ukraine than, for instance, most Sephardic Jews do to Spain, and yet nobody is complaining about the latter.

2. Protecting citizens abroad does not justify uses of force or other acts of aggression. Putin is working from the 19th/20th century playbook in framing military action in protective terms. That’s the irksome part: integrating citizenship policy into expansionist designs. (Spain is not going to use the pretext of protecting Sephardim as the basis for military operations in France.) Traditional international law accepted the use of force to protect nationals against foreign depredations — the U.S. justified scores of military actions on that basis (presidents still do, as a matter of domestic constitutional law, for purposes of constitutionally legitimating the use of force in the absence of congressional approval). Leaving aside narrow exceptions — military deployments should be consistent with international law where necessary to safely evacuate citizens from trouble zones — that’s no longer okay. In other words, the presence of even a large number of Russian citizens in Ukraine adds no weight to Russia’s case for military intervention.

3. Ukraine’s threatened criminalization of dual citizenship is more problematic. Ukraine prohibits dual citizenship, though the ban is apparently underenforced. By way of a counter-move to the Russian proposal, a bill before the Ukraine parliament would impose fines on dual citizens. Dual citizen voting and office-holding would be subject to prison sentences of up to 10 years. Other countries bar dual citizens from officeholding (many through constitutional bars); none bars dual citizen voting. Prison sentences for either would be without precedent. Ukraine would be on firmer ground stripping the citizenship of those having or acquiring Russian citizenship. But that move would create problems of its own, and would hand Russia an additional argument in the (largely false) narrative that Russians are being oppressed in Ukraine.

The bottom line: this is a nothing-burger. Probably the most important consequence of the new Russian policy would be to open the door for newly minted citizens to move to Russia. If Russia’s happy having them, that’s its business, not ours.

As Julian mentioned, the Crimean parliament is attempting to achieve the secession of Crimea through the use of a parliamentary vote and a referendum. More legal rhetoric in the midst of political crisis. Back in 2007 and 2008, Russia, the U.S. and the EU used quasi-legal arguments to try to explain why one could support the independence of Kosovo, but not South Ossetia and Abkhazia, or vice versa. It looks like a new iteration of this debate is starting. According to CNN:

lawmakers in Crimea voted in favor of leaving the country for Russia and putting it to a regional vote in 10 days.

It’s an act that drew widespread condemnation, with Ukrainian interim Prime Minister Arseniy Yatsenyuk calling the effort to hold such a referendum “an illegitimate decision.”

“Crimea was, is and will be an integral part of Ukraine,” he said.

The legal issue here is really one of Ukrainian Constitutional law more than of international law, because, as it is generally understood, there is no right to secede under international law. Under international law, a secession is neither a right nor necessarily illegal. It is treated as a fact: a secession either was successful, it was not, or it is still being contested.

There is, however, a right to self-determination, which is understood to be, for communities that are not colonies and are within existing states, meaningful political participation and the pursuit of economic, social and cultural development under the auspices of that existing state, in this case Ukraine.  This conception of internal self-determination makes self-determination closely related to the respect of minority rights and it does not include a right to dismember an existing state. Furthermore, modern views of self-determination also recognize the “federalist” option of allowing a certain level of cultural or political autonomy as a means to satisfy the norm of self-determination. Crimea is already an autonomous republic within Ukraine; more on that in a minute.

Nor does the International Court of Justice’s Advisory Opinion on the legality of Kosovo’s declaration of independence under international law recognize an international right of secession. It side-stepped the question of whether there is a right to secede under international law and framed the legal issue as one of domestic law. It was an advisory opinion that gave very little advice.

If the recent ICJ opinion does not provide much guidance, the tradition of state practice over the longer term does. The international community has not given much legal weight to referenda such as these. Back in the interwar period the Aaland Islands attempted to use a referendum to secede from Finland. In that case, an international commission of jurists brought in to assess the situation for the League of Nations found that there is no right of national groups to separate by the simple expression of a wish. And, particularly relevant today, the ability to choose secession by plebiscite must be granted by the state itself, that is, Ukraine. Otherwise, such a formulation would infringe upon the sovereign right of states. (See the Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, League of Nations Off. J., Spec. Supp, No. 3, at 5-10 (1920)).

We have seen more recent examples of referenda, such as when Transnistria tried to use a plebiscite to claim independence from Moldova and possible unification with Russia. It received no support from the international community for that claim. (This tactical use of referenda seems to be used time and again by secessionist groups supported by Russia.)

It is important to keep in mind that the whole population of Ukraine has a right of self-determination, as well, and that includes the right not to have their country be torn asunder either by a local referendum and/or external military intervention.

The only place that could confer a right to Crimea to leave by referendum is the Ukrainian Constitution. As far as I can see, there is nothing there conferring the power to secede by referendum. Title X of the Ukrainian Constitution (revised link) concerns the Autonomous Republic of Crimea; there is no mention of secession by act of regional parliament or by local referendum.

Even the Constitution of the Autonomous Republic of Crimea defers to the Ukrainian Constitution. Article 1 of the Crimean Constitution states:

The Autonomous Republic of Crimea shall be an integral part of Ukraine and it shall solve, within the powers conferred upon it by the Constitution of Ukraine, any and all matters coming within its terms of reference.

The Autonomous Republic of Crimea shall also exercise any and all powers as may be delegated to it by Ukrainian laws pursuant to the Constitution of Ukraine.

By the way, as I understand it (and, again, I invite any readers with particular knowledge in this area to comment), the term “autonomous republic” had a specific meaning in the old Soviet constitutional law.  Under the Soviet constitution, there were “union republics” and “autonomous republics.” Union republics had the highest form of sovereignty within the USSR. When the USSR dissolved, the Union republics such as Russia, Moldova, Georgia, Azerbaijan and Ukraine became new sovereign states. The autonomous republics did not have that level of sovereignty; they were subsidiary entities.

I note that Russia has within it its own autonomous regions and republics. Yet, I see nothing indicating that they believe those entities can voluntarily secede from Russia.

Words like “self-determination” are rhetorically persuasive when kept vague but they also have actual legal meaning. One needs to be careful about setting up unreasonable expectations by claiming certain results (such as secession) as a matter of right, when no such right exists.

Such use of legal rhetoric does not help resolve conflicts; it only makes some people more intransigent and the conflict more intractable.

President Obama issued an executive order this morning imposing entry bans on those responsible for actions that “undermine democratic processes or institutions in Ukraine,” “threaten the peace, security, stability, sovereignty, or territorial integrity of Ukraine,” or involve “misappropriation of state assets of Ukraine or of an economically significant entity in Ukraine.”

Sec. 2. I hereby find that the unrestricted immigrant and nonimmigrant entry into the United States of aliens determined to meet one or more of the criteria in subsection 1(a) of this order would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants or nonimmigrants, of such persons. Such persons shall be treated as persons covered by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions).

The power to specify covered individuals is delegated to the Secretary of State.

Obama is acting under section 212(f) of the Immigration and Nationality Act, which gives the President a blank check when it comes to imposing entry restrictions:

 Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Obama has used this power at least twice, both in the summer of 2011. He used the authority to ban the entry of serious human rights abusers with this proclamation. In the proclamation referenced in today’s executive order, he banned the entry of individuals subject to UN sanctions regimes. The latter is particularly interesting insofar as it appears to delegate immigration policy to an international organization, directly incorporating UN decisions into US law. In any case, the use of the 212(f) power is consistent with Obama’s orientation to maximally exploit delegated powers.

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the crisis in Ukraine, with particular emphasis on Russian intervention in Crimea. As we have done in the past with other symposiums, we also welcome young academics to submit guests posts for possible publication. We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new voices. So if you want to write a guest post for Opinio Juris about Ukraine of approximately 500 to 1500 words, please do so in the next couple days and send it to Jessica Dorsey and An Hertogen (their emails are linked to the right). Our editorial team will review the posts and publish those selected.

[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)

[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)

While Russia was stealing all the attention over the weekend, a small group of assailants wielding knives killed at least 33 people and injured over a hundred in the main railway station of Kunming, China.  China’s government has called these “terrorist attacks,” and has hinted it is linked with Uighur separatists in China’s northwestern Xinjiang province.  But the failure of the U.S. State Department to use the term “terrorist” has drawn outrage in Chinese social media.

I understand the U.S. government’s reluctance to endorse the Chinese government’s description of these attacks, but I still think the term “terrorist” is perfectly appropriate for this situation.  The attackers indiscriminately killed and injured civilians in a train station, and there seems plenty of evidence that it is motivated by politics and ideology.  To be sure, the international definition of terrorism remains contested, but the US law definition seems applicable.

the term “international terrorism” means activities that—

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping;

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.

Eric Posner on international law and Ukraine (“exhaustively”, in his own description):

The international law commentariat has been pretty quiet about the most important geopolitical event so far this year. Hello? Anyone want to offer an opinion? Let me fill in the silence:

1. Russia’s military intervention in Ukraine violates international law.

2. No one is going to do anything about it.

International law is chimera, QED. (FWIW, the international law commentariat is starting to pipe up. In addition to Chris’ post below, see this primer from Ashley Deeks on Lawfare.) The move — a standard one among the anti-internationalists — implicitly idealizes other forms of law accepted as such. No system of law achieves perfect compliance; why should international law be any different?

Writing at the Monkey Cage, Eric Voeten finds the a tweeted version of the Perfect Compliance Fallacy

not terribly persuasive. Surely we would question a domestic legal system in which a select set of powerful actors can confidently and predictably ignore legal rules while insisting that these nonetheless apply to everyone else.

While pleading the 140-character defense, I take the point, at least as applied to common criminals who get away with it. But there are better analogies. I’m not in the corporate law world, but I’m willing to bet that there are some laws that big players get away with ignoring on a predictable basis. In the context of constitutional law, there are many contexts in which law isn’t enforceable against institutional players. One example: notwithstanding the Chadha decision, which declared the legislative veto unconstitutional, Congress and the President blithely persist with the practice. This 2009 Harvard Law Review article by Jack Goldsmith and Daryl Levinson does a good job exploding the argument that international law is somehow distinctive in facing an enforcement deficit.

Of course corporate and constitutional actors will never say they’re violating the law. They interpret it to achieve the appearance (plausible or not) of conformity with a set of norms that is accepted as law. Same with Putin, whose MFA will at some point offer a fuller-dress international law justification for its Ukraine moves. (Posner himself offers up some protips to the Russians here.) So it’s not like jaywalking. Russia will face penalties as a result of its illegal action here, penalties that themselves will be framed in law terms.

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.