GRANT: One hopes that there is still time to save the post-1945 system of public order in Europe. The Soviet Union, whatever its faults, had a keen appreciation for territorial stability. The Helsinki Final Act enshrines that appreciation. The Final Act addresses Western concerns over human rights; but the USSR insisted that it also secure the boundaries of Europe against any future attempt to change them by force or threat. In the case of Germany’s borders, the postwar treaty practice went even further: no change at all is permitted, those borders being legally entrenched beyond the general privilege that international law accords to territorial settlements.
Reasons for pessimism about the postwar security architecture however exist. The Russian Federation today seems to have jettisoned the USSR’s relative conservatism. Instead of the principle of territorial stability, the Russian Federation since March 2014 espouses an historicist view that says that old boundaries might be brought again to life, including by force if Russia so chooses. International law had good reason for moving beyond historical claims as a solvent of settled boundaries. Every country has a history. If the law permitted a country to plead new boundaries on the basis of whatever page of its history it chose, then claims to revise the territorial settlement would be without end. Law aims to achieve predictability. A history-based revision of modern territorial relations is inimical to law. In any event, even valid claims are not to be prosecuted by force or threat. We have an orderly process to deal with valid claims—look at the docket of the International Court of Justice for a demonstration of how that process functions when states accord with it. That is the process that we should hope survives the current crisis. And the stable borders that so benefited Europe for 70 years, it is to be hoped, are not thrown into doubt by Russia’s attacks on Ukraine.
MOTYL: Why did Russia act so destructively? Is the system at fault? Putin? Or does the fault lie with the West?
GRANT: Russia’s conduct since the start of 2014 presents a degree of puzzlement. Russia, notwithstanding the grievances it asserts against the West and others, has undergone a stunning transformation since the end of the USSR. The early 2000s in particular, if I understand the economists, witnessed an unprecedented growth in Russia’s wealth. Russia has become connected to the wider world in a way that had been unthinkable in the days of the USSR. This is no isolated state, culturally or economically. Its people travel; its investors are entwined with other countries’ economies; it derives vast income from the export of raw materials and certainly has the potential to do more than that. Yet with the forcible seizure of Ukrainian territory and the cascade of threats and violence that followed, Russia seems to be rejecting the system that, in a fair view, was serving it well.
There are commentators who say that the expansion of NATO or the discussions between the EU and Ukraine precipitated Russia’s aggression. The difficulty is that saying this is to reject one of the cornerstones of modern international law. States are free to choose what states they deal with, and how. States are free to choose what domestic political and social order they maintain as well. The International Court of Justice famously reminded us of this in the Nicaragua v. United States case: it was not for the United States to complain that Nicaragua had formed an alliance with the USSR and elected, under that alliance, to follow the socialist path. This is one of the main reasons why the court came down so hard on the United States in that case. The thing is, in that case, the United States had credible evidence that Nicaragua was actively working, by means of armed force, to overthrow the governments of neighboring Central American states. Nobody believes that Ukraine is using armed force to overthrow, say, the government of Belarus. To say that NATO poses a threat to Russia, likewise, is groundless. The point about the Nicaragua case is this: if Nicaragua’s right to choose its own international and domestic orientation meant that the United States had no right to intervene there, then Ukraine’s right is even more clear; it is an a fortiori case. The West has done nothing to give rise to an international law right of forcible intervention in Ukraine.
One should note in this connection that criticizing a state’s human rights record is not forcible intervention! It is simply holding a state to account when evidence suggests that the state has failed to accord with its human rights obligations. President Putin’s assertions that the EU has an unlawful agenda, when the EU criticizes Russia’s domestic human rights record, have no validity whatsoever. Chapter 7 in the book addresses Russia’s idea that human rights somehow constitutes a threat to Russia’s independence and territorial integrity. I suggest there that that idea relates closely to Russia’s new foreign policy of territorial aggrandizement. I am writing separately at the moment on the old Soviet idea of international intervention. There are some surprising continuities between that idea and the Russian Federation’s present ideological orientation. Russia’s jettisoning of the Soviet belief in stability of boundaries is a profound discontinuity, and dangerous—yet plus ça change…
MOTYL: What can the international community—the United Nations, the European Union, the West—do to repair the damage Russia did to international law?
GRANT: A range of options exists for repairing the damage. Many of the options, or most, can be pursued together; they are not mutually exclusive. Ukraine, for example, already has brought inter-state claims against Russia under the European Convention on Human Rights. How the Strasbourg court decides will depend on the application of the convention to the facts of the case, but the Cyprus v.Turkey case suggests one of the possibilities: the court there held the occupying power responsible for payment of substantial compensation. I have suggested elsewhere some of the other procedural mechanisms that Ukraine might invoke in its resistance against Russia’s attack. (See for example theChicago Journal of International Law, volume 16.1.)
As for the general response—that is to say, the response by states at large—this is important as well. A core principle of international law is that no state shall recognize, or imply the recognition, of a situation that has resulted from a serious breach of international law. A corollary to that principle is that all states shall cooperate to bring an end to the situation. Applied to Russia, this means that all states must refrain from recognizing Russia’s unlawful annexation of Crimea; must refrain from recognizing Russia’s unlawful attempt to separate Donetsk and Luhansk from Ukraine by force; and must cooperate to bring an end to the situation in Ukraine that has resulted from Russia’s armed attack. How exactly states shall engage in this cooperation is not specified under international law. Sanctions against Russia, in my view, are consistent with states’ obligation to cooperate. There is also the right of Ukraine, under Article 51 of the UN Charter, to self-defense. This is an inherent right; it does not depend upon its embodiment in Article 51; and no procedural step by the UN is needed for Ukraine to invoke the right. Moreover, the right also involves the right of collective self-defense. It is within Ukraine’s right to call upon other states to assist it with its defense. Now, states inevitably will enter into prudential calculations about involving themselves in Ukraine’s defense. It would not however be convincing for them to say that international law compels them to refrain from involving themselves. International law compels nothing of the sort. To the contrary, international law envisages collective response to aggression.
MOTYL: What should Ukraine and its friends do about Crimea and the Donbas?
GRANT: The answer to this question, to some extent, follows from the answer to the preceding question. First, nobody should say or do anything that gives even the slightest indication of acceptance of or acquiescence in Russia’s unlawful presence in those parts of Ukraine. Second—and this is a point distinct from the answer above—Ukraine and its friends should insist on accurate reporting of the facts. The principal institutions of international law available to address the situation have been absolutely clear about the facts. For example, the referenda purporting to have separated those regions are not valid. The General Assembly and Parliamentary Assembly of the Council of Europe are among the institutions that have said so. And observers, including those of the OSCE, dismiss out of hand Russia’s fiction that Russia’s men and materiel are not involved in the fighting in the eastern part of Ukraine. Western media should not indulge that fiction. They should reject it. Russia is involved; this is not a civil conflict; it is an armed invasion. Ukraine and its friends should continuously remind people and governments of the facts.
MOTYL: Can you imagine Russia’s being reintegrated into the international community anytime soon?
GRANT: Our international system is resilient. It is so resilient that even a state that has carried out aggression against its neighbor continues to be a member of the international community, at least in some sense. This at times can exasperate those who seek to hold the aggressor to account. Why, one might ask, do we “let” Russia sit in the General Assembly of the United Nations? Why does Russia wield a veto in the Security Council? Why do we continue to have diplomatic relations with Russia? The answer to these questions is that countries are too deeply interconnected today for the international community as a whole to cut off a country entirely from the community. This at any rate goes for most countries. So I do not believe that we yet have reached the point where Russia is going to be thrown out of the international community as such. This is not really the way to look at it.
Instead, we are looking at a range of sanctions that countries should adopt against Russia to impose as much cost on Russia for its aggression as we can it. We should also be looking at more vigorous steps to help Ukraine in its lawful exercise of the right of self-defense.
I would add that membership in the international community does not mean the same thing for all countries at all times. If no action is taken, Russia will be hosting the FIFA World Cup in 2018. This will make a sorry spectacle. Governments should consider whether they really wish to lend credibility to the current Russian government by being its guests for this sort of event. Some channels must always remain open, even to the worst violators of international law; but others should be closed until the violator returns to lawful conduct.
To answer the question directly: the full normalization of relations with Russia must await Russia’s reversal of its aggression against Ukraine. This means the withdrawal of Russia from Crimea and the Donbas. It also means reparation from Russia for the injuries that Russia’s aggression to date has caused Ukraine and others. This is not about punitive measures against Russia. It is about appropriate measures that Russia must take to reverse its serious breaches of international law and to reverse the consequences of those breaches.
