Keep an eye on Moscow’s legal justifications for its actions in Crimea and Syria – they could lead to a broader re-thinking of the international legal system.
Russian Foreign Minister Sergei Lavrov, left, greets U.S. Secretary of State John Kerry as he arrives for their bilateral alongside the OSCE Ministerial Council meeting in Belgrade, Serbia, on Dec. 3. Photo: AP
Russia’s Federation Council recently passed a law on the priority of national law over international court rulings. Several days earlier, the bill passed the State Duma (with 436 deputies voting for it and 3 against). Now Russia's Constitutional Court can rule that the national government could ignore the verdicts of international courts, including the European Court of Human Rights.
The Federal Assembly decided to amend the nation’s legislation after it observed partial treatment of Russia in foreign and supranational courts whose verdicts are used to put pressure upon the Kremlin, as in the case of Yukos Oil Company vs. Russia, when the European Court of Human Rights ruled that Moscow must pay billions of dollars to former Yukos shareholders.
It is possible that soon new charges will be brought against Russia, and the Kremlin will likely perceive them as a threat to its national interests, for example, Ukraine's lawsuits regarding its losses after Crimea was officially incorporated into Russia.
Not only is the Kremlin skeptical toward international court rulings, but also it holds an ambiguous stance on international law in general, as indicated by both Moscow's domestic decisions and its foreign policy moves.
Both the Kremlin's incorporation of Crimea and its intervention in Syria have generated considerable analysis about international law, all of which speculates on how international law could be undergoing a significant re-think. The fact is that such policies do not give rise by themselves to any new international legal issues. Rather, they bring into the spotlight the core ideas that form the underpinnings of the international legal system.
Obviously, Russia got back the means to fulfill some of its geopolitical ambitions and now spares no effort in defending its interests, maneuvering one legal way or another. But for a good understanding of what is at stake, it mustn't be question of piling up examples, from which some cast-iron truths are often deduced and then defended tooth and nail.
Naturalists vs. positivists
When things are summarized, the apparent opposition between naturalists and positivists seems less relevant. While naturalists argue that countries must abide by international law merely because its authority rests on high moral standards shared by all representatives of humanity, positivists tie the binding power of law to an existing authority that is willing and capable of enforcing it. It seems that their boundaries have blurred and Moscow could well have given an impetus for them to be thoroughly blended.
The reality is that natural law, literally, is hard to come by at the international level for a simple reason: It has been more and more enshrined through positive law instruments over the past few decades, even centuries. Bans about slavery or genocide, ensuing from human rights natural law, gathered the consent of every state. Some legal dead ends or unclear concepts remain. One may for instance think about the jus cogens idea, because of which France decided not to sign the Vienna Convention on the Law of Treaties.
Many other concepts are less than precisely defined through positive law as well, the first of which being the peoples' right to self-determination. As the word people is not legally defined, it can collide head-on with another international legal principle, as in Kosovo in 2008. Anyway, beyond the question of how rules are clearly defined, one cannot postulate that there is no more room for natural law because precisely what is needed is more consensus and definition of it.
Which rules for which situations?
It must be underscored how the audacious Russian stances on both the Syrian and the Crimean issues are so far apart from each other from a legal perspective. Yet, their combination points at the uncertainties mentioned above. Henceforth putting them into the same basket, explaining that there is a single Russian legal approach, would be an error. These two approaches are fundamentally different from the legal point of view.
On the one hand, Moscow has championed a purely legalist approach on the Syrian conflict over the past few years, playing the role of Syrian President Bashar Assad's advocate through constitutional arguments and UN legal pillars. The idea is that anyone has to abide by written and clearly-defined rules. No intervention is possible without the UN Security Council’s consent or the legally-elected Syrian government's request.
On the other hand, a much more ethereal approach aimed at legalizing Crimea’s incorporation into Russia, advocating the people's right to self-determination against the principle of territorial integrity, enshrined in the UN Charter as well as in many General Assembly resolutions (1514 and 2625).
As written above, the first one has not yet been clearly defined and the Russian move on Crimea has taken root on precedents set during Yugoslavia's collapse and bombing, and more recently, in Kosovo. With respect to the situation on the ground there were differences, to say the least. But one cannot strike off either the issue of the peoples' will, manifested by a referendum carried out in Crimea, or the legally-elected governments' way of ruling.
In view of these two approaches, each is being adapted to a precise context.
Sovereignty as a double-edged sword
International law was built on the principle of sovereign states, which is an anti-hegemonic weapon to the extent that neutrality stemming from internal choices and policies must be observed. This principle is born from the necessity that any state must be protected against a more powerful one. Most of the UN Charter dispositions affect it. According to the UN Charter article 2, states are legally equals and their territorial integrity, as well as their political independence, must be respected.
It is a necessity to remember that territorial integrity is not a stumbling block to any isolated intervention at all, to the extent that any government can bring help to another one with the latter's consent.
With regard to territorial integrity, the other side of the coin is that conflicts could be completely frozen, since they have morphed into internal ones, should a UN Security Council permanent member decides to veto any intervention, as a result of being duped by not-detailed-enough or double-meaning resolutions. One could indeed fear that moral high standards become a fig leaf for less honorable purposes.
It goes without saying that the underlying risk of it is inaction and impotence. The sovereignty principle that led small and middle-size countries to their emancipation has become a no-trespassing limit beyond which the only possibility of reacting is paying lip service. This is the reason why another way of acting is needed not for being hands and feet bound when it's time to deal with some regimes with less-than-stellar democratic credentials.
Russia itself made the case for marginalizing the wait-and-see attitude.
What’s next for natural law?
In any case, international rules will remain to be based on moral principles, be they written or not. Of course hard power and states' will be of the utmost importance when it's time to move on. But it would be a mistake to oppose what some consider apple-pie-and-motherhood principles to a so-called down-to-earth way of thinking.
The very same existence of a military intervention is not self-justified. Be it Russia or the U.S., no intervention is not morally justified, regardless of what anyone could think about it. No matter what parallels are drawn, any action rests on an idea, on a moral principle, that responds to the question "why?" and "by what authority." Legitimacy rests on it. No authority can be based only on will and brute force, only the implementation of the decisions.
The UN international system is built on such a rationale and the use of force is enshrined through the UN charter in order to safeguard its raison d'être, it is the moral principles that led to its creation. If one can consider values as utopian objects without some jingling brute force for them to be respected, no military action is led without guiding principles.
This is the reason why Russia itself, through President Vladimir Putin and Sergey Lavrov, Russia’s Foreign Minister, justified the Crimean issue first and foremost by its legitimacy. What was hinted is that legality ensues from it. From then on, either Russia must be considered as a utopian international player, or it must be understood that guiding principles and values are not empty words. The credo in Crimea was, among other things, that by threatening the Russian-language natives from being banned from using Russian in their relations with the government in power, Ukraine meant to break one of their fundamental rights.
At a very different degree, the massive human rights violations observed during the Yugoslavian internal conflicts led at the end of the day to NATO's intervention. But in the same vein it's about the comparison of a government's behavior and it's citizens' rights. In Crimea, Moscow opted for a preemptive action and not a single shot was fired.
What follows is that a government cannot act as it sees fit, while remaining hidden under some constitutional umbrella or international rules. That would corrupt the spirit of these rules. Law would ring hollow, should it be just meaningless words. What took place in Libya is another example of it, whatever one can think of its former leader Muammar Gaddafi. A legal decision was taken with the Russian consent on the ground that a government cannot act as it pleases, even less with human rights.
The common thread of it is that natural law has been all but mothballed. The argument according to which it's all a matter of a perspective, therefore putting it aside is not necessary effective, at least from the point of view of such rules' existence, both under written or unwritten form.
Will Moscow cause a re-think of international law?
Forecasting which way will evolve international law is a tall order, especially as it depends on factual evolutions, being by definition hardly predictable. But it seems that there's a will, not only on the Kremlin's side but also from that of other states to:
- Adhere to the existing rules defined in the UN Charter,
- Clarify some less-clear legal objects in order to work within an identifiable framework,
- Find common ground and mutually-agreed procedures for implementing security measures aiming at international stability and not undergoing current conflicts or future ones from the passive observer's place.
Moscow's recent foreign policy has shed a harsh light on legal loopholes of the international security system, which is beset by some contradictions. But this alone won't change the international legal system as a whole, since no single event makes a trend. There remains much to be worked out between the positivist approach and the naturalist approach. However, one can see the progressive positivization of natural law within the next few years. Maybe the recent Russian foreign policy could turn out to be the needed trigger mechanism of it.
The opinion of the author may not necessarily reflect the position of Russia Direct or its staff.