Update at 1:15 pst on February 24, 2022
On February 24, the world woke to the news that the Russian army had launched an all-out attack on Ukraine, with forces hitting the European nation from land, sea, and air and residents fleeing—months of diplomatic efforts by the Biden administration and NATO nations seemingly failed. Here, Allen Weiner, senior lecturer in law and director of the Stanford Program in International and Comparative Law and the Stanford Center on International Conflict and Negotiation, discusses the legal implications of Russia’s invasion of Ukraine and what might happen next.
News reports indicate that Russia is fully invading Ukraine, going beyond the separatist-held territories. There are reports that Russian troops are closing in on Ukraine’s capital, Kyiv. What would you add to our earlier discussion?
Russia’s widespread military invasion of Ukraine is a clear and flagrant act of aggression in violation of Article 2(4) of the United Nations Charter, with no plausible legal justification. These actions are deeply destabilizing to the international order and undermine the foundational legal regime that has governed international relations since the end of World War II.
Is Russia’s recognition of two separatist regions in Ukraine and the arrival of Russian “peacekeeping” troops, which attacked the country in the early hours of February 24, a violation of international law?
Russia’s recognition of the “Donetsk People’s Republic” and the “Luhansk People’s Republic,” which are two separatist regions in Ukraine, violates international law. There are well-established criteria under international law regarding the criteria for statehood and the recognition of states, and these two regions do not qualify. Most striking is that no other states in the international system have recognized either the “Donetsk People’s Republic” or the “Luhansk People’s Republic” as independent states.
For Russia to recognize a separatist region in Ukraine that does not possess the legal attributes of statehood as a state constitutes a violation of the international law prohibition on unlawful intervention in the internal affairs of another state. Moreover, these entities do not have the right, under international law, to invite Russian military forces onto the territory of what, as an international law matter, remains the territory of Ukraine. It would be the equivalent of the entity that calls itself the modern day independent “Republic of Texas” (there purports to be such a thing) inviting foreign troops to assist it in exercising self-defense against armed forces of the U.S. Government.
So, sanctions have not prevented this initial Russian attack on Ukraine. Is there anything that NATO and/or the UN can do, militarily or otherwise, to further pressure Russia to stop what you have described as an illegal invasion of a sovereign country?
Under the principle of collective self-defense, other states (including NATO states) have the legal right to come to Ukraine’s assistance, and to use force against Russia to help Ukraine defend itself. But no state is obligated to do so. Given the enormous risks of going to war against Russia, it is hard to imagine that any state would do this. Instead, states are likely to support Ukraine’s self-defense efforts by supplying them with military supplies, funding, and intelligence support. Beyond the military domain, states can, and hopefully will, adopt a united diplomatic response that strongly condemns Russia’s actions against Ukraine. In the economic realm, as noted above, states have the capacity to impose a wide range of economic sanctions against Russia.
The US and its European allies are imposing sanctions on Russia and the separatist regions of Ukraine, some targeting wealthy Russians. Do you think sanctions will make a difference? How do you think Russia’s expansion into Ukraine and possibly beyond to other former USSR countries can be stopped?
Significant sanctions against Russia, especially if adopted multilaterally, would undoubtedly have a significant impact on the Russian economy. How much of an effect sanctions would have would depend, of course, on precisely which sanctions are imposed, and how many other countries join. A significant step European states might take would be to halt oil and gas imports from Russia, which would significantly affect Russia’s main source of foreign exchange earnings. It’s not clear Europe will do that, given the potential impact this would have on already-rising energy costs in Europe. My colleague Paul Stephan at the University of Virginia raises doubts about whether we have “a lot more left in our sanctions arsenal.”
The United States and Europe adopted meaningful sanctions against Russia after its 2014 invasion and annexation of Crimea, but those sanctions did not induce Russia to withdraw or restore Crimea to Ukraine. It is a truism that sanctions change behavior when the costs of sanctions outweigh the benefits of the behavior that sanctioning states hope to change. Russia has presumably assessed the costs of sanctions and has determined that it is prepared to bear them for the benefits it hopes secure. I am doubtful that sanctions will cause Russia to renounce the steps it has already taken, namely, recognizing the “Donetsk People’s Republic” or the “Luhansk People’s Republic”—just as it has not renounced its 2008 recognition of Abkhazia and South Ossetia, two separatist regions in Georgia.
That said, it is very difficult to assess the benefits Russia hopes to gain through its current activities in Ukraine because it remains far from clear – at least to me – what President Putin’s ultimate goals are. I worry greatly that he may try to realize the maximalist goal of invading and taking military control of all of Ukraine. President Putin may believe his own rhetoric that Ukraine is “not even a state,” but simply an artifact of the dissolution of the Soviet Union. Although there are of course deep connections between Russia and Ukraine—Russians trace the origins of Russian history to the Kievan Rus in the 9th century—my perception is that in the decades since the dissolution of the Soviet Union, a deep sense of Ukrainian national identity has developed. I suspect Russian efforts to militarily defeat and occupy or control Ukraine would be met with strong resistance.
Do you think NATO’s expansion after the breakup of the Soviet Union was too extensive—and provocative—perhaps laying the groundwork for the current Russian conflict?
Russian President Putin clearly views the expansion of NATO as a serious security threat to Russia. From the perspective of the United States, it seems unthinkable that the U.S. would use the greater proximity to Russia that stems from adding countries like Poland, Estonia, Latvia, and Lithuania to NATO as a basis for launching aggressive military action against Russia. President Putin, however, may genuinely perceive that to be a genuine risk. Perhaps more importantly, the expansion of NATO reinforces President Putin’s deep sense of historical grievance about the diminished geopolitical status of Russia and the associated truncation of its sphere of influence after the collapse of the Soviet Union. President Putin also fears that the success of former Soviet Union and Warsaw Pact states that are now aligned with the West, through their membership in NATO and their ties to the EU, creates an attractive alternative model to the Russian government that threatens the domestic status of his governing regime.
It was not obvious how events would play out at the time of NATO expansion in the late 1990s and early 2000s, and NATO did try to establish better relations with Russia, through such actions as the establishment of the NATO-Russia Council in 2002. The tensions in Russia’s relations with the west that flow from NATO expansion are easy to see in hindsight, but may not have been so easy to foresee.
It’s a dangerous situation, with Putin at the head of a large army and sitting on nuclear weapons, seemingly determined to takeover a sovereign country. Putin is creating a narrative that Ukraine’s history matters—it’s historic alliance with Russia and inclusion in the former USSR. Does it—legally?
The situation is certainly dangerous, although President Biden has made clear that he will not deploy American troops in defense of Ukraine, which helps reduce the risk of escalation between the United States and Russia. As a legal matter, Ukraine’s status as a former constituent republic of the Soviet Union does not affect the legality of Russia’s current military deployments in eastern Ukraine or its threatened invasion of other parts of Ukraine. To the contrary, Russia in 1994 committed (in the non-legally binding Budapest Memorandum) “to respect the independence and sovereignty and the existing borders of Ukraine” as part of the process by which nuclear weapons of the former Soviet Union were removed from Ukrainian territory.
In terms of legal rationales, President Putin has focused on the fact that there are many Ukrainians, especially in eastern Ukraine, who speak Russian and would consider themselves to be ethnic Russians. He has cited purported atrocities being committed against ethnic Russians – which he has even characterized as “genocide” – as part of the justification for deploying troops in eastern Ukraine. (He made similar claims about abuses of ethnic Russians in Crimea as a basis for Russia’s 2014 invasion and ultimate annexation of Crimea). The status of the doctrine of “humanitarian intervention,” i.e., the purported right of a state to use force against another state to halt abuses the latter state’s government is perpetrating against its own citizens, is sharply contested under international law. Whether or not there is such a right, however, there is simply no evidence that the Ukrainian government is perpetrating atrocities against ethnic Russians, much less the kind of widespread atrocities that would be required to justify a humanitarian intervention. These claims, in short, are purely pretextual.
What is the significance for the current situation of the Minsk Accord?
The so-called Minsk Accords were a political understanding reached by France, Germany, Russia, and Ukraine to attempt to resolve the armed conflict between Russian-backed separatists in eastern Ukraine and the Ukrainian government that escalated after Russia’s armed intervention in Crimea and other parts of Ukraine in 2014. The Minsk Accords called for a cease-fire and the withdrawal of heavy weaponry from the areas in the Donetsk and Luhansk regions where fighting was taking place. The Minsk Accord also called for political dialogue to resolve the status of those regions, including the possibility of enhanced self-government. Efforts to reach a political solution failed, however, and the armed conflict in eastern Ukraine has continued since 2014, with varying levels of intensity.
What do you think will happen next?
It is still difficult to know what President Putin plans to do in Ukraine. Will Russia stop at recognizing the “Donetsk People’s Republic” and the “Luhansk People’s Republic” and use that as a basis to continue to pressure and destabilize Ukraine (which is what Russia has done in the case of Abkhazia and South Ossetia)? Will Russia seek to annex those regions and make it part of Russia, which is what Russia did with Crimea? Or will President Putin seek to invade other parts of, or even all of, Ukraine, with a view towards either installing a pliant government in Kyiv or formally annexing Ukraine? Despite the dangers and uncertainty, I am still hopeful that the threat of severe sanctions, combined with diplomacy, can limit the scope of Russia’s aggression against Ukraine.
Allen S. Weiner is a senior lecturer in law, director of the Stanford Program in International and Comparative Law, and director of the Stanford Center on International Conflict and Negotiation. He is an international legal scholar with expertise in such wide-ranging fields as international and national security law, the law of war, international conflict resolution, and international criminal law (including transitional justice). His scholarship focuses on international law and the response to the contemporary security threats of international terrorism, the proliferation of weapons of mass destruction, and situations of widespread humanitarian atrocities. He also explores assertions by states of “war powers” under international law, domestic law, and just war theory in the context of asymmetric armed conflicts between states and nonstate armed groups and the response to terrorism. In the realm of international conflict resolution, his highly multidisciplinary work analyzes the barriers to resolving violent political conflicts, with a particular focus on the Israeli-Palestinian conflict. Weiner’s scholarship is deeply informed by experience; he practiced international law in the U.S. Department of State for more than a decade advising government policymakers, negotiating international agreements, and representing the United States in litigation before the International Criminal Tribunal for the former Yugoslavia, the International Court of Justice, and the Iran-United States Claims Tribunal.