“PASSPORTISATION”: A NEW WAY OF AVOIDING INTERNATIONAL LAW?

With all due respect, modern international law is based on inequality. Sure, Article 2(1) of the UN Charter -which, in word, regulates international relations- states that the UN is “based on the sovereign equality of all its members”, and this is actually the echoing of a loosely applied principle which dates back to the Peace of Westphalia. Nevertheless, in addition to the evident financial abyss, modern States are forced to abide by the diktats of the “major” victors of WWII within the UN framework.

I am, of course, referring to the Security Council. Despite its current “oligarchic” status, from the decolonisation era until the dissolution of the USSR, there was a unique balance within the UN framework, starting from the Security Council. With the counter-revolution in Moscow, the financial crises in most former colonies and the forging of the era of globalisation, however, the rules (i.e. the application of international law) of the game that is international relations changed drastically as the interests of the major powers which “permanently” occupy the Security Council began to coincide. This chaotic period in recent history was first signalled in the bombing of Bosnia by NATO, when the Alliance was formally asked by the Secretary-General of the UN to basically enjoy the benefits of the no-fly zone imposed by the Security Council. This legitimate yet not-so-constructive request effectively provided the Alliance with the political (yet definitely not legal) legitimacy to use military force in Kosovo without the approval of the Security Council, which was simply incapable of preventing the Alliance and furthermore, was forced to adopt Resolution 1244 of 1999 which “legitimised” the de facto situation caused by NATO intervention. This “legitimate” violation of international law was followed by the invasion of Afghanistan by the US (and, later on, NATO) which was also “legitimised” with Security Council Resolution 1386 of 2001. Then came the so-called “Bush doctrine” which promoted pre-emptive “strikes” against States that could “potentially” develop Weapons of Mass Destruction (WMDs) and threaten other States (i.e. the United States). This clearly non-legal doctrine was, however, realised in Iraq, and the Security Council proved to be ineffective yet again.

The idle mechanism in which “the strong do eat” has seemingly prompted the occasional counter-currents to adopt similar measures in recent years. One such measure has been the “passportisation” policy of the Russian Federation which granted Russian citizenship to politically pro-Russian people in critical territories so that there would be “legitimate grounds” to use force.

It is clear that the Russian policies of “justification” are more elegant than similar policies that preceded them beyond the Atlantic Ocean. However, their weaknesses are still evident. Indeed, Russia has been trying to argue (as per Article 61 of its Constitution) that, since the safety of “Russian people abroad” is to be guaranteed by the Russian Federation, “any threat” against them would justify a Russian intervention under Article 51 of the UN Charter. This is somewhat a “forced” argumentation, for two reasons:

The first one is “more legal”: it can hardly be argued that an attack against a population would constitute “an attack against a Member State” as per Article 51 of the UN Charter. As pointed out in the Contras case, the ICJ makes a distinction between “minor uses of force” and “severe uses of force” – meaning those attacks which “constitute an armed attack”. If applied to the Crimean scenario, despite the unconstitutional nature of the ousting of President Yanukovich and the Russophobic rhetoric of several prominent figures of the Euromaidan movement, the Russian population in Crimea wasn’t threatened with an armed intervention by Ukrainian authorities. Furthermore, it would be senseless to state that annexation would be a justifiable measure even if the actions of Ukrainian authorities constituted “an armed attack”.

The second reason, on the other hand, relates to the perspective in the analysis of facts: indeed, this is where the act of “passportisation” really comes in. While it is a matter of fact that Russian authorities claim that the lives of Russian citizens abroad are at stake, most of the “Russian citizens” in question obtained their Russian passports in the past decade, without permanently relocating to Russia. Indeed, according to various sources, Russia had distributed around 144.000 passports between 2008 and the ousting of President Yanukovich in 2014. It is worthy of note that the Russian Federation had used similar arguments when before interfering in South Ossetia, and had even referred to its troops as “peacekeepers” without the consent of the Security Council. Nonetheless, these “Russian citizens” clearly fail the “genuine link test” as provided in the renowned Notebohm case, as they had dwelt within the borders of other sovereign nations before the aforementioned crises.

Long story’s short, international law has repeatedly failed to impose itself on major powers that effectively pull the strings in the current framework. Be it the United States of America or the Russian Federation, it is easy for certain States (which have a permanent seat at the Security Council) to bend the well-established norms of international law. Verily, as a wise American jurist had pointed out to me, the foreign policy of the US is based more on the concept of power than legitimacy, because it is power itself that determines legitimacy. This rule is quite valid for other States as well. The question is, though, is it just?

By Aytekin Kaan Kurtul