Davit Jaiani: “Draft report for Symposium at Tbilisi State University –‘Cold War International Law’”

Last October, British Telegraph[i] reported –  ‘Russia and the West have entered a new Cold War that could lead to growing confrontations across the globe, as Vladimir Putin challenges American international hegemony’.

In the same piece, ex-head of international treaties department of the Russian MoD pointed out that – “If we talk about the last Cold War, we are currently somewhere between the erection of the Berlin Wall and the Cuban Missile crisis,”[ii]  

Cutting crossroads in occupied Abkhazia and ongoing process of erection of barbed wire fences in the heart of Georgia, occupied South Ossetia, will definitely fit in this comparison also.

Other than that, the Ukrainian territory of Crimea was annexed by the Russian Federation in March 2014, followed by the hybrid warfare in the eastern parts of the country. On the same year Edward Lucas, London based journalist, ex chief of the Economist magazine Moscow bureau, publishes his book – The New Cold War: Putin’s Russia and the Threat to the West[iii]

Not accidental might be that, the very comprehensive and highly visited website, providing information and analysis of the war in Ukraine is titled – New Cold War.org.[iv] 

So the question we face is – if we are witnessing the new cold war or not?

As it is evident even from this short introduction, that the issue of cold war, due to its complex characteristics has never been placed in the sole realm of Diplomacy and international relations, but shared with political science and economics, sociology and even geography, and of course international law.[v]

What is cold war international law?  Professor Simpson shared his introductory replies to these questions in the article with the same title last year, so having his contribution excludes me from addressing here the general issues. I would rather take your eyes from the states on east European map to the international organizations and report to this distinguished auditorium on their place and role in the post-cold war international society.

Namely, I would like to draw your attention to the most significant challenges of the present days – refugees and nuclear nonproliferation and focus on relevant major actors in these fields the IntAtomicEnAgency and the UN HC for Refugees.[vi]   

UNHCR

It is an institution that has undergone a fundamental mutation since the close of the Cold War, reinventing itself as a humanitarian actor, extending its activities into “countries of origin” and, most recently, providing increasing assistance to internally displaced persons. Mainstream narratives present this expansion of UNHCR activities as the realization of a humanitarian potential and a signal improvement in the organization’s work. On the other hand, some commentators argue that the use of a humanitarian discourse masks what is fundamentally a shift to policies of containment—and the pursuit of state, not refugee, interests — which have undermined the UNHCR’s protection mandate.

Several articles, I have reviewed, after a rough cadastral survey of the post-Cold War period suggest, that UNHCR’s mutation into a humanitarian agency has led to the sinking of its protection mandate and its instrumentalization by donor states. In a post 9/11 era in which fear and demagogy are staples of electoral politics, refugees are increasingly regarded with suspicion and perceived as a security threat. Long gone are the days when refugees were welcomed with open arms as ideological weapons against Communism. Tasked originally with protecting the interests of the most vulnerable individuals in need of shelter, UNHCR’s activities have increasingly been dominated by the concerns of states. If Western donor states are driving this transformation, other states are complicit. Authors like Gil Loescher[vii] acknowledge that UNHCR is increasingly constrained by the restrictive refugee policies of Western states, while nonetheless arguing that “UNHCR remains an indispensable international organization.” But indispensable for whom?[viii]

One more organization in the UN family, which is perceived to develop in the same environment of the cold war but in some different direction is – the International Atomic Energy Agency

IAEA

The IAEA is the child of the Cold War.[ix]

The Agency’s genesis was U.S. President Eisenhower’s “Atoms for Peace” address to the UN GA in 1953. The IAEA was created in 1957 in response to the deep fears and expectations generated by the discoveries and diverse uses of nuclear technology.[x]

Now having grown to adulthood, the Agency faces the rigors and challenges of adulthood, a less hierarchical world, yet one filled with the possibilities and fears, that now characterize a post-Cold War world in an age of terror. The story of the Agency can be told in two parts: the first addresses the origins of the IAEA as an organization related to the UN, though not strictly one of its specialized organizations, but more closely related to the rise of the Cold War international system, in which states possessing nuclear weapons exercised hegemony not only through political, military and economic supremacy but also through policies designed to ensure that nuclear weapons would not be acquired by other states, in return for which, benefits flowing from the peaceful use of the atom could be shared with all nations. The IAEA Statute[xi] is thus a product of a different time and perhaps a different world from the one in which we now live.

The second part of the story addresses how, with the fall of the Cold War system and the rise of new transnational threats and opportunities, the IAEA became more deeply involved in the multilateral system, more deeply and actively cooperating with the UN but at the same time acquiring its own voice and, to a certain extent, autonomy as an international organization.

In brief, therefore, one can view the evolution of the IAEA as a mirror the international system, both with respect to its changing structure and the relevant set of threats the system faces. The relative degree of independence of the IAEA flows then, not only from its own internal dynamic, but also from the interaction of the IAEA with the changing demands of the international system and the degree to which IAEA autonomy is tolerated. 

If past is prologue, then we should anticipate further evolution of the role of the IAEA. At the end of the Cold War, however, the attempt to invoke special inspections (in a way that was inspired by the challenge inspection provisions of the Treaty of Tlateloco) evidenced the endeavor of the IAEA to reassert its institutional credibility in the face the apparent failure of routine inspections to provide timely warning of an undeclared nuclear program in Iraq. At the same time, the breakdown of international stability at the end of the Cold War may have raised the value to many states of nuclear weapons possession, and the emergence of the threat of nuclear terrorism by non-state actors increased the potential danger of nuclear proliferation. Therefore, with the changing balance between the costs of proliferation and the potential benefits of peaceful nuclear cooperation, it was not surprising that the IAEA (in its 93+2 reform program, including the Additional Protocol), sought to enhance the effectiveness of safeguards.

Yet, however much the IAEA might have increased the effectiveness of its own system, it seems clear that today the IAEA is in a form of institutional competition with formal legal institutions, such as the UNSC 1540 Committee[xii], and non-institutional forms of international cooperation, such as the Proliferation Security Initiation – the PSI, established in 2003[xiii]. The notion that there is, in fact, some sort of law that can be called a special regime of nuclear law is, perhaps, a weapon deployed by the IAEA in this emerging institutional competition. Yet, there may be limits on how much the IAEA can evolve to face this competition. If, because of certain failures in international governance of nonproliferation, the demand for prohibition and prevention, rather than safeguards and timely warning of diversion, continues to increase, one may well expect that the IAEA in the future will enter into a period of decline, with new international institutions and other forms of informal cooperation emerging to address the current and, probably increasing threat of catastrophic failures in international security.

What seems clear is that we are in a period in which the balance between nuclear security and nuclear trade needs to be re-though, and the debate must be conducted without presumptions about the interests of all the parties in the debate. As the autonomy of the IAEA increases, it becomes a player on the international stage, one having its own institutional interest and agenda, no longer a faithful agent of states.

Abovementioned two cases of international organization changing normative behavior, when due to the development and diversification of the international law its subjects follow only their sole interests and regulations, is sometimes named as ‘managerialism’ in international legal scholarship and constitutes a part to a much wider ongoing challenge inherent to the international law that is – Fragmentation.

                                                                                                                           

[i] http://www.telegraph.co.uk/news/2016/10/22/unyielding-russia-and-us-heading-for-a-new-cold-war/.

[ii] Lt. Gen. Evgeny Buzhinsky.

[iii] https://www.amazon.com/New-Cold-War-Putins-Russia/dp/1137280034.

[iv] https://www.newcoldwar.org/about/.

[v] http://www.coldwarinternationallaw.org/.

[vi] Major parts of this report has been based upon the literature and sources processed during the one month research visit at the Europa-Institut, University of Saarland, under the grant kindly financed by the University and the DAAD.

[vii] https://www.rsc.ox.ac.uk/people/gil-loescher.

[viii] https://goo.gl/ViocGJ.

[ix] https://goo.gl/hqTavc.

[x] https://www.iaea.org/about/overview/history.

[xi] https://www.iaea.org/sites/default/files/statute.pdf.

[xii] http://www.un.org/en/sc/1540/about-1540-committee/general-information.shtml.

[xiii] https://www.armscontrol.org/act/2004_06/Joseph.