Russia’s Invasion of Ukraine and the Crisis of International Law
22 Apr, 2022 · 5812
Janhavi Pande argues that the war represents a breakdown of
international law itself, enabled through decades of great-power opportunism
Russia’s invasion of Ukraine has presented international law with its biggest systemic challenge to date. The war has been termed a “special military operation” by President Vladimir Putin. All indications however point to imperialistic territorial aggrandisement. Ukraine’s situation is a reflection of the terminal crisis in the actual practice of international law: undermined both by those that created it and those that seek to revise it.
Legal Assessment of Russia’s Justifications
Russia’s only official justification for the war is contained in Putin’s speech on the day of the invasion. Although loosely structured, it attempts to make a case both politically and in international law. It argues that the “operation” is an exercise of Russia’s right to self-defence under Article 51 of the UN Charter. It also invokes “historical injustices,” pointing to the verbal assurances of NATO’s non-expansion given to the USSR in the 1990s and the West’s own record of illegal interventions.
Under Article 51, Russia has used its treaties with the separatist regions in Donbas to push for preemptive and collective self-defence. It has tried to introduce a justification for humanitarian intervention through accusations of “genocide” and “crimes” against people of Russian origin in Ukraine. This, despite Moscow dismissing the explicit invocation of the Genocide Convention before the International Court of Justice (ICJ) in the proceedings brought by Ukraine. It also claims that the West has been developing chemical and biological weapons in Ukraine.
Whether there is adequate evidence in support of Russia’s legal claims is difficult to discern at this point. The bottom-line however is that even with evidence, the invasion is unlikely to be deemed as either necessary or proportionate by any international tribunal. The identification of Donetsk and Luhansk as independent states, thereby allowing for collective self-defence, is dubious at best. Additionally, the recourse to preemptive self-defence is backed neither by customary international law nor by any imminent threat of force from Ukraine.
The manifest illegality however does little to diminish Russia’s perception of its security dilemma in NATO’s unchecked expansion. Putin’s references to the West’s own wars in Eastern Europe and the Middle East don’t appear simply to be instances of whataboutism. His arguments lay emphasis on the sanctity of the ‘order’ that was agreed to by the victors of World War II. For Putin, Ukraine as a NATO member constitutes a threat to Russia’s sovereignty, territorial integrity, and crucially, its political system. Consequently, a NATO encirclement of Russia was always likely to provoke hostility from the Kremlin. This has already been demonstrated in Georgia and Crimea.
Nonetheless, Russia has set a dangerous precedent with its subversion of Ukraine’s political autonomy. While Putin’s reference to the West’s transgressions is not misplaced, it does not justify or absolve Russia as the aggressor. It also doesn’t grant legitimacy to Donetsk and Luhansk as independent states within international law. If anything, the war represents a breakdown of international law itself, enabled through decades of great-power opportunism and Eurocentrism.
Fragmented International Legal Order
The international legal system is largely a reflection of Western European and North American Enlightenment ideals. Its formative pillars are contained in the UN Charter. These include the sovereign equality of states; respect for territorial integrity; prohibition of the threat or use of force by one state against another; the right of peoples to self-determination, etc. These principles were legalised within the Charter to protect “future generations from the scourge of war,” as the Preamble declares. Some of these, including use of force, rank at the very top of the hierarchy of norms within international law. The Charter has been buttressed through a series of international instruments on human rights; UNGA resolutions proscribing aggression and interference in the internal affairs of states; and the Geneva Conventions of 1949 governing the conduct of hostilities.
For most of the Western world, these principles are universal. The problem is the absence of legal memory in matters related to sovereignty, territorial integrity, and even human rights in major powers such as Russia and China. This suggests that while Ukraine is a sovereign equal in law, from Russia’s point of view, this sovereignty must be negotiated. This view within the Kremlin is only strengthened when the current international legal order is used instrumentally by states whose juridical doctrines international law draws upon. Moreover, Russia perceives the import of the West’s domestic legal systems into international law expansive and serving its own self-interest. It has therefore tried to reassert its own status as a rule-making power in the international system.
As Russia’s hostilities continue, the international system appears more fragmented than ever before. The full consequences of the war may not be clear now, but what is already evident is that a number of small to middle powers as well as semi-autonomous regions (such as Taiwan) will be worried about their future. The international legal system was the only guarantee of survival available to such states. Today, neither the West nor its challengers appear to have the proclivity to serve as the guarantors of that system.
Janhavi Pande is a Researcher with IPCS’ South East Asia Research Programme (SEARP)
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