By Janhavi Pande*
Russia’s invasion of Ukraine presented international law with its greatest systemic challenge to date. The war has been called “special military operation” by President Vladimir Putin. All indications, however, point to imperialist territorial aggrandizement. Ukraine’s situation reflects the terminal crisis of the current practice of international law: undermined both by those who created it and by those who seek to revise it.
A 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 advocate both politically and in international law. He argues that the “operation” is an exercise of Russia’s right to self-defense under Article 51 of the UN Charter. He also invokes “historical injustices”, pointing to the verbal assurances the non-enlargement of NATO granted 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 breakaway regions of Donbass to press for preemptive and collective self-defense. He attempted to introduce a justification for humanitarian intervention by accusations of “genocide” and “crimes” against ethnic Russians in Ukraine. This, despite Moscow dismiss the explicit invocation of the Genocide Convention before the International Court of Justice (ICJ) in the proceedings initiated by Ukraine. This too complaints that the West is developing chemical and biological weapons in Ukraine.
It is difficult to discern at this stage whether there is sufficient evidence to support Russia’s legal claims. The bottom line, however, is that even with evidence, the invasion is unlikely to be considered necessary or proportionate by any international court. The identification of Donetsk and Luhansk as independent states, thus enabling collective self-defense, is doubtful the best. Moreover, the use of pre-emptive self-defence is supported neither by customary international law nor by an imminent threat of use of force by Ukraine.
Legal versus Safety
The blatant 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 just appear to be examples of whataboutism. His arguments emphasize the sanctity of the “order” that has been OK by the victors of World War II. For Putin, Ukraine as a member of NATO poses a threat to Russia’s sovereignty, territorial integrity and, above all, its political system. Therefore, a NATO encirclement of Russia was always likely to provoke Kremlin hostility. This has already been demonstrated in Georgia and Crimea.
Nevertheless, Russia has set a dangerous precedent with its subversion of Ukraine’s political autonomy. While Putin’s reference to Western transgressions is not out of place, it does not justify or absolve Russia as an aggressor. It also does not grant legitimacy to Donetsk and Luhansk as independent states under international law. Rather, the war represents a breakdown of international law itself, made possible by decades of great power opportunism and Eurocentrism.
A 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 Charter of the United Nations. These include the sovereign equality of states; respect for territorial integrity; the prohibition of the threat or use of force by one state against another; the right of peoples to self-determination, etc. These principles were legalized in the Charter to protect “future generations from the scourge of war”, as the preamble states. Some of them, including use of forcerank at the top of the rankings hierarchy of norms within international law. The Charter has been underpinned by a series of international human rights instruments; United Nations General Assembly resolutions outlawing assault and interference in the internal affairs of States; and the 1949 Geneva Conventions governing the conduct of hostilities.
For most of the Western world, these principles are universal. The problem is the lack of legal memory regarding sovereignty, territorial integrity and even human rights in major powers like Russia and China. This suggests that if Ukraine is an equal sovereign in law, from Russia’s point of view, this sovereignty must be negotiated. This view within the Kremlin is only reinforced when the current international legal order is used instrumentally by states whose legal doctrines are inspired by international law. Moreover, Russia perceives the importation of Western national legal systems into international law expansive and serve its own interest. It therefore tried to reassert its own status as a normative power in the international system.
As Russian hostilities continue, the international system appears more fragmented than ever. The full consequences of the war may not be clear now, but what is already clear is that a number of small and medium powers as well as semi-autonomous regions (such as Taiwan) will be worried about their coming. The international legal system was the only guarantee of survival available to these States. Today, neither the West nor its challengers seem to have the propensity to serve as guarantors of this system.
*Janhavi Pande is a researcher with the Southeast Asia Research Program (SEARP) at IPCS.