It's Not "International Law" That Has Failed Ukraine

Washington's Atlantic Council recently posted, "International law may yet contain Putin in Ukraine," by Michel Waelbroeck and Willem Aldershoff. Michel Waelbroeck is emeritus professor in European Law at the Free University Brussels. Willem Aldershoff held various positions in the Departments for International Relations and Justice and Home Affairs at the European Commission and is now an independent analyst on international issues.Given particularly the authors' credentials, the article unfortunately disappoints, writes Victor Rud for EU Today.

Standing alone, the title ("contain Putin in Ukraine"?) points to the abandonment of the largest country in Europe, the only one whose citizens for six years are being killed for their defense of "European values." Only in the very last sentence is clarification made - "International law and the Budapest Memorandum failed to prevent the Russian attack on Ukraine in 2014, but they could yet have roles to play in the quest for peace and the return of Ukraine's territorial integrity."

The authors however do not explain how that is to come to pass or, indeed, why the failure? At the outset, Russia's war against Ukraine is a "Russo-Ukrainian War," and all other references dilute to merely a "conflict," suggestive of lesser consequence and a duality in responsibility. The authors do not mention Russian "invasion," "occupation," or that the "resolution of the problem" is achieved only with Russia leaving Ukraine. The notion of "mutuality" is reinforced by statements such as, the "Paris summit made clear that there is still considerable distance between the Russian and Ukrainian visions of a post-conflict settlement. Officially, at least, disagreement centers on the sequencing of the measures outlined in the Minsk Protocols." And further, "the main practical problem with the Minsk Protocols is the lack of agreement over a definitive timetable." Lamenting that "there is no obvious middle ground between [Ukraine and Russia]" speaks volumes.

In practical effect, even if unwittingly, the authors reframe reality, with the issue reduced to simply a search for "peace" -- "progress toward peace,", "sustainable peace." "peace process." With the necessary mutuality of "conflict" resulting in predictable "disagreement" in the search for a salvific "peace," the article recalibrates the Richter Scale to deny the earthquake. The authors appear to back into an endorsement of Russia's reality reversal. "No state can reasonably be required to organize elections in a part of its territory which it does not control." Meaning if Ukraine regains control of its territory it still would be required to organize "elections"? Why? Required by whom? Sovereignty cannot be predicated on its antecedent denial.

Apparently, it is Ukraine that can remedy what the authors see as its own six year delinquency--"Ukraine’s best option may lie in an appeal to international law," to "mobilize" international law, to "seek diplomatic support," and Ukraine has "every right to demand control over the internal border." That has not been done? This would "consolidate support for its position among the wider international community. At the very least, this could prevent the country from being pressured into calamitous compromises by those seeking a return to business as usual with Russia." No, the first part is evaporating, and the second part is accelerating. Why?

In like manner, the authors counsel Ukraine to revert to the Budapest Memorandum, pursuant to which Kyiv surrendered the world's then third largest nuclear arsenal to (under U.S. pressure) Russia in exchange for assurances of its territorial integrity. Given the tectonic implications of Ukraine's nuclear disarmament, authors merely recite the Memorandum's literal text, confining Ukraine's recourse-- Ukraine is "entitled to protest" and to "request consultations." Yet Washington merely tweeting the UN was not the intention or expectation of Ukraine, at least. Without a mutual "meeting of the minds" of the parties, the Budapest Memorandum can be tossed, with Ukraine having all right to recover its nuclear capacity if it choose to do so. The authors assert a distinction between security "assurances" versus "guarantees." Despite the connotation that "assurance" is somehow weaker than a "guarantee," there is simply no legal distinction between the two terms. Furthermore, "guarantee" is the word used in both the Ukrainian and Russian texts, all languages being equally controlling.

Nowhere does the article intimate the reality that it is rather the West that has failed (better yet, refused) to enforce international law proportionate to (a) the egregiousness of Russia's violations, (b) their growing multiplicity, (c) their duration, (d) their success, (e) their overflow to the rest of Europe and the US, (f) their multiplier effect on other tyrants around the world, and (g) their impact on the global security structure. In December 1939, the League of Nations expelled the USSR for its invasion of Finland six weeks prior. With Russia's invasion of Ukraine, on March15, 2014, France said at the UN Security Council--"Russia vetoed the Charter of the United Nations." However Putin, Stalin's cheerleader, remains in the UN, with the global community sheltering his veto on the Security Council. Not until Russia's downing of Malaysia Flight 17 did the world seem to wake, but it is now increasingly reverting to its earlier torpor.

Russians In Crimea

After its invasion of Crimea, small wonder that Russia's aggression in Ukraine only increased, as it did globally--Syria, Venezuela, Africa, the Arctic, assassinations in Europe and the US, the corruption, sabotage and co-option of Western academic, cultural, financial, economic and political institutions, and the growing energy strangulation of Europe. Why, as I have written elsewhere, is Putin happy to keep Russia's money in Western banks? What was the world reaction when Russia pirated our vaunted "law of the seas" by its seizure of Ukrainian vessels and sailors in November 2019? How did China then assess our posture regarding its encroachments in the South China Sea? For the U.S., maybe Russian claims against U.S. territorial waters in the Bering Straits will be a wake-up call, a spin on Vyacheslav Molotov's proposal that Moscow assert Russia's "historic claim" to Alaska.

Russia's fear of unacceptable consequences ensures against its breach in the very first place. That fear can be real only if there is certainty of corresponding "enforcement." But "international law" is not self-implementing or self-enforcing. I wrote before:

"Like drivers obeying the rules of the road, nations must instead rely on the assumption of reciprocal compliance with the 'deal' by other signatories, in the mutual recognition of the self-interest by all.

"It’s a delicate eco-system. If a signatory nation is allowed to trash the underlying premise of the 'deal', and if there are no consequences proportionate to the breach, the entire global structure will implode. The implosion can be cataclysmic when a signatory nation to an international disarmament agreement, for instance, knows that its breaches will be systematically ignored, and that even more agreements will blithely, meaninglessly, follow."

Thus, since there is ultimately no third party enforcer of issues bearing on national sovereignty and international security, it is the members of the international community themselves who are to hold each other to account. When we consider, for instance, that the Budapest Memorandum hand-wringing has become the headstone for further global denuclearization, that pushback is not there. Sanctions? At the level, breath and consequence of those imposed against Iran? Or North Korea?

In Forever Flowing, Vasily Grossman wrote that in Russia, "law has always been a weapon of tyranny, only, and in which tyranny is the only law." Through the centuries, Russia has refined "lawfare" in the international context, starting from its 1654 Pereiaslav Treaty with Ukraine, to its invasion and annexation of Crimea from the Ottoman Empire in 1783, and through today--"Residents of Crimea are simply exercising their legitimate right of self-determination." Bad enough. But when the West silently dynamites international law by its desultory "enforcement," it unavoidably becomes an aider and abettor of Putin's mayhem. With august organizations such as PACE unconditionally inviting an unrepentant, defiant Russia back into the fold last summer, throaty perorations about "rule of law" and "international order" are a dog whistle for Russian predation.

We could do worse than to heed President Ford's admonition upon the signing of the Helsinki Accords: "History will judge this conference, not by what we can say here today, but by what we do tomorrow; not by the promises we make, but by the promises we keep."

Read also: Is Putin a fascist? by Victor Rud

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Victor Rud

Victor Rud

Victor Rud has practiced international law for 35 years, and before the fall of the Soviet Union represented, in the West, political prisoners persecuted by the KGB. He also served as Special Counsel to a member of the US Delegation to the Madrid Review Conference on Security & Cooperation in Europe ("Helsinki Accords").

His commentary has been carried, among others, by Forbes, Kyiv Post, Foreign Policy Association, Defense Report, Atlantic Council, Centre for Global Strategy, and EuromaidanPress.

Victor is Senior Advisor to Open Court, an NGO in Ukraine, and was the keynote speaker at the first L'viv Security Forum.

He is a founder and past Chairman of the Ukrainian American Bar Association, and currently chairs its Committee on Foreign Affairs. He received his undergraduate degree in international relations from Harvard College, and his law degree from Duke University.

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