Monthly Archives: October 2014

A missing piece in the European Court of Human Rights’ judgment Georgia v. Russia (I)

On 3 July 2014 the Grand Chamber of the European Court of Human Rights delivered its judgment in the first of the three cases brought by Georgia against Russia.[1] This inter-state case originated from facts which took place between September 2006 and January 2007, when a considerable number of Georgians were arrested, detained, and expelled from Russian territory.

The Strasbourg Court found a violation of a number of fundamental rights by the respondent State. For instance, the Court ascertained the existence of an “administrative practice” in breach of article 4 of Protocol IV (which prohibits the collective expulsions of aliens), and articles 5(1) and 5(4) ECHR (which concern the right not to be subjected to unlawful detention and the right to an effective remedy against a judicial decision in this regard). However, the Court considered it unnecessary to determine whether the respondent State also violated article 14 ECHR (prohibition of discrimination) taken in conjunction with article 4 Protocol IV and articles 5 (1) and 5 (4) ECHR. Indeed, it held that the complaints lodged by the applicant Government were the same – although submitted under a different angle – as those that had already examined with reference to those provisions taken alone.

The Court’s arguments to justify its refusal to pronounce itself on article 14 appear to be particularly weak, especially if one considers that both the witnesses and the reports of International organisations which the Court had greatly relied upon underlined the discriminatory behaviour of Russian authorities.[2] Moreover, in its case law the Court has constantly held that article 14 complements the other substantive provisions of the Convention and the Protocols.[3] This means that the complaints lodged by the applicant in relation to the provisions at issue must be the same – although submitted under the different angle of discrimination– as the ones lodged with reference to their violation tout court. Hence, as the Georgian Judge Tsotsoria pointed out in her Separate Opinion,

[t]he violation of the rights of Georgians based on their nationality and ethnic origin was deeply rooted in discrimination, which is the fundamental aspect of the present case. Accordingly, failure to examine Article 14 artificially reduces the scope of the non-discrimination provision of the Convention and disregards the very core feature of this inter-State application, especially considering that the Court’s practice regarding Article 14 has already been the subject of criticism.

By refusing to pronounce itself on article 14 ECHR, the Court has not only failed to consider the crucial element of discrimination in itself, but has also missed the opportunity for its decision to have an impact on other branches of international law. Indeed, the recognition by the Strasbourg Court of the existence of a discriminatory “administrative practice” by Russian authorities against Georgian nationals could be used for the purpose of national criminal proceedings based upon customary international criminal law. In particular, such a pronouncement by the Court could have been relevant for the crime against humanity of persecution.

While article 7(1)(h) of the Rome Statute limits the substantive acts capable to amount to persecution to other acts specifically contemplated by article 7 or crimes within the jurisdiction of the International Criminal Court, under customary international law, persecution extends beyond this. Indeed, any grave violation of fundamental human rights, which is part of a widespread and systematic practice, and is committed with discriminatory intent, can constitute persecution.[4]

In this respect, it is noteworthy that in the present case the Court has reiterated what had been previously established in its case law; that is, that an administrative practice comprises two elements, ‘the repetition of acts’ and ‘official tolerance’. With regard to the former, in Ireland vs the United Kingdom and Cyprus vs Turkey the Court described ‘the repetition of acts’ as ‘an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected not to amount to merely isolated incidents or exceptions but to a pattern or system’. [5] As far as ‘official tolerance’ is concerned, the Commission in France, Norway, Denmark, Sweden and the Netherlands v. Turkey held that

illegal acts are tolerated in that the superiors of those immediately responsible, though cognisant of such acts, take no action to punish them or to prevent their repetition; or that a higher authority, in face of numerous allegations, manifests indifference by refusing any adequate investigation of their truth or falsity, or that in judicial proceedings a fair hearing of such complaints is denied. [6]

It also determined that to constitute a preventative or punitive act, the ‘action taken by the higher authority must be on a scale which is sufficient to put an end to the repetition of acts or to interrupt the pattern or system’. [7]

Therefore, in the current case, having ascertained the existence of a systematic violation of fundamental rights, the discrimination of the victims on the ground that they belong to a certain national group might have been particularly relevant to any future triggering of criminal proceedings concerning the crime of persecution under customary international law.

This is not of course, automatic. Indeed, one should not underestimate the fact that the standard of evidence upon which the Court has relied in the case at issue might not be comparable with those standards which are required in a criminal case. In such cases, the accused is notably entitled to the right to remain silent and, since the burden of proof rests on the prosecution, negative inferences cannot be drawn from the defendant’s failure to provide evidence. The Court itself has indeed specified that although in assessing evidence it has adopted the standard of proof “beyond reasonable doubt”, ‘it has never been its purpose to borrow the approach of the national legal systems that use that standard in criminal cases.’ [8]

That being said, the Court’s reluctance to consider article 14 might be seen as an implicit acknowledgement that any pronouncement on its part might have had some sort of relevance with regard to crimes against humanity. In particular, apart from the possibility of triggering a criminal proceeding, any ruling by the Court would have had huge repercussions on the already troublesome international relations of the countries involved.

Thus, if it is true that the different judicial systems dealing with violations of human rights are increasingly intertwined and integrated, in this case the Strasbourg Court has a priori renounced to the possibility to have a say on issues which might pertain to the sphere of international criminal law.

[1] Georgia v Russia (I) App no 13255/07 (ECtHR, 3 July 2014).

[2] Ibid Annex. See also Russia Targets Georgians for Expulsion, Human Rights Watch, 1 October 2007, available at: http://www.hrw.org/news/2007/09/30/russia-targets-georgians-expulsion accessed on 26 October 2014.

[3] See e.g. Case of Karlheinz Schmidt v. Germany App no 13580/88 (ECtHR, 18 July 1994) para 22.

[4] A. Cassese, Lineamenti di diritto internazionale penale – I diritto sostanziale (Il Mulino 2005) 118.

[5] Ireland v the United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 159 and Cyprus v Turkey App no 25781/94 (ECtHR, 10 May 2001) para 115 (as cited in Georgia v Russia (I) App no 13255/07 (ECtHR, 3 July 2014) para 123).

[6] Georgia v Russia (I) App no 13255/07 (ECtHR, 3 July 2014) para 124.

[7] Ibid para 94.

[8] Ibid para 124.

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“To reinforce, not undermine, sovereignty”: The Metamorphosis of the Responsibility to Protect

Introduction

The Responsibility to Protect has been the subject of significant debate over the last decade. During this time, it has garnered considerable (according to many, excessive) diplomatic and academic attention. Still, most of the writing on the topic, both within UN documents and in scholarship, keeps reiterating the historical introduction which defines the doctrine and its philosophy.

The continuous reference to its basic principles shows that the origin of RtoP needs to be recalled, as its substance is still being shaped. This post aims to present an example of the way that the concept is developing, by providing an analysis of the Sixth Informal Interactive Dialogue of the UN General Assembly on the Responsibility to Protect, held on 8 September 2014. The dialogue followed the Report of the UN Secretary-General entitled “Fulfilling our collective responsibility: International assistance and the responsibility to protect”, released on 11 July 2014. A comparison between the initial principles establishing RtoP and the recent documents will allow for some final reflections about the current relevance and meaning of the doctrine in international law.

The Responsibility to Protect and Sovereignty

As is often recalled in commentaries on RtoP, the doctrine was conceived following the atrocities committed in Rwanda and the Balkans in the ‘90s. Even recent Security Council Resolution 2150/2014, which was the first directly referring to the doctrine in its operative paragraphs, “underscores the importance of taking into account lessons learned from the 1994 Genocide against the Tutsi in Rwanda”.

In the view of the International Commission on Intervention and State Sovereignty[1], the doctrine was aimed at addressing the international community’s failure to prevent and stop international crimes and humanitarian crises. As enshrined in the General Assembly World Summit Document[2], RtoP redefined the core elements of the international law concept of sovereignty. Indeed, it affirmed that States bear the primary responsibility to protect their populations from mass atrocities. At the same time, it recognised that the international community is responsible for assisting States in protecting their populations. Finally, as a measure of last resort, other States could also intervene using non-peaceful means, where local national authorities fail to stop ongoing mass atrocities.

In establishing these parameters, RtoP redefined the concepts of sovereignty and domestic jurisdiction, which are among the cornerstone principles of the UN Charter. It proposed a new theoretical framework to encompass what until that point was referred to as humanitarian intervention. RtoP thereby shifted the focus from state sovereignty to securing basic human dignity. It created an obligation upon both States and the international community to protect populations from mass atrocities.

As a result of its nature in limiting sovereignty, and its association with humanitarian intervention, critics of RtoP maintained that it might run the risk of creating a “Trojan horse”[3] for the benefit of major powers. The actual implementation of the doctrine confirmed the fears about the risk of misuse. For instance, the Russian Federation invoked the Responsibility to Protect in justifying its actions in the crises in South Ossetia, Abkhazia, and most recently Crimea. It claimed to have intervened with the aim of protecting local Russian populations, albeit without Security Council authorisation. Similarly, the intervention of NATO forces, acting pursuant to Resolution 1973/2011, in Libya was also criticized extending the scope of the military operation beyond the limited mandate to protect the civilian population. Indeed, several non-permanent members of the UN Security Council protested against the misuse of this doctrine and urged NATO forces to maintain, during the intervention, a “Responsibility While Protecting”. As a result, while the erosion of State sovereignty to protect populations from mass atrocities was RtoP’s most powerful innovation, the doctrine lacked consistent implementation under clear legal standards.

2014 Secretary General Report and Interactive Dialogue

The 2014 Report of the Secretary-General entitled “Fulfilling our collective responsibility: International assistance and the responsibility to protect”, along with the subsequent Informal Interactive Dialogue of the General Assembly, present a completely different focus for the Responsibility to Protect. Indeed, they focused on the responsibility to assist States in protecting populations, which is the second of three pillars proposed in the 2009 Secretary-General Report.[4] On the one hand, cooperation among States to assist each other in protecting civilians is a core element of RtoP and is intended to be applied before any coercive measures is considered. At the same time, both the Report and the Dialogue contain general statements that go beyond the second pillar and apply to the doctrine as a whole., Thus, some concern might arise on a possible shifting understanding of the elements of RtoP. For instance, paragraph 12 of the Report states that: “the responsibility to protect is intended to reinforce, not undermine, sovereignty. The principle was not designed to create a hierarchical structure in which the international community imposes demands or solutions on States. Rather, it reaffirms the fundamental principle of sovereign equality, expressed in Article 2 of the Charter of the United Nations.”

Accordingly, delegations taking part in the Informal Interactive Dialogue, particularly those representing ASEAN States, gave examples of successful cases of State cooperation in facing humanitarian crises. A considerable number of States, including those in Central and South America and Middle East, revealed a positive stance on this formulation of RtoP. Iran, for instance, explicitly appreciated the intention to reinforce State sovereignty.

However, promoting dialogue between States is not a new or special feature of RtoP. It is rather a fundamental element of the spirit of the United Nations itself as initially conceived by the Charter. In this respect it is political will, and not a new international law norm, which is required to bolster State cooperation. The existence of successful cases of mutual State assistance reveals that RtoP is not necessary as a premise to this kind of cooperation

Therefore, if the growing support for RtoP is only achieved in conjunction with a reiteration of the strengthening of state sovereignty, this may contaminate and weaken the value of the doctrine. RtoP was in fact intended to overcome the structural barriers inherent in the notion of state sovereignty and entrenched through the Charter, in order to protect the basic tenets of humanity. By allowing the discourse to centre around state cooperation and by-pass the fundamental element that is the restriction of sovereignty, strength of RtoP is being reversed to become nothing more than a reiteration of what is already permissible by the letter of the Charter.

This observation does not, in any way, intend to undermine the importance of interstate cooperation to stop mass atrocities. Indeed, in order to address the different crises which are currently being instigated by transnational armed groups, e.g. ISIL, which is not openly supported by any specific Government, interstate assistance is essential. Furthermore, in order to correctly apply RtoP, the international community should support States in countering those responsible for the atrocities committed on their territories. In this case, the Second Pillar of RtoP is the most appropriate way to fulfil its mandate.

However, at the same time, it is worth recalling that the doctrine was originally created following the failure of the international community to address the conflicts and commission of international crimes in Rwanda and in the Balkans.

Political leaders of the countries involved were prosecuted for their crimes at the international criminal tribunals specifically created for the former Yugoslavia and Rwanda. In these situations, it is hard to imagine how a response which assists the local Governments in reinforcing their sovereignty will adequately protect the dignity and humanity of the affected populations.

Conclusions

Implementation, political interference, lack of judicial review and double standards are all factors that currently undermine the development of RtoP. At the same time, the core philosophy of the doctrine, privileging human dignity over State sovereignty, is recognised as a strong innovation towards a global culture of international justice and human rights protection.

Recently, the report of the Secretary-General and the subsequent General Assembly Dialogue have introduced some uncertainty about the current state of the substantial definition of the norm itself. The principles and aims of RtoP appear to be changing depending on the different contexts in which it is invoked, and for the sake of gaining States’ support. However, in the long run, this may weaken the nature and relevance of the principle. In order to improve its credibility and fulfil its aims, the international community should strive, instead, to maintain the theoretical and legal consistency of the definition of RtoP.

[1] Report of the International Commission on Intervention and State Sovereignty. “The Responsibility to Protect” (International Development and Research Center, 2001)

[2] 2005 World Summit Outcome Document (UN A/RES/60/1, October 2005)

[3] Alex J. Bellamy, Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq, Ethics & International Affairs, Volume 19, Issue 2, pages 31–54, September 2005

[4]UN Secretary-General,  “Implementing the responsibility to protect”, 21 July 2009

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The European Court of Human Rights’ Decision in Trabelsi v Belgium: One Step Further in the Protection of Prisoners’ Human Rights

Introduction

On 4 September 2014 the European Court of Human Rights (ECtHR) ruled in Trabelsi v Belgium that Article 3 of the European Convention on Human Rights requires Council of Europe member states not to extradite persons within their jurisdiction to states where they are liable to be sentenced to life imprisonment and where the legal system does not provide for any objective mechanism of review of the whole-life sentence.[1]

This decision concerned a Tunisian national, Nizar Trabelsi, who had been sentenced in 2004 by a Brussels court to ten-year imprisonment for terrorist offences. Whilst he was serving his sentence in Belgium, his extradition was requested by the US authorities in connection with terrorist offences distinct from those for which he had already been convicted. Despite an interim measure issued by the ECtHR requiring Belgium to suspend the extradition until the conclusion of the ECtHR proceedings, the Belgian government authorised Mr Trabelsi’s extradition to the US, where he is liable to face life imprisonment. The ECtHR found that Belgium had breached the prohibition of torture and degrading or inhuman treatment enshrined in Article 3 by extraditing Mr Trabelsi to the US as there was a real risk that he would be condemned to an irreducible life sentence, that is, a life sentence not reducible through a dedicated review mechanism. Although this decision is unlikely to alter the situation of Mr Trabelsi in any significant way, it could constitute an important precedent in strengthening the judicial protection of prisoners’ human rights.

Case law developments

The Trabelsi ruling is the product of a long process of jurisprudential evolution as regards prisoners’ human rights under Article 3. This evolutionary process may be divided into three stages.

The first major development was brought about by the ECtHR’s pronouncement in Soering v UK (1989) to the effect that:

[T]he decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 (…) where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.[2]

In that landmark decision, the Court considered that exposure to the ‘death row phenomenon’ amounts to ill-treatment prohibited by Article 3. Therefore, since a real risk had been established that the applicant would face the death row if extradited to the US, the Court held that the UK would engage its responsibility under Article 3 if it authorised the extradition. This principle of non-removal of persons within European jurisdiction to states where they are likely to be subjected to treatment contrary to Article 3 was reaffirmed in a number of subsequent cases.[3]

The second stage of this evolutionary process involved the elaboration by the Court of a test determining in which circumstances a whole-life sentence would cross the Article 3 threshold. In Kafkaris v Cyprus (2008), the Court stated that, in order to be compatible with Article 3, life sentences must be reducible de jure and de facto, i.e. in law and in fact.[4] This test was held to be satisfied in that case by a provision of Cypriot law empowering the president to commute or remit life sentences and evidence that this power had actually been exercised in the recent past to release life prisoners. In Harkins and Edwards v UK (2012), the Court added that, for an issue under Article 3 to arise, it must be shown that the applicant’s detention is no longer justified on any legitimate penological grounds such as retribution, deterrence or rehabilitation.[5] The applicants in that case had been indicted for murder in the US and their extradition was requested by the states of Florida and Maryland. As the life sentence they were liable to face could be commuted by those states’ governors, the Court held that they were reducible. Moreover, it had not been shown that upon extradition the applicants’ incarceration would not serve any penological purpose. In Babar Ahmad and Others v UK (2012), the Court likewise did not find that the extradition of several alleged terrorists to the US would violate Article 3.[6] The life sentences they were likely to be condemned to were held to be reducible on account of the presidential pardoning power and the point at which their incarceration would no longer be justified was considered not to have been reached since they had not yet started serving their sentence. The Court stressed that ‘treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case’.[7] This set a higher standard for an issue with Article 3 to even arise in removal cases, particularly where the requesting state ‘had a long history of respect of democracy, human rights and the rule of law’.[8]

The third stage of this development was reached in Vinter and Others v UK (2013).[9] That seminal case concerned convicted murderers serving mandatory life sentences in the UK. At first instance, the Chamber doubted that the Secretary of State’s power to release life prisoners on compassionate grounds could amount to a genuine prospect of release. Nonetheless, pursuant to Harkins, it held that an issue under Article 3 had not yet arisen since the applicants’ incarceration was still justified on penological grounds. The Grand Chamber, however, reversed that decision and stressed that:

A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.[10]

The Grand Chamber furthermore stated that the possibility of release of life prisoners on humanitarian grounds such as terminal illness does not amount to a mechanism of review permitting to evaluate whether the life prisoner has made such progress towards rehabilitation that his detention no longer serve penological purposes.[11] The Court emphasised the importance of the rehabilitative aim of imprisonment in a system founded on the value of human dignity. It further pointed to an emerging consensus within Council of Europe member states as to the necessity to provide life prisoners with a chance to show their progress towards rehabilitation and a possibility of release if such rehabilitation is achieved.[12] As UK law did not recognise such a possibility, it was found to violate Article 3 of the Convention.

Trabelsi v Belgium

In Trabelsi, the Court brought the law one step further by holding that, in extradition cases, the assessment of the reducibility of the life sentence liable to be served by the applicant in the requesting state must be made before his removal. This conclusion was explicitly derived from the Soering principle and its aim to prevent persons within European jurisdiction from being exposed to treatment contrary to Article 3. It marks a welcome departure from Harkins and Babar in line with Vinter. The Court also departed from pre-Vinter case law as regards the compatibility with Article 3 of US legal provisions on early release of life prisoner. It stated that the presidential pardoning power fell short of the prospect of release standard established in Vinter. The Court elaborated on this standard by holding that the necessary review mechanism must enable

the national authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds[13].

The Court seems to have in Trabelsi completed the process of creation of a new human right started in Vinter. This so-called ‘right to hope’ of life prisoners must now not only be recognised in member states’ legal systems in order for life sentences to comply with Article 3 but it will also prevent extradition to non-member states where life prisoners are not legally entitled to a genuine prospect of release, such as the US.[14] In removal cases, this human right applies irrespective of the gravity of the offence for which the applicant’s extradition is sought and regardless of the requesting state’s human rights record.[15] As in Soering and Vinter, the Court has in Trabelsi expanded the reach of Article 3 to reinforce prisoners’ human rights. One hopes that in the event that Belgium appeals the decision to the Grand Chamber, the latter would uphold this commendable decision.

[1] Trabelsi v Belgium App no 140/10 (ECtHR, 4 September 2014).

[2] Soering v UK (1989) 11 EHRR 439 para 91.

[3] Cruz Varas and Others v Sweden (1991) 14 EHRR 1; Vilvarajah and Others v UK (1991) 14 EHRR 248; Chahal v UK (1996) 23 EHRR 413; Said v The Netherlands (2005) 43 EHRR 248;             Saadi v Italy (2008) 49 EHRR 730.

[4] Kafkaris v Cyprus (2008) 49 EHHR 35 para 98.

[5] Harkins and Edwards v UK (2012) 55 EHRR 19 para 140.

[6] Babar Ahmad and Others v UK (2012) 56 EHRR 1.

[7] Ibid para 177.

[8] Ibid para 179.

[9] Vinter and Others v UK [2013] ECHR 645.

[10] Ibid para 122.

[11] Ibid para 119.

[12] Ibid paras 110-118.

[13] Trabelsi v Belgium App no 140/10 (ECtHR, 4 September 2014) para 137.

[14] On the right to hope, see Vinter and Others v UK, concurring opinion of Judge Power-Forde.

[15] See Chahal v UK (1996) 23 EHRR 413 paras 80-81 and, a contrario, Babar Ahmad and Others v UK para 179.ECtHR

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Ukraine and the Limits of Collective Security under International Law

Ukraine is finding itself at the centre of a geopolitical tug-of-war between Russia on the one hand, and the U.S and its European allies on the other. The strategies and tactics used by both sides borders on the violation of international law and norms. Their approaches call into question the relevance of the collective security mechanism in the enforcement of international law, in situations where powerful states are the culprits.

Collective security in its classical form and as developed in the Charter of the United Nations system serves as a mechanism for the enforcement of international law. It is a mechanism that gives the United Nations and more specifically the Security Council, legal monopoly to authorise the use of force in the event that international law and rules are violated by either states or non-state actors. The mechanism hinges on the maxim that any injury to one (state) is an injury to all (states). Hence there is the expectation that members of the United Nations acting through the Security Council and under Chapter VII would collectively enforce international law regardless of whether or not they have directly suffered injury. In the context of interstate relations, by ensuring that the purpose and principles of the United Nations Charter are adhered to at all times, collective security ideally serves to protect weaker states from possible attacks from militarily powerful states. That way, the collective security mechanism prevents a situation where the might is right or the Hobbesian state of ‘bellum omnium contra omnes’.

Sovereign equality is indeed a cornerstone principle that the collective security mechanism seeks to defend. This principle, which is found in Article 2.1 of the Charter of the United Nations, ensures that states enjoy full sovereignty. In 1991 the United Nations Security Council reaffirmed the collective security measure under Chapter VII after Iraq invaded and annexed Kuwait. It authorised the use of force to ensure that Iraq’s invasion of Kuwait was reversed.

That said, the events unfolding in Ukraine raise curious questions on the effectiveness of collective security measures in enforcing international law, when those violating the law are global superpowers. In Crimea and Eastern Ukraine, the separatist rebels threatening the territorial integrity and political independence of Ukraine are alleged to be receiving moral, political and military support from Russia, one of the five permanent members of the Security Council.

As it stands, the possibility of any action from the United Nations Security Council in Ukraine appears to be remote. This is because the Security Council would not only require an affirmative vote of nine members of the Security Council but must also have the consent of all five permanent members, which includes Russia, to trigger the collective security mechanism.

Russia has been sympathetic to the cause of the separatists since the ousting of President Viktor Yanukovych led government following mass demonstrations mainly in Kiev. It justifies its position by claiming that the minority separatist’s population in Ukraine, which are either Russian citizens, (referring to those who were given Russian passports) or Russian speakers, were under threat from Ukrainian nationalists.

This should not be surprising considering that since President Putin’s United Russia party (Yedinaya Rossiya) came into power one of its foreign policy priorities was to expand Russia’s sphere of influence within Asia, especially in the former Soviet Republic states, and to create a security belt that would keep the spread of European Union and NATO influence at arm’s length. In order to justify this foreign policy objective, Russia adopted its own form of ‘Responsibility to Protect Doctrine’ based on its pledge to defend the interests of Russian-speaking citizens who live in the neighbouring former Soviet Republic States. The doctrine was put into practice and appeared to have been successful in Abkhazia, South Ossetia, and Transnistria and in 2014 in Crimea.

Although the critics of President Putin have been quick to point out that he is using illegal means to redraw the boundaries in the Eurasian sub-region, the reality is that there are limited mechanisms available to effectively prevent him from doing so. Russia’s veto power in the United Nations Security Council enables it to stop any attempts to trigger collective security mechanism. The fact that under the Charter of the United Nations the application of collective security hinges on the decisions taken by the Security Council implies that the measure’s success depends on the five superpowers’ national interests. This confirms that the enforcement of international law through the collective security mechanism remains a decentralised affair that depends on the interests of individual permanent members of the Security Council. In practice this means that the collective security mechanism is bound to be applied in a selective manner to small and medium sized states, and in particular those without strong alliances among the Security Council permanent members.

The U.S and its European allies’ role in the violation of Ukraine’s sovereignty appears to be obscured by the speed with which events have occurred combined with the role that mainstream media continues to play in trying to shape international public opinion. In November 2013, prominent figures allied to the European Union, travelled to Kiev to support the demonstrations against an elected Ukrainian government in a clear violation of international law. United States Senators John McCain and Chris Murphy also went to Kiev when the anti-government protests were at their peak. In his address to the protestors Senator McCain said, ‘we are here to support your just cause, the sovereign right of Ukraine to determine its own destiny freely and independently…’ The statement was delivered even though the Ukrainian government had decided to retain closer ties with Russia instead of the European Union. Senator McCain was adamant. He told the protestors that the destiny they were seeking was in Europe. His comments resonated well with the views he had expressed during the 2008 Presidential Debate against President Obama, where he argued that the U.S should support Ukraine and Georgia in joining NATO, a position which is categorically not unwelcome by Russia.

The audacity shown by Senators McCain and Chris Murphy, i.e of going into a sovereign state and openly supporting anti-government protestors was unexpected. Their initiative goes against the underlying principles and purposes of the United Nations according to which states must respect each other’s political independence in determining their foreign policy. Instead of leaving the Ukrainian authorities to enjoy their political independence and the right to freely choose and develop their state’s foreign policy, their presence and support for the protestors was inevitably part of the game changer that led to the collapse of the political order in Kiev. The new authorities in Kiev were quick to distinguish themselves from their predecessors by adopting more western orientated economic and political policies.

One can only imagine how the U.S would have reacted had any prominent member of Russia’s ruling party, or Communist Party had joined in and supported the demonstrators against police brutality in Ferguson, Missouri. The comparison between Senator McCain in Kiev, and Russian figures joining demonstrations in Missouri might seem far-fetched, yet the fact that both situations are associated with highly sensitive national issues makes any form of foreign intervention a serious violation of sovereignty. It has to be said that during the Cold War, global powers acted covertly when they intervened in the internal affairs of smaller and medium-sized states. This was done because of the balance of power between the United States on the one hand and the Soviet Union on the other. However, since the collapse of the Soviet Union and the end of the Cold War such balance of power was disturbed. The gap left within the international legal system has not been effectively covered, resulting in some form of uncertainty as to how global affairs could be addressed. Global and regional powers appear to have discarded the need to respect international law when their national interests are at stake and they are prepared to do so openly. The disappearance of an effective balance of power system meant the protective security shield that was offered to small and medium states by the competing super powers is no more and the collective security mechanism’s limitations are consistently exposed.

Conclusively, in as much as the two opposing sides in the Ukrainian tug-of-war have reverted to a sanctimonious tone in their attempt to harness international public support, the fact is that they have violated international law with impunity. Their impunity is a result of the fact that they occupy powerful positions within the international legal order. They use their positions and powers such as the veto power to block any activation of the collective security mechanism under the Charter of the United Nations and on the part of the U.S and its European Union allies they additionally benefit from their control over mainstream media to influence international public opinion.

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