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

[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.