Ukraine

Russia’s Invasion of Ukraine: What does International Law Have to Say?

By Thomas Grant
Tuesday, August 25, 2015, 7:45 AM

Apart from Iraq, no member State of the United Nations has done anything quite like it. First, in 2008 against Georgia, then on an ever widening stage since February 2014 against Ukraine, the Russian Federation has invaded a fellow member State and forcibly separated territory belonging to that country. No other state, not even Russia before the invasions, had made any claim to that territory.

Even Iraq had made known its rejection of Kuwait’s statehood from the start.  To that extent, we had warning of what was to come. Not that a warning about an impending act of aggression cures the act. A centerpiece of modern international law is that territory changes hands only by consent, never by force. The rule of territorial stability is more than just another rule of international law. It is the indispensable rule of our system of law between States, and to let it lapse will send us back to an age of disorder. However you look at it, it is evident that relations among states—and the system of law that states have built since 1945—will change fundamentally, if we dispense with that rule.

Russia’s assault on that rule, and thus that system, is the subject of my new book Aggression Against Ukraine: Territory, Responsibility, and International Law. Let us assume, even as the system of international law is in—and needs—constant evolution, that we should seek to preserve the basic stability of law that results from settled expectations. And let us assume that settled expectations about which states have responsibility for which territories are particularly important. What are we to do about a state that breaches the rule of territorial stability?

Iraq’s invasion and annexation of Kuwait met with a robust international response. The Security Council acted; and states joined Kuwait in an exercise of collective self-defense. The annexation failed; Iraq was expelled.

The difficulty is that the Russian Federation is not Iraq. The Russian Federation is a Permanent Member of the Security Council. So the Security Council has not acted. And the Russian Federation, as its leaders since February 2014 have reminded us repeatedly, has a massive arsenal of nuclear weapons and the means to deliver them. So the military response to aggression has been muted.

Faced with this situation, unprecedented in the United Nations era, governments since the start of 2014 have found themselves confused about the proper response. True, some have adopted sanctions, some adopting more stringent sanctions than others. The United States has sent a modicum of military assistance to Ukraine and has reaffirmed its NATO commitment to the Baltic States of Estonia, Latvia, and Lithuania.

Russia has worked to deter a more vigorous response. Sabre-rattling is a mainstay of Russia’s deterrence strategy, but there is more to Russia’s strategy than that. To a considerable extent, Russia, in working to keep us from responding to its aggression, exploits our failure to understand and to apply international law.

We need to clear the air about international law if we are to respond appropriately. At least five points of international law in particular need to be clarified.

First, as I have written elsewhere with historian Rory Finnin, it confuses things to refer to the conflict in Ukraine as a civil war. Western media, the BBC for example, routinely refer to it as such, identifying the forces holding Donetsk and Luhansk as “rebels,” and failing to note the presence—acknowledged by a range of credible observers—of Russian personnel or the dependence of the putative “rebels” on Russia’s armed intervention. The salient fact of the situation is that Russia has invaded Ukraine, not that an indigenous force has risen up spontaneously against the central government; it hasn’t.

The legal conclusion to be drawn from this fact is that Ukraine has an inherent right of self-defense against Russia’s aggression—including the right to organize its self-defense collectively. By no means does international law impede other States from assisting Ukraine. To the contrary, international law envisages it.

Second, the territory of Ukraine is the territory within the borders of Ukraine that every state in the world—including Russia—has recognized. Russia tries to cloud this point, when it threatens that the defence of Ukraine will trigger a regional or global war. We see this tactic at work for example when a retired Russian general, speaking to the BBC earlier this month, says that any attempt by Ukraine to recover control of Donetsk and Luhansk in the east will be to cross a “red line.” Presumably, the general means that if Ukraine attempts to defend against Russia’s forcible separation of Ukrainian territory, Russia will seize even more Ukrainian territory. The general’s threat is legal nonsense. It rehashes the position that Russia used in 2008 when it invaded Georgia: Georgia had attempted to restore its effective control in South Ossetia and Abkhazia, and Russia invaded. Ukraine holds sovereignty over all the territory of Ukraine. Russia’s illegal presence in parts of Ukraine does not displace Ukraine’s legal rights.

Russia’s illegal presence does however attract legal responsibility to Russia for conduct in that territory, a result supported by the European Court of Human Rights’ judgments concerning the northern part of Cyprus and the Russian-occupied parts of Moldova. This leads to a further point, to which I will turn below.

Third, clothing aggression in the language of self-determination does not change what it is. Aggressors have alleged before that indigenous movements have sought freedom under the barrel of a gun, and international law sees through the ruse. Nobody talks about a “State” of Manchukuo without noting that Japan created that entity by invading China. Nobody should talk about Crimea as if it engaged in a valid act of self-determination; or about Donetsk and Luhansk as if these places sua sponte broke away from Ukraine. The situation in all three places is the direct result of Russia’s armed intervention. As to Ukraine’s domestic politics, whatever its complexities, the people of Ukraine support unity, a position disclosed by polls and suggested by the absence of any effective separatist movement prior to the invasion. The supposed self-determination acts have been dismissed as void and without effect by the UN General Assembly, the Council of Europe Parliamentary Assembly, and the OSCE Parliamentary Assembly President. There is no valid reason to prefer Russia’s characterizations over those of the pre-eminent available global and regional organizations.

Fourth, there is the omnibus rejection of international law as relevant to the conflict. This is part and parcel of John Mearsheimer’s view, as expressed in Why the Ukraine Crisis is the West’s Fault, a piece arguing that “liberal delusions” led the West to adopt “provocative policies” and that these “precipitated the crisis in the first place.” It exceeds the scope of a post on international law and the war against Ukraine to address in detail Professor Mearsheimer’s thesis, but some general observations may be made.

The main observation to be made about Mearsheimer’s thesis is this: for all its dismissal of “liberal delusions,” it has nothing of substance to say about what presumably its adherents would consider one of the principal “delusions”: international law. This is not adequate as a mode of argument. Mearsheimer’s thesis rests on the assumption that “strategic interests” trump vested rights. But rights are the mainstay of law. To say that one thing trumps another without considering the force and effect of that other thing is, at best, sloppy thinking. Russia has no right cognizable under law against the territorial integrity of its neighbors. In truth, Russia does not even have a claim against its neighbors—none, at least, was articulated before 2014, and the exact opposite was articulated repeatedly. Russia repeatedly, by treaty and by practice, almost continuously since 1991, and without reservation or exception, acknowledged the sovereignty of its neighbors within the borders that they inherited upon independence.

As for the suggestion, sometimes heard, that the Black Sea Fleet basing agreements qualified Russia’s acknowledgment of Ukraine’s sovereignty, this is nothing short of bizarre. By their very object and purpose, those agreements presuppose that the host state—Ukraine—possessed sovereignty: you don’t lease a territory to a visiting state if you don’t hold the legal rights to the territory. In any case, the agreements by their terms, as well, make clear that Russia was just a visiting State and that Ukraine was the sovereign in Crimea.

Then there is the integrative development of international institutions in Europe, the EU and NATO in particular. An imagined threat from NATO (an alliance that would be hard-pressed to send so much as one armored division to Ukraine) does not override 70 years of international law. Mearsheimer says that Russia was “too weak” in the 1990s to do anything about NATO’s eastward expansion. But this is beside the point. If Russia had had unbridled power, it still would have had no right to do anything about NATO’s eastward expansion. As the successor state to the Soviet Union, the Russian Federation of all states should know this. Arguably the high-water mark of the USSR’s international law policy in the Cold War was the courtroom success of its ally Nicaragua against the United States in the Military and Paramilitary Activities case. One might be loath to recall the poor showing in that case, but the International Court of Justice, whatever one thinks of its showing in the case, made a powerful point about the right of states to pick whatever friends they wish. The Court is taken to task, inter alia, for having failed to give due consideration to the United States’ argument about collective self-defense, but what it said about alliances and domestic political order is good law. The Court on those matters said this:

A prohibited intervention must… be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. ICJ Reports 1986, Judgment, June 27, 1986, p. 14, 108 (para. 205).

And as to alliances in particular:

Similar considerations apply. … Whatever the impact of individual alliances on regional or international political-military balances, the Court is only competent to consider such questions from the standpoint of international law. From that aspect, it is sufficient to say that State sovereignty evidently extends to the area of its foreign policy, and there is no rule of customary international law to prevent a State from choosing and conducting a foreign policy in co-ordination with that of another State. Ibid., p. 133 (para. 265).

A political scientist might dismiss this law as “liberal delusion,” and might equally dismiss the rich variety of associations and co-ordinations that States have elected under this law. But it is this law that has existed and developed in the modern era, and it is this law that has contributed to an unprecedented period of peace among the major powers and to world-changing growth in trade, investment, and the movement of people and ideas. Among other things, this law assures that “state sovereignty” means that each state is free to “choos[e] and conduct[…] a foreign policy in co-ordination with that of another State.” Ukraine, if it were seeking to associate with NATO, and by actually associating with the European Union, did so within its international law rights. Whatever Russia’s geopolitical complaints, Russia has no right to prevent Ukraine from doing so. Ousting international law may be an attractive option for some states and for some theoreticians, as it clears away a messy underbrush of procedures and definitions, but the resulting vacuum would be a very different world from that in which we really live.

Finally, the world in which we really live contains a range of institutions to apply the law. There is that age-old critique that international law has no policeman. But tell that to the general counsel of a hydrocarbon company that is considering an investment in the waters off Crimea, especially if an international court or tribunal has added its voice, in the form of a binding judgment or award, to the General Assembly’s declaration that the putative annexation of Crimea is not to be recognized and thus not to be given any effect. There are many places to invest where the real sovereign also enjoys the real exercise of its rights; why embroil oneself in a situation arising out of a gross violation of a fundamental rule of international law? Try the “no policeman” critique as well on a country like Ecuador, which learned that interim measures from an UNCITRAL tribunal made the enforcement of its national court judgment against Chevron far more difficult than it had thought, including in the courts around the world where it had intended to pursue the company’s assets. (Full Disclosure: I served on Chevron’s legal team in the jurisdictional phase of the UNCITRAL proceedings.)

Or what about the regional human rights mechanisms? Surely, organs like the European Court of Human Rights at Strasbourg are more about aspiration than reality? Tell that to Turkey, which now faces a substantial European Court judgment for money damages as a result of its legal responsibility for the situation in northern Cyprus. These dispute settlement mechanisms have teeth, because we live in a world where the law is indispensable to the orderly management of human affairs at multiple levels. A barbarian at the gate might disagree; but the world both within the city walls and without functions under law however noisy the barbarian’s protests become.

Russia works hard to create doubts and anxieties on the part of western governments and the public whom they serve, knowing that no democratic country commits readily to support a cause fraught with ambiguity, especially when the relevance of that cause to the country’s interests itself is uncertain.

We should not be fooled. The situation in Ukraine is clear-cut. And, if Russia prevails in that situation, there will be consequences for our security.

The proper understanding of the situation in Ukraine under international law accords with more robust collective defense of Ukraine and the region. Some commentators and some legislators have called for the more robust defense. A reasoned view holds that the seemingly cautious approach in truth may prove dangerous in the long run. As for the legal response, this has an autonomous role as well as a complementary one. The legal response exists independently of practical measures on the ground, because we live in a world of deep interconnections, and the law, if we trust in the law and the institutions that apply it, can multiply the costs of aggression for the aggressor and for others who would otherwise profit from the aggressor’s acts. It has a complementary role, because the more robust response is what international law both permits Ukraine to adopt and the rest of us to support. In responding to Russia’s war against Ukraine, we need to pay more heed to what international law has to say.