The Ukraine Crisis: Sovereignty And International Law – Analysis

By Aarshi Tirkey

The Ukraine crisis has heightened tensions between the West and Russia, and is perilously close to becoming the largest military conflict in recent years. The source of tension relates to the North Atlantic Treaty Organisation’s (NATO) eastward expansion—and Ukraine’s bid to join NATO as a member—a position that Russia has ardently opposed. The US and NATO reject this position, arguing that they support Ukraine’s sovereignty and its right to choose to be part of security alliances. News reports from late 2021 provided evidence that Russia has placed around 130,000 troops on the border of Ukraine, indicating that a threat of invasion looms large. However, on 15 February, the Russian defence ministry announced that some units will return from the border and President Vladimir Putin stressed that Russia “does not want war and would rely on negotiations” to resolve the crisis. As such, there is still hope that a diplomatic solution could be reached between all parties concerned.

Ukraine’s sovereignty

The existence of a separate Ukrainian identity has been spoken about by historians much before the nation-and-state building of Russia. However, since the collapse of the erstwhile Soviet Union in 1991, Ukraine has been a sovereign, independent country. By virtue of this, Kiev is entitled to decide its own future—including which treaties it joins, and which organisations it chooses to be a member of. Ukraine, for its part, has been working towards a NATO membership for long. Kiev has had a partnership with NATO since 1992, and in 1997 a Ukraine-NATO Commission was established to provide a forum to discuss security concerns. Becoming a part of NATO has also found expression in Ukraine’s policy goals when it adopted a national security strategy in 2021, which aimed to further develop its partnership with NATO.

As such, Russia’s posturing on the issue appears to be antithetical to Ukraine’s position as a sovereign, independent nation. Moreover, Russia is obligated to refrain from the use or the threat of the use of force under Article 2(4) of the UN Charter, as well as the Budapest Memorandum signed in 1994. In the 1994 Memorandum, Moscow pledged “refrain from the threat or use of force” against Ukraine in exchange for the surrender of a massive nuclear stockpile that Ukraine inherited during the collapse of the Soviet Union.

Sovereignty, territorial integrity, and non-interference in internal affairs of countries have been the foundational principles of the Westphalian system. However, the nature and scope of state sovereignty has been contested over the years. Western nations have espoused the concept of a “contingent sovereignty”, where certain transgressions such as human rights violations and state sponsored terrorism negates a state’s authority. This became evident with the evolution of principles—such as the Responsibility to Protect (R2P)—which seeks to legitimise intervention in case of gross human rights violations.

However, R2P came under increasing criticism after the NATO’s 2011 Libyan intervention, which caused a change in regime in Tripoli—with devastating consequences. The destabilising effects of regime change and humanitarian intervention resulted in the side-lining of R2P, as countries were divided on the ideal balance between sovereignty and human rights protection. Soon after, Russia, as well as 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 with colonialism and their general predisposition towards principles of sovereignty and non-intervention. In Moscow’s case—as will be explored below—the absolutist interpretation of state sovereignty and its rejection of western interventions arises from its rejection of the ‘contingent sovereignty’ approach.

Is this revisionism?

Russia has historically been a staunch supporter of sovereignty, territorial integrity, and non-interference in the domestic affairs of a country. Moscow has largely adopted a ‘statist’ approach to understanding these principles, where state sovereignty forms the bedrock of the international order. However, such defences have been invoked to resist western interference in authoritarian regimes, and shield them from external scrutiny. Nonetheless, this stands in stark contrast with Moscow’s actions in its neighbourhood, where its foreign policy in the Commonwealth of Independent States (CIS) region reflects a hierarchy where Russian interests supersedes those of its neighbours. Moscow’s expansion of control over post-Soviet territories, such its invasion of Georgia in 2008 and its annexation of Crimea in 2014, stands as a testament to this fact.

Such a position begs the question as to whether Russia is actively creating a sphere of influence in its ‘near abroad’. A sphere of influence is a “definite region within which a single external power exerts a predominant influence, which limits the independence or freedom of action of states within it.” In the post Second World War period, this relationship was exhibited between the erstwhile Soviet Union and Eastern Europe, and between the US and Central America. The influencing power can rely upon the use or the threat of the use of force, or utilise instruments other than this. Russia, for instance, has directly intervened in civil strifes, policed borders, waged wars on ‘humanitarian’ grounds and undertaken less explicit interventionist activities of regional integration, security provision, and development assistance.

Thus, there appears to be a regional diffusion of international legal order that is a revisionist concept of international law, which seeks to validate Russia’s sphere of influence accompanied with the right to intervene within it. This is because Russia has consistently used international legal arguments to justify its actions—and has in turn charged western nations with being revisionist and infringing international legal rules. Russia’s justification for its actions in Crimea have related to self-determination, humanitarian emergency, and self-defence—actions that have been undertaken to protect the Russian-speaking population in Ukraine. However, these justifications do not betray a revisionist international agenda; they are perhaps simply ‘lawtalk’ or an unrestrained merging of law and strategy for realpolitik motivations.

For now, Ukraine finds itself in the midst of a tussle between the West and Russia. The Ukraine crisis presents grave questions regarding state sovereignty and territorial integrity, and how the emergence of new ‘spheres of influence’ could affect state sovereignty. Since early 1990s, Russia’s perspective towards its region has been that they were considered lesser than Russia. President Vladimir Putin has time and again reiterated that he needs reliable, legally fixed guarantees, against the expansion of NATO to include Ukraine, and the positioning of offensive weapons there. The placing of troops on the border indicates that an offensive threat could be a possibility, should these demands remain unmet.

Eminent scholar Jeffrey Sachs has proposed a diplomatic solution, stating that Ukraine’s independence could be defended far more effectively by reaching an agreement with Moscow to guarantee Ukraine’s sovereignty, as a non-NATO country. The Ukraine crisis challenges the traditional meaning of state sovereignty, and the coming days will indicate how far major powers are willing to go—to either protect it, or encroach upon it.

The views expressed above belong to the author(s).