ARCHIVES Danyliw Seminar 2014
Politics and the Law
. . .readiness to fight to prevent change is just as unmoral as readiness to fight to enforce it.
– E.H. Carr
The crisis in Ukraine offer us three ways – one hesitates to say models – for thinking about the relationship between power and ideals in regards to the state and what it might become. Each, in its way, is profoundly defective, each violating some essential norm or lacking some essential quality of what it means to act and to claim with legitimate authority. But those deficiencies also reflects a larger failing: of the international legal and political order, which offers no ready solutions, nor even much encouragement to creative thinking, about how crises of state formation might be resolved.
The essay considers the variety of failure in the Ukrainian crisis, and concludes by suggesting an alternative to account for claims of self-determination in the international legal order – an order that, to the degree it exists, is marked by both power and morality, and must express them both.
I. Russia’s Illegal Intervention – Blinding Power
Russia’s actions in Ukraine seem clearly to have violated international law, and this fact has made it difficult to think clearly about everything else happening in this crisis.
The exercise of Russian power has effectively detached Crimea from Ukraine, reassigning the peninsula to Moscow’s authority – a political reality almost universally conceded, even by actors who refuse to recognize its legality – and, at least so far, enabled a kind of frozen-conflict client state in the east of Ukraine.
That Russia’s actions constitute a violation of international law is practically indisputable. Cross-border force may only be used in very limited circumstances, and while transfer of territory cannot be achieved by the threat or use of force. The crypto-occupation of Crimea by ‘Green Men’ and the interventions into eastern Ukraine strike at the twinned pillars of the postwar order: territory integrity and the prohibition of aggression.
Such a flagrant display of power has fixated everyone’s attention, as power tends to do. And so the responses – shoring up the government in Kiev, devising a regime of effective sanctions, extracting bodies from airliners smoking in fields – have been focused on countering Russia’s power and its dreadful effects.
But in becoming the object of attention, Russia’s power has distracted us from the task of asking questions about the purposes for which that power is being improperly deployed. Of course, the strategic intentions of Vladimir Putin and the Kremlin have been an object of intense interest, but as speculations about his further actions, rather than about the thing itself: the secession from Ukraine of parts of its territory and population – populations which presumably have a view about that matter. In this respect, the obvious illegality of Russia’s actions has offered an unhelpfully clear answer to a perhaps quite complicated question.
II. The Separatists’ Precipitous Withdrawal – Idealists with Borrowed Guns?
Crimea: Annexation occurred with great speed: The illegal introduction of military forces, then a referendum and treaty of union, all within a matter of weeks, under circumstances that could in no way yield a credible outcome. Even the question asked failed to offer a real choice. Yet although those obvious defects invalidate the particular outcome, they do not prove the opposite: The failure of the referendum to meet any plausible standard for recognition simply leaves the question of what the Crimean people desire unanswered.
Still, the hypothetical answer is widely supposed. I know of no credible source suggesting that a majority in Crimea, had it in fact been asked its preference in a free and fair referendum, would have returned any answer other than the one it did. The referendum did not prove it, but a genuine majority of Crimea’s population surely desired union with Russia.
Whether that desire could or should matter – whether, say, a truly free and fair referendum yielding the same answer ought to have met with a different response – is a question we do not reach. Instead, critique centers on the invalidity of the referendum, because held under illicit Russian occupation. The question of taking seriously whatever the wishes of the Crimean population are is obviated by the illegitimacy of the means used to discover it.
Eastern Ukraine: The clear confidence with which we can speculate about the outcome of a free vote in Crimea is not available in the east. The demography of the region is simply much more complex. No sizable area can be described in which a majority was known to favor annexation before all these events without punching lots of holes in it.
In two respects, however, the region shares something in common with Crimea. First, the status referenda organized by the People’s Republics in Donetsk and Lugansk suffered from all the procedural defects of the Crimean vote – with the additional demerits that fighting, displacement of populations, and an even more notorious atmosphere of intimidation rendered the results even less useful. Above all, the precipitousness of the eastern referenda suggests that the separatists were not interested in seeking peaceful resolution – violence was a first, not final option.
Second, both have relied on someone else’s power to achieve an outcome they could not on their own. In turn, in both areas, the presence of Russian forces has a prophylactic excuse not to take the separatists’ aspirations seriously. We need not consider them as anything other than a regrettable fact, because their reliance on illicit Russian power removes them from the sphere of the legitimate. But though gratifyingly simplifying, this is not a serious way to think about complex events. It focuses us on the improper modalities of their struggle, not on its purposes or ideals.
It seems ridiculous to think of Donetsk’s separatists as ‘idealists’ – they are, so many of them, so evidently the other sort of man. But the claim they are advancing has an ideal quality, alongside its cruder aspects, because it is a claim entirely outside what we, as a global legal community, have declared possible or desirable.
III. Ukraine’s Lawful Inaction – The Power Not to Give Anything
The same fixation on illegitimate Russian power has also allowed their antagonist to escape close scrutiny: Perhaps the least critically examined actor in this entire episode – besides ourselves – is the Ukrainian state. Unnoted in the blinding glare of Russian violence is Ukraine’s comprehensive failure, across nearly a quarter century, to engage with the very kinds of concerns that provoked the present crisis or at least afforded Russia a pretext for creating a crisis. The separatists have been precipitous, but Ukraine has been the very opposite – and legally supported in its inaction.
The question of Crimea’s status in Ukraine predates the collapse of the Soviet Union, but the autonomy confirmed in 1992 after Ukraine’s independence was reduced by 1996. Since then, Ukraine has never made any serious attempt to engage with Crimea’s population over the possibility of exit, or even for the restoration of its original extensive autonomy.
For the east, even less so: There, discontent with centralization of power in Kiev has been a problem of political power, manifested as an endemic split between east and west. Yet there have never been any serious discussions about autonomy, let alone any discussion of revising the state’s frontiers: The matter has been a concern for internal politics, not a question about the state.
Recent events have forced Ukraine to confront that question. Yet even in the recent crisis, changes to the state have been beyond the pale, something that might come about only through the catastrophic application of illegitimate Russian power. President Poroshenko has offered wide-ranging negotiations with the separatists, but made it clear that any discussion of Ukraine’s territorial integrity is impossible.
This is understandable, given his position and constituency, but it removes from the table the one thing which some number of people in the east want. Taken seriously, the autonomy proposals prefigure the possible outcomes in ways that practically ensure the easterners get a less than satisfactory deal unless they rely on Russia. The result is a distorted political space: a question compelled by Russian military power but whose possible answers are constrained by Ukraine’s legal order. Any vote now would be illegitimate, but under Ukraine’s constitution no vote can be held.
IV. The Other Failure: International Law and the Idol of Territorial Integrity
All the actors in this crisis have variously failed to pursue their aims by means that satisfactorily combine power with legitimacy. Russia has changed an international frontier through illegitimate violence. The separatists have pursued their interests without trying to work within the existing legal system. Long before any of this, Ukraine failed to open any constitutional pathways for change, converting its law into an absolute constraint.
But behind these particular failings is the global legal order, which has left little scope for change other than through bare power. For as it turns out, nothing in the global system requires Ukraine to do other than it has done: Nothing in international law requires a sovereign state to tolerate a change to its own borders. On the contrary, law guarantees its territorial integrity against almost all challenges.
This guarantee allows only the narrowest exceptions. A state need not accept the withdrawal of a portion of its population and territory under almost any conditions regardless of its own fitness: This is true even if the state is failed, undemocratic, or predatory. The rare exception, such as Kosovo’s unilateral secession from Serbia – itself a deeply controversial case – simply indicates the uniformity of this respect for territorial integrity.
Thus it turns out that the present legal order is quite an idealized one. Russia’s actions have, in that sense, made visible this imbalance in our legal values, which have tilted heavily towards an ideal of territorial integrity regardless of actual power relationships. But the ideal of territorial integrity is not simply out of balance with actual power in on the Eurasian steppe: It is a curiously vacant ideal, whose lack of probative moral force should trouble us just as much.
A more sensible ideal might recommend a Ukraine whose population consists of those people who in fact wish to live in it – a Ukraine in whatever borders its own people, living in the shaping wake of their own history, desire. And here interest and ideal might work in concert, if one considers that such a frontier might well prove more stable.
No less a realist than E.H. Carr argued that any actor which fails to provide avenues for peaceful change can expect the other kind. This truth operates just as much in a world which has supposedly prohibited war as in the more openly violent one in which Carr wrote. We should not fail to see it because of the blinding preoccupation with the Russian intervention’s illegality. In the crisis in Ukraine, it might be useful to ask ourselves what ideal we are defending with our power. We call it democracy, or the stability of the international system, but it looks, too often, like territorial integrity for its own sake: the state, without regard to the wishes of those human beings living within.