The elections that
the two breakaway regions held in early November violated the accords, rebel
leader Aleksandr Zakharchenko is openly threatening to seize the coastal city
of Mariupol, and Kyiv and Moscow are abuzz with rumors of war.
Since the Minsk
negotiations, Ukraine has tolerated violations of the protocols because it
knows it cannot win on the battlefield. But Ukraine’s position is stronger at
the negotiating table—and it would be stronger still if Kyiv showed greater
awareness of its right under international law to impose economic
counter-measures against Russia.
It is a
fundamental principle of international law that the aggressive use of force
against another country’s sovereignty and territorial integrity is illegal. The
whole United Nations Charter is built around that principle, and the
International Court of Justice repeatedly condemns the use of force when
unjustified by self-defense or Security Council resolution. By any measure,
Russia’s seizure of Crimea and fomenting of rebellion in the Donbass are
illegal.
International law does not
leave Kyiv helpless in the face of those violations. Self-help is a key way
that countries enforce their rights, and they can legally impose
countermeasures until the wrong has been righted. There are limits on what
countries can do—for example, countermeasures cannot be violent, and they must
be proportional to the injury—but economic sanctions are easily within bounds.
The International Court of
Justice has even recognized that principles count in assessing the value of
allowable countermeasures. In Ukraine’s case, the principles at stake are
sovereignty and territorial integrity—no small matter. In addition to levying
countermeasures equivalent to the economic costs of Russia’s seizure of Crimea
and its military actions in the Donbass, Ukraine has the right to impose
further countermeasures based on the principles that the Kremlin has trampled.
Sanctions
that cost Russia tens of billions of dollars would clearly meet that test. In
practice, that means Ukraine has the legal right to quit paying debts owed to
Russia, such as the $3 billion that Russia lent Yanukovych’s last government. Debts
owed to Russian state-owned companies are also fair game, including the
billions that Ukraine owes Gazprom. Russian state-owned firms, from energy
companies to banks, also have billions of dollars of assets in Ukraine. Kyiv
has the legal right to freeze those assets. That means not only Gazprom gas
facilities, but also Vneshekonombank’s loan portfolios. Any asset owned by the
Russian government is at risk.
In
practice, counter-measures only work if they strengthen Ukraine’s negotiating
position. Given the deep interdependence of Russia’s and Ukraine’s economies,
they would not benefit Kyiv in the short term. Stopping payment on the $3
billion that Ukraine owes Russia would put all of Ukraine’s other bonds into
default, which might precipitate a financial crisis. If Ukraine were to seize
assets of Russian energy companies, the Kremlin could easily cut off gas
supplies. Freezing assets of Russian state-owned banks or suspending other debt
owed to Gazprom could embroil Kyiv in a tit-for-tat trade war with Russia that
it can ill afford.
In the medium term, however,
Ukraine’s right to impose countermeasures gives it a powerful means of
influencing the Kremlin, particularly if Poroshenko makes good on his promise
to diversify energy supplies. The less dependent Ukraine becomes on Russia, the
more useful countermeasures become—particularly as the snow melts this spring.
Until Russia departs from
Crimea and quits meddling in the Donbass, any of its assets in Ukraine are at
risk of being frozen. Of course, if Russia left Ukraine, Kyiv would have to
give those assets back and resume payment on its debt obligations. Many suspect,
however, that Russia is trying to create a ‘frozen conflict,’ setting up a
statelet inside Ukrainian territory. If so—if this crisis will take not years
to resolve, but decades—Kyiv should know it has many legal tools with which to
defend itself.
Cynthia Barmore is a fellow at Princeton University and a J.D. candidate at Stanford Law
School. Chris Miller is an associate scholar at the Foreign Policy Research
Institute.
