On Ukraine and Russia: The outcome of “imposing” international law – Part 2

By Ryan Mitra

Part I of this two-part series may be found here.

Russia’s escalatory behaviour in Europe has rocked the order of the northern continent. Contrary to the popular notion that this is the gravest situation that has gripped Europe since the end of World War 2, it is essential to remember the tragic history of the continued violence in the Baltics, the Serbian genocide, and the Prague Spring (Warsaw invasion of Czechoslovakia). The constant association of violence and warfare with non-European regions of the world, along with the amnesia around Europe’s long-lasting history of violence, is what contributes to the apparent “shocking” nature of the conflict in Europe. The increased applicability in this part of the world is underlined by European counterparts’ transgressions of these same principles in other parts of the world. 

Good faith and Treaties

The most significant impact of the Russian invasion of Ukraine will be on the long-term bona fide interaction between States and the adherence to existing treaties. Faith amongst States is constantly eroded in times of war, and States learn from these lessons. The European Union has already expressed its concern over Russia’s intent in Europe and how any iota of faith between the States has been deeply fractured. However, the outcome from this invasion is around the policies and legalities around security guarantees, especially in a nuclear context. The Ukrainians in 1994 gave up their nuclear weapons based on US, UK, and Russian guarantees to protect their territorial sovereignty under the Budapest memorandum. Not only did one of the parties violate this guarantee, but the other parties also failed to meet their promises. The transaction of conventional security guarantees in return for the abandonment of nuclear weapons programs has been the bedrock of negotiations with aspiring nuclear States. States like Iran and North Korea’s understanding has always espoused the worst-case scenario: that if they abandon their respective nuclear programs, they eventually face an undeterred antagonist. This scenario manifested in Ukraine and is now compounded by Russia’s nuclear capability along with its ally, Belarus’ willingness to stand with Russia, against any potential counter-action. North Korea, for example, has repeatedly been hesitant to accept any nuclear arms restriction legislation in return for US guarantees, especially those that would leave it without any unilateral deterrence against the consistent nuclear capability of the United States. The United States has offered a negative security assurance (essentially a bilaterally directed no-first-use guarantee) to the North Koreans during the six-party talks under George W Bush’s administration which the Peninsular State explicitly rejected. This rejection confirmed the mala fide relationship aspiring nuclear States had vis-a-vis the West. This hesitation and scepticism around American promises are well-situated in their dubious acts throughout the 20th century, including intervening in nuclear programs of developing countries such as India and being in stark violation of international law.  The situation in Ukraine alludes to confirmation of some of the concerns that North Korea has held about unconventional weaponry and nuclear strategy. 

The confirmed violation of the Vienna Convention on the Law of Treaties by the Russians by unilaterally absolving the Minsk agreement is grave and concerning. The bedrock of inter-State activity is the customary consent and mutual respect towards international agreements, and the cardinally immovable (evidently not so much) principle is pacta sunt servanda – agreements must be kept. Its ‘binding’ nature is present in the geopolitical interests of States to enable a bona fide environment. However, the violation of important treaties such as the Minsk agreements is simply one of the many recent ones that have taken place in the last 5-6 years. While this trend is indicative of the tumultuous geopolitical period the international system is passing through right now, the lack of effective backlash against similar violations of the United States is a long-standing modus operandi. Take the example of the Joint Comprehensive Plan of Action and the vacillating position of the United States around Iran’s nuclear program. 

Sanctions

The varying sanctions against Russia to press President Putin to forgo his warmongering in Ukraine have received mixed criticisms from political pundits and the public worldwide. While some have considered them to be diluted, others have seen them to be far too intense and detrimental to the Russian population rather than Putin’s authoritarian machinery. To be pedantic and technical, these sanctions are not mandated by any UNSC resolutions under Chapter 7; therefore, there is an asymmetry between the evident moral requirements and the legal technicalities noted in international law. But the loudest outcome observed from these sanctions regimes is how effectively and swiftly the Western States can mobilise and impose sanctions if the “political will exists”. What is seen is that the “will” often uses the premise of international law as the reasoning for the imposition of these sanctions if it can accommodate the law in the first place. Economic sanctions are hard power mechanics in international affairs which would hierarchically fall under military action. More often than not, Western States have been the principal entities that have actioned sanctions against other States. They are noted tools in international law for States to operationalise in times of grave threats to international peace and security. However, this tool has not been operationalised in the interest of international law based on the political will of Western States. Taking the example of Saudi Arabia and Yemen, the ongoing humanitarian travesty has received no formal sanctions from the United States. The tragic, indiscriminate killing of Yemen’s population either through airstrikes or restriction to essential humanitarian services are well within the scope for prosecution under war crimes and crimes against humanity. However, for over seven years, the United States has dragged its feet to implicate and “punish” Saudi Arabia. Additionally, it has facilitated Saudi Arabia”s activities through logistical support such as jet refuelling facilities. While certain European countries have imposed limited sanctions, like Italy blocking arms sales to Saudi Arabia in 2021, these measures have been far too unrushed and limited compared to how these States have reacted to the Russian invasion. 

The realpolitik of oil, energy dependency and regional geopolitics were often cited for the lack of striving towards more effective action in the interest of international law in the Middle East. However, the inverse of this equation seems to be applicable in Europe, where energy dependency has been “accounted” for, but the more enormous implications to peace and security are of principal concern. The rising energy prices and the fluctuating oil index is simply a complex risk to meddle with in the MENA region but a necessary risk while addressing a crisis in Europe. The obvious prima facie answer to this scenario is regarding the output disparity between Saudi Arabia and Russia. Ironically, sanctions on Iran on similar lines, which effectively cut it off from the world economically, were again in Western interests. These Western interests were outlined by the incumbent president in the White House and implied the presence of a severe security dilemma vis-a-vis Iran without providing any credible proof of the Asiatic’s State’s ostensible violations. Keeping in mind the trifecta of this given scenario, where sanctions were imposed on Iran and Russia and were not imposed in Saudi Arabia, two observations emerge: 

• Sanctions on Saudi Arabia were not imposed in the interest of global (including heavy Western) energy dependency. In contrast, sanctions on Iran were imposed unilaterally by the United States (which was hesitantly supported by the European counterparts, all of which are not as energy dependent on Iran), which was highly inconsiderate of energy dependencies of other developing economies, such as India. Furthermore, secondary implications were stated for States that did not comply with US sanctions. 
• The imposition of sanctions on Russia and Iran were in the interest of the West. However, these interests have never always truly aligned with international law, even though sanctions customarily have been understood to be imposed as such. In Russia, it was imposed in the interest of “international peace and security”, “territorial integrity”, “human rights and humanitarian action”. In Iran, it was imposed despite the sanctions being in clear violation of the nuclear agreement signed previously. In Saudi Arabia, no formal sanctions emerged even though there is a clear threat to “international peace and security”, “territorial integrity”, and “human rights and humanitarian action.” 

In the long term, the outcome in Ukraine will eventually pose a defining question of how international law is valued and applied in different contexts and regions of the world. Thus far, it has not been a guiding force but a Statist tool to mould geopolitics. The Western States especially have set a paradoxical standard of what they consider a grave violation by a State or an acceptable oversteps in their national interest. Accepting Wendt’s statement, “Anarchy is What States Make of it”, anarchy here is conflict and war, and more often than not, it is still about what the Western States make of it. 

Picture from Wikimedia Commons