The situation in Crimea has left many an international lawyer in shock. It seems to transport us back to past times when the superpowers did what they pleased and the others suffered what they must. The end of the Cold War, so we hoped, had ushered in a different era in which international law found greater respect. The post-9/11 years sowed doubts about this; now we’re getting closer to certainty that the times haven’t changed that much.
For some, like Eric Posner or Julian Ku, Crimea is yet another piece of evidence that international law is weak. Of course it is, but this weakness is entirely unsurprising. Who would have thought that the rules on the use of force could be effectively enforced against a great power, a regional hegemon, in its own backyard? Great powers – including Western ones – have always treated the law on the use of force somewhat liberally. They have evaded censure, or didn’t care too much about it when the stakes were high. And the UN collective security system is explicitly designed in a way that makes action against them impossible. This tells us something about the limits of international law, and, as Erik Voeten rightly points out, it should give us reason to worry if a legal system allows powerful actors to ignore it so openly. But for international law, this is nothing new. When it comes to the use of force, some states have always been more equal than others.
At the same time, there are aspects of the Crimea crisis that do seem to reflect a certain impact of international law. Cynically enough, the strongest effect might be that we see Russia intervening ‘only’ in Crimea – not in Eastern Ukraine or Ukraine as a whole (for now). More directly, as Chris Borgen highlights, international law has forced Russia into a certain rhetoric of justification, even if it was initially a surprisingly shifting one. Perhaps those shifts stem from the fact that the Russian government itself was surprised that it needed to come up with justifications at all. Most importantly, the need to justify seems to have driven Russia into considerable secrecy. Operating through unmarked troops – as it seems to be doing – and declaring them Crimean self-defence units is designed to evade attribution, or at least to create enough uncertainty about it that denials become plausible. This suggests that Russia does care about its international audience (at least a bit), and knowing that international law matters for that audience it has chosen a less open form of invasion.
In its efforts at justification the Russian government has also managed to exploit certain points of uncertainty in international law. Its claim to protect Russian citizens from danger may lack a visible factual basis, but its rationale follows the practice of many (including Western) countries to undertake rescue operations for their own nationals without the consent of the country concerned – even if this practice is obviously in tension with the strictures of self-defence under the Charter (see Daniel Wisehart’s post on this). Russia’s second main claim, intervention upon invitation, exploits an opening created by earlier instances of intervention (especially in Western Africa), which equally relied on the consent of deposed, democratically-elected governments (see Zachary Vermeer on this). We may find this inconclusive as a matter of law, but the traditional position – that only a government in effective control can issue invitations to intervene – is certainly not as settled as it used to be. Likewise, the claim about self-determination and the right of Crimea to join Russia is no longer as difficult to make as it has been before Kosovo’s secession from Serbia. Claims to external self-determination are stronger now than they once were (see this piece by Rob Howse and Ruti Teitel), and even if the situation in Crimea does not present some of the characteristics often required by proponents of a right to secession (especially discrimination and systematic human rights violations) and completely eschews attempts at a negotiated settlement, Russia (and the pro-Russian rulers of Crimea) can use the greater state of flux in this area of law to present their case as arguable. The fact that Western countries supporting Kosovo didn’t put forward a rationale for the right to secession, except by pointing to the uniqueness of the case, did not help to clarify the law in this area.
Russia’s claims are overall weak, partly because they are based on problematic legal positions, partly because they rely on facts – supposed threats to Russians and Crimeans – which don’t seem to exist, and partly because they use a show procedure (a referendum convened within two weeks in the shadow of a military occupation) as a basis. Yet it is ironical that these claims have come into the realm of the arguable because traditional constraints in the law on the use of force and self-determination have been blurred by instances of liberal interventionism over the last two decades. The more formal classical rules have come under pressure by arguments from democracy (recognizing the continued relevance of a democratic government in exile), from rights (of individuals threatened by a crisis, calling for protection and intervention) and from liberal conceptions of political choice (the right to secede as an exercise of self-determination). As these rules become more elastic, they provide openings for abuse, and they more easily provide cover for the interventionist practices of powerful countries. Softening limitations on force, albeit for the sake of important values, always risks putting us on a slippery slope, and it might make the constraining effect of international law in this area – weak as it is in the first place – only weaker.