When Barack Obama characterized Russia’s behavior as a “violation of international law,” his words were not strictly true. Obama was referring to the official United States policy that Russia’s military intervention and protectionist presence within the Crimea region transgressed the sovereign integrity of Ukrainian statehood. The assumption: that the defense of state sovereignty is unquestionably paramount with international law. Furthermore, Obama was not alone. The White House released a joint statement by the leaders of the “G-7”— Britain, Canada, France, Germany, Italy, Japan, the United States, and presidents of the European Council and European Commission—condemning Russia’s violation of Ukrainian sovereignty.
In truth, however, international law surrounding state sovereignty is much murkier. Even within the same government, state policy may exhibit conflicting legal and normative perspectives on international law. Such inconsistencies in approach have led a number of cynical scholars to suggest that international law does not exist in any binding, meaningful way, and instead serves totally as a rhetorical tools by which states in the international community may further their own political interests.
On one hand, the notion of sovereign state remains one of the structural foundations of the international system. The United Nations, largely responsible for the organizational bedrock of the current diplomatic system, operates off of the premise that each government representative reflects the interests of its host population and speaks on behalf of that population within the greater world community.
This state-based system draws its roots from the Treaty of Westphalia in 1648, which established sovereign nation states. The latest iteration of this sovereign-state structure manifests itself in the United Nations Charter, the foremost “constitutional” document of modern international law. The Charter classified each member-state of the United Nations community as an independently operating entity—a sovereign power free of external intervention. Each of these community members, representing the unique interests and aspirations of their people, would have an equal voice in the democratic community of nations.
However, the self-same U.N. Charter also pledges its affirmation that the international system will be “based on respect for the principle of equal rights and self-determination of people.” That is, people have the right to choose their representative government. It was this right to self-determination that served not only as the legal justification behind the American revolution, but also served as the fundamental principle behind the end of colonial empires and imperialist rule. Furthermore, the right of self-determination—often conflated with the right for a democratically representative government— has also been used as a legal justification for the secession of many newly recognized states, in cases ranging from Kosovo, Taiwan, South Sudan to East Timor. In each case, the independence of the new member state entailed a violation of a preexisting state’s (the parent state) territorial integrity. Many more secessionist movements, however, have received little to no international recognition of their legal right to secede and violate this same territorial sovereignty norm. For example, the Kurdish Regional Government of Iraqi Kurdistan has received limited support for any redrawing of Iraqi borders, and the Turkish Republic of Northern Cyprus (TRNC) and the Nagorno-Karabakh Republic remain wholly unrecognized.
Moreover, Russia sees the post-Soviet sphere as an extension of its own sovereign territory. In a large part, one must remember that while many European countries have been moving away from state nationalism (although the rise of anti-immigration parties suggests that this sentiment has not been entirely extinguished), a strong pride in Russian nationalism continues to thrive as a central component of national identity. Since the post-Soviet countries were carved up from the Soviet Union (which itself was carved up after the institutionalization of territorial integrity), Russia views the region in a different light. After all, the various post-Soviet states were granted individual statehood partially along the principle of self-determination. Therefore, according to the Russian mindset, if the people of Crimea democratically vote to rejoin Russia, then this is simply a rectification of prior territorial status.
Additionally, Russia views its military presence in the Eurasian sphere from a different perspective as does most of the world. Russia shares the view with many non-Western states that the most important objective of sovereign statehood is the maintenance of international stability. Russia considers its military presence in Eastern Europe responsible for ensuring a safe and stable environment throughout the region. Therefore, Russian military troops serve as the equivalent of “peacekeepers.” Thus, from Russia’s perspective, the deployment of troops to Crimea was not an aggressive measure violating Ukrainian sovereignty, but rather a police action meant to ensure Crimea’s choice to independently determine their own future. This mindset also creates the convenient paradigm that any movement away from Russia’s sphere of influence, or any tightening of relationships with European or Western powers that contravenes Russian strategic influence naturally undermines Russia’s ability to maintain regional stability and thus runs counter to the spirit of international law.
There is also real evidence to suspect that the pro-Russian sentiment present in Crimea is not the covert or manipulative product of Russian agents. Throughout Eastern Ukraine, the populace has remained strongly tied to their ethnic heartland. While Ukrainian is nominally the official language, in Eastern Ukraine, Russian is the lingua franca everywhere except for government buildings. The intensity of the language controversy was fully apparent last year during a parliamentary brawl over a bill that would have allowed the use of Russian in certain government institutions.
These facts do not legally justify Russia’s behavior, nor do they have an impact on the status of international law. What they do suggest, however, is that Russia does have a consistent mindset through which it views its behavior in the international arena, and believes its view to be justified. Moreover, the relative strength of the sovereignty norm has not been consistently applied to cases of contested sovereignty in the international community. Therefore, by claiming to support the Crimean people’s right to self-determination, Putin’s behavior is ambiguous insofar as it relates to international law.
Unless the international community takes the step of defining the relative strength of the sovereignty and self-determination norms, then one cannot make definitive judgments about the legality violations of state sovereignty when the right to self-determination is invoked. While some may want to turn to the International Criminal Court (ICC) as a possible dispute-settlement mechanism and final arbiter of international law, the fact that the United States has not accepted the jurisdiction of the ICC has rendered the institution’s decision-making power largely ineffectual. Furthermore, this discussion has totally ignored the complications imposed by an even more controversial aspect of state sovereignty, which not only demands respect for territorial integrity, but also requires (at least a nominal) commitment to avoiding any interference in the international affairs of other states. States have had a field day reconciling this policy with external state interventions under the responsibility to protect (R2P) universal human rights. Many states, particularly powerful non-Western states, have vested the power to make these decisions in the utterly political body of the United Nations Security Council. The political nature of the instiutiton makes it a poorly suited to provide the foundation of international law, a sentiment dramatically expressed by the Kingdom of Saudi Arabia when they rejected a seat on the Security Council in November of 2013, citing “irrefutable evidence and proof of the inability of the Security Council to carry out its duties and responsibilities.” These additional factors provide just further support why it is nearly impossible to claim an objective international law on sovereign territorial integrity.
While Russia may have a consistent perspective on legitimate behavior in the post-Soviet space, its behavior has been constrained by relative power concerns. While Putin strives to develop the image of a proud, resurgent Russia, he is under no illusions that Russia has the capacity to face off against the United States. In this respect, I agree with pundits who view Putin’s decision to press in Crimea as a calculated expectation that the United States and the West do not have the will to oppose Russia.
Looking forward, we can expect Crimea’s March 16 referendum to provide strong irredentist support for unification with Russia. Russia is closely watching the West, trying to distinguish bluster from resolute threats. In all likelihood, Russia will informally begin governing the Crimea region after the referendum, but will keep from formally recognizing Crimea as a face-saving measure for the West.
From Putin’s perspective, he gains nothing from formal recognition except for the ire of the United States and Europe. Putin is looking to maintain Russian influence in the post-Soviet region; formal governance offers little in the way of regional Russian interests. Crimea would operate much more effectively as leverage against the Ukrainian government ensuring good (pro-Russian) behavior, similarly to the way that Russia holds its support for Nagorno-Karabakh as a guarantor that Azerbaijan does not actively oppose Russian interests. Whether or not Russia annexes Crimea, the message sends a clear message to the other post-Soviet states: if you challenge Russian regional interests there will be retribution. And no one in the West is going to save you.