Whose International Law? Legal Clashes in the Ukraine Crisis Mikulas Fabry Working paper GTJMCE-2016-2 This working paper along with others in the same series can be found online at: http://pwp.gatech.edu/jmce/jmce-working-papers/ Sam Nunn School of International Affairs Georgia Institute of Technology Atlanta, GA, 30332 This text may be downloaded only for personal research purposes. Additional reproduction for other purposes, whether in hard copies or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper, or other series, the year and the publisher. 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Legal Clashes in the Ukrainian Crisis Mikulas Fabry Abstract This paper examines the role of international law in the Ukrainian crisis. It demonstrates that the United States and the European Union, which have led global opposition to Russia’s involvement in Ukraine, have held uniform views on major international legal issues raised by that involvement. This unified stance suggests that the transatlantic zone is where shared basic values and principles of a global order do not exist only as a matter of abstract rhetorical agreement but also get translated into concrete policies and are applied to concrete cases. These policies must be acknowledged and probed no less than the fractiousness that is more typically the focus of commentaries on EU common foreign and security policy and transatlantic relations. Fabry GTJMCE-2016-2 1 Introduction This paper examines the role of international law in the Ukrainian crisis. It demonstrates that the United States (US) and the European Union (EU), which have led global opposition to Russia’s involvement in Ukraine, have held uniform views on major international legal issues raised by that involvement, including those related to Russia’s military intervention, the Crimean referendum, and the absorption of Crimea into the Russian Federation. This uniformity is notable for at least three reasons. First, the post-Cold War years had seen multiple disagreements both among the member states of the EU and between EU member states and the US over the interpretation of legal norms in high-profile cases involving the actual or potential use of military force. Second, Russia consciously drew upon some of those contested cases, especially the Kosovo intervention (1999) and recognition (2008), to construct a plausibly-sounding legal case for its actions in Ukraine. Third, intra-EU and transatlantic opinions on how best to react to those actions quickly diverged and these differences were being actively encouraged from Moscow. Yet neither the past rifts over cases such as Kosovo, nor the initial differences over the scope and severity of possible responses to Russia, nor Russia’s attempts to exploit both, have proven to be an obstacle to the emergence of a unified transatlantic1 legal view of the crisis in Ukraine. Crucially, this unified view developed in close coordination rather than fortuitously. There can be little doubt that, in terms of the triangular diplomacy framework presented by the editors of this volume, US and EU leaders sought the strongest common position in order to cast the Russian legal argumentation into as unconvincing light before the global diplomatic audience as possible. It would be premature to draw sweeping conclusions from this single case, however significant it may be not just in the regional but also global context. One cannot, for example, 1 It should be noted that while the focus of this volume is on the US and EU, the transatlantic alliance also includes Canada and Turkey. Both have been part of the consensus on Ukraine. Fabry GTJMCE-2016-2 2 presume that the firm collective position on Ukraine has signaled a more harmonious era in EU common foreign and security policy or transatlantic relations. Yet what is already clear is that the EU and EU-US concord is not an isolated event. It is more than, say, a reaction to the threat to the eastern flank of the EU and the North Atlantic Treaty Organization (NATO). The shared EU and US stance, particularly in regards to Russia’s claim of a right to forcibly protect Russian “compatriots” abroad and its forcible incorporation of Crimea, actually fit a long-standing policy pattern. Since 1945 the US and the member states of the EU and its institutional predecessors have consistently opposed both the idea of a unilateral right to use interstate force on behalf of one’s ethnic kin and the incidents of forcible territorial aggrandizement. The former is at odds with what have been generally recognized as legally permissible grounds for the use of force (Dinstein 2005), while the latter have violated of the norm of territorial integrity which protects states against involuntary loss of territory to other states (Zacher 2001). This history indicates that, despite all their disagreements in various recent and not-so-recent cases, when fundamental norms of international conduct are deemed to have been infringed in particular cases the US and the EU members are capable of achieving durable consensus and the EU can attain high internal coherence as a foreign policy actor. More broadly, it suggests that the transatlantic zone is where shared basic values and principles of a global order do not exist only as a matter of abstract rhetorical agreement but also get translated into concrete policies and are applied to concrete cases. These policies must be acknowledged and probed no less than the fractiousness that is more typically the focus of commentaries on EU common foreign and security policy and transatlantic relations. Fabry GTJMCE-2016-2 3 The role of international law Most international analyses of the Ukrainian crisis have focused on geostrategic, military and economic issues. Given that the crisis involved a great, nuclear-armed power and a major energy supplier carrying out the first forcible incorporation of a territory across interstate boundaries in Europe since 1945, this is understandable. However, what has not been necessarily widely appreciated is that all these issues have a distinct legal dimension. This should not be surprising. States almost invariably seek to justify their foreign policies within the framework of international norms, and in particular international legal norms.2 As a purely empirical matter, then, states believe in both the existence of the prevailing norms to which they can appeal and the importance of convincing other states that they act within them and avoiding a reputation as a reprobate actor. Indeed, they frequently exert more painstaking efforts when making a case for policies they suspect will be controversial or know will entail antagonism or coercion. Given that international norms are normally general, justifications of an action typically assert either that (1) there is a compatibility with a previous construction and relevant precedents of a norm, or (2) that there are compelling reasons for an innovative interpretation based on the new, unique or unusual circumstances of the case and/or other pertinent moral and legal considerations. While an individual state always justifies its actions by claiming adherence to existing international norms, the authoritative judgment whether this is so cannot be simply its alone. Other states governed by the norms have to accept these explanations. In an anarchic states system lacking a court with compulsory jurisdiction or any other universally binding interpreter of conflicting claims, it is they who, in most instances, serve as a kind of collective judge and jury. 2 Norms are understood here as prescriptive statements delineating proper conduct. They encompass legal rules, shared moral and diplomatic principles and standards, rules of etiquette, and tacit rules of the game. The principal focus of this paper is on norms with legal status on the respect for which states tend to put the highest premium. Fabry GTJMCE-2016-2 4 This is true whether the case concerns the defense of a single act within a norm, the claim of a single exception to a norm, or the formation of a new, more general interpretation of a norm which also pertains to comparable acts. Regardless of its power, interests or motivations, if a government cannot provide satisfactory explanations of its actions to other states, then it can expect to face negative consequences internationally. The precise character of these consequences depends on various factors, including the type and severity of the deemed transgression. But it is essential to understand that whatever negative diplomatic, economic or military consequences follow a particular foreign policy move, these arise only after external actors have been able to identify a specific norm transgression and to justify their response by reference to that transgression. International norms, and above all international law, thus serve as a cognitive, communicative and argumentative device through which states understand, explain, shape, demand, support or oppose individual governmental actions. If attempts to grasp conflicts without a full consideration of the moral and legal framework in which they are played out are bound to be, on the whole, incomplete, this need is even greater when the pertinent norms are universally heralded as central components of the contemporary international order yet remain contested, as they have been in the case of Russia’s engagements in Ukraine. An additional need for analysis stems from the importance of the principal actor in the Ukrainian crisis. As Roy Allison (2014: 1256) writes, “…Russia is a major power, with a permanent seat at the UN Security Council, which aspires to shape and constrain interpretations of law and international norms in the wider community of states as well as its own neighborhood. This legal contest has potentially serious implications for the international system.” Fabry GTJMCE-2016-2 5 Legal arguments and counter-arguments in the Ukrainian crisis Legal clashes between the US and the EU, on the one hand, and Russia, on the other hand, over Russia’s engagements in Ukraine went hand-in-hand with disputes over facts on the ground, although the latter are less pronounced today than they were at the time of their occurrence in 2014. Following a highly contested change of government in Kiev on 22 February, Russia’s military forces, not wearing insignia but later acknowledged publicly by President Putin on several occasions, deployed to take control over military, governmental, communication and transportation installations throughout the Crimean peninsula. This action, which began on 27 February, was denounced by the new authorities in Kiev as an “illegal entry”3 and an “unauthorized act of aggression.”4 With Russian troops surrounding the autonomous parliament and other key public buildings, the Crimean autonomous government came under control of politicians of a pro-Russian party who hastily organized a declaration of Crimean independence from Ukraine and unification with Russia on 11 March5 and a referendum to approve the move on 16 March. On 17 March, following the 96.8% approval of the unilateral secession, the “Republic of Crimea”6 was recognized by Russia as an independent state.7 Having accepted the petition for accession to the Russian Federation, the Russian government then, equally swiftly, signed an 3 See Statement of Ukraine, UN Doc. S/PV.7124, 1 March 2014. 4 See Statement of Ukraine, UN Doc. S/PV.7125, 3 March 2014. There had been Russian military forces in Crimea – at the sprawling naval base in Sevastopol – on the basis of a Russo-Ukrainian bilateral treaty, but these could not be deployed elsewhere on Ukrainian territory without prior consent of the Kiev government. No such consent was ever sought before 27 February and the military operation, in any case, involved thousands of additional troops flown in from Russian territory. 5 Declaration of Independence of the Autonomous Republic of Crimea and Sevastopol, Supreme Council of Crimea, 11 March 2014. 6 This entity was proclaimed in the 11 March declaration as consisting of the Autonomous Republic of Crimea and the city of Sevastopol, which had a separate status in Ukraine. 7 See Executive Order on Recognizing Republic of Crimea, President of Russia, 17 March 2014.