INTRODUCTION The nature of international law
The nature of international law (IL) is a debatable issue, which will be addressed in this work. The following paper will answer whether IL is objective (neutral), by proposing a three-degree classification of objectivity – objectivity, negative objectivity and subjectivity. The main proposition is that IL can be negatively objective or subjective, depending on the intersection of norms (objective, negatively objective or subjective) and lawyers’ approaches (negatively objective or subjective). Section 2 will present the theoretical framework and concepts; the sections after will apply the framework to the Russian-Georgian war, classifying the norms at stake (section 3) and comparing two reports – a negatively objective and subjective approach (section 4).
To begin with, neutrality and objectivity require conceptualization. Neutrality might have different meanings – here it is defined as objectivity, meaning even-handedness, fairness, and impartiality; the framework uses “objectivity”.
Abstractly speaking, I argue that there are three degrees of objectivity – objectivity, negative objectivity and subjectivity; I argue for a nuanced categorization, beyond the two-dimensional division of objectivity/subjectivity. Objectivity is the ideal, while negative objectivity does not mean “bad”, but something that is defined by what it is not – it is not pure objectivity, but it is not subjectivity, in the sense of bias, either. Negative objectivity strives for objectivity and cannot fully reach it, but in the strife, it minimizes the possibility of subjectivity and is closer to objectivity.
As for IL, the latter is defined as an intersection of norms and lawyers’ approaches. I argue that IL can be negatively objective or subjective, depending on what the norms and approaches are in their intersection – objective, negatively objective or subjective. The next paragraphs will conceptualize norms and approaches respectively. This classification does not aim to be exhaustive or universal.
Firstly, this work builds on the perception that established norms of IL are objective, negatively objective or subjective. Objective norms are unambiguous, always valid norms, regardless of the circumstances. Such norms build on the fundamental right to life, liberty, and security of person, such as the ban on the use of force, the prohibition of torture, slavery, racial segregation, forced disappearance of persons, forced displacement. The prohibition of genocide, crimes against humanity and war crimes (grave breaches of international humanitarian law, IHL) is objective, too.
Negatively objective norms allow discretion, yet they are not subjective. These norms include assessment of necessity (addressing an objective) and proportionality (weighing advantages and disadvantages, not exceeding the strict objective), which are legal questions leading to political answers – there is no consensus on what is necessary and proportional. Such norms, e.g., are the right to self-defence, or norms of IHL that regulate what is a “necessary” and “proportional” attack against enemy combatants (if the aforementioned objective norms are respected). Overall, all rights/norms allowing discretion or conflicting with other norms, can be classified as negatively objective – if they follow the objectivity ideal.
Subjective norms (or the lack of norms) are defined by power and geopolitical rationales. While it is hard to think of the presence of subjective norms nowadays, subjectivity is more relevant for legal vacuums, e.g., humanitarian intervention, where no unambiguous norms have been established and this allows subjective, geopolitical decisions.
Secondly, considering lawyers interpreting these norms, their approaches can be negatively objective or subjective. Approaching objective norms, lawyers can be negatively objective – because even in the face of an objective norm, and a will to apply it objectively, lawyers stand as subjects. One can never be purely objective, but if one strives to be objective, he/she achieves negative objectivity. Approaching objective norms, lawyers can also be subjective, partial, with a power rationale. However, a personal view is that objective norms in contemporary IL rather resist such interpretations and allow mainly negatively objective approaches.
Approaches to the second category of norms – negatively objective norms – can be negatively objective or subjective. Negatively objective approaches stick to the objective ideal, despite the discretion; subjective approaches misuse the allowed discretion, with a power rationale and partiality.
Approaches to subjective norms or the lack of norms can be negatively objective – sticking to the ideal of objectivity, or subjective – taking advantage of the lack of legal clarity, with a power rationale and partiality.
What do these intersections mean for IL? This is illustrated in the following figure:
Or, IL can be negatively objective or subjective, depending on what norms meet what approaches. Objective norms result in negatively objective IL; negatively objective norms and subjective/no norms result in negatively objective or subjective IL, depending on the approaches. Considering that much IL argumentation takes place in the face of conflicting norms (negative objectivity) or the lack of legal clarity (subjectivity), we can infer that the approach, i.e., the rationale behind the legal argumentation, is crucial. Yet, this theoretical framework has to be empirically applied – the next section will present the case of the 2008 Russian-Georgian war and the norms at stake; the section after will compare a negatively objective and subjective reports.
RUSSIAN-GEORGIAN WAR: BRIEF HISTORY AND NORMS AT STAKE
During the Soviet era, Georgia was divided into three political-territorial entities, including the Autonomous District of South Ossetia and the Autonomous Republic of Abkhazia. After the collapse of the Soviet Union, the two historical regions remained within the borders of Georgia, but separatist tensions escalated, and war between South Ossetian and Georgian forces broke out in 1991-1992, followed by war between Abkhazian and Georgian forces in 1992-1994. Afterwards, Georgia lost control of parts of the territories. Russia supported both South Ossetians and Abkhazians.
Russian, Georgian and Ossetian peacekeepers were subsequently deployed in South Ossetia and Abkhazia, but the tensions grew. The Russian-Georgian relations deteriorated after Vladimir Putin came to power, while the then-president of Georgia, Mikheil Saakashvili, shaped a distinctly West-oriented foreign policy. Parallelly, Russia started granting Russian citizenship to South Ossetians and Abkhazians.
In 2008 the climate worsened, with Russians sending additional troops to Abkhazia, and explosions taking place on both sides of the Georgian-Abkhaz and Georgian-Ossetian ceasefire lines. US-led and Russian military exercises were conducted in Georgia; Russia was alleged to have provided South Ossetians and Abkhazians with military equipment. Small arms fire took place between Georgians and South Ossetians until 7 August, when a ceasefire was signed. In the night of 7 to 8 August, Georgia launched a massive artillery attack against South Ossetia (South Ossetian troops and Russian peacekeepers), initiating a full-fledged war. Thereupon, Russian troops intervened by entering central Georgia, with Russia labelling its activities as a “peace enforcement operation”. The war ended on 16 August, when Russia and Georgia concluded a peace agreement.
Different norms were at stake before and during the conflict, as the reports will show. Among them were the principle of refraining from threat or use of force against the territorial integrity of any country and the principle of self-determination. Applying the theoretical framework, the first is an “objective norm”, as it concerns the ban on the use of force. As for self-determination, an entity has to meet four criteria of statehood, which tolerate discretion, so this principle is “negatively objective”. Norms of international human rights law (IHRL) concerning the physical security and liberty of people, and serious breaches of IHL, are objective norms. The ban on the use of force is objective, but here it almost merges with the negatively objective right to self-defence, because there were small-scale attacks before the massive Georgian one. IHL norms concerning combatants are negatively objective norms, too, because necessity and proportionality need assessment. Having classified the norms, the text will proceed with two approaches to the conflict.
The current section will present and compare two reports – negatively objective and subjective, respectively – by the Independent International Fact-Finding Mission on the Conflict in Georgia, established by the European Union (EU), and by Peter Roudik, a Director of the Global Legal Research Center at the Law Library of the United States Congress.
Independent International Fact-Finding Mission on the Conflict in Georgia
On 2 December 2008, the Council of the EU issued a Decision to set up an independent fact-finding mission on the Russian-Georgian conflict, headed by Heidi Tagliavini, a Swiss diplomat. The mission consisted of legal experts, military experts, political analysts and historians. The report includes legal analysis and the findings have been used by the ICC, which has opened investigation.
After presenting the background of the conflict and the facts, including the small-scale clashes before 7 August, the report addressed the legal elements. It maintained that South Ossetia and Abkhazia do not have a right to secede from Georgia. Then it asserted that the Georgian use of force against South Ossetia in the night of 7 to 8 August was contrary to IL, as it could not be justified as legitimate self-defence, but even if it could, the attack was not necessary and proportional under IHL. The subsequent defensive by the South Ossetian forces was presented as lawful, but later followed by breaches of IHL and IHRL. South Ossetians’ military actions after the ceasefire agreement were presented as unlawful. In parallel, the Georgian use of force against the Russian peacekeepers in South Ossetia was presented as unlawful, as there was no prior or verifiably imminent Russian attack. The Russian reaction to the Georgian attack was divided into two phases: self-defence of the Russian peacekeepers, which was presented as lawful, and the invasion of Georgia by Russia, which was presented as unlawful. Parallelly, the Abkhazian attack against Georgians and the Russian support for it were presented as unlawful.
Overall, the report asserted that the prohibition on threat of use of force was violated by Russia and Georgia; IHL and IHRL violations were committed by Russians, Georgians and South Ossetians. The mission stated that South Ossetians had committed ethnic cleansing and other forms of ill-treatment against Georgians. South Ossetians’ allegations that Georgians committed genocide against them were found to be ungrounded.
Afterwards, the report continued with the prospects of restoring peace in the region, concluding that “there is little hope, however, for a peaceful future in the conflict region unless the two main contenders, Russia and Georgia, make bilateral efforts themselves to solve their disputes. This needs to be done now.”
Peter Roudik’s “Legal Aspects of War in Georgia”
The second report to be presented is “Legal Aspects of War in Georgia” by the Director of the Global Legal Research Center at the Law Library of the US Congress. Roudik started with the background and the events around 7 August 2008, omitting the small-scale attacks by Georgians, as well as their massive artillery attack against South Ossetians, and directly addressed the Russian invasion of Georgia on 8 August. Then he proceeded with the domestic Russian legal basis for the use of the Russian military abroad, stating that Russians and Abkhazians committed ethnic cleansing against Georgians and Russian military presence in South Ossetia contradicted domestic military legislation.
Proceeding with IL, Roudik mentioned the Georgian attack against South Ossetia, stating that “on August 8, 2008, South Ossetia remained an integral part of Georgian territory, which excludes the possibility of Georgian aggression against South Ossetia and undermines the use of this international law principle in as justification for Russia’s action”. Thus, he simultaneously refuted the Georgian use of force and the Russian peacekeepers’ alleged right to self-defence, underlining the unlawfulness of the invasion of Georgia.
Thereupon, the Russian passportizaton policy and the recognition of the two regions were considered. Roudik concluded that the Russian invasion and recognition policy violated both IL and domestic legislation. The report ended with “Russia’s military deployed in the regions may be recognized as an occupational force and Russia may be forced to withdraw its armed forces from the territory of Georgia.”
Comparing the approaches
I argue that the first report is negatively objective, and the second – subjective. Particularly, both reports interpret objective (ban on the use of force, serious breaches of IHL, objective IHRL) and negatively objective (right to self-defence, IHL concerning combatants, self-determination) norms. However, the first is more nuanced, addressing violations by all parties, while the second focuses on the Russian invasion, omitting IHL and IHRL violations by Georgia. Considering that Roudik’s report is from August 2008, one might suggest that he did not have the facts, but hastiness itself implies partiality. Both reports denounced the Russian invasion of Georgia and the ethnic cleansing against Georgians – the comparison elucidates that the line between negative objectivity and subjectivity is subtle, a line drawn by the underlying rationale of the norm interpreter. Comparing the endings of the reports, it gets clear that the rationale behind the first is conflict resolution, while the rationale behind the second is allusion to USA’s commitment to protect friend states against Russian aggression. This is a reasonable, but power-embedded and partial approach, which remains in the realm of (collective) self-defence – international law should be more than that.
All in all, IL is vulnerable, oscillating between negative objectivity and subjectivity, especially when negatively objective norms are at stake (mostly self-defence in the case). Yet, I reckon that contemporary IL holds the potential for resisting subjective, partial interpretations, particularly when objective norms are at stake.
A theoretical framework was proposed, classifying norms of IL as objective, negatively objective or subjective, and approaches – as negatively objective or subjective, then asserting that IL oscillates between negative objectivity and subjectivity, depending on what norms meet what approaches. The framework was applied to the Russian-Georgian war, categorizing the norms at stake, and then – comparing a negatively objective to a subjective approach. Ultimately, international law is particularly vulnerable to subjective interpretations of negatively objective norms (or no norms), but it holds the potential to resist biased and partial approaches in the face of objective norms.