William W Burke-White. Survival. Volume 56, Issue 4, August/September 2014.
Putin’s exploitation of the tension between the principles of non-intervention and self-determination is in the tradition of great-power interaction with international law. But Russia’s interpretation sets dangerous precedents.
Crimea is Russia’s. The March 2014 referendum and Russia’s subsequent annexation of Crimea are now events of history, even while the territorial borders and political future of the rest of Ukraine remain contested. Yet, as international attention has moved from Sevastopol to Kiev and more recent crises elsewhere, a key balance between two of the most fundamental principles of the post-Second World War international legal and political order remains at stake.
In Crimea, Russia has cleverly embraced international law and, in so doing, exploited the tension between a fundamental principle that prohibits the acquisition of territory through the use of force and an equally fundamental right of self-determination to take Crimea as its own. Russian President Vladimir Putin has advanced a quite different balance between these principles than that which prevailed for most of the past 70 years. Russia’s reinterpretation of these two principles could well destabilise the tenuous balance between the protection of individual rights and the preservation of states’ territorial integrity that undergirds the post-Second World War order. This interpretation sets potentially dangerous precedents for troubled regions, from Iraq to Syria, destabilising the international legal system at the very moment that it is adapting to a multipolar world.
In claiming the legality of its actions, but twisting the law in subtle (and not-so-subtle) ways, Russia is taking a card straight from America’s play-book. For most of the past 70 years, and certainly since the early 1990s, the United States has been able to lead the international legal system, often in cooperation with Europe. It defined the rules, the exceptions to those rules and often the enforcement of those rules. The present redistribution of power in the international political system has brought an end to that transatlantic moment in international law. In place of the era of US legal hegemony and leadership, a multi-hub structure is emerging in which a growing number of states can and do play issue-specific leadership roles in a far more flexible and fluid legal system. These states include, but are not limited to, Brazil, Russia, India and China. In Crimea, Russia is, perhaps for the first time since the fall of the Soviet Union, asserting itself as a renewed hub for a particular interpretation of international law, one that in many ways challenges the balance at the heart of the post-Second World-War order and the ability of the US to lead that order.
Russia is able to exploit legal ambiguities
Washington built the post-war order on an inherent tension, evident in the Charter of the United Nations itself, between the preservation of states’ territorial integrity and the protection of individual rights, including, in extraordinary circumstances, through the ultimate independence of oppressed populations in acts of self-determination. This tension was understood and debated in the drafting of the charter in 1945, and in the UN General Assembly’s efforts to clarify the right of self-determination in 1970. Similar questions arose during the late 1990s as Timor-Leste and Kosovo sought independence in the wake of violence and oppression, and during the early years of this decade as South Sudan followed a similar course. Yet, while in 1999 the US was able to control the interpretation and enforcement of international law to secure Kosovo’s independence without legal consequence, Washington finds itself in 2014 unable to fully counteract Moscow’s legal argument that its support for, and ultimate annexation of, Crimea is equally grounded in international law.
Russia’s ability to exploit the legal ambiguities shared by Crimea and Kosovo arises in large part because of the inherent tension between two oft-conflicting principles that have been at the heart of the international legal and political systems since 1945. The first of these principles is that countries cannot use force against one another and, particularly, cannot secure territorial gains through the use of force. The principle is embodied in Article 2( 4) of the UN Charter: ‘all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.’ It was reaffirmed in 1970, when the UN General Assembly proclaimed that ‘no territorial acquisition resulting from the threat or use of force shall be recognized as legal’. This principle united the broad coalition that repelled Iraqi President Saddam Hussein from Kuwait in 1991.
The second principle is that of self-determination. It provides that a post-colonial or severely oppressed population has the right to freely determine its future government and status in the international community. In extraordinary circumstances, such as systematic crimes against humanity or genocide, the principle entitles the population to secure political and legal independence, even where doing so undermines the territorial integrity of another state. This principle, too, finds its roots in the UN Charter, which sets as an objective of the international system ‘respect for the principle of equal rights and self-determination of peoples’. Often honoured in the breach, this is the principle that led to the independence of Timor-Leste in 2002, Kosovo in 2008 and South Sudan in 2011.
The relationship between these principles is critically at stake in Crimea. Is the Russian-speaking population there entitled to its own state, due to systematic oppression by the Kiev government? Is Russia entitled to assist its co-nationals in achieving independence? Or is Ukraine as a sovereign, independent state entitled to the inviolability of its borders? More generally, under what circumstances may a population claim a right of international independence and to what degree are third states entitled to assist, even where doing so may violate another state’s territorial integrity?
In the Crimea crisis, Putin articulated a masterfully crafted, albeit revisionist, legal argument that exploited the tension between self-determination and territorial integrity. Through that argument, Russia may well seek not only to justify its actions in Crimea, but also to reassert its role as a leader in a multi-hub international legal order. Putin’s legal argument was framed in his 18 March speech to the Russian Duma, two days after the referendum in Crimea. Understood in context, he claims a broad right of intervention in protecting ethnic Russians, and a very low standard for the degree of oppression necessary to trigger the right of self-determination and subsequent independence. In so doing, Putin shifts the balance between territorial integrity and self-determination far in the direction of the latter, rendering international borders more permeable and the international system itself far less secure.
With respect to the first principle, the prohibition on the use of force to acquire territory, Putin adopted strategic denial: ‘Russia’s Armed Forces never entered Crimea; they were there already in line with an international agreement.’ Significantly, he denied that the actions of the unidentified forces in Crimea, so evident in the pictures broadcast around the world, were those of the Russian Federation. He could do so because of a relatively forgiving, and likely outdated, legal standard for the attribution of actions by non-state actors to a government that supports them. Back in 1984, when the US had provided assistance to the Contra rebels in Nicaragua, the International Court of Justice (ICJ) found that ‘for this conduct to give rise to the legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations’. In that case, the ICJ concluded that ‘the United States’ participation, even if preponderant or decisive, in the financing, organizing, training, supplying, and equipping of the contras … and the planning of the whole of its operation’ was insufficient to attribute the acts to the US.
Putin cleverly exploited this lax standard for attribution, recognising that it would be extremely difficult, if not impossible, to prove that these unidentified militias were under his effective control, and that, even if they were funded and directed by Russia, Moscow would still not be legally responsible for their actions. As a result, he could pressure the Ukrainian government and seize control of key infrastructure in Crimea without incurring international legal responsibility, so long as Russia preserved some plausible deniability as to the effective control of the forces on the ground.
More subtly, however, Putin’s approach claims an affirmative right of military intervention to protect Russian nationals abroad. In his 18 March remarks, he asserted Russia’s interest in Ukraine, making a less-than-subtle threat:
Millions of Russians and Russian-speaking people live in Ukraine and will continue to do so. Russia will always defend their interests using political, diplomatic and legal means. But it should be above all in Ukraine’s own interest to ensure that these people’s rights and interests are fully protected. This is the guarantee of Ukraine’s state stability and territorial integrity.
That threat of military intervention, should Ukraine fail to protect Russian nationals in its territory, is all the more telling in light of Moscow’s other legal positions. Russia justified its 2008 armed incursion into Georgia partly as a legitimate act of self-defence intended to protect Russian nationals. The use of military force for the protection of nationals abroad, while rooted in the historical origins of the use of force, is contested. Yet Moscow’s ambassador to the UN described the Georgian attacks on Russian nationals as an ‘illegal use of military force against the Russian Federation’ that triggered Russia’s inherent right of self-defence due to the presence of ‘citizens of the Russian Federation’ in South Ossetia. Russian legislation and judicial inter-pretations confirm Moscow’s view that the right of self-defence includes the protection of its nationals abroad. Russia has sought to reinterpret these provisions, challenging existing interpretations in an effort to establish an alternative framework for the use of force in its sphere of influence.
Ultimately, Putin advances an international legal precedent that would significantly expand the possibility for intervention by unknown forces—the ‘little green men’ who appeared in Crimea in February and March—by making it harder to link their actions to a home state, and that would justify overt intervention by a state’s military when its nationals, broadly defined, were under any threat.
Secondly, Putin’s 18 March speech advocates a broad, rapid and easy-to-trigger right of self-determination. He covers Russia’s actions with the mantle of international law and, simultaneously, tips the balance between territorial integrity and self-determination far in the direction of the latter. In defence of Crimea’s declaration of independence, Putin referenced both a decision of the International Court of Justice and a UN Security Council Resolution providing that ‘general international law contains no prohibition on declarations of independence’. He invoked the legal principle of self-determination repeatedly, noting that the ‘Supreme Council of Crimea referred to the United Nations Charter, which speaks of the right of nations to self-determination’. And he noted the US position during the Kosovo conflict that ‘declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.’
In advancing the argument for Crimea’s right of self-determination, Putin ticked all the relevant legal boxes: those seeking self-determination constitute a distinct people who have been subject to systematic oppression, and who have chosen their future status legitimately, through a democratic process. He argued that the residents of Crimea constitute a separate and distinct people: ‘the total population of the Crimean Peninsula today is 2.2 million people, of whom almost 1.5 million are Russians, 350,000 are Ukrainians who predominantly consider Russian their native language, and about 290,000-300,000 are Crimean Tatars, who … also lean towards Russia.’ Furthermore, he claimed that these ethnic Russians, who included some Russian citizens, had been subjected to the kind of systematic oppression that triggers the right of self-determination under international law, calling the members of the Ukrainian government ‘nationalists, neo-Nazis, Russophobes and anti-Semites’ who had introduced ‘a draft law to revise the language policy, which was a direct infringement on the rights of ethnic minorities’ and were the ‘ideological heirs of [Stepan] Bandera, Hitler’s accomplice during World War II’. Finally, Putin completed the legal tri-umvirate to argue that the Russian peoples of Crimea had freely and fairly chosen to join with Russia: ‘the referendum was fair and transparent, and the people of Crimea clearly and convincingly expressed their will and stated that they want to be with Russia.’
In ticking-off the international legal boxes of self-determination, Putin simultaneously sought to expand those boxes. Under the international legal rules that have been in place since 1945, the right of self-determination is extremely narrow. It is only triggered by either emergence from a period of colonial rule or, in the words of the Supreme Court of Canada, ‘alien subjugation, domination, or exploitation’. At the very least, in determining that the people of Quebec had not been subject to such oppression, the Canadian court observed that there would have to be a showing of a ‘massive violation … of fundamental rights.’
In suggesting that ‘a draft law to revise the language policy’ in Ukraine (an admittedly unfortunate law, but one that was never adopted or enforced) constitutes the kind of ‘massive violation of human rights’ necessary to trigger the right of self-determination or even the Responsibility to Protect, Putin’s legal argument transforms self-determination from an unusual and extraordinary remedy for severely oppressed peoples to a potentially regular occurrence that could be applicable to almost any minority around the world. The right of self-determination in international law has been so limited precisely because of the destabilising effects it can have when generalised. That is why self-determination is, according to the UN General Assembly, to be balanced with the prohibition on ‘any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples’. Imagine, without that check, the potentially competing claims for self-determination in Syria, Iraq and Turkey alone.
The right of self-determination is narrow
So, too, under traditional international law, is the right of self-determination subject to the requirement of a free, fair and democratic choice as to the political future of the self-determining territory. When a population exercises this right through a referendum, the process must be well organised, free of corruption and preceded by a period of thoughtful deliberation. That is why, for example, the independence vote in Timor-Leste occurred after one year of administration by the UN, and Kosovo’s formal independence only came many years after the original conflict. During the intervening period, the people of the self-determining territory can and must frame, consider and debate their future, which could include greater self-government within an existing federation, statehood or joining some other, contiguous state.
Putin affirms that ‘the [Crimea] referendum was fair and transparent, and the people of Crimea clearly and convincingly expressed their will and stated that they want to be with Russia.’ Yet, in reality, there was little debate as to what was to be decided in the referendum, even had the mere days before the vote allowed the people of Crimea enough time to digest that choice. The referendum simply asked voters to choose whether to reunify ‘Crimea with Russia as a subject of the Russian Federation’ or to restore ‘the 1992 Crimea constitution and the status of Crimea as part of Ukraine’. The framing of such a choice is critical and, in this case, the ballot omitted other choices, including that of remaining part of Ukraine under the current constitutional structure, as well as the possibility of independent statehood. It is, in part, on these grounds that the UN General Assembly condemned the referendum as ‘having no validity’, and the Security Council would have passed a resolution consistent with this position, but for a Russian veto.
Again, Moscow has invoked the rhetoric of a valid right in international law—that of the Crimean people to choose their own future—but in the process has twisted and expanded that right. Putin admits that Russia has taken steps to ‘create conditions so that the residents of Crimea for the first time in history were able to peacefully express their free will regarding their own future’, but has done so in a way that actually deprived them the real chance to deliberate and debate that future. At least to the degree Russia assisted with (or perhaps forced) the speed of the referendum and the framing of the ballot, it again challenged the bedrock principle of non-intervention and the illegality of territorial acquisition through the use of force.
Of course, from Putin’s perspective, Russia’s actions in Crimea are nearly indistinguishable from those of the US in Kosovo: ‘a precedent our western colleagues created with their own hands in a very similar situation’. In his view, if a distinction can be drawn between the two cases, it rests on the fact that in Crimea not a ‘single shot [was] fired’.
In many ways, Putin has joined a tradition of great-power interaction with international law: reinterpreting and redefining legal rules to serve present interests. Russia’s international legal actions in Crimea are similar to those of the US throughout most of the past 70 years. America, too, has sought to expand the right of self-determination in Kosovo and, more recently, South Sudan. And Washington has been happy to exploit, and even expand, the lax standards of attribution in international law in places ranging from Nicaragua in the 1980s to Libya in 2011.
Since the Kosovo conflict in 1999, however, the nature of the international legal system has fundamentally changed. In the past few years, it has quickly transitioned from a unipolar legal order into a multi-hub system. As part of this new structure, many more states can act as hubs, leading an international legal process or articulating legal norms that set precedents and attract followers. The US now confronts a legal system in which other states are asserting legal leadership and, at times, successfully contesting Washington’s interpretation of legal rules. Beyond Russia’s claims regarding Crimea’s right of self-determination, China has sought to reinterpret the legal rules governing the scope of permissible military activity in a state’s exclusive economic zone, and both India and Brazil have questioned standard interpretations of medical-patent protections under the Agreement on Trade-Related Aspects of Intellectual Property Rights.
Putin’s 18 March address should be read as more than a mere justification of Russia’s annexation of Crimea. It is a renewed claim for the country’s status as a hub of the emerging international legal order. Indicative of that leadership, Putin calls the US to task for its own past violations: ‘they say we are violating norms of international law. Firstly, it’s a good thing that they at least remember that there exists such a thing as international law—better late than never.’ He also put forward this claim in a September 2013 article for the New York Times, writing to warn against US military action in Syria
We need to use the United Nations Security Council and 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.
There is little, if anything, that the US or Europe can do to turn back the clock in Crimea. Russia has not only secured the territory as its own, it has also set a precedent of lasting significance, one that is all the more important in a legal order in which many states will vie for leadership and contest the interpretation and application of international legal rules. While there are key steps that can be taken to minimise the weight of that precedent, current US strategy has failed to recognise the very different dynamics of the multi-hub international legal system in which we are operating today. The US response has largely been to claim that Russian actions violate international law and, jointly with Europe, impose sanctions on Russia. In US President Barack Obama’s words shortly before to the March referendum, ‘the proposed referendum on the future of Crimea would violate the Ukrainian constitution and violate international law … we are well beyond the days when borders can be redrawn over the heads of democratic leaders.’
The US view will not control outcomes
In so doing, the US has followed its traditional approach to international law, which worked reasonably well in an era of US and European legal hegemony: articulate and enforce your own preferred view of the rule in question. In the new multi-hub structure of the international legal system, however, the US view—even if legally correct—will not control outcomes in and of itself. Articulated unilaterally, it may even be counterproductive. There will be a number of states that support Russia’s advocacy of a more lenient standard of intervention and a more readily available right of self-determination. These states may include some of the 11 UN members that voted against the General Assembly resolution condemning Russia’s actions in Crimea, and, more importantly, some of the 58 that abstained and the 24 that were, perhaps intentionally, absent for the vote. To the degree that these states follow Russia’s international legal leadership on this issue, the alternate norms on intervention and self-determination gain credence.
Instead of merely asserting and enforcing their own view of the law, the US and Europe must build a broad coalition of emerging and potential hub states in the international legal system that are willing to collectively reaffirm the traditional balance between self-determination and territorial integrity. The nature of today’s multi-hub legal order is such that there are far more partners and potential partners available to the Washington and Brussels, with whom they can build a coalition of shared legal interest.
Several key rising powers who, like Russia, now wield far greater influence in the international legal system, share the US interest in maintaining the traditional balance between self-determination and territorial integrity. Specifically, China has deep concerns about wider invocation of self-determination, precisely because the principle could be used by China’s ethnic minorities (or even the Taiwanese) to claim independence. By reaffirming a narrow interpretation of self-determination as an exceptional remedy and emphasising the extraordinary nature of the oppression necessary to trigger it, the US may be able bring China fully on board. India, too, has significant worries about the acquisition of territory by force, given its long and oft-contested borders with both Pakistan and China. By reaffirming the illegality of territorial acquisition by force, the US may convince India too to join. Brazil, under presidents Luiz Inácio Lula da Silva and Dilma Rousseff, has emphasised the importance of the legitimacy of the international system, as well as an end to the bipolar era of the Cold War and the unipolar period of US dominance. If the objections to Russia’s current action are framed in terms of the legitimacy of process and the emergence of a new multi-hub system, there is good reason to think that Brazil too could be brought on board.
Notably, each of these states abstained in the General Assembly vote on Crimea, and China abstained from voting on a similar resolution (ultimately vetoed by Russia) in the Security Council. If the US and Europe are to successfully counteract the precedent Russia has set in Crimea, at least some of these other hub states must be persuaded to join a coalition of shared legal interest.
Admittedly, the potential alignment of the hubs of the US, the EU, Brazil India and China may paper over real differences between them as to when, if ever, self-determination or intervention should be allowed. But, at a fundamental level, these hub states do and should share a common interest in the preservation of the balance between territorial integrity and selfdetermination that has kept the international system intact, despite numerous challenges, over the past 70 years. But, to preserve that balance in light of Russia’s actions in Crimea, the US and Europe must realise that they are operating in an international legal order very different to that of the past. It is an order in which many states have loud voices and lasting precedential impact. It is an order in which coalitions will shift and reform, but in which no single state can entirely control legal outcomes. And it requires a very different legal and political strategy.
In building this admittedly unusual coalition, the US and its potential partners would be well served to highlight three key legal issues, which would narrow the possibilities for future exploitation of the inherent tension between territorial integrity and self-determination.
Firstly, such a coalition must reaffirm that, while the right of self-determination exists, it is only triggered by clear and compelling evidence of systematic oppression. It is that legacy of oppression, of ethnic cleansing and of crimes against humanity that most clearly separates Crimea from Kosovo, South Sudan and Timor-Leste. It is the weakest link in Putin’s legal argument. Of course, not all the potential members of such a coalition will want to recognise a right of self-determination, even in the wake of such oppression. But, by striking the right balance and reaffirming self-determination as an exceptional last resort, the US and Europe have the chance to stand firm for both human rights and for the stability of the international system, ideally shaping the development of international law in the process.
A legacy of oppression separates Crimea from Kosovo
Secondly, the principle of self-determination must be modified so that a state that assists a population exercising the right of self-determination is expressly prohibited from subsequently annexing that population’s territory. While the right of self-determination usually implies that the oppressed population may choose any governmental structure it wishes, including accession to that of an adjacent state, that rule must be altered to exclude the possibility of annexation by an intervening state. In context, such a prohibition would have precluded Timor-Leste from choosing to join Australia, but would not have blocked the right of self-determination itself. It would have forbidden Russia from taking Crimea through legal and political sleight of hand. It would ensure that states seeking to help oppressed populations exercise self-determination have clean hands and honest motives.
Thirdly, this admittedly unlikely coalition may be able to spur the evolution of the standards of attribution in international law that allowed Russia to deny responsibility for the actions of the unidentified militias in Crimea. The current leniency stems from the 1984 International Court of Justice standard that required a state to have ‘effective control’—a very high threshold—of non-state actors in order for that state to incur legal responsibility. Over the years, some have suggested stricter standards that would more readily hold states liable for actions they provoked or assisted, but no consensus view has emerged. In a world of far more diffuse power, in which many states are able to catalyse non-state actors abroad, a new political consensus around a stricter standard of attribution may be possible. Such a standard was suggested by the International Criminal Tribunal for the Former Yugoslavia in the 1999 trial of Dusko Tadic, which looked not to ‘effective control’, but instead to ‘overall control’. Far more than a semantic difference, under the overall-control standard, ‘participation in the general direction, coordination, and supervision’ of a militia or other non-state actor would therefore be sufficient to make the sending state responsible. In other words, Russia would, most probably, be responsible for the actions of many of the militias or unidentified soldiers in Crimea.
Admittedly, it may not always be in the immediate interests of the US to have an international legal system in which the right of intervention is exceptionally narrow, self-determination is a truly exceptional remedy and governments can be more readily held responsible for the actions of non-state actors. In such a system, it would be more legally difficult for the US to intervene elsewhere, and perhaps harder for truly oppressed populations to achieve self-determination. But that may be a necessary cost of operating in a multi-hub international legal system. When the US was able to both make and interpret international law, broad exceptions to legal rules were beneficial. In a multi-hub world, in which other states’ interpretations of the law may determine outcomes, those same broad exceptions may become dangerous, both to Washington and to the stability of the international system itself.
In determining the precedent that will be followed from events in Crimea, the US has a choice. Within the emergent multi-hub international legal system, Washington can continue to embrace international legal exceptionalism, recognising that in the future those exceptions will be open to exploitation by other states, including those well beyond Russia. Or it can seek to build coalitions that, at least in this case, narrow exceptions and reaffirm the principles of the modern international order. In many ways, Putin’s embrace of international law provides the US with an opportunity to respond in kind, using the Crimea crisis to build a very different kind of legal and political coalition, one that is far more effective in a multi-hub international legal order.