Are International Legal Norms Backfiring in Ukraine?

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Addendum

In my post on Saturday, I describe how in Ukraine Russia is seemingly acting contrary to its long-espoused views against the forced partition of a sovereign state. My good friend, Sami, pointed out to me in a separate conversation that this is not entirely new for Russia. Not only is there earlier precedent in Georgia, as I discuss in that post, but also Russia’s positions on Trans-Dniestria and Nagorno-Karabagh, breakaway republics from Moldova and Azerbaijan, respectively. These examples contribute to a clear pattern of Russia favoring the dismemberment of its near abroad even while continuing to oppose secessionism around the world, contrary to my portrayal of Russia as a newcomer to pro-secessionism. Russia is likely less interested in precedent, and more interested in diplomacy: garnering votes and goodwill in places like India and China should the issue come back to bite Russia in the future.

But in the most high profile conflicts around the world Russia often has stood up for territorial integrity and sovereignty against secession. The US Ambassador to the UN Samantha Power notes how current Russian actions in Ukraine contradict the Russia that so often takes the UN floor to proclaim the inviolability of state sovereignty. See this video at 19:00-19:30 for Power’s remarks on the topic at the UN. Ukraine may be a turning point as Russia is no longer able to sweep “the exceptions” to its pro-sovereignty line under the rug.

Redrawing the map is nothing new. My ancestors come largely from whatever country this is.

Areas where Russia is likely to seek justification

So if Russia can’t sweep its actions in Ukraine under the rug, how can it guard its position on international norms even as it appears to violate those norms to guard its hard assets in Ukraine? The Russians are likely to seek justification for two things: (1) intervention, and (2) the forced partition of Ukraine.

Intervention of another state is permitted under international legal norms where it is in self-defense, the defense of an attacked ally, or at the invitation of the state  (to help fight a civil war, for example). Intervention is also permitted with the authorization of the Security Council, or where a state specifically allows for another state to have such a right to intervene, usually on the occurrence of a specified event, as is (contentiously) the case with Cyprus. Humanitarian interventions are also arguably permitted.

Russia appears to be relying on the fact that the recently installed leader of Crimea has invited Russia in. As a legal justification this falls flat because Crimea is not a sovereign state capable of inviting a foreign power into Ukraine. But Russia may have a hook if it argues that Yanukovych still represents Ukraine, and has invited Russia to intervene. Russia will likely also allege that its actions are justified within the scope of its treaty with Ukraine for the lease of the military base at Sevastopol. The Ukrainians will dispute that claim. Kiev can also fall back on the Budapest Memorandum, a memo of assurance by the US, UK, and Russia guaranteeing Ukrainian sovereignty as an inducement for Ukraine to give up any nuclear weapons programs or aspirations as an NPT signatory (this means only that the US, Russia, and the UK are obligated not to violate Ukraine’s sovereignty). Russia can also seek to portray Ukraine as an imminent security threat to Ukraine as justification for intervention on a self-defense theory. Kiev is not helping itself on that front.

The norms surrounding intervention are less interesting to me because they are so often violated, and because intervention is temporary. In contrast, the forced partition of a state can irrevocably change the world map for centuries to come. Generally speaking, there is no legal justification for one state to force another state to cede a portion of its territory to secessionist rebels. But it does, of course, take place, and is probably necessary to reconfigure arbitrary post-colonial borders and to meet the demands of new circumstances around the world. In my previous post on this topic, I describe how norms have developed to police the very limited “right” of secession. In brief, individuals are free to identify with whatever communities they wish, those communities are entitled to organize and express themselves, and members of those communities are to retain equal rights to participate in the social life and politics of their home states regardless of these communal affiliations. So long as members of a community have these rights, there is no right to secede. The state can take actions to forcefully repress secession under these circumstances. But if there is widespread ethnic discrimination, cultural repression, violence, or genocide, then members of the disenfranchised community may have a “right” to demand political self-determination, that is, their own state. This is of course practically limited by numbers, demographics, territory, and the like.

How legal norms restraining secession may backfire

This limit on the “right” to secede seems sensible. After all, states cannot bless the endless splintering of states. But they certainly cannot insist that an oppressed people remain chained to their oppressors. The norms strike a balance so that the inconvenience of secession will only be permitted where it is likely to solve the greater inconvenience of ethnic strife. The problem with this is that anyone (Russia) potentially seeking to forcibly partition a state (Ukraine) now has an incentive to first spark ethnic strife in order to justify it. Without our sensible norms limiting the right of secession, a powerful state could simply choose to chop a lesser nation into bits so long as no great power stood in the way. But now, our enlightened norms may actually lead a powerful state to conclude that it must create ethnic conflict in the weaker state in order to justify its already planned partition. This kind of backfiring is nothing new to international law.

(Criminal prosecutions for war crimes, for example, are a noble justice-seeking goal. But might they discourage a war criminal from ever stepping down?)

At this stage, it is not clear that Russia will seek to partition Ukraine. But it seems it’s at least on the table. It may be that Russia is simply seeking to protects its bases, protect russophones, and gain some leverage to force Kiev to reconcile with the pro-Russian old guard. But if Russia finds Kiev unreceptive, it may conclude that its presence in Sevastopol will only be guaranteed by partitioning Ukraine. Russia certainly has the force necessary to carry this out. Much of that force is already on the ground in Crimea. Ominously, the Crimean parliament has already moved up a previously scheduled referendum from May to the end of March and changed the issue from greater autonomy to independence for the peninsula.

The only thing missing, under enlightened norms of international law, is enough ethnic tension to justify Crimea’s bid for independence. In the coming days and weeks, we may just see Russia manufacture sufficient discord, potentially with the help of the more extreme elements that have risen (along with many others) in Kiev.

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