“I cannot believe this is really happening”. This statement of a young woman in tears in one of Kyv’s subway stations on Thursday reflects the reactions of thousands of people across Europe watching Russia’s attack on Ukraine unfolding.
For European leaders, the initial shock should quickly lead to consequences in their foreign and security policy. More is under threat than the peace order established after the Cold War. Given its contemporary context, Russia’s aggression against Ukraine challenges the rules-based international order established after World War II.
Russia’s action is the preliminary climax of the attack on international law and the unwillingness of governments to uphold it observed for the past years. The challenges to international law became more frequent and more profound since 9/11 and they came from all regions of the world. Human rights and humanitarian law were the primary target in the context of counterterrorism, but disarmament, law of the sea and environmental law have been challenged as well. States targeted the application of norms on their behavior claiming overriding principles, the power of interpretation of norms by international institutions and the binding force of their own past behavior. This cannot be addressed by just repeating the doctrinal position of Western states on international law that they did not respect themselves on several occasions.
Interestingly, President Putin referred to Art. 51 of the UN Charter when announcing his attack on Ukraine. Thus, he did not want to leave the foundation of international law. Instead, he claims for himself to have the right and the power to interpret the definition of armed attack and the right to pre-emptive self-defense in a particular way and apply it to his action as a norm. This is the real challenge of this situation as more and more players claim the same. Governments and people around the world watch carefully, whether the reaction of the EU and the USA meets the standards of international law. Or will they again be put into perspective vis-à-vis overriding interests? Will the principles they claim to uphold in the end prevent an effective response further discrediting international law as utopian?
So far, economic and security interests, protected by the formal requirements for the application of Art. 5 of the NATO treaty, are overriding human rights and protection needs of the people of Ukraine. This will put Western States into a defensive legal and moral position in the future yet again. In their argument, the EU and the USA are mainly referring to security agreements that Putin identified as the unbalanced regional order created after the collapse of the Soviet Union and its perceived deception over NATO enlargement.
When promoting a rules-based foreign and security policy, the EU needs to realize the limits of international law to define what is right or wrong. International law is created in a decentralized way based on the consent of sovereign states. It can create limitations to state behavior based on the binding power of agreed rules. However, in the absence of enforcement mechanisms, international law cannot decide on the legal quality of a change of state behavior. The sources of international law – treaties, custom, general principles – are the result, not the origin of the norm-action balance. Therefore, in disputes about the application of certain international norms on a given situation, international courts normally refer to tacit consent expressed in past behavior and, thus, leave the real conflict untouched.
States tend to submit to this interpretation if they consider the consequences of violating trust and confidence of others regarding their respect of rules superior to their political interests. The US and Europe were used to states submitting to their interpretation of human rights and other norms due to their economic and military power and the resulting ability to cause damage to governments violating these rules. Similarly, departure from norms and related past behavior became possible for China due to its economic power. The Russian invasion of Ukraine added a new and, at the same time, very old possibility: military force. Because the EU considered its influence on the respect of international rules by others sufficiently secured by its economic strength and the progressive abolition of nation states, based on a theory of liberal politics, it dismissed the military option over time up to a point, where military defense of their territory is highly questionable for several EU members. Those, who promote a rules-based foreign policy, cannot exclude military capacity as it has become again a national means of influence for norms to be respected.
In essence, the current Western position would maintain a world order determined at one point in history by the most powerful states and validated by tacit consent deriving from past behavior that could never be changed. This position has been challenged by emerging powers like China and India, and Africa as a continent. (In comparison, Russia is a declining power, regarding its population, its economic strength built on fossil energy and its education system.)
Just managing the crisis with the existing procedures and institutions is not adequate. If international law should be able to regulate international relations beyond the immediate political and economic interests of governments in the future, there is a need to find a new basis for cooperation. Should the US withdraw again as leader of the free world, including its military power within NATO, a situation like the present attack on Ukraine will be unmanageable for Europe. In this regard, the Russian attack, hopefully, is merely a last wake up call for all politicians in the EU to put aside their differences over a peaceful and globalized world and move towards a robust, integrated foreign and security policy, including the provision of armament and the development of assets.
It is incompatible with a norms-based foreign policy to deny a democratically elected government a request for weapons for its regular army to defend its population against an armed aggression of another state, based on national policy guidelines. This results in a selective application of the international system of collective security established by the UN as a lesson from the aggression of Nazi Germany. This system includes intentional limitations for Security Council action against one of the five permanent members and instead encourages individual and collective self-defense as a means of maintaining international peace and security in such situations.
Sanctions need to be revived as an instrument of conflict management rather than punishment. Threatening unspecified sanctions for the moment of Russian invasion provided Putin the time and space for preparation and, since they have been applied, no motivation to end hostilities, since there is no clear demand for measurable action against clear benchmarks. This application might even lead to a fatalistic nothing-more-to-loose attitude by Putin.
In the past, the World came together after devastating events that were able to submit governments to the regulation of new international norms. After World War II, an agreement on human rights and humanitarian law as international concern was possible as there was agreement on their link to the causes of the conflict. As this connection remains valid, it is not the agreed root cause of the present conflict. This goes more into the direction of declining power and influence due to changes in economic and technical development and ultimately, climate change. Joint challenges need to be defined and addressed jointly instead of making them the subject of competition. What rules of cooperation can be formulated around these fears and within which structure? This will be the future global security architecture in which the EU will have to find its place.