By Ted Snider, Antiwar.com, 1/19/22

The war in Ukraine is a tangled mess of causes. As Nicolai Petro has argued, it is at once a conflict between Russia and the US, a conflict between Russia and Ukraine and a conflict within Ukraine. But at its core there are two conflicts: the conflict over whether NATO should have an open door for Ukraine and the conflict over whether the Donbas should be part of Ukraine, an autonomous region or even a part of Russia.

And at the core of each of those two conflicts is a pair of competing international laws: one for the NATO conflict, one for the Donbas conflict. In each case, each law is legitimate; in each case, the US subscribed to one, and Russia subscribed to the other. To a great extent, as Richard Sakwa has argued, “[t]he tension between these two logics . . . contained the seeds of later conflicts.”

At the core of the conflict over Ukraine membership in NATO is the subscription of the US and Russia to legitimate but incompatible international laws. This argument has been set out by Professor of Russian and European Politics at the University of Kent Richard Sakwa in at least two places: in his essay “The March of Folly resumed: Russia, Ukraine and the West” and, with Andrej Krickovic, in “War in Ukraine: The Clash of Norms and Ontologies.”

On the question of NATO expansion, the US cites the principle of the free and sovereign right of states to choose their own security alignments. At the same time, Russia cites the principle of the indivisibility of security: the assurance that the security of one state should not be bought at the expense of the security of another. Both principles are enshrined in international law and in international agreements. Both are legitimate, but the two are contradictory. Hence the conflict.

The US has insisted on the right of states to choose their own security alignments as a justification for NATO’s open door to Ukraine. If every state can choose its alignments, then Ukraine has the sovereign right to choose membership in NATO. Russia has insisted on the indivisibility of security as a justification for opposing NATO’s expansion to its borders and the flooding of Ukraine with lethal offensive weapons. Both principles are right. But, as Sakwa points out, “they proved to be contradictory and ultimately undermined the two sides’ ability to peacefully co-exist.”

Russia holds that peace can be attained by a balance of powers in which the interests of all nations are respected. A hegemon cannot ensure its security while ignoring the security interests of another country. The US holds that the spread of a system of trade and democracy, with the US as the hegemon, will create a common sphere where peace can be preserved. The US argument implies that that spread cannot be a threat to other states.

The West is very familiar with the concept of freedom of choice and the right to choose alliances. Russia has attempted, at various times, to place that freedom within a context. Russian foreign minister Sergei Lavrov has frequently insisted, including in comments to the press on January 27, 2022, that all the relevant international agreements commit nations “to indivisible security and their pledge to honor it without fail.” He points out the legal implication that the sovereign right of nations to choose their own alliances is balanced by the “obligation not to strengthen their security at the expense of the security of other states.”

In a conversation with Biden on December 7, 2021, Putin said that “Every country is entitled to choose the most acceptable way to ensure its security, but this should be done so as not to encroach on the interests of other parties and not undermine the security of other countries. . . . We believe that ensuring security must be global and cover everyone equally.” On December 30, Putin again spoke with Biden and stressed that “the security of any nation cannot be ensured unless the principle of indivisible security is strictly observed.”

Days before the invasion, on February 1, Putin expressed the same principle at a press conference, saying that “We need to find a way to ensure the interests and security of all parties to this process: Ukraine, the other European countries and Russia.”

In a December 30, 2021 essay, Russian ambassador to the US Anatoly Antonov wrote that “Military exploration of Ukraine by NATO member states is an existential threat for Russia. . . . The principle of equal and indivisible security must be restored. This means that no single state has the right to strengthen its security at the expense of others.”

Sakwa reports that Russia has also pointed out that the US insistence on Ukraine’s right to choose its alliances is inconsistent with NATO’s own principles that “at its foreign ministers’ meeting in Copenhagen on 6-7 June 1991 resolved ‘not to gain one-sided advantage from the changing situation in Europe’, not to ‘threaten the legitimate interests’ of other states or ‘isolate’ them, and not to ‘draw new dividing lines in the continent.’”

As with the conflict over NATO’s open door policy for Ukraine, the U.S. and Russia cite legitimate but incompatible principles when it comes to the crisis in Donbas.

On September 27, referendums on joining Russia in the Donbas republics of Donetsk and Luhansk and in the Kherson and Zaporizhzhia oblasts were completed. Citing the UN Charter’s principle of the territorial integrity of existing states, the US rejected the referendums; citing the UN Charter’s principle of people’s right of self-determination, Russia recognized them.

Richard Falk, professor emeritus of international law at Princeton University, has said that “Each conflict of this character, stressing the rights of aggrieved distinct peoples within the borders of an internationally recognized state, raises a general issue of the integrity of sovereign states versus the scope of rights of self-determination.” Falk told me that “the practice of states and the UN is inconsistent, being driven more by power and geopolitical priorities than law, morality, and the UN.”

On October 4, Lavrov in his remarks on the absorption of the new territories into Russia, invoked the self-determination principle. Arguing that the decision of the eastern regions was “based on the free expression of will by their people made during the referendums,” Lavrov claimed that “[t]he citizens of these republics and regions made a conscious choice based on the right to self-determination.”

As he had done with the conflicting NATO principles, Lavrov again argued that the principle of territorial integrity needs to be consistent with, and balanced by, the principle of self-determination. He argued that the 1970 UN Declaration “seals the duty of states to respect the territorial integrity of states” on the condition that they are “conducting themselves in compliance with the principle of equal rights and self-determination of peoples… and thus possessed of a government representing the whole people belonging to the territory.” Lavrov then argued both that territorial integrity does not respect the self-determination exercised in the referendums.

Part of the inability of the US and Russia to see each other’s perspective or to resolve their differences is grounded in their commitment to equally legitimate but incompatible international laws.

Ted Snider has a graduate degree in philosophy and writes on analyzing patterns in US foreign policy and history.