Is international law effective? The case of Russia and Ukraine.

Author:Chesterman, Simon
 
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This panel was convened at 3:30 pm, Wednesday, April 9, by its moderator, Lori Fisler Damrosch of Columbia Law School, who introduced the panelists: Simon Chesterman of the National University of Singapore; Anatoly Kapustin of the Institute of Legislation and Comparative Law Research, Russia; Nina Khrushcheva of the New School; and Peter M. Olson, former NATO Legal Adviser. *

REMARKS BY SIMON CHESTERMAN ([dagger])

Two weeks ago, Crimea literally changed its time. Crimean clocks were advanced two hours forward to synchronize them with Moscow. Only a handful of states recognize Russia's annexation or "reintegration" of the former semi-autonomous republic of Ukraine, but given the current focus on the east of that country, it appears clear that if President Putin limits himself to acquiring Crimea there will be a collective sigh of relief.

In my remarks, I will focus on the first two questions posed for the panel. But because I can deal with those fairly swiftly, I will also address the last question. In brief, my responses will be as follows:

  1. Is the UN Charter's collective security system powerless in the face of the determined action of a member of the P5?--Yes

  2. Do EU and U.S. economic sanctions offer an effective alternative response to what many consider Russia's illegal actions in Crimea?--No

  3. How should we evaluate President Vladmir Putin's reference to events in Kosovo, Iraq, and Libya as precedents for Russia's actions in Crimea?--Skeptically, but with some contrition.

  4. IS THE UN'S COLLECTIVE SECURITY SYSTEM POWERLESS AGAINST A DETERMINED MEMBER OF THE P5?

    Of course it is. That's how it was designed. And that's how the P5--especially the United States--like it, so it is disingenuous to suggest otherwise. That said, it has been interesting to watch how Russia has tried to invoke a variety of legal arguments: invitation, self-determination, humanitarian intervention, protection of nationals abroad, and historic claims to territory.

    Western states and commentators, for their part, have been overblown in their criticism. It is not clear, for example, that the annexation amounts to aggression or that Crimea's vote itself was unlawful as a matter of international law. Some troops were present lawfully under an arrangement to station Russia's Black Sea Fleet there, but movements or increase in numbers required consent of the Ukrainian government that was clearly not given. The referendum appears to have violated Ukraine's constitution, but as the Kosovo Advisory Opinion has shown us, unilateral declarations of independence may not of themselves violate international law.

    President Putin initially claimed--implausibly--that the armed actors that took control of Crimea were merely "local self-defense forces." That pretense has now been dropped. There have been some suggestions that Russian troops were invited into Crimea, but if such an invitation was given, it was by the ousted President Yanukovych (who later said it had been a mistake).

    In any case, the annexation of Crimea appears to be a clear violation of the Charter's Article 2(4) prohibition on threat or use of force.

    What is to be done? Not much. Russia has already vetoed a Security Council resolution--from which, interestingly, China abstained. And Russia will ignore the General Assembly resolution adopted on March 27, 2014, despite 100 countries voting in favor of it.

  5. SANCTIONS

    So is there any another way to influence Russia through economic sanctions? Not really, it seems. President Obama understandably made it clear that the United States was not considering the use of military force, although he did recently underline that the Baltic states of Estonia, Latvia, and Lithuania come under the NATO umbrella, meaning that any attack on them would be treated as an attack on the United States.

    In the absence of military force, the main alternative would be economic sanctions. Here, however, there is a risk of cutting...

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