Thursday, August 14, 2008

[insert clever refernce to Georgia]

It’s hard to know what to say about the Georgia furore that hasn’t been said before. Lots of people on the left have said lots of things about it, and it seems to have inspired a good deal of ire and passion. One thing missing from a lot of the left commentary (if not from the commentary more generally) is analysis of the legal aspects raised by Russia’s intervention, what follows are my fairly scattershot thoughts on the whole debacle, as well as some (not so cutting) comments on the legal aspects of all this.

The first point to note is that even outside of the immediate context something like this has been brewing for months. We all knew that Russia was getting antsy about NATO encroachment on its backyard. Following Kosovo’s unilateral secession from Serbia, it was all but a certainty that South Ossetia or Abkhazia or any of the other problem areas in the Caucasus was going to become a flashpoint (I said as much in my LL.M. dissertation on self-determination). What was perhaps less predictable was the way that this all started. Whilst I knew that Georgia was being provoked by Russia, I still have trouble believing that Saakashvili thought he could get away with going into South Ossetia.

This brings me nicely onto my second point. A major point of dispute on the left has been the question of whether or not sections of the left are reverting to type and passively (or otherwise) supporting Russia. I think part of this can be ascribed to the realist temptation that has struck many a person in this instance (myself included). What this temptation leads us to do is shake our heads in incredulity and say what was Saakashvili thinking!? Is he stupid!? Whilst this realist position seems to be a fairly accurate one to me I think it also has to be coupled with a sense of sympathy for the Georgian people. Although Marxists are right to problematise the left-liberal distinction between people and government/people and state etc., we do need to understand that it is certainly often the case that the actions of the government/state are not attributable to the people. Once this is coupled with a typical left-internationalism we can see that the realist reaction can’t possibly capture everything relevant about the situation.

Another reason that some are condemned as Russian apologists is for their particular take on the media. I think this is definitely unfair. A lot of stories doing the rounds at the moment seem determined to emphasise Russia’s territorial ambitions, the new Cold War etc., whilst I agree that there is a definite case of imperial expansion going on here, all of these articles do seem to omit the fact that Russia didn’t ‘start this’. Georgia made a very bad tactical move, which Russia has taken advantage of, but I don’t think Georgia’s role in all this can simply be ignored.

This dovetails nicely with my third point, when we are talking about Georgia’s actions it is necessary that we place them in the context of American (and to some degree European) expansion in the Caucasus region. I don’t think I need to go through this excessively (but see here for a pro-Russia, but cogent argument on the issue) but the US – and more particularly NATO – has been expanding its security interests in the region, investing in its militaries, supporting the ‘colour revolutions’ etc. Indeed it seems likely that Georgia thought its future NATO membership/close relationship with the West would be enough to stop Russia from retaliating to the incursion into South Ossetia. In this respect, what we are seeing – to some degree – is what Marxist used to refer as inter-imperialist rivalry (at the very least there is a clashing of imperial interests going on in the ‘background’). I think the left is right to flag up the fact that we are not just dealing with ‘plucky little Georgia’ here, as Georgia is in fact deeply implicated with imperial interests. However, perhaps the problem here is that the left has a habit of thinking ‘the chief enemy is American imperialism’, I think John puts it quite well:

My own belief is that we are witnessing the return of multi-polar great power politics. Obviously the funniest thing about all this is George Bush complaining about ‘disproportionate’ responses. How we laughed in the Kremlin. But I would also argue that perfectly understandable vicarious pleasure in the scuppering of US hegmonic ambition may lead to a hangover. We need to differentiate this from the kind of imperial policing operations of the last ten years or so. Welcome back to multi-polar great power rivalry. After a brief champagne breakfast to celebrate the end of unilateralism we need to get back to confronting new realities.

What John notes is that what we are seeing is (to some degree) an inter-imperialist conflict, something which we haven’t seen in a good while (personally I’ve always been sceptical about claims of Empire, American hegemony etc. but that’s another story). Obviously, we’ve been so used to opposing American imperialism that – again – there is almost a realist temptation to shout ‘go Russia!’, but this we cannot do. Indeed, this is the opposite of what we must do because if what we are seeing is the rebirth of inter-imperialist rivalry then what we must also see is the rebirth of the strategy to deal with this – no support for either imperialist power. Thus, while (as John notes) it is understandable that people would celebrate the scuppering of US hegemonic aims, the celebration is rendered inappropriate by the context.

It doesn’t follow from this that we let the US off scot-free. This is another area in which accusations of sympathy for Russia abounds. It is quite right for US to mock the US’ invocation of ‘territorial integrity’, ‘sovereignty’ and its condemnation of ‘disproportionate attacks’. Phil opines:

Apparently more than one state does bad things in pursuit of its interests, and their denunciations of one another are sometimes hypocritical. Who’d have thought it?

Whilst on one level I can appreciate Phil’s sentiment I don’t think such cynicism is the right response. Fine, states are almost completely hypocritical but to adopt a cynical pose in the face of this surely means that we are conceding defeat. The correct response cannot simply be to say ‘states are hypocritical’ and abdicate pointing this out – instead surely we should adopt some form of immanent critique (I’m sure there’s a clever Zizek reference in here too about the ideological function of cynicism, but for the life of me I can’t think how to make it).

The consideration of the US’ invocation of certain fundamental norms of the international legal order also offers a nice way into a bit of a discussion on the legal aspects of all this. I begin with another quote from Phil (whose comments I always find insightful, even if I do often disagree with/criticise them, he ought not to be offended):

As for lines on the map, I think saying they shouldn’t be crossed is actually a pretty good starting point. You can criticise the invasions of Iraq and Afghanistan on those grounds, *and* the bombing of Serbia. Otherwise you end up either defending one country’s violations of international law & condemning another’s (which gets confusing) or retreating to the sidelines with the SPGB (Latest - Workers Of The World Still Screwed).

Of course, to this problem we can immediately counterpose Splinty’s very Leninist question ‘whose lines and whose maps’ (indeed I was thinking of the very line last night and awoke to find he’d already used it!). This really is a very important consideration – from both a political and legal point of view. Politically, it doesn’t seem fair to start with this position. Historically, there have been some Empires (the Russian one being a good example as it happens) who don’t leave their colonies as dependent territories, instead they incorporate them (through lines on a map) into the imperial metropole. Obviously, the left simply could not accept this state of affairs, as it would leave us making a very arbitrary distinction between which wars of national liberation to support.

A very similar situation arises in relation to self-determination in international law. Classically, self-determination only applied to ‘blue water’ colonialism. The units of self-determination were the colonies abroad, which were quite clearly different ‘nations’ from the home state. Further to this the principle of uti possidetis juris meant that the applicable boundaries of these new states would be the ones drawn up by the imperial powers themselves. This immediately ran into problems, as both Portugal and France defined the colonies as parts of their respective nations, this was quickly dealt with through a General Assembly resolution. However, this still did raise the problem of whether an ethnic/national minority population within a state was entitled to a right of self-determination and what such a right might entail. The Supreme Court of Canada in its Reference Re the Secession of Quebec attempted to mediate this by arguing that such groups might constitute a ‘people’ for the sake of self-determination but that normally they would only be entitled to a right of internal self-determination – autonomy, language rights etc. However, were this right consistently denied and if the ‘people’ were subject to egregious rights abuses a ‘remedial’ right of secession might arise.

This is important because it is clear that on one level Russia is positioning this as a case of self-determination (for doubts about its applicability see here). This also explains the Russia emphasis on ‘genocide’ and the general mistreatment of the Ossetian population. This point can be linked back to what I originally noted about Kosovo. It really does seem that Russia is trying to position this intervention into the same basic framework as the Kosovo intervention – a self-determination claim buttressed with a line on humanitarian intervention. This also raises interesting questions about the use of force in support of self-determination. Historically, this was an issue that was vigorously pursued by the Third World in international law’s anti-colonial period. Today, this right seems to have become a weapon in the imperialists’ armoury as part of the general panoply of ‘democratic’ and ‘humanitarian’ intervention.

Russia’s particular legal justification also fall quite squarely within the imperial legal tradition. Aside from the particular question of self-determination Russia seems to have advanced three legal justifications for its action. Firstly, there is the argument that the civilians who have been attacked in South Ossetia are Russian nationals – since they had been issued Russian passports en masse. The defence of nationals abroad has been a staple for imperial intervention. Similarly, Russia can make another (and arguably stronger) claim for self-defence on the grounds that its military has been attacked. Russia has also paid close attention to the peace treaty agreement that it has with Georgia. Typically, these assertions will be countered with the argument that even if Russia was the victim of an armed attacked, it nonetheless used disproportionate means to redress this. But again, this argument is hard to maintain. Following 9/11 imperial states have often used the argument that their uses of force are not disproportionate because they face a continuing threat of further attacks. Indeed on the face of it, such a claim would be stronger here, in the case of Afghanistan the real sticking point was the difficulty in attributing the actions of al-Qaeda to the Taliban. Here there is no such problem, as the Georgian military, at the behest of the Georgian state made the incursion.

What is very important here is that Russia is using international legal argument in a way that fits quite comfortably with its previous invocations by great powers. This is what makes Bush’s argument particularly weak, and strengthens the idea that what we are seeing is a revival of imperialist rivalry. But what this also does is to weaken the claims of someone like Phil – who thinks we ought to condemn these actions as violations of international law. Russia has certainly justified its actions as conforming to exceptions to the principle of territorial integrity and in line with recent practice in the area. In order for Phil’s strategy to work it is necessary to make a distinction between actual legal argument and argument that merely appears to be legal. It must then be held that whilst Russia (and by extension) the US are using legal language, what they are actually doing is perverting the law. This approach would allow us to critique such actions on the basis of legality, however, it would lead to two problems. Firstly, it seems somewhat wrongheaded (particularly in the case of international law) to say that that the content of the law is somehow independent of what its participants say it is. Where do we look for in ascertaining the content of this law? How do we adopt such a position without becoming idealists? Secondly, it does seem to rob the law of any material power. In arguing that imperial assertions of law are actually law we are taking the law seriously, showing how it is an important, constitutive part of political discourse. If we say they aren’t, what role does that leave for law? As a moral arbiter that is impotently raised by those who vainly seek to restrain the great powers? Also, if states regularly engage in the cynical invocation of legal language they hardly evince great regard for legality. If this is the case then what is the point of invoking the law?[1]

And somehow I have managed to go on and on and on again – curses!

(If anyone wants some light reading about self-determination they can feel free to request a copy of my LL.M. thesis)

[1] China Miéville addresses these issues very well in Between Equal Rights

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