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21 February 2020

Russia at the United Nations: Law, Sovereignty, and Legitimacy

PHILIP REMLER

The central task for Russian foreign policy in the era of President Vladimir Putin has been to regain recognition that Russia is a world power like the Soviet Union before it. The United Nations (UN) is a positive platform for this aspiration, as Russia, with its UN Security Council (UNSC) veto power, is a privileged member of what it sees as a concert of world powers.

Russia’s participation in the UN is governed by an interlocking series of concepts, starting with Russia’s definition of international law, narrowly based on the UN Charter and Security Council resolutions, as opposed to a “rules-based order” that Russia defines as expansive and promoting the interests of Western powers. This division enables Russia to reject on principle commitments regarding human rights and democratic governance. A second concept, multipolarity, asserts that an oligarchic group of states must take collective action on the basis of equality and consensus. At the UN, this plays out among the permanent members of the UNSC as an alliance with China against Western interests.


The concept of a multipolar oligarchy leads to the Russian concept that true sovereignty is possessed by only a few great powers; the sovereignty of states it views as dependent on great powers is limited. The territory of true sovereigns and those states under Russian protection is sacrosanct and can be defended by force; for the others, it is impermissible to regain territory that is “in dispute” by force. As an example of the former, consider the lengths to which Russia has gone to protect Syria’s use of armed force against its own population, whereas the sovereignty of former Soviet states such as Azerbaijan, Moldova, Georgia, and Ukraine must be negotiated.

Philip Remler is a nonresident scholar at the Carnegie Endowment for International Peace.

Russia’s defense of Syria demonstrates another concept that flows from sovereignty: legitimacy. In Russian practice, the legitimacy of recognized governments is absolute regardless of their origins, governance, human rights record, or any other external norm. This concept echoes Russian domestic preoccupations in the era of color revolutions, the Arab Spring, and domestic unrest.

The rejection of all external norms has led to the breakdown of the modus vivendi at the UN since the days of the Korean War: deferring issues involving great power interests while engaging elsewhere in peacekeeping, mediation, and humanitarian relief. Neutral powers that share democratic values are best placed to defend against the legitimation of autocratic governance.

INTRODUCTION

The central task for Russian foreign policy in the era of President Vladimir Putin has been to regain the undisputed recognition that Russia is a world power like the Soviet Union before it, a status to which Russia feels entitled.1 The United Nations (UN) is Russia’s most important venue for putting its global aspirations and achievements on display. Russia’s status as a permanent member of the UN Security Council boosts its claim to be part of a global oligarchy and grants it the power to veto or undermine initiatives that it deems contrary to its interests. The concepts underlying Russia’s use of the UN to promote its aspirations form the subject of this paper.

Russia, like the Soviet Union before it, devotes great resources to its missions at the UN, especially New York and Geneva. It traditionally cultivates extensive expertise among its mission members, appointing them to UN postings several times over their careers and leaving them in place for long periods. Russian diplomats are noted for their abilities in drafting highly technical UN documents in English—none more so than Sergey Lavrov, currently Russia’s foreign minister and formerly its permanent representative to the UN from 1994 to 2004.

RUSSIA’S CONCEPT OF INTERNATIONAL LAW

In analyzing how Russia goes about promoting its status as a global power at the UN, the concept of international law stands out as Russia’s most important battle line. In speech after speech, both Putin and Lavrov have stressed the importance of upholding international law. Lavrov often contrasts this law with an alternative that he maintains the West is promoting to expand Western interests and values; in a 2018 address, for example, he charged: “Today we can trace a tendency to substitute for international law, as we all know it, some kind of ‘rules-based order.’ That is what a series of our creative Western friends call it.”2

In that address, Lavrov does not define the rules-based order except to ascribe to it a series of developments that displease Russia, from actions by the Council of Europe with regard to Russia, to the granting of new powers to the secretariat of the Organization for the Prohibition of Chemical Weapons, to the promotion of “humanitarian intervention” based on the “responsibility to protect.”3

Lavrov does not define international law either, except to say that it is “as we all know it.” Much research has been done in recent years on Russian approaches to international law.4 While the “Westernizers” who introduced the study of international law to Russia in the nineteenth century emphasized commonalty with their contemporary European schools of thought,5 the school now clearly dominant in Russia insists that international law—like forms of governance—develops on cultural and civilizational, not universal, bases.6 In the UN context, Russia defines international law narrowly, appearing to limit it as much as possible to the United Nations Charter and the resolutions of the UN Security Council (UNSC). This narrow scope differentiates it in Russian discourse from the “rules-based order,” which is by implication boundless and amorphous—whatever the West and in particular the United States want it to be. This narrowing definition of international law comes against the backdrop of Russia’s sustained effort to break the connection between hard security and the human dimension of democratic governance and human rights.7

The West, too, has trouble defining the limits of international law, with each country plus the European Union as a whole interpreting its principles differently.8 Questions of ratification (to effect entry into domestic law through the actions of democratically elected institutions, as opposed to an agreement among nonelected specialists) take precedence in certain schools of thought. The question of “subjects of international law,” which loomed large in post-Soviet states immediately following the Soviet Union’s collapse, is also controversial in the West, with differing views on whether international law applies to international nongovernmental organizations, transnational corporations, or individuals (Russian legal thinking generally holds that such entities cannot be subjects of international law).

For this reason, the West is, as Russia charges, often vague about what is meant by the rules-based international order. In general, however, the term is used to describe the network of treaties and commitments undertaken voluntarily by states, Russia among them, in the era following World War II to govern their behavior in both the international and domestic spheres. Often these are politically, not legally, binding—but they are commitments nonetheless. These include the Helsinki Final Act (1975), the Charter of Paris for a New Europe (1990), and the Istanbul Charter (1999), all of which pledged support for democratic governance and human rights.

Likewise, the rules-based order would also appear to include commitments such as the Alma-Ata Declaration of December 21, 1991, by which the Union Republics of the USSR dissolved the union and founded the Commonwealth of Independent States (CIS), and in which the eleven signatories (later twelve, with Georgia), including Russia and Ukraine, recognized one another as independent and sovereign states and pledged to recognize and respect “each other’s territorial integrity and the inviolability of the existing borders.”9

It would further include the three Budapest Memorandums on Security Assurances of December 5, 1994, in which Belarus, Kazakhstan, and Ukraine agreed to give up the Soviet-era nuclear weapons deployed on their territories in return for security guarantees from Russia, the United States, and the United Kingdom, including respect for their territorial integrity.10 Thus when, after the seizure of Crimea from Ukraine, Russian Prime Minister Dmitry Medvedev declared, “We don’t have to guarantee anything to anyone, because we never took on any commitments concerning this,”11 he drew a clear distinction between the international law that Russia felt bound to observe and the rules-based order that did not bind Russia.

There is some question as to the source of this distinction—whether Russia applies it only to former Soviet states or universally. Scholar Lauri Mälksoo asserts the former, which is that Russia does not observe international law with regard to erstwhile dependencies simply out of force of habit: “Historically, Moscow was not used to taking into account ‘international law’” in its dealings with former Soviet states.12 However, it is clear that Russia extends its distinction more broadly and universally. To Russia, international law is UN-based and narrow but universally applied; while the rules-based order with its supposed double standards is expansive and extraterritorial, covering a wide field of issues. This distinction also applies to Russia’s view of sovereignty itself and pervades Russian behavior at the UN.
FROM INTERNATIONAL LAW TO MULTIPOLARITY

Russia and China made a joint declaration on international law on June 25, 2016, during a visit by Putin to Beijing.13 The declaration is a list of things the two countries support (international law based on the UN Charter, sovereign equality, dispute settlement through agreed mechanisms, collective action against terrorism) and oppose (unilateral military interventions, intervention in the affairs of other states, unilateral sanctions, “violating the immunity of states,” and interpretations of the 1982 UN Convention on the Law of the Sea that “impair rights and legitimate interests of States Parties”). In this as in so many things, Russia rides on China’s more capacious coattails, and the two countries cover for each other: for example, of Russia’s thirteen UN Security Council vetoes on proposed Syria resolutions, China joined Russia on seven (abstaining five times when Russia vetoed drafts concerning Syria’s use of chemical weapons).

Russia’s informal alliance with China at the UN demonstrates another concept that figures heavily in the UN discourse of senior Russian officials: multipolarity and collective action.14 Russian figures such as Lavrov assert in every address at the UN that a supposedly unipolar world of the 1990s, which followed the bipolar world of the Cold War, has given way to a multipolar world. Mention is often made of the loose grouping of BRICS countries (Brazil, Russia, India, China, and South Africa). The grouping is promoted most heavily by Russia: as the next-to-last of the five in both population and gross domestic product, Russia’s claims to global oligarchy are better served as part of a grouping of mostly larger and more economically powerful states. In return, those states, especially China, can remain discreetly in the background while Russia takes the lead in aggressively criticizing the West and in particular the United States.

With the exception of the informal alliance with China, however, the frequent invocation of multipolarity does not seem to have produced much concrete action. Since international law in Russia’s view revolves around the UN Security Council, China is the only relevant BRICS country because it is the only other permanent member with a veto. Multipolarity is invoked as an expression of disapproval of perceived Western unilateral action. Lavrov linked this to Russia’s conception of international law in his seminal 2018 UN General Assembly (UNGA) address: “In place of diplomacy and the culture of negotiations and compromise comes a diktat, unilateral restrictions introduced without the agreement of the UN Security Council, and bearing an extraterritorial character.”15

At the same time, careful attention is paid to finding multilateral aspects to Russian unilateral initiatives. For example, at the end of 2016, Russia, along with Turkey and Iran, launched the Astana process on Syria. Though Astana essentially preempted the role of UN Special Envoy Stephan de Mistura, whom Russia viewed as under pressure from the West to set dates certain for demanded political changes,16 Lavrov described the initiative in his 2018 UNGA address and again at the Rome Dialogue that same year as being “in complete accordance” with UNSC Resolution 2254’s “principle that it is necessary to achieve the agreement of all sides of the Syria Conflict.”17

Multipolarity’s primary value to Russia consists of its principled rejection of the universality of liberal democratic and human rights ideals promoted by the West, which Russia and other nations signed on to when they acceded to the Charter of Paris and international organizations such as the Council of Europe and the Organization for Security and Co-operation in Europe. Lavrov put it succinctly as the first point of his 2018 UNGA address, in a clear appeal to governments that in practice reject liberal democracy:
Today all of us are witness to the collision of two divergent tendencies. On one side is the reinforcement of the polycentric bases of world structure, the steady formation of new centers of economic growth, the striving of people to guard their sovereignty, and to choose those models of development which correspond to their national, cultural, and confessional identities. On the other is the desire of a group of western states to preserve to themselves the self-proclaimed status of “world leaders” and put the brakes on the irreversibility of the objective process of the formation of multipolarity.18
FROM MULTIPOLARITY TO SOVEREIGNTY

Russia strongly links multipolarity to sovereignty, as true sovereignty is not, in Russia’s view, a quality possessed by all nominally sovereign states. The best statement of this linkage is by the Australian foreign policy analyst Bobo Lo, who asserted that Moscow defines international politics

principally by the relations—sometimes cooperative, but frequently competitive—between sovereign actors. “Sovereign” in this context describes those few states that, in the Kremlin’s view, are able to exercise genuinely independent choices—the United States, China, and Russia—plus other players with significant influence in selected areas, such as the leading Europeans (Germany, France), India, and Brazil. Smaller states and multilateral organizations are seen as objects or instruments of great power diplomacy, rather than as serious actors with proper agendas. When Moscow speaks about the “democratization of international relations,” it understands this in very narrow terms—as the devolution of power from the former hegemon, the United States, to a group or “Concert” of great powers, including Russia.19

This limited view of true sovereignty is closely bound with the Russian habit of thinking of the world as divided into spheres of influence (using the term lager’, “camp”), each with a pole at the center.20 The habit is a holdover from the Cold War, when the Soviet Union saw itself as one pole in a bipolar world, leading the “Socialist Camp” (Sotslager’). Until at least 2008, Russia still thought of the West as a single camp with the United States at its center, represented in Europe by the North Atlantic Treaty Organization (NATO), which Russia saw as expanding sharply into what had been Moscow’s camp. Russia’s war with Georgia in 2008 took place against the backdrop of a NATO summit in Bucharest, during which the alliance welcomed the prospect of future Georgian and Ukrainian accession.

Over the next four years, however, Russia began to see the European Union (EU) as constituting its own camp, separate from the United States—reluctantly, because Russia was unused to seeing a camp without a single nation at its center. The Ukraine crisis was triggered by perceived EU—not NATO—encroachments on the area Russia had staked out as its camp. After Ukraine and Armenia initialed association agreements with the EU in 2013, Putin summoned their presidents to Moscow and induced them not to finalize those agreements and to sign on with his new Eurasian Economic Union instead.21 When Ukraine’s then president Viktor Yanukovych announced this about-face, a popular uprising forced him out, leading to Russian retaliation in Crimea and the Donbass.

Russia’s dual-track approach to sovereignty—as, on the one hand, an abstract concept of the equal sovereignty of all states and, on the other, as a true sovereignty of world oligarchs distinguished from the limited sovereignty of their vassals—lends a somewhat schizophrenic character to Russian interactions at the UN. Russia devotes great efforts at the UN to defending the sovereignty and territorial integrity of itself and of members of its lager’. During the First Chechen War of 1994–1996, Russia based its defense of its military actions on the principle of sovereignty. In an interview on October 20, 1995, Russia’s then foreign minister Andrei Kozyrev stated, “It is not only our right but our duty not to allow uncontrolled armed formations on our territory. The Foreign Ministry stands guard over the country’s territorial unity. International law says that a country not only can but must use force in such instances.”22

Russia’s approach in the UN to the Kosovo issue is well known. Russia rejected international criticism of Serbia’s handling of the crisis and opposed the war-crimes prosecution of former Serbian president Slobodan Milošević. In 1999, Russia joined with the West to adopt UNSC Resolution 1244 on Kosovo, which specifically affirmed that Kosovo is a part of Yugoslavia and supported the territorial integrity of that country. Russia has consistently opposed any moves that imply Kosovar independence in the UN. Also familiar is Russia’s consistent support for President Bashar al-Assad’s regime in Syria against the rebels. It has lumped together all opposition factions as terrorists, vetoed UNSC draft resolutions condemning the Assad regime for its brutality in combating those groups, and above all justified and participated in a campaign of armed force to eliminate them.

In stark contrast to this pattern was Russia’s position on the rebellions that broke out in new states as they emerged from the former Soviet Union, demonstrated particularly in the Karabakh conflict (Azerbaijan), Abkhaz and South Ossetia conflicts (Georgia), and Transdniestria (Moldova). In all these cases, Russia’s official position, as transmitted by its negotiators in fora for resolving the conflicts, was that the conflicts put sovereignty of territories under the control of rebels “in dispute” and that efforts to resolve the separatism by armed force were impermissible. It is noteworthy that this position was not limited only to those cases in which Russian interests were directly engaged on one side (the conflicts in Georgia and Moldova). In the Karabakh conflict, even though Russia had equally vital interests with both Armenia and Azerbaijan, it did not take the same position toward Azerbaijani sovereignty that it has toward, for example, Syrian or Serbian sovereignty.

The UN became heavily involved only in one of these conflicts, Abkhazia, as evidenced by thirty-nine UN Security Council Resolutions. In 1993, faced with both a Russian-backed separatist rebellion in Abkhazia and an armed uprising by ousted president Zviad Gamsakhurdia, Georgia’s then president Eduard Shevardnadze called for UN peacekeepers. At the same time, Russia was demanding that Georgia accept Russian peacekeepers instead and that it join the Commonwealth of Independent States. Western countries showed little appetite for sending peacemakers under Chapter VII of the UN Charter; that is, while military hostilities were still ongoing.

Shevardnadze reluctantly acceded to Russian demands and hostilities ended: a durable ceasefire was reached in the Abkhazia conflict and Gamsakhurdia’s campaign eventually ended with his death. A CIS peacekeeping force was deployed under Russian command. The UN established a large military observer mission via UNSC Resolution 858 (1993), which was renewed regularly until the Georgia-Russia war of 2008. The observers’ mandate was not to keep the peace but to observe the CIS peacekeeping force, thus providing UN legitimacy for the CIS and its Russian-led peacekeeping operation. In the wake of the 2008 war and the West’s recognition of Kosovar independence, Russia took a step further by recognizing the independence of Abkhazia and South Ossetia and has lobbied for international acceptance of their independence, though it has not raised the issue of UN membership.

Russia’s position on Ukraine can be regarded as an extension of the set of responses put into play by the earlier conflicts: territories in Crimea and Donbass were placed into dispute by popular uprisings, and, in the Donbass, they remain in dispute. Russia put forward a justification of its annexation of Crimea, following a Russian military intervention and Russian-supervised referendum, on historical, not legal, grounds, although some legal arguments were later adduced. In addition, since establishing the Crimea precedent, Russia has concluded treaties with Abkhazia and South Ossetia that de facto annex these territories by subsuming large parts of their executive functions into Russian government organs.23

To be sure, there are inconsistencies. When a conflict has emerged between these two approaches—between Russia’s support of a strictly UN-based international law on the one hand and its opportunistic support of autocratic strongmen in the pursuit of stability on the other—Russia has on occasion chosen the latter course. In November 2019, a senior U.S. official charged that Russia, which had earlier been accused of sending mercenaries to Libya, was also sending regular troops there to fight for General Khalifa Ḥaftar in his efforts to seize Tripoli and overthrow the UN-recognized Government of National Accord.24 The official response to this apparent anomaly in Russia’s approach to international law, as of this writing, is to ignore the question and to claim that Russia has not taken sides in the conflict (a position patterned on the one Russia takes on conflicts in the former Soviet Union).25
FROM SOVEREIGNTY TO LEGITIMACY

Since the onset of the Arab Spring in 2010, Russia has devoted enormous efforts, including at the UN, to defend the regime of Bashar al-Assad. His was the one Arab regime that both retained power after the Arab Spring protests, besieged though it was, and had an alliance to Russia dating back to Soviet times. Russia’s defense of the Assad regime has, since 2015, included a robust military intervention that has helped Assad regain control over almost all of the country. Russia has vetoed any UNSC draft resolutions tending toward condemning Syria for war crimes, use of chemical or other prohibited weapons, or torture and other human rights violations.

In 2013, in the face of intense Western pressure over Assad’s use of chemical weapons against his opponents, Russia brokered a UNSC deal, embodied in UNSC Resolution 2118, under which Syria would accede to the Chemical Weapons Convention and allow the Organization for the Prohibition of Chemical Weapons (OPCW) to implement a plan for the removal and disposal of Syria’s chemical weapons–related stockpiles. When in 2018 it became clear that Syria had retained and was using prohibited weapons, the West attempted to empower the OPCW’s secretariat to take a more forward-leaning approach to chemical weapon inspections and investigations. This provoked Russian ire, and Lavrov’s 2018 and 2019 addresses to the UN General Assembly, as well as his other speeches around the same time, are full of harsh condemnation of the West for giving an international organization sovereign rights reserved to states in circumvention of the UN Security Council.26

Russia has taken similar actions after the 2015 adoption of UNSC Resolution 2235 to thwart the actions of the OPCW-UN Joint Investigative Mechanism in determining responsibility for chemical weapons use in Syria. Though Russia joined the consensus adopting the resolution—the text of which did not imply that any one side was responsible for the chemical weapons use—Russia tried (unsuccessfully) to block the mechanism’s budget after the organization’s 2017 report attributed responsibility for a chemical weapon attack to the Syrian government. Similarly, when Russia blocked efforts in the UN Security Council to investigate war crimes in Syria, the UN General Assembly in 2016 created the “International, Impartial and Independent Mechanism [IIIM] to assist in the investigation and prosecution of persons responsible for the most serious crimes under International Law committed in the Syrian Arab Republic since March 2011.”27 Since then, while Russia cannot block the mechanism’s mandate, it has sought to curtail the IIIM’s activities by attacking its budget.

To be sure, much of Russia’s Syria project has to do with aspirations to show that it is once again a world power, that it has a camp of allied states, and that it can fill a vacuum left by U.S. disengagement. But the specific rhetoric Russia employs at the UN with regard to Syria seems based on something else: promoting the absolute legitimacy of governments regardless of their governance, popular legitimacy, human rights record, methods of internal security, or anything else that smacks of the imposition of external norms. As mentioned above, Lavrov spoke to the UNGA in 2018 with great enthusiasm about the right of peoples to choose that form of development which suits their “national, cultural, and confessional identities.” Leaving aside any questions of regime origins, the recognition of a state implies to Russia that its government is the sole legitimate determinant of that state’s internal affairs. By implication, the only difference in legitimacy between the self-proclaimed Islamic State and any other state is that the former is not recognized; legitimacy or the lack thereof is not affected by the Islamic State’s record of rule by murder, torture, enslavement, and cultural genocide.

And here is the aspect of this interlocking web of principles that appears most to correspond to Russia’s, and in particular to Putin’s, domestic concerns: the absolute legitimacy of regimes, the obligation of obedience to appointed authority, and what might be termed the “divine right of presidents-for-life.” For Putin, who harshly condemned the “color revolutions” that swept the former Soviet Union in the first decade of this century and the Arab Spring revolutions of the second decade—and on whose watch opposition demonstrations in Russia have been suppressed and critics and opponents have been jailed or assassinated—the legitimacy of his regime domestically has become the linchpin of an approach to the United Nations and to foreign policy more broadly.
DEALING WITH RUSSIA AT THE UN

Many analyses since George Kennan’s famous Long Telegram have described the sources of Russian conduct, but none have provided a satisfactory way of navigating the gray area between provoking a Cold War with Russia and acceding to demands that betray hundreds of years of democratic and humanistic development. Nor will the reader find one here.

During the Cold War, a modus vivendi appeared at the UN after the Soviet Union suffered the consequences of its UNSC boycott during the Korean War. With a re-engaged Soviet Union, the UN essentially deferred on conflicts engaging great power rivalry (Vietnam, Israel-Palestine, and so on) while engaging in good work elsewhere on peacekeeping and mediation and carrying out humanitarian relief everywhere, including in the conflicts on which it was deferring (for example, with regard to Palestine through the UN Relief and Works Agency). That modus vivendi has broken down, and no consensus has emerged on a new one. In addition, Russia’s insistence that international law is UN-based and must be stripped of elements of the rules-based order tends to render the UN irrelevant on contentious issues of democratic and humanitarian governance and threatens to turn the body into a safe space for autocrats, providing a veneer of legitimacy to warlords and dictators the world over.

The record of the great powers of the West—of colonialism in previous centuries and of neoconservative proselytization for spreading democracy by force more recently—has seriously compromised their ability to debate Russia on these issues in the UN. It falls to other states that share the values of democratic governance and universal human rights to step up to the responsibility of promoting those values to member states that waver between traditionalist, militarist, and absolutist values on the one side and those of a humanist and democratic world on the other.

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