Timothy William Waters
- In my previous two posts (here and here), I looked at the problems of declaring Russia’s actions in Ukraine illegal – the dark side of law’s polycentrism. In this post, I consider the defective legal policy driving the Western response to Russia’s intervention in Ukraine – the West’s failed fixation on territorial integrity – and consider a better response to Ukraine’s contested future: the return of a repressed idealism.
Western responses to Russia’s intervention in Ukraine look like an exercise in realism. Constrained by imperial overstretch and economic entanglement with Russian fossil fuel, the US and Europe know they are unable and unwilling to force a newly assertive Russia to withdraw militarily from the Crimea. So instead they are fighting a preemptive battle: In all the diplomacy – a NATO summit, talks in Geneva – there has been almost no talk of returning Crimea, and all the pressure of sanctions is aimed at forestalling further Russian incursions into the mixed areas of eastern Ukraine.
But the realism is grudging. Western policy is equally marked and driven by a curious – and curiously misplaced – idealism: a fetishism of territorial integrity, which defeats our own interests and denies a different idealism that once motivated our law and policy.
I. No Questions Please
Russia’s actions have shocked the world, but no one could have been shocked by the specter of Crimean secession. Given the region’s demography, history, and the autonomist sentiments of its population, there has long been every reason to expect that, given a choice, Crimeans might willingly join Russia. Of course, the recent referendum didn’t offer them a real choice: It allowed voters to opt for radical autonomy or Russia, but not the status quo – all under the coercive presence of Russian occupation. There almost certainly was and is a genuine majority for independence, but it was impossible to know.
Real choice was never on Moscow’s agenda – the referendum was a triumphant confirmation, not a decision. But the US and Europe were no more interested in a genuine vote than Moscow was: The Obama administration ruled out recognizing the referendum before the Russians had a chance to rig the vote. Although conceding secessionist sentiment there was genuine, Western policymakers left no space for a Crimean referendum on any terms, and has taken the same line in eastern Ukraine.
II. Surrender or the Gun
The reason, of course, is opposition to Russia’s improper military incursion. America and Europe have many geo-strategic interests in the crisis – energy security; protection of the global economy; a stable relationship with Russia; and absorption of Ukraine into the Western orbit – but one involves a principle of the global legal order: reaffirming the shaken consensus that borders may only be changed by peaceful means.
Yet to vindicate this consensus, the US and its European allies have chosen to stand their ground on a strangely hollow principle: The Obama administration’s first response to the crisis was to declare its support Ukraine’s territorial integrity, and it has continued on that path. On Crimea, it has sunk into a tactical silence, but defense of territorial integrity continues to drive Western rhetoric and policy for the rest of Ukraine, determining the schedule of threats and sanctions.
Western diplomats have advised the new Kiev government to appease its Russian minority – but by internal means only. This can project an aura of unreality, as with the American proposal, early in the crisis, to send monitors to Crimea to protect the rights of Russians, when of course it’s all the non-Russians there who need protecting. But such logic arises out of seeing Ukraine as the necessary territorial frame: secession is unthinkable, while Russia’s proposals to federalize Ukraine – assumed to be a way station to secession – are met with instant, oppositional skepticism: the false urgency of ‘no.’
Ukraine’s government and the newly elected president, Poroshenko, swith the full support of their Western allies, insist solutions must be found within Ukraine’s existing constitutional framework, but the constitution prohibits regional referenda precisely to avoid the kinds of changes most Crimeans and some eastern Ukrainians so clearly want. And although the new government has proposed dialogue with the separatists, there’s no evidence it is considering changes to the constitution that would allow deliberation on secession – changes that would be even less likely if Kiev’s military effort succeed in its double task of suppressing the separatists while avoiding Russian intervention.
The result is a set of empty boxes, a choice less real than the Crimean referendum: A vote under Russian occupation or separatist militant pressure would be illegitimate, but under restored Ukrainian sovereignty a vote would be illegal. For those Ukrainians who genuinely desire a new regime, that is a policy of surrender or the gun. And as long as Russia supplies the latter, they don’t need to contemplate the former. So much for realism.
III. Proxies for Principles
Opposing Russia’s intervention has thus also meant opposing the secessionist desires of many Ukrainians. But surely this is the right thing to do? At first glance, it might appear that territorial integrity is simply the mirror of non-aggression, the perfect expression of the very principle we want to reaffirm. And self-determination law is a right of ‘peoples,’ which in contemporary international law means the whole population of a state, not just some splintered fraction of it.
But territorial integrity is not a principle, it is a proxy: It makes no sense to defend the territorial integrity of states that lack the very qualities that make them worth defending – states whose own populations do not respect or desire the borders in which they live. It makes no sense to treat a population as a people just because it happens to be confined in a set of borders if that denies the real diversity, disagreement and desires of the actual existing people within that state.
Affirming the norm that borders must not be changed by force doesn’t mean just preventing invasions; it means providing pathways for peaceful change. That requires engagement with the causes (or pretexts) driving separatism and invasion. This is the logic that has driven the R2P movement’s turn to pre-conflict assistance, but that logic needs to go further: It also means supporting changes to borders not only in response to great persecution, but when that is some human community’s democratic desire.
But fixating on territorial integrity – and on Russia’s improper intervention – makes us miss that opportunity and imperative. John Kerry’s predecessor as Secretary of State, Hillary Clinton, recently made a stir when she compared Putin to Hitler. There’s something to it, because – much like the Munich Compromise over Sudetenland in 1938 – Crimea’s secession may actually be a good idea regrettably executed: an idea whose evident moral value we can’t see because its chief supporter is behaving so badly.
We have confused resistance to Russia’s improper invasion with resistance to the underlying idea the invasion incidentally vindicated. This was the wrong way to hold a referendum – but that doesn’t mean holding a referendum is wrong. Means and ends: The principle we ought to be defending is the inviolability of states from outside intervention, except in limited circumstances that Russia clearly hasn’t met. But we should not be defending states against their own people’s wishes – whether the whole population, or some discrete part that wants to go another way.
IV. Rediscovering Wilson
Today, a free vote in Crimea or eastern Ukraine is impossible – so we should create conditions in which a free vote is possible. The US and Europe should press Ukraine to adopt a constitution that reaffirms its sovereignty and provides for internationally supervised plebiscites in Crimea and the east, say in six months; then support the process and promise to respect any free and fair outcome. They should condemn Russia’s aggression and cooperate with Russia in creating a legitimate pathway to achieve its strategic aspirations in ways the international system allows, even if that leads to revision of Ukraine’s borders.
As the price of cooperation, the West should insist on specific protections for Crimea’s Tatars, who suffered unspeakably under Soviet rule and fear a return to Moscow’s control, as well as ethnic Ukrainians, and demand guarantees that in eastern Ukraine – where genuine secessionist sentiment is much more complex – Russia will respect its people’s, or peoples’, wishes.
We should demand that of Russia – and ourselves. The West’s interests and its ideals, properly considered, are not in conflict here: Our real interest is in a Ukraine secure and sovereign, with borders that are sensible, defensible and respected; our real ideal is a Ukraine in whatever borders its people, living in the shaping wake of their own history, desire. After all, that desire is our own – a thoroughly American idea which forged modern Europe: It is Woodrow Wilson’s self-determination. In the days and months ahead, we should ask ourselves why, instead of that democratic, liberating principle, it is its opposite – territorial integrity for its own sake – that we have chosen to defend.
The author, a professor of law at Indiana University, Associate Director of its Center for Constitutional Democracy, and member of its Russian and East European Institute, was a 2012-13 Alexander von Humboldt Experienced Research Fellow in residence at the Max Planck Institute for Comparative Public Law and International Law. He is most recently editor of The Milošević Trial – An Autopsy (Oxford University Press 2013), and is writing a book on secession and self-determination.