Territorial Sovereignty: What Is It & Why Does Russia Have a Different View Of It from the West?

Russia has been rightly condemned for its brutal invasion of Ukraine, but isn’t Russia doing just what the US did before in Iraq? We examine the legal facts…

The Swearing of the Oath of Ratification following signing of the Treaty of Munster that signified the peace of Westphalia. Gerard ter Borch, 1648.

Twisting the legal basis & accepted norms underpinning the territorial integrity & sovereignty of a state.

“We agreed that we would settle for the borders that we inherited. We chose to follow the rules of the Organization of African Unity and the United Nations Charter, not because our borders satisfied us, but because we wanted something greater, forged in peace.”

Martin Kimani, Kenya’s ambassador to the UN, February 22, 2022, UN Security Council meeting.

The signing of the UN Charter in San Francisco, in 1945.

The history…

Ukraine is a sovereign nation. It has been since the 1991 collapse of the Soviet Union and its subsequent reemergence, name change and acceptance into the UN as an independent nation.

The notion of being a state, or statehood per say, goes back to the Treaty of Westphalia in 1648 which was drawn up at the end of the devastation caused by the Thirty Years War in Europe. The Westphalian state system replaced the medieval system of centralized religious authority with a decentralized system of sovereign states as the sole legitimate form of sovereign authority.

The Westphalian system was “based on some new principles, including the sovereignty, sovereign independence and equality of the nation states, territorial integrity, the equal rights and obligations of the states, non-intervention in others’ domestic affairs, and the conduct of inter-state diplomatic relations through embassies, among many others.”

In 1945, the Charter of the United Nations was signed into being in San Francisco by the original 51 States (including one might add, the Soviet Socialist Republic of Ukraine) and in so doing it “became the constitutive instrument of the United Nations.” The Charter sets out the rights and obligations of Member States and establishes the principal organs and procedures of the United Nations, with the Security Council having “preferential competence over the General Assembly in matters relating to safeguarding international peace and security.

Article 2, section 4, of the Charter prohibits, generally, “the threat or use of force against the territorial integrity or political independence of any state,” thereby preserving the sanctity and sovereignty of the State, largely following the Westphalian System.

However, the notion of a nation state has not stood still since then, and has continued to evolve with the idea of national sovereignty, including the provision of state or national borders, being challenged at times by some nations under particular conditions or given exceptions.

The US led invasion of Iraq was a war of liberation the West said; but not all Iraqi’s agreed with that characterisation.

US & Western interpretations…

These ‘exceptions’ — defined as either contingent or absolutist — were characterised in the UN Charter and effectively rendered the prohibition on the use of force (against the territorial integrity of another state) as a non-absolute condition when an exception is accepted thereby allowing intervention by a “competent body (or bodies) of the UN,” (i.e. a legitimate armed force, of whatever form that may take).

The legal basis for intervention under these exceptions has been tested with different nations interpreting the nature of an exception differently, and sometimes arguably, as suits a specified (political or foreign policy) agenda.

For example, Western nations tend to abide by what is known ‘contingent sovereignty,’ where, under certain conditions, such as flagrant abuses of human rights or state-sponsored terrorism, it can nullify or negate a states right to its sovereignty.

The West has made several recent interventions under this pretext: namely, the Korean War, 1950–53; twice during the Balkan Wars of the 1990’s; firstly in 1995, and later in 1999, both made to prevent humanitarian disasters; and then subsequently in Libya in 2011, again on humanitarian concerns.

Each of these interventions was controversial in its own right. The West’s justification in each case were made under the principle of responsibility to protect (R2P) — a bid to legitimise the use of force in such an intervention — in order to prevent gross human rights violations (by one more groups of assailants).

Further interventions and perhaps most controversially (in their outcomes, not necessarily in their inceptions which all had significant public support) were made by the U.S. in Vietnam where there was active (as opposed to black ops) involvement was between 1965 to 1973, and thereafter by U.S. led coalitions of nations in the invasions of Afghanistan (2001) and thereafter Iraq (2003).

The rugged mountains of Tora Bora where bin Laden hid out and subsequently escaped.

How 9/11 changed everything for the West...

In the days following the 9/11 attacks the U.S. Congress enacted the Authorization for the Use of Military Force (or AUMF) which, in a nutshell, gave President George W. Bush carte blanche to enact forcefully against those who planned and initiated the attack, as well those who harboured and aided them in the process.

Given the shock waves that reverberated around the world in the days following the attacks, nations fell easily in line behind the U.S. to offer their support. Even Russia, a permanent member of the UN Security Council (UNSC) went with the flow as the Council approved two resolutions (Resolutions 1368 and 1373 of 2001) recognising the U.S.’s inherent ‘right to collective self-defence,’ an exception mandated under Article 2, section 4 of the UN Charter, as discussed above.

Crucially, by placing the authorisation within the context of ‘self-defence’ it did not explicitly authorise ‘the use of force’ by the U.S., but it was, however, recognition of the fact that self-defence and armed intervention by the U.N. (or designated forces) were not mutually incompatible under certain conflict situations, such as this.

Thus the UN did authorise the use of limited force within the existing legal framework for self-defence, but didn’t go as far as authorising the use of full force which is a complicated legal process that would have required establishing a mandate and the setting of boundaries (for the use of force) within which specified objectives (of the war) and limitations would have to be set.

However, mere support of the UNSC for a determination of a right to self-defence does necessarily legitimise the subsequent actions. For this invocation to be deemed ‘legal’ under international law there needs to have been a ‘prior armed attack’ (as detailed in Article 51 of the Charter), the gravity of which is determined by the International Court of Justice (ICJ).

In the case of 9/11, an attack which left thousands dead and was perpetrated against centres of political and military power (in the U.S.) the case for an armed attack became, in the eyes of the UNSC, fully justified, a determination also reached by NATO, the European Council and many other international bodies.

However, since the act was committed by a non-state actor, namely al-Qaeda, the question of territoriality was raised. In this case, the Taliban, as the ruling party in Afghanistan, had willingly harboured the terrorists and then refused to hand them over, therefore becoming legally complicit in the attacks, thereby settling the question of which territory was to be breached.

But this did not make the invocation of the use of force for self-defence legal because the determination of whether an armed attack had been made (against the U.S.) had not taken place by the ICJ, who need to decide whether an armed response was ‘necessary’ and, if undertaken, was ‘proportionate’ to the prior armed attack.

With time being a paramount issue for the U.S., and rather than wait for the ICJ to reach a judgment, the AUMF filled that legal gap for the U.S. and its partners in their endeavour, effectively giving them free rein to employ all measures deemed necessary.

Further UN resolutions then allowed for the ‘replacement of the Taliban regime’ (UNSC Resolution 1378, 2001) and once achieved, for the establishment of an International Security Assistance Force (ISAF, Resolution 1386 of 2001) to maintain peace following their expulsion.

As to whether regime change in Afghanistan was a ‘necessary’ outcome is arguable, but was deemed to be ‘fair’ given the belligerent standing of the Taliban at the time.

However, the armed response was, in many instances, ‘disproportionate’ given the overall aims of the mission and most likely overstepped the legal bounds of what would have been deemed ‘proportionate’ as far as the UN was concerned.

This matter is beyond the scope of this post, but I shall hopefully return to this point in a later essay.

Russian forces bombard Ukrainian positions at the start of the invasion.

Russian interpretations.

The absolutist interpretation of state sovereignty has been adopted by Russia, China and India, among others, as a way of preserving an authoritarian or dictatorial state system through the idea of strong territorial integrity and non-interference (by external actors) in the domestic affairs of a nation.

Both China and Russia have traditionally been strong advocates of state sovereignty and of non-interference more specifically. China in fact, espouses just this reason as a counter to Western criticisms and sanctions that have been made with respect to the alleged genocide/re-education programmes of the indigenous Uyghurs.

But since the end of the Cold War, for Russia at least, their strong advocacy of this status stands in stark opposition to their recent actions in Georgia, the Crimea, the Donbas and of course, the current invasion of the rest of Ukraine, that Putin likes to call his ‘special military operation.’

Justification for both the Crimean and Donbas interventions has been the ‘right of self-determination’ for ethnic Russians in these regions, and have taken place under the umbrella of ‘humanitarian interventions,’ with Russian troops supposedly acting as peacekeepers providing a ‘legitimate’ way to protect those Russians Putin said were under persecution for their ethnicity.

It is important to note that Russia did not seek UN resolutions to proceed with its incursions into Georgia in 2008, the Donbas in 2014, or its annexation of Crimea in 2014. On each occasion Russia acted unilaterally, and although the Georgian war was over in a matter of days, it has been widely accepted that Russia was responsible. The incursions into the Donbas and Crimea were roundly condemned by the UN as being illegal.

However, Putin’s justification for the current (or renewed) invasion of Ukraine was that, in his mind, Ukraine was not a recognised state, which is fundamentally wrong and untrue as we have seen, but highlights his need to invalidate Ukraine as state (to the Russian people as much as anything) as a way to justify his ‘special military operation.’

By framing Ukraine as a non-state and as an integral part of Russia he attempts to justify the military aggression as a peace keeping operation in Russian territory rather than an invasion per say. Indeed, Putin has likened his actions to those of Peter the Great by saying,

“You get the impression that by fighting Sweden he (Peter the Great) was grabbing something. He wasn’t taking anything, he was taking it back. Everyone considered it to be part of Sweden. But from time immemorial Slavs had lived there alongside Finno-Ugric peoples. It is our responsibility also to take back and strengthen…”

Napoleon paid scant regard to a nation's territorial integrity & invaded many European nations including, & perhaps most infamously, Russia. Napoleon crossing the Alps, by Jacques Louis David, 1801.

Shifting sands…

Despite a more or less global acceptance of national borders as sacrosanct, as emphasised by Martin Kimani in his speech at the UN following Russia’s invasion (see quote at top), both the U.S. and Russia have historically affirmed their commitments to respect the norm of territorial sovereignty differently as we have seen.

Whilst this is not the rhetorical route Putin has taken vis-a-vis Ukraine, it help us to understand, if not agree, with Putin’s viewpoint.

It is also worth pointing out that Putin’s current invasion, as indicated in the quote above, has distinct imperialistic ambitions about it. He intends to occupy the lands he takes, whereas the American incursions did not — if you discount the likely commercial aims behind the invasion of Iraq — have long term imperialist ambitions. American was not empire building; whereas Putin sees his conquests as a revanchist bid at regaining the empire he says, Russia has lost, yet still deserves.

But it is important to note that in as much as there is generally a tacit acceptance of territorial sovereignty, the observance of national borders is not enshrined in international law. It has though been written into the UN Charter by way of cementing its general acceptance. So it is a norm and not a law, and is one that has been largely adhered to since WWII.

That said, countries preparing to or undertaking to breach another nations sovereignty are always careful to give their actions a legitimate coating to avoid, or at least, to limit any countervailing criticism. So, for the US post-9/11 it was the AUMF; and for Russia now, it is framed primarily as an humanitarian operation.

So, as we have seen, the reason nations observe the norm can differ from nation to nation, as can the degree to which each nation accepts this norm, but in some cases these reasons can change over time in response to a changing geopolitical environment.

For example, small or economically weak nations are happy to accept and enforce this norm internationally because their geopolitical situation means they will always be at risk of having their borders breached by an over zealous or aggrieved, larger or more powerful neighbour.

In contrast, large or very powerful nations, such as the U.S., accept this norm and are happy to enforce its acceptance under most circumstances as a way of maintaining the global order, thereby helping to reinforce peace because they understand that border disputes can lead to damaging and costly conflicts. But America’s adherence to this norm has changed according the geopolitical dynamics at the time.

For example, one reason oft quoted in the West for the current conflict is the weak response to Russia’s other territorial interventions in Georgia, the Crimea and the Donbas region in the East of Ukraine, interventions that were arguably brought about by the U.S.’s scant regard for Russia’s security concerns re-NATO expansion.

But at that time, with Russia no longer perceived as a global threat, and America’s attention drawn elsewhere (Iraq, Afghanistan, the global financial crisis), sanctions amounting to little more than an economic slap on the wrist for Putin, merely served to embolden him and to therefore expect something similar should he take the next step and go for all out invasion — which of course he did, and in so doing he, perhaps unexpectedly, invoked a forceful, unified Western response, extensive sanctions and repercussions that are being felt around the globe.

Thus the U.S. were happy to test the norm to its limits with their invasion of Iraq, but with their own entanglements fading into memory, the criticism of and consequences for Russia have been severe.

So is the West, and the U.S. specifically, guilty of hypocrisy when it comes to its condemnation of Russia’s interventions? Is it a case of one rule for the United States and another for everyone else? Or is the condemnation in this case justified?

A clash of civilisations? A war of political ideologies? Or merely just a geopolitical parting of the ways?

Autocracies vs democracies? Or is there more to it?

Max Weber defined the state as a “human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory,” and that territory is bounded by its borders, following the dictum of the Westphalian Treaty.

The current division one sees in support or condemnation of Russia’s Ukrainian invasion has been likened to autocracies versus democracies, but this is a misleading summation that is as imprecise as it is wishful thinking. For example, two of the world’s biggest democracies, Brazil and Mexico, may have voted to condemn the invasion in the UN, but have pointedly refused to join in any sanctions regime against Russia. Whilst India, the world’s largest democracy, abstained from the vote against the UN resolution, and has even increased trade with Russia in oil and gas since the onset of the conflict in direct contravention of the US led sanctions regime.

Whilst it can reasonably be argued that Putin’s invasion has had, for him at least, several unexpectedly dire consequences, with both NATO and the EU experiencing unprecedented solidarity of purpose and resolve resulting in perhaps the most extreme sanctions package ever lodged against a single nation, and with the added possibility of future expansion resulting in an ever expanding alliance that may well corral Putin much tighter than he’d ever imagined possible or likely, things do not look too good for Russia.

But this uniformity of purpose is very Euro and NATO-centric, and has the U.S. as its gravitational pole. Poland apart, the countries aligned most forcefully behind the sanctions regime and issuing the strongest of condemnations against Russia’s transgressions are liberal democracies.

Many so-called illiberal democracies, such as Hungary, Turkey, South Africa, Pakistan and India have not joined in the calls to condemn Russia, along with the world’s authoritarian nations.

So, one has to ask the question; is outrage, or alternatively support, of Putin’s invasion more a pragmatic ideological choice than a political one?

I would suggest neither; in fact it seems more likely that a particular nations stance on Russia’s actions in Ukraine are more tied to a rapidly shifting and evolving economic climate than anything else.

“Today, the center of gravity of the world economy has moved from the Atlantic to east of the Urals. Geopolitical disputes and security dilemmas that could affect the global order are concentrated in maritime Asia. And the world seeks a new equilibrium to account for China’s rise. The complex political dynamics in Asia don’t lend themselves easily to the kind of stark confrontation underway in Ukraine. Policymakers in Western countries shouldn’t think that their actions on the new frontlines in Europe will shape the contours of a wider struggle to come.”

Shivshankar Menon, April 2022.

Menon suggests in fact that during the Cold War, when the centralised fault line between the two superpowers was in Europe, no cross border wars were fought in the continent. Borders remained static and conflicts were internalised, and didn’t spill over into neighbouring nations whatever the geopolitical strains of the moment were.

But since the end of the Cold War two wars have occurred in Europe; the Balkan Wars of the 90’s and now this current conflict, both of which resulted in the territorial sovereignty of one or more nations being breached. This may be because the risks of complete annihilation of the planet is today more of a managed risk in Europe than it was during the Cold War, despite the apocalyptic predictions made by some more recently.

Europe is, Menon says, a sideshow to today’s main global arena; Asia.

Many Asian nations in fact maintain economic and military ties to both Russia and China, but also to the U.S. and the West, and often times Ukraine. Whilst many Asian nations may have been shocked and surprised by Putin’s invasion of Ukraine, and their shattering of the norm of territorial sanctity, they remain unwilling to condemn either side outright and prefer to run a more pragmatic line that maintains ties with both the more democratic West and the Eastern authoritarian powers.

So whilst the U.S. led West and Russia might see territorial sovereignty in very different ways, both sides are willing to breach the borders of a sovereign nation if its suits their purposes.

Both the U.S. and Russia have been guilty of hypocrisy in their respective denunciations of each others actions, and both have twisted and abused the legal bases underpinning sovereignty according to their geopolitical needs or desires at a given moment in time if this is required to fulfil their ambitions.

Thanks for reading.

#solidaritywithUkraine

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