International law expert: Estonia joined the 'real world' with Iran crisis

Professor Lauri Mälksoo (right) with ERR's Mirko Ojakivi on Wednesday morning's Otse uudistemajast.
Professor Lauri Mälksoo (right) with ERR's Mirko Ojakivi on Wednesday morning's Otse uudistemajast. Source: Priit Mürk/ERR

Estonia faces its first serious challenge since starting its two-year stint as a non-permanent member of the United Nations Security Council (UNSC), in the light of the stand-off between the United States and Iran, says Lauri Mälksoo, professor of international law at the University of Tartu.

"As for Estonia at the UNSC, this is now the real world, where we will be very visible over the next two years," Mälksoo said, speaking on ERR current affairs broadcast Otse uudistemajast Wednesday.

According to Mälksoo, the key issue as regards international law is how widely states can interpret the principle of self-defense law whether the killing of Iranian military commander Qasem Soleimani by a U.S. missile strike in Iraq last week, falls within that. 

While the U.S. has called the Islamic Revolutionary Guards Corps' Quds Force, which Soleimani headed, a terrorist organization, it is still a national structure, in comparison with, for example, al-Qaeda leader Osama bin Laden or ISIS leader Abu Bakr al-Baghdad, both killed by the U.S. but with the difference being that they did not belong to security of other organs of any sovereign nation state, making their position in international law less sturdy, according to Mälksoo.

Mälksoo said that the system of international law agreed after World War II was intended to limit the right of states to use force, and was only permissible for self-defense. 

At the same time, the U.S., and sometimes other countries, have interpreted this right much more broadly, citing preemptive justifications for such attacks, Mälksoo said.

"But in that case you have to be able to prove and demonstrate this. Otherwise, Hitler would have been able to say he had started a war against the Soviet Union on the basis of self-defense," he said.

For Estonia as a small country, it would be better for all nations to interpret international law in the same way and not make exceptions, Mälksoo felt. 

Because if at present, the US is interpreting its rights more broadly, then other big countries may soon be doing so, which will put Estonia in a new position. For example, Russian doctrine includes the view that Moscow may use armed forces to protect its citizens abroad, which could directly affect Estonia. "We cannot be interested in such an expanded interpretation," Mälksoo emphasized. 

"It's like opening a Pandora's box when we interpret the law of self-defense very broadly. This can also be used by other countries to construct cases that suit them," he added. 

Mälksoo added that while to date, most countries have interpreted international law more broadly, recent events also give others the opportunity to make the same excuses. 

"The more problematic others have behaved, the more subdued the criticism of Russia will be," he said, referring, for example, to the criticism which followed the 2014 occupation of Crimea.

"One lesson for the West over the last 15 years is that other countries have the ability to create exceptions. Others are not interested in the West having more rights," he added.

Estonia in a cleft stick

In this situation, Estonia finds itself in a bind, Mälksoo said, since, as a NATO member, we are interested maintaining relations with the U.S., but on the other hand do not want allowances for the use of armed force to be widened. 

"So potentially we would have room here for disagreements with the U.S. We wouldn't automatically have to accept extended use of force," Mälksoo said.

The situation could potentially be as bad as a situation as in 2003 with the U.S./U.K. decision to make war on Saddam Hussein's Iraq on the issue of weapons of mass destruction, but many other allies disagreed, and NATO broke down [on the issue]," the academician said.

"At the moment, however, it is not a given that this will happen immediately, since Iran is in a different position and it seems that even Russia has been quite restrained about what has happened," he added.

Estonia may also not have to take a stand on the issue at the UN Security Council, because it would require some countries to raise the issue there, Mälksoo said. 

"If this is to be interpreted as meaning that both the U.S. and Iran have crossed the borders of international law, then Estonia will not have to face down the U.S.," he said.

According to Mälksoo, there would still remain a dilemma: Whether to support international law or an ally in the moment is still an artificial construct. 

"Our ally is trying to interpret the attack on Soleimani from the perspective of international law. I would not put it in that way," he stressed.

"Nor would I want to give the impression that the U.S. is a chronic violator of international law. The U.S. is still part of the order created by the UN," Mälksoo said.

Estonia has to get used to the new situation

"This is the main challenge for Estonia's foreign policy: We need to be able to see a universal standard here. A world where America alone is capable of going it alone, is probably coming to an end and that is why we, as a small country, have to understand.

"But we are giving Estonian diplomacy time to react to these things. I am optimistic about this; small countries can sometimes surprise, and sometimes even help to de-escalate such conflicts," Mälksoo thought.

Responding to interviewer Mirko Ojakivi's point that critics had already foreseen the possible dilemmas facing Estonia on the UNSC, Mälksoo thought it was a matter of how the country positions itself.

"The alternative, of deciding from the outset that we have nothing there [on the UNSC] is costly, and could be rather problematic for us. In a sense it may mean accepting an international regimen with a two-speed system of countries, with us in Estonia as part of a so-called B-list. Thus I think Estonia made the right decision where we cannot accept such a legal order where some countries do not need to become members of such collections in principle. But these next two years will definitely be interesting," he said, adding that there is currently no clear cut choice between supporting the U.S. and supporting international law on the table at present.

The original Otse uudistemajast broadcast (in Estonian) is here.

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Editor: Andrew Whyte

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