Col. Ted Richard on “Can International Law Constrain Russian Behavior?”

Today popular Lawfire^® contributor Colonel Ted Richard treats us to another of his thoughtful and scholarly analyses, and this one could not be more timely.  Writing in his personal capacity he grapples with the wickedly difficult question of whether or not international law can really constrain Russia. In addressing this issue he unpacks for us the Russian view of international law, something I found quite interesting.

Since Russia is an avid lawfare practitioner, understanding how it perceives law is foundational to developing efforts to counter its misuse of it.  In fact, Ted recommends that “[f]oreign ministries and entities like NATO should create “Counter-Lawfare” offices to quickly delegitimize Russian mischaracterizations of facts or law.”  

Don’t miss this opportunity to add to your understanding of events you see unfolding daily!

Can International Law Constrain Russian Behavior?

By Colonel Theodore Richard, USAF

As Russia faces reverses in its invasion of Ukraine, Russian leaders and media have made threats about using nuclear weapons.  Western analysts refer to this bullying as nuclear blackmail, inconsistent with Russia’s restrictive nuclear weapons employment doctrine, which states that these weapons exist to guarantee the protection of sovereignty and territorial integrity of the Russian state and to  deter aggression against it and its allies. 

Russia’s doctrine reserves the right to use nuclear weapons in response to the use of nuclear and other weapons of mass destruction against it or its allies, as well as in the event of aggression against the Russian Federation with the use of conventional weapons when the very existence of the state is in jeopardy.

The use of nuclear weapons in an extreme circumstance of self-defense, in which the very survival of a State would be at stake, echoes the 1996 advisory opinion of the International Court of Justice.  This presents the question on the role of international law in the current Russo-Ukrainian War. 

Could international law be effectively leveraged to limit Russian behavior or potential nuclear weapons employment in Ukraine?  International law has not been and is unlikely to restrict Russian courses of action because of how differently law is viewed in Russia.

Russia openly mocks the West’s conception of a rules based international order while rhetorically presenting itself as the guardian of international law.  How is this possible when Russia’s use of force to annex territory from a sovereign nation appears to Western nations as a breach of what is thought to be jus cogens – a peremptory norm on international law – based on article 2(4) of the United Nations Charter? 

From an international lawyer’s perspective, the underlying problem is that Russia has long taken an instrumentalist approach to law, one that is far different from the universal understanding of international law in the West.[1] To reverse this Russian trend, an international community concerned about nuclear weapon use in the Ukrainian conflict must concentrate on establishing compliance with a rules-based international order as a primary strategic goal.

The United States National Security Strategies, going back at least twenty years, refer to the existence of a rules based international order.  The Trump Administration’s 2017 National Security Strategy and the Biden administration’s 2022 strategy both recognize that adversaries are selectively complying with international law rules.  (See similar goals for Australia, Canada, and the United Kingdom.)

These strategies prioritize the need for a rules-based order for international peace and stability as well as prosperity.

Russian views on international law

Russian views on international law have diverged from the United States and like-minded nations since 1917.  The czarist autocratic approach to international law temporarily became more European during the era of Fedor de Martins.  But Russia’s flirtation with progressive, Western-centered international law did not survive the Russia Revolution. 

The Soviets needed international law for border stability and trade but did not merely adopt international law as understood in the West.  In the Soviet Union, law was considered to be an instrument of the state.[2]  Law corresponded to the interests of the proletariat as represented by the communist party.[3] 

Formal laws existed, but the Soviets emphasized that strict adherence to rules could result in undesired effects.[4] In the west, the concept would be reflect concerns over strict adherence to due process rules allowing the guilty to go free, or that a strict constructionist’s interpretation of a rule would result in injustice. 

To prevent such outcomes, law was ultimately understood to be the means of implementing the will of the ruler who could direct exceptions to the formal rules based upon interests like building communism.[5] 

Balancing conflicting foreign policy interests

Internationally, the Soviets balanced two broad and conflicting foreign policy interests: the principle of peaceful coexistence with capitalist nations and the principle of supporting the world socialist revolution.[6]

Given their understanding of law, the Soviets had the flexibility to be parties to treaties and thereby invoke favorable obligations, while allowing for exceptions to support socialist internationalism.  It allowed the Soviets to sign treaties without implementing problematic provisions, like human rights protections, into its domestic legal order.[7] 

Near the end of the Soviet era, Mikhail Gorbachev (a lawyer by training) sought legal reforms to support new economic policies and political reforms.[8]  There was a recognition that the Soviet Union needed to integrate into the global system but could not do so without ensuring the observation of internationally accepted norms, such as human rights.[9] 

Thus, Gorbachev and his leadership team limited executive power by creating the position of President with specified powers limited by other branches of the government.[10]  In the new Russian Federation, international law was expressly incorporated into article 15 of Russia’s Constitution:[11]

The universally-recognized norms of international law and international treaties and agreements of the Russian Federation shall be a component part of its legal system. If an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied.

President Yeltsin, however, found it difficult to come to terms with any constraints on his executive power.[12]

Under President Putin, Russia has reverted to Soviet instrumental approach to international law, but without the cover of international socialism.  Instead, concepts like defending morality and traditional values appear to have become the compelling interests that Russian rulers use to override written legal rules. 

This reversion to its autocratic tradition is exemplified by Russia’s Constitutional amendments to explicitly allow its highest court to negate decisions of international bodies that are deemed to contradict the Constitution. 

While article 15 remains in place, but its potential impact has been neutered.  In words of International Law Professor Lauri Mälksoo, “the Russian government has put its sovereignty and national interests before international legal regulation.”[13]

Russia’s justification of interventions

Russia’s treatments of its own sovereignty is absolutely sacrosanct.  It uses sovereignty to trump international rules on trade or human rights.[14]  Russia believes that its status as a permanent member of the United Nations Security Council with veto authority gives it the legal right to stop unwanted military interventions by foreign powers, like the US and NATO.[15]

Without UNSC authorization, Russia’s position is that Western military interventions violated international law in Kosovo (1998), Afghanistan (2001), Iraq (2003), Libya (2011), and Syria (2014).  In fact, Russia has traditionally argued against any Western interference in another country as a sovereignty violation. 

During the Soviet era, scholars attacked the Marshal Plan because it conditioned aid to foreign states in exchange for cooperation, which they argued subordinated each country’s sovereignty to the interests of the United States.[16]  So how does Russia justify its military interventions?

The Soviets justified their military interventions because “socialist international law” enabled them to support the world socialist revolution.  The Soviets could use this interpretation of the law to support wars of liberation to promote independence from colonial and racist regimes aligned with the West.[17]  When invading Czechoslovakia in 1968, the Soviets asserted the legal right to intervene militarily anywhere in the world to make certain that once a nation adopted a communist system it would never be permitted to change its form of government.[18] 

Brezhnev Doctrine replaced by Putin Doctrine

The Brezhnev Doctrine asserted, “The sovereignty of each socialist country cannot be opposed to the interests of the world of socialism, of the world revolutionary movement.”  Thus, the Communist Party of the Soviet Union was responsible for its own people and those in all other socialist countries, and would not permit people in those countries to “damage either socialism in their country or the fundamental interests of other socialist countries[.]”

Socialist international law was a one-way street – it justified Soviet intervention, but was not available to the West.

But when the Soviet Union itself collapsed, Russia lost the pretext of international socialism to justify interventions.  Now, Russia treats former members of the Russian Empire and Soviet Union, especially territories with significant Russian speakers practicing the Orthodox faith, as having some type of lesser status – a nominal sovereignty.[19]  When Russia annexed Crimea in 2014, one Russian commentator described it as restoring sovereignty.[20] 

Vladmir Putin himself declared, “Crimea is our common historical legacy and a very important factor in regional stability. And this strategic territory should be part of a strong and stable sovereignty, which today can only be Russian.”  Thus, the Brezhnev Doctrine has been replaced with the Putin Doctrine, giving Russia the right and obligation to protect Russians anywhere in the world.

Additional features of the Russian approach to international law

Russia’s foreign policy has two additional predominant features which affect its approach to international law: its arbitrary treatment of factual reality and paranoia.  Facts do not appear to be objective certainties in Russian political discourse.  As the former Russian television producer Peter Pomerantsev has argued, the Kremlin’s strategy uses disinformation to distract people from real evidence, to advance the idea that there is no such thing as objective truth. 

Deception and disinformation have long been a feature of Russian behavior.  US Diplomat George Kennan complained, “The very disrespect of Russians for objective truth–indeed, their disbelief in its existence–leads them to view all stated facts as instruments for furtherance of one ulterior purpose or another.” 

Despite European Court of Human Rights findings, Moscow denied its control or involvement in Transdniestria in the early nineties.[21]  It falsely claimed genocide by Georgian forces in 2008 to justify a war.  Putin falsely asserted that opposition forces, rather than the government, used chemical weapons in Syria.  Russia pushed several alternate versions to distract from its 2014 shoot down of Malaysia Airlines Flight MH17. Russian disinformation about the war in Ukraine is very well documented.  This treatment of facts means that even if Russia agreed with the West on international law rules, behavior would only improve marginally.

Second, Russian thinking is infused with an intense paranoia which drives treaty violations.  During the Cold War, the Soviets entered the 1972 Biological Weapons Convention, an arms control agreement without verification measures, but maintained a clandestine biological weapons program nonetheless.[22]  In that case, the Soviets assumed, without evidence, that the US was violating the agreement too.[23] 

More recently, the US had to withdraw from the Intermediate-Range Nuclear Forces treaty because of a Russian covert program to field multiple battalions of an illegal missile with prohibited ranges.  In 2022, the US State Department issued a report stating, “Despite Russia renewing its nuclear testing moratorium in 1996, some of its [Comprehensive Test Ban Treaty (CTBT)] activities since 1996 have demonstrated a failure to adhere to the zero-yield standard” as agreed to between parties.[24] 

In short, Russia violates its treaty obligations.  It is impossible to know for sure whether it does so because it believes others are cheating, or whether it believes it needs some type of upper hand. Either way, it reflects continued paranoia by the Russian government.

Russian view of the law and nuclear weapon use

So what does Russia say about nuclear weapon use?  Basically, Russia’s position is that nuclear weapons are lawful weapons.[25]  Russia’s 1995 written statement and argument to the International Court of Justice said, “In our view, international law contains no general prohibition of use of nuclear weapons per se.”  The legality of the use of the weapons depends upon the manner in which they are employed. 

Russia acknowledges the 1968 Non-proliferation Treaty, test limitation treaties and related arms control treaties apply to nuclear weapons, but says these did not amount to a general prohibition.  Russia firmly rejects any idea a general prohibition on nuclear weapons could be based upon the 1899 or 1907 Hague Conventions, 1949 Geneva Conventions, the 1977 Additional Protocols, or the “Martens clause” – while acknowledging that the rules on means and methods of war extend to nuclear weapons. 

In short, Russia’s stated position is that international law does not prohibit nuclear weapons use in conflict situations.  (If anything, the feared condemnation by erstwhile allies or nations still friendly to Russia may make nuclear weapon use unlikely.)

Concluding thoughts

In summary, between Russia’s instrumentalist take on international law generally and its stated legal position on nuclear weapons specifically, there is little, short term hope that legal arguments will provide any significant constraints to Russian behavior in Ukraine.  This is an unfortunate reality.

For the foreseeable future, the US and Western allies need to maintain the strategic goal of a rules based international system.  National plans and actions need to support such a goal.  For example, Western nations must determine how economic engagements, development and free trade could enhance stability if linked to reciprocal adherence to standards of conduct.  The US and its allies need to continue to use diplomacy, trade and any instruments of power to incentivize rule compliance and penalize non-compliance. 

The US and its allies should also continue to support institutions like the United Nations where meaningful dialog can take place.  The United Nations also provides forums, like the General Assembly, where Russian actions can be condemned as international law violations by a large majority of nations.

To counter disinformation and to clarify the deviations between Russian and Western approaches to international law, Governmental and intra-governmental voices need to correct mischaracterizations of law and history.  Russian rhetoric focuses on international law as a means to legitimize its conduct internally and to sympathetic audiences abroad. 

Foreign ministries and entities like NATO should create “Counter-Lawfare” offices to quickly delegitimize Russian mischaracterizations of facts or law.[26]  This will help ensure that media coverage of those Russian statements is associated with an official response.  It will also mitigate the impacts of disinformation and negate Russia attempts to legitimize its actions under the veneer of international law.

Notes

[1] From a international relations’ perspective, the US and its allies had a relatively muted response to Russia’s 2008 war in Georgia and 2014 annexation of Crimea and support for separatists in eastern Ukraine. 

[2] John N. Hazard, The Soviet Union and International Law, 43:5 Illinois L. Rev. 591, 592 (1948); Jeffrey D. Kahn, The Search for the Rule of Law in Russia, 37 Geo. J. Int’l L. 353, 384 (2006).

[3] Vladimir Gsovski, The Soviet Concept of Law, 7 Fordham L. Rev. 1, 2 (1938).  “Law was understood [to be] a tool of class oppression and at the same time … a necessary means of state governance under the conditions of the dictatorship of the proletariat.”  Mikhail Antonov, Legal Realism in Soviet and Russian Jurisprudence, 43 Rev. Cent. & E. Eur. L. 483, 486 (2018).

[4] Mikhail Antonov, Legal Realism in Soviet and Russian Jurisprudence, 43 Rev. Cent. & E. Eur. L. 483, 486 (2018).  See also Jessica C. Wilson, Russia’s Cultural Aversion to the Rule of Law, 2 Colum. J. E. Eur. L. 195 (2008) for a discussion of how Russians view the concepts of law and justice differently: “Since law [in Russia] is exercised through legal codes and penal enforcement, it is largely viewed as the exclusive instrument of the government. As such, the everyday law is detached and removed from the sensibilities of Russian culture.  … In contrast, Russians regard justice as a moral and spiritual value.” Id. at 197.

[5] Mikhail Antonov, Legal Realism in Soviet and Russian Jurisprudence, 43 Rev. Cent. & E. Eur. L. 483, 504-508 (2018).

[6] Alina Cherviatsova & Oleksandr Yarmysh, Soviet International Law: Between Slogans and Practice, 19 J. Hist. Int’l L. 296, 305 (2017).

[7] A. Kolodkin, Russia and International Law: New Approaches, 26 Belgian Rev. Int’l L 552 (1993); Gennady M. Danilenko, The New Russian Constitution and International Law, 88 Am. J. Int’l L. 451, 458 (1994).

[8] Jeffrey D. Kahn, The Search for the Rule of Law in Russia, 37 Geo. J. Int’l L. 353, 387-89 (2006).

[9] Gennady M. Danilenko, Implementation of International Law in Russia and Other CIS States, 4 (1998)

[10] Peter H. Solomon Jr., Gorbachev’s Legal Revolution, 17 Can. Bus. L.J. 184, 189 (1990).

[11] Gennady M. Danilenko, The New Russian Constitution and International Law, 88 Am. J. Int’l L. 451, 464 (1994).

[12] Jeffrey D. Kahn, The Search for the Rule of Law in Russia, 37 Geo. J. Int’l L. 353, 390 (2006).

[13] Lauri Mälksoo, Russian Approaches to International Law 158 (2015).

[14] Lauri Mälksoo, Russian Approaches to International Law 164 & 172 (2015).

[15] Lauri Mälksoo, Russian Approaches to International Law 174 (2015).

[16] John N. Hazard, The Soviet Union and International Law, 43:5 Illinois L. Rev. 591, 600 (1948).

[17] John Norton Moore, The “Brezhnev Doctrine” and the Radical Regime Assault on the Legal Order in International Law and the Brezhnev Doctrine, 18 (John Norton Moore and Robert F. Turner, eds., 1987)

[18] John Norton Moore, The “Brezhnev Doctrine” and the Radical Regime Assault on the Legal Order in International Law and the Brezhnev Doctrine, 8 (John Norton Moore and Robert F. Turner, eds., 1987)

[19] Lauri Mälksoo, Russian Approaches to International Law 175 & 178 (2015).

[20] Lauri Mälksoo, Russian Approaches to International Law 183 (2015).

[21] Lauri Mälksoo, Russian Approaches to International Law 162 (2015).

[22] David E. Hoffman, The Dead Hand 131, 134 (2009).  Soviet leaders assumed the U.S. was also clandestinely developing biological weapons in violation of the treaty.

[23] David E. Hoffman, The Dead Hand 131, 134 (2009).  Soviet leaders assumed the U.S. was also clandestinely developing biological weapons in violation of the treaty.

[24] Russia has revoked its ratification of the CTBT, but has not admitted to cheating.

[25] The position that nuclear weapons are ultimately lawful is the same position held by the United States and other nuclear weapons States.

[26] David Patrikarakos’ book, War In 140 Characters (2017), describes the Foreign and Social Media Branch of the Israeli Defense Force’s Spokesperson’s Unit and its effectiveness when publishing information online and engaging with foreign media quickly.  A response to misinformation 12 hours after an incident was too late to impact the narrative created through social and traditional media.  The key observation is that timely responses and narrative impact global perceptions of legitimacy.

About the author:

Colonel Theodore Richard is a United States Air Force Judge Advocate and is currently serving as the Staff Judge Advocate at Space Operations Command.  He has served in multiple assignments focused on operations law matters to include at the Combined Air Operations Center at Al Udeid Air Base in Qatar, the 603d Air Operations Center at Ramstein Air Base in Germany, and at United States Strategic Command.

Disclaimers: 

The views expressed are those of the author and do not reflect the official guidance or position of the Department of the Air Force, United States Department of Defense (DoD), or the U.S. Government.  The appearance of external hyperlinks does not constitute endorsement by the DoD of the linked websites, or the information products or services contained therein.  The DoD does not exercise any editorial, security, or other control over the information you may find at these locations. 

The views expressed by guest authors do not necessarily reflect my views, those of the Center on Law, Ethics and National Security, or Duke University. See also here. 

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!