“Russia is discounting the legal status of Ukraine and ignoring international law in light of the West’s reluctance to respond.”

Professor Kataryna Wolczuk writes for the Birmingham Perspective:

With the annexation of Crimea and the war in Eastern Ukraine from 2014, many commentators have noted the “unpredictability” of Russia.

This unpredictability seems to have been confirmed in the latest episode in the Russia-Ukraine clash, Moscow’s seizure of three Ukrainian ships and their sailors in the waters near Crimea.. However, there is a certain logic underpinning Moscow’s actions against Kiev.

When Russia annexed Crimea in the spring of 2014, it took control of Ukraine’s exclusive marine economic zone around the peninsula. This included the Kerch Strait, the waterway connecting the Azov and Black Seas. In May 2018 Russia completed the building of a bridge linking Crimea with mainland Russia, thereby gaining control of the traffic between the two seas. Russia has used this control for a de facto blockade of two of Ukraine’s major ports, Mariupol and Berdiansk. Ukrainian ships have been subjected to major delays, leading to economic losses and dwindling commercial traffic.

Moscow’s actions amount to an attempt to turn the Azov Sea into a Russian lake. In October, the European Parliament deplored “the excessive actions of the Russian Federation in the Sea of Azov insofar as they breach international maritime law and Russia’s own international commitments”.

In late November, the Russian navy shot at, rammed, and seized two small Ukrainian military ships and a tugboat. Blocked from entering the Kerch Strait, the ships were returning to port.

Russia’s belligerent response is based on the claim that the vessels had illegally entered Russian territorial waters. But the seizure seems extraordinarily excessive, suggesting an alternative logic behind the interceptions. This was confirmed by the detention of 23 Ukrainian sailors who were transferred to Moscow for trial.

Commentators interpret the latest episode as a continuation of the heightened state of tension, after the annexation of Crimea and the ongoing undeclared war in eastern Ukraine which has claimed more than 10,000 lives. However, the development points to two further aspects of the crisis.

Firstly, Moscow feels confident enough to challenge the 2003 bilateral agreement which enshrined the right of Ukraine to share the Azov Sea with Russia. In law the agreement still stands, Ukraine is now being prevented de facto from accessing the waters. Russia appears to regard its land and maritime frontiers as commensurate with those of the Soviet Union, reserving itself the right to change what it perceives as “internal” borders at will. In other words, Russia is discounting the legal status of Ukraine and ignoring international law in light of the West’s reluctance to respond.

Secondly, the Ukrainian sailors have been detained as criminals, rather than prisoners of war, meaning that they are not subject to the Geneva Convention. They have been accused of “illegal border crossing” and denied access to Ukrainian diplomatic representatives, with Russian independent lawyers providing representation. It is another indication of Moscow constructing its policy towards states of the former Soviet Union as its “internal” affair. Rather than comply with international law, Russian domestic law is used in an instrumental way, what scholars call “legal nihilism”.

Russia is following a doctrine of limited sovereignty vis-à-vis neighbouring states. This also shapes Moscow’s interactions with other “external” actors: in the Kremlin’s eyes, if a neighboring state is not controlled by Russia, it is under the control of another power. Any foreign policy decisions of neighboring states, if regarded as against Russian interests, are deemed to have been inspired by external (mainly Western) interference. Any crisis is seen as the result of hostile forces that want to weaken Russia.

Such was Russia’s conviction regarding Ukraine’s free-trade agreement with the European Union, which resulted in the annexation of Crimea. Now Russian aggression towards Ukraine is framed as defense against the Western encroachment.

Clearly Russia sees itself as a rising power and a driver of a new world order. But it is perhaps more accurate to suggest that this doctrine of limited sovereignty harks back to the international relations of the 19th century with exclusive spheres of influence in Europe. Might is once again becoming right, and anarchy in international relations is slowly but surely once again beginning to prevail. The international laws and norms which have painstakingly been built up since 1945 are being eroded on the European continent and, as matters stand, there appears to be no process or actor in place to stop the erosion.

The “new world order” may be not so new, after all.