Cleavages in international law and the danger of a pull towards non-compliance
International law faces difficult times, with cleavages running deep between what is often labelled “the West” on the one hand, and Russia on the other hand. With the annexation of Crimea Russia has engaged in a form of conflict that was considered passé in Europe. It is accordingly seen as being responsible for the polarization of international relations by many Western States. Moscow tells a different story of the deterioration of the international political climate. So what is Russia’s perspective? Russia’s narrative The Russian narrative about these tensions, consisting of four main elements, points out that Russia’s current course is essentially a reaction to provocations and illegal actions from the side of Western States. Firstly, Russia declares to be a peace-loving country that upholds and defends the principles of international law. Putin claims that Russia is “open to the world” and does “not have – and cannot have – any aggressive plans”. Avowals to international law as the basis for international relations are common in speeches and declarations of Russian representatives. In contrast to that, Russia diagnoses, secondly, a decline of respect towards international law on the side of other, particularly Western, States. “In recent decades the basic principles of international co-operation have been ignored ever more frequently. We see how a military-bloc mentality is gaining momentum”, Putin said. Over the past decades, Russia has consistently condemned numerous Western interventions as violations of international law and warned of a decline of the UN Charter system. Thirdly, Russia accuses Western States of applying a set of double standards and undermining a universal application of international law by picking interpretations of the law that favour Western and demote Russian interests. This is an argument that runs through different aspects of international relations, from counter-terrorism activities in Syria, to the Western assessment of different coups d’états (e.g. the 2014 coup in Ukraine vs. the 2015 coup in Yemen). “If we apply different standards to the same kind of events, we will never be able to agree on anything” – so Putin said in 2015. Fourthly, Russia sees a Western strategy of expansionism and interventionism that is driven by “geopolitical intentions” (UN Doc. S/PV.6810, p. 8) aiming at “imposing their own designs on sovereign States” (ibid.). The effect of this is, according to Russia, that Russian national interests are ignored. The expansion of the North Atlantic Treaty Organization (NATO) and the European Union to Eastern Europe have deprived Russia of large parts of the former Soviet influence sphere. Moreover, Russia claims that the Western expansionist strategy is responsible for the unrest in Ukraine since 2013, creating a division among the people living there. Thus, the Russian perspective presents pretty much the opposite narrative that Western accounts would tell. Prior Western violations of international law While this narrative partly is policy talk, it also has truth to it. If we carefully analyse the legal merits and the dynamics of a number of conflicts of the past two decades this point becomes clear. Three interventions have been most polarizing. In 1999 NATO initiated the war in Kosovo without a Security Council authorization in order to prevent a humanitarian catastrophe. This intervention violated international law. Russia diagnosed a Western attempt to de facto establish “the primacy of force and unilateral diktat” (UN Doc. S/PV.3988, p. 2) and warned that “lawlessness would spawn lawlessness” (ibid., p. 3). Against prior Security Council commitments to Yugoslavia’s territorial integrity many Western States later then recognized Kosovo as an independent State after its unilateral declaration of independence in 2008. The second major conflict was the US-led intervention against Iraq in 2003 which Russia – together with many other States – saw as a clear violation of international law and as a “threat of the disintegration of the established system of international security”. Ultimately the 2011 NATO-led intervention in Libya caused far reaching controversies. By abstaining in the Security Council, Russia allowed the intervention to be authorized by Security Council Resolution 1973 under Chapter VII, but then felt fooled when the authorization to protect the civilian population was used to initiate a regime change in Libya. From the Russian perspective all this is interpreted as a general Western attempt at reducing Russia’s influence on international peace and security affairs. Russia’s tougher stand Russia’s discontent with this situation has been boiling up for a longer time. While rhetorically, Russia frequently made statements against certain (mentioned) interventions perceived to violate international law, nothing followed practically. In 2008 after many Western States had recognized Kosovo as an independent State Putin issued a statement that sounded like a warning: “They [i.e. Western States] have not thought through the results of what they are doing. At the end of the day it is a two-ended stick and the second end will come back and hit them in the face.” Now, however, it is clear that Russia engages in a way more practical opposition and is much more hesitant to cooperate, for example in regard to resolving the conflict in Syria. Russia explicitly acknowledges that there has been a shift of strategy. Asked by a journalist how Russia’s seemingly more aggressive stand could play a role in solving the world’s pressing problems president Putin said: “I did not like you using the term ‘aggressive’ – we have become more persistent in asserting our interests. For a long time, you could say for decades, we had been calmly and quietly proposing various elements of cooperation, but we were constantly pushed back until we reached a line we cannot cross.” Russia’s struggle for recognition I have described this tougher stand elsewhere as a “struggle for recognition” – not for recognition in the sense of public international law and diplomatic relations, but for recognition in a more fundamental way: a struggle that aims to prove that Russia is not only the “regional power” acting “out of weakness” that former US president Obama declared it to be, but rather a truly global one that deserves its special status as a veto power and whose “No” to proposed interventions should be taken seriously. This struggle has several components that I have discussed in more detail here. Firstly, Russia tries to disrupt the Western hegemony in the international legal discourse, illustrated e.g. by the fact that Putin invoked (in a legally untenable manner) the ICJ’s advisory opinion on Kosovo as a precedent for Crimea’s independence. If Western States can make arguments about special cases, so can Russia. In that sense then-President Medvedev said in regard to the conflict in Georgia: „Our colleagues [Western politicians] said more than once that Kosovo was a casus sui generis, a special case. But in that case, we can also say that South Ossetia and Abkhazia are also sui generis.“ Thus, Russia challenges the Western dominance in determining the authoritative interpretation of legal concepts and rules. Secondly, the employment of so called hybrid conflicts as proposed by Russian General Valery Gerasimov (see here, and here for English translation) is meant to challenge established international reaction patterns, not in the least because it is already on a factual level utmost difficult to assess a conflict situation. Thirdly, there is a continued hesitation by Russia to cooperate on pressing peace and security issues, for example illustrated by Russian vetos in the Security Council. Fourthly, Russia seeks to create and consolidate other international alliances as an alternative for its international cooperation. Ultimately, Russia’s tougher stand comes along also with a willingness to engage in violations of international law as illustrated in the case of Ukraine. The danger of a pull into non-compliance Thomas Franck in his book The Power of Legitimacy among Nations (OUP 1990) articulated the hope and hypothesis that international rules that the subjects of international law perceive to be legitimate are more likely to be complied with and generally that legitimacy “exerts a pull on states in the direction of uncoerced rule compliance” (p. 24). In view of the current dangerous dynamic just described it appears that also the opposite is true. Where States perceive the international legal order to be illegitimate they are more likely to engage in violations and the utmost danger is that there may emerge an opposite pull, namely a pull in the direction of non-compliance. Western States see an unjustified and therefore illegitimate blockade of the Security Council by Russia and, as a result, have in the past worked on mechanisms to circumvent Russian opposition. Russia sees its legal rights as a veto power undermined and does not see a point in following rules of a legal system where its rights are not guaranteed as well. The way ahead So what can be done? The only way ahead is to slowly work towards international solutions based on international law. In that sense also self-critical reflections of Western States are needed, acknowledging that some past interventions did not rely on generally accepted interpretations of the law. It may well have been that Russia might have refrained from annexing Crimea if Western States had been more reluctant in bending and breaking the law in recent decades. Of course, there is always a point at which States will consider their immediate national interest to outweigh the gains of a stable legal order, and maybe having secured long-term Russian control over the Crimean naval basis forms such an interest. However, the Western case against Russia would have been stronger, as would have been Russia’s interest in preserving an international legal order that it perceives to promote its own benefits as well. In this latter sense, international law is fragile and it will always be – as a legal order without a sovereign – only as strong as the commitment by its subjects. What we can hope for at this point is that the current crisis will turn out to be part of a larger dialectical dynamic. Russia’s struggle for recognition, the deterioration of international relations, and the prospect of a new global confrontation could in fact remind Western States and Russia alike that having commonly shared international legal provisions is something that is worth putting off immediate interest for in order to secure stability, predictability, and peace. This text builds on and contains passages of the article International Law in Crisis: Russia’s Struggle for Recognition, published in the German Yearbook of International Law Vol. 58 (2015), 11-48. Dr. iur. Christian Marxsen, LL.M. (NYU) leads the Max Planck Research Group "Shades of Illegality in International Peace and Security Law (SHADES)" at Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany.
Cite as: Christian Marxsen, "Cleavages in international law and the danger of a pull towards non-compliance", Völkerrechtsblog, 31 January 2018, doi: 10.17176/20180131-120116 .