Sovereignty and International Law – Analysis – Eurasia Review


By Aarshi Tirkey

The Ukraine crisis has heightened tensions between the West and Russia, and is dangerously close to becoming the biggest military conflict in recent years. The source of tension has to do with the eastward expansion of the North Atlantic Treaty Organization (NATO) and Ukraine’s bid for NATO membership, a position to which the Russia vehemently opposed. The United States and NATO reject this position, arguing that they support Ukraine’s sovereignty and its right to choose to be part of security alliances. Reports from late 2021 provided evidence that Russia has placed around 130,000 troops on Ukraine’s border, indicating that an invasion threat is looming. However, on February 15, the Russian Defense Ministry announced that some units would return from the border and President Vladimir Putin stressed that Russia “does not want war and will rely on negotiations” to resolve the crisis. As such, there is always hope that a diplomatic solution can be found between all parties concerned.

Ukraine’s sovereignty

The existence of a separate Ukrainian identity has been hinted at by historians long before the nation and state building of Russia. However, since the collapse of the former Soviet Union in 1991, Ukraine has been a sovereign and independent country. Under this, Kyiv has the right to decide its own future, including which treaties it joins and which organizations it chooses to join. Ukraine, for its part, has been working for NATO membership for a long time. Kyiv has had a partnership with NATO since 1992, and in 1997 a Ukraine-NATO commission was established to provide a forum for discussing security issues. NATO membership also found expression in Ukraine’s political goals when it adopted a National Security Strategy in 2021, which aimed to further develop its partnership with NATO.

As such, Russia’s position on the issue appears to be the opposite of Ukraine’s position as a sovereign and independent nation. In addition, Russia is required to refrain from using or threatening to use force under Article 2(4) of the UN Charter, as well as the Budapest Memorandum signed in 1994. In the 1994 memorandum, Moscow pledged to “refrain from the threat or use of force” against Ukraine in return for handing over a huge nuclear stockpile that Ukraine inherited during the collapse of the Soviet Union.

Sovereignty, territorial integrity and non-interference in the internal affairs of countries have been the fundamental principles of the Westphalian system. However, the nature and scope of state sovereignty has been contested over the years. Western nations have embraced the concept of “contingent sovereignty,” where certain transgressions such as human rights abuses and state-sponsored terrorism nullify a state’s authority. This has become evident with the evolution of principles – such as the responsibility to protect (R2P) – which aim to legitimize intervention in cases of gross human rights violations.

However, R2P came under increasing criticism after the Libyan NATO intervention in 2011, which sparked regime change in Tripoli, with devastating consequences. The destabilizing effects of regime change and humanitarian intervention have led to the sidelining of the responsibility to protect, with countries divided on the ideal balance between sovereignty and the protection of human rights. Soon after, Russia, along with other countries like China and India, became increasingly critical of the R2P concept and aligned themselves with a stricter interpretation of sovereignty. For India, and to some extent China, this is shaped by their experience of colonialism and their general predisposition to the principles of sovereignty and non-intervention. In the case of Moscow – as we will see below – the absolutist interpretation of state sovereignty and its rejection of Western interventions stems from its rejection of the “contingent sovereignty” approach.

Is this revisionism?

Russia has always been a strong supporter of sovereignty, territorial integrity and non-interference in a country’s internal affairs. Moscow has largely taken a “statist” approach to understanding these principles, where state sovereignty forms the foundation of the international order. However, such defenses have been invoked to resist Western interference in authoritarian regimes and shield them from outside scrutiny. Nonetheless, this contrasts sharply with Moscow’s actions in its neighborhood, where its foreign policy in the Commonwealth of Independent States (CIS) region reflects a hierarchy where Russian interests take precedence over those of its neighbours. Moscow’s expansion of control over post-Soviet territories, such as its 2008 invasion of Georgia and 2014 annexation of Crimea, testifies to this.

Such a position raises the question of whether Russia is actively creating a sphere of influence in its “near abroad”. A sphere of influence is a “defined region within which a single external power exercises a predominant influence, which limits the independence or freedom of action of the states within it”. In the period following World War II, this relationship manifested itself between the former Soviet Union and Eastern Europe, and between the United States and Central America. The power of influence can be based on the use or the threat of the use of force, or use instruments other than this one. Russia, for example, has directly intervened in civil unrest, controlled borders, fought wars for “humanitarian” reasons, and undertaken less explicit interventionist activities of regional integration, security, and development aid. .

Thus, there seems to be a regional diffusion of the international legal order which is a revisionist conception of international law, which seeks to validate Russia’s sphere of influence accompanied by the right to intervene therein. Indeed, Russia has consistently used international legal arguments to justify its actions – and in turn accused Western nations of being revisionist and breaking international legal rules. Russia’s rationale for its actions in Crimea is tied to self-determination, humanitarian urgency and self-defense – actions that were taken to protect the Russian-speaking population in Ukraine. However, these justifications do not betray a revisionist international agenda; it may just be ‘lawtalk’ or a frenzied fusion of law and strategy for realpolitik motives.

For now, Ukraine finds itself in the middle of a standoff between the West and Russia. The Ukrainian crisis raises serious questions about state sovereignty and territorial integrity, and how the emergence of new “spheres of influence” could affect state sovereignty. Since the early 1990s, Russia’s perspective towards its region has been that it was seen as inferior to Russia. President Vladimir Putin has repeatedly said that he needs reliable and legally fixed guarantees against NATO expansion into Ukraine and the positioning of offensive weapons there. The placement of troops on the border indicates that an offensive threat could be a possibility, if these requirements are not met.

Prominent academic Jeffrey Sachs offered a diplomatic solution, saying that Ukraine’s independence could be defended much more effectively by reaching an agreement with Moscow to guarantee Ukraine’s sovereignty, as a non-EU country. NATO. The Ukraine crisis challenges the traditional meaning of state sovereignty, and the next few days will show how far the major powers are willing to go, either to protect it or to encroach on it.

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