Ukraine is finding itself at the centre of a geopolitical tug-of-war between Russia on the one hand, and the U.S and its European allies on the other. The strategies and tactics used by both sides borders on the violation of international law and norms. Their approaches call into question the relevance of the collective security mechanism in the enforcement of international law, in situations where powerful states are the culprits.
Collective security in its classical form and as developed in the Charter of the United Nations system serves as a mechanism for the enforcement of international law. It is a mechanism that gives the United Nations and more specifically the Security Council, legal monopoly to authorise the use of force in the event that international law and rules are violated by either states or non-state actors. The mechanism hinges on the maxim that any injury to one (state) is an injury to all (states). Hence there is the expectation that members of the United Nations acting through the Security Council and under Chapter VII would collectively enforce international law regardless of whether or not they have directly suffered injury. In the context of interstate relations, by ensuring that the purpose and principles of the United Nations Charter are adhered to at all times, collective security ideally serves to protect weaker states from possible attacks from militarily powerful states. That way, the collective security mechanism prevents a situation where the might is right or the Hobbesian state of ‘bellum omnium contra omnes’.
Sovereign equality is indeed a cornerstone principle that the collective security mechanism seeks to defend. This principle, which is found in Article 2.1 of the Charter of the United Nations, ensures that states enjoy full sovereignty. In 1991 the United Nations Security Council reaffirmed the collective security measure under Chapter VII after Iraq invaded and annexed Kuwait. It authorised the use of force to ensure that Iraq’s invasion of Kuwait was reversed.
That said, the events unfolding in Ukraine raise curious questions on the effectiveness of collective security measures in enforcing international law, when those violating the law are global superpowers. In Crimea and Eastern Ukraine, the separatist rebels threatening the territorial integrity and political independence of Ukraine are alleged to be receiving moral, political and military support from Russia, one of the five permanent members of the Security Council.
As it stands, the possibility of any action from the United Nations Security Council in Ukraine appears to be remote. This is because the Security Council would not only require an affirmative vote of nine members of the Security Council but must also have the consent of all five permanent members, which includes Russia, to trigger the collective security mechanism.
Russia has been sympathetic to the cause of the separatists since the ousting of President Viktor Yanukovych led government following mass demonstrations mainly in Kiev. It justifies its position by claiming that the minority separatist’s population in Ukraine, which are either Russian citizens, (referring to those who were given Russian passports) or Russian speakers, were under threat from Ukrainian nationalists.
This should not be surprising considering that since President Putin’s United Russia party (Yedinaya Rossiya) came into power one of its foreign policy priorities was to expand Russia’s sphere of influence within Asia, especially in the former Soviet Republic states, and to create a security belt that would keep the spread of European Union and NATO influence at arm’s length. In order to justify this foreign policy objective, Russia adopted its own form of ‘Responsibility to Protect Doctrine’ based on its pledge to defend the interests of Russian-speaking citizens who live in the neighbouring former Soviet Republic States. The doctrine was put into practice and appeared to have been successful in Abkhazia, South Ossetia, and Transnistria and in 2014 in Crimea.
Although the critics of President Putin have been quick to point out that he is using illegal means to redraw the boundaries in the Eurasian sub-region, the reality is that there are limited mechanisms available to effectively prevent him from doing so. Russia’s veto power in the United Nations Security Council enables it to stop any attempts to trigger collective security mechanism. The fact that under the Charter of the United Nations the application of collective security hinges on the decisions taken by the Security Council implies that the measure’s success depends on the five superpowers’ national interests. This confirms that the enforcement of international law through the collective security mechanism remains a decentralised affair that depends on the interests of individual permanent members of the Security Council. In practice this means that the collective security mechanism is bound to be applied in a selective manner to small and medium sized states, and in particular those without strong alliances among the Security Council permanent members.
The U.S and its European allies’ role in the violation of Ukraine’s sovereignty appears to be obscured by the speed with which events have occurred combined with the role that mainstream media continues to play in trying to shape international public opinion. In November 2013, prominent figures allied to the European Union, travelled to Kiev to support the demonstrations against an elected Ukrainian government in a clear violation of international law. United States Senators John McCain and Chris Murphy also went to Kiev when the anti-government protests were at their peak. In his address to the protestors Senator McCain said, ‘we are here to support your just cause, the sovereign right of Ukraine to determine its own destiny freely and independently…’ The statement was delivered even though the Ukrainian government had decided to retain closer ties with Russia instead of the European Union. Senator McCain was adamant. He told the protestors that the destiny they were seeking was in Europe. His comments resonated well with the views he had expressed during the 2008 Presidential Debate against President Obama, where he argued that the U.S should support Ukraine and Georgia in joining NATO, a position which is categorically not unwelcome by Russia.
The audacity shown by Senators McCain and Chris Murphy, i.e of going into a sovereign state and openly supporting anti-government protestors was unexpected. Their initiative goes against the underlying principles and purposes of the United Nations according to which states must respect each other’s political independence in determining their foreign policy. Instead of leaving the Ukrainian authorities to enjoy their political independence and the right to freely choose and develop their state’s foreign policy, their presence and support for the protestors was inevitably part of the game changer that led to the collapse of the political order in Kiev. The new authorities in Kiev were quick to distinguish themselves from their predecessors by adopting more western orientated economic and political policies.
One can only imagine how the U.S would have reacted had any prominent member of Russia’s ruling party, or Communist Party had joined in and supported the demonstrators against police brutality in Ferguson, Missouri. The comparison between Senator McCain in Kiev, and Russian figures joining demonstrations in Missouri might seem far-fetched, yet the fact that both situations are associated with highly sensitive national issues makes any form of foreign intervention a serious violation of sovereignty. It has to be said that during the Cold War, global powers acted covertly when they intervened in the internal affairs of smaller and medium-sized states. This was done because of the balance of power between the United States on the one hand and the Soviet Union on the other. However, since the collapse of the Soviet Union and the end of the Cold War such balance of power was disturbed. The gap left within the international legal system has not been effectively covered, resulting in some form of uncertainty as to how global affairs could be addressed. Global and regional powers appear to have discarded the need to respect international law when their national interests are at stake and they are prepared to do so openly. The disappearance of an effective balance of power system meant the protective security shield that was offered to small and medium states by the competing super powers is no more and the collective security mechanism’s limitations are consistently exposed.
Conclusively, in as much as the two opposing sides in the Ukrainian tug-of-war have reverted to a sanctimonious tone in their attempt to harness international public support, the fact is that they have violated international law with impunity. Their impunity is a result of the fact that they occupy powerful positions within the international legal order. They use their positions and powers such as the veto power to block any activation of the collective security mechanism under the Charter of the United Nations and on the part of the U.S and its European Union allies they additionally benefit from their control over mainstream media to influence international public opinion.
Thanks so much for this blog on international law, and also for alerting me. I can already see very exciting debates on the ICC and Africa. I will follow your blog for more – try following Dr. Musila’s blog as well on similar shades of opinion (you must have met him already at the IATJ in Uganda-Kitgum. He has posted equally exciting pieces on the ICC and Africa.