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THE RUSSIA-UKRAINE CONFLICT AND INTERNATIONAL LAW
This crisis calls into question the coherence and stability of international law both as a language for mediating particular types of international disputes and as a set of institutions capable of serving as fora for the resolution of these disputes. Given the scale and intensity of the ongoing war in Ukraine and the magnitude of its regional and global repercussions, a number of Lawyers and historians have already made compelling arguments for why the conflict may be the most significant threat to global order since the end of the Cold War.
This article is going to contribute to the ongoing discussions on the subject.
On 21st February 2022, President Vladamir Putin gave a bizarre speech laying down a list of grievances as justification for the ‘military operation’ announced on February 24th. These grievances comprised the long simmering dispute over the expansion of the North Atlantic Treaty Organization (NATO) and the shape of the post–Cold War security architecture in Europe. This dispute was centered largely on the legitimacy of Ukrainian identity and statehood, and it raises fundamental questions in international law, the chief concern being the efficacy of international law.
The aim of this article is to contribute to the ongoing discussions on this subject. Issues discussed in the present article respectively refer to the right to self-determination, territorial integrity of states, statehood and recognition, state responsibility of the offending state, suggestions to the peaceful resolution of this conflict and how to avoid future conflicts of the kind. The article also focuses on the implications of the ongoing conflict and the effectiveness of international law and the limits thereof.
The ongoing conflict in Ukraine can be traced back to 2014 following the Ukrainian Revolution of Dignity which focused on the status of Crimea and Donbass regions, which are internationally recognized as part of Ukraine. The conflict revolves around the Russian annexation of Crimea in 2014 and the war in Donbass between Russia and Ukraine backed by separatists, naval incidents, cyber warfare, as well as political tensions. The conflict reached its climax on 24 February 2022 when Russia launched a full-scale invasion of Ukraine – which President Putin called a ‘special military operation’.
There had been a major military build- up by the Russian troops on Ukraine boarders from late 2021 up until early 2022. NATO accused Russia of planning an invasion but Russia constantly denied. Meanwhile, President Putin criticized the enlargement of NATO as a threat to his country and insisted the Ukraine should not be admitted into the military alliance. He also questioned Ukraine’s Sovereignty and Statehood, claiming that it was created by Soviet Russia. On 21 February 2022, Russia officially recognised two self-proclaimed states in the Donbas, and openly sent troops into the territories. Three days later, Russia invaded Ukraine.
Russia and Ukraine maintained close ties even after the dissolution of the Soviet Union in 1991. In 1994, Ukraine agreed to the Treaty on the Non-proliferation of Nuclear Weapons as a non-nuclear weapon state, in return for recognition of its political independence and territorial integrity by Russia and the UK through the Budapest Memorandum on Security Assurances. Russia became a signatory to the Charter for European Security, which reaffirmed the inherent right of each and every participating state to be free to choose or change its security arrangements, including treaties of alliance, as they evolve. After the dissolution of the USSR, several countries of the Soviet Bloc joined NATO. This move was described by Russian authorities as a violation by Western Countries of their pledge that NATO would not expand further eastward.
Ukraine and Georgia’s attempts to join NATO at the Bucharest Summit of 2008 were strongly opposed by Russia while US President George W Bush pushed for their admission. NATO issued a statement that these countries would become members. Putin voiced strong opposition for this. The possibility of Ukraine joining NATO remained remote until January 2022.
2.International Legal Background.
International law prohibits acts of aggression through the most basic rules of jus congens which are applicable to all states irrespective of any specific treaty obligations, without any possibility of derogation. As members of the UN, Ukraine and Russia are bound by the Charter of the United Nations wherein there are important provisions on obligations concerning respect for sovereignty, self-determination, the principle of noninterference, the obligation to settle disputes by peaceful means, and prohibition to threats and/or the use of force. Ukraine and Russia are also signatories to other international instruments, viz., the Alma-Ata Declaration, the Agreement between the Russian Federation and Ukraine on the Status and Conditions of the
Russian Federation Black Sea Fleet on Ukrainian Territory, the Kharkiv Pact of 2010, and the Helsinki Accords. The Helsinki Accords has particularly envisaged basic rules which are fundamental to the issue at hand. These principles include: refraining from threat or the use of force, inviolability of frontiers, territorial integrity of states, non-intervention of internal affairs, and respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief.
Article 2(4) of the UN Charter provides that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. This article is organised under two subheadings for the purposes of this discussion: the question of the scope and limits of the phrase “threat or use of force against the territorial integrity or political independence of any State” and the question of the bearing of the injunction in Article 2(4) on the right of self-defence.
Both the Security Council and the General Assembly adopted numerous resolutions that contain explicit or implicit references to Article 2(4). For example, The General Assembly approved the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, on 18 November 1987.7 The Declaration has three parts. It proclaims that every State has the duty to refrain from the threat or use of force against the territorial integrity or political independence of any State. It calls on States to take steps, inter alia, to settle international disputes peacefully, achieve general and complete disarmament, and prevent the danger of any armed conflicts. Finally, it calls upon the competent organs of the United Nations to make full use of the provisions of the Charter of the United Nations in the field of maintenance of international peace and security.
Herein is a detailed account of a number of decisions of the Security Council and of the General Assembly and judgments of ICJ that have direct bearing on the interpretation and application of article 2(4).
With regard to the letter dated 17 June 1985 from the Permanent Representative of Botswana, the question under discussion was whether the attack on 14 June 1985, by the South African commandos on the capital of Botswana and the murder of a number of South African and Botswana nationals, constituted violation of the territorial integrity and sovereignty of that country.
The Security Council adopted resolution 568, by which it strongly condemned the unprovoked and unwarranted military attack on the capital of Botswana as an act of aggression against that country and a gross violation of its territorial integrity and national sovereignty. It demanded the immediate, total and unconditional cessation of all acts of aggression by South Africa against Botswana.
In its Judgement on the case concerning Military and Paramilitary Activities in and against Nicaragua10, the International Court of Justice considered the relationship between the principle of non-use of force in international relations as contained in Article 2(4) of the Charter and a similar rule that existed under customary international law. The Court did not accept the contention of the United States of America that the relevant norms of customary international law had been subsumed and supervened by those of international treaty law, and especially those of the Charter of the United Nations, and observed that in the areas of law relevant to the current dispute, it could not be claimed that all customary rules which might be invoked had a content exactly identical to that of the rules contained in the treaties. It further held that customary international law continued to exist and to apply separately from international treaty law, even where the two categories of law had an identical content.
The Court also noted that in the language of Article 51 of the Charter of the United Nations, the inherent right which any State possessed in the event of armed attack, covered both collective and individual self-defence. The Court identified the conditions under which States might resort to collective self-defence and held that there was no rule in customary international law permitting another State to exercise the right of collective selfdefence on the basis of its own assessment of the situation.
Pertinent questions arise when one considers self determination. Who or what constitutes people capable of possessing and asserting the right to self-determination? What is the concept of remedial secession?
The exercise of the right of self-determination has different implications in non-colonial situations. It impinges with the principle of territorial integrity. Secession only takes place with the approval of the parent state either by the constitution of the parent state or following a unilateral declaration. The secession of Bangladesh and of Kosovo, the dissolution of the Soviet Union and of the Socialist Federal Republic of Yugoslavia (SFRY), are examples supportive of remedial secession doctrine.
According to Glen Anderson, secession is the withdrawal of territory (colonial or non-colonial) from part of an existing State to create a new State. The learned author also states that: “Secession is viewed negatively and is associated with chaos, schism, fragmentation and instability.” International law neither explicitly permits nor recognises the right to secession. Remedial secession, is interpreted as the last resort of subjugated peoples for ending oppression and even then, not unequivocally as an entitlement.
Antonio Cassese argues that in order for the right to secession to be triggered, there must be gross breaches of fundamental human rights, and, what is more, the exclusion of any likelihood for a possible peaceful solution within the existing state structure. There must be historical subjugation of an alien population living on a piece of land abutting that of its oppressors.
The question that begs our attention is, was Russia's recognition of Donetsk People's Republic (DPR) and Luhansk People’s Republic (LPR) as independent states legal. Lassa Oppenheim wrote that a state “becomes an international person through recognition only and exclusively. The challenges lie in that the two entities, DPR and LPR are not politically independent of Moscow. This makes Russia’s recognition illegal and therefore not operative of jus cogens norm of international law.
The Minsk agreements are international treaties signed by Ukraine, Russia, DPR, LPR, France and Germany. The agreements did not recognise the independence of the DPR or LPR. It implicitly acknowledges Ukraine sovereignty over Donetsk and Luhansk. Russia's recognition of the DPR and LPR reneges on the Minsk agreements. This agreement consisted of a package of measures, including a ceasefire, withdrawal of heavy weapons from the front line, release of prisoners of war, constitutional reform in Ukraine granting self-government to certain areas of Donbas, and restoring control of the state border to the Ukrainian government. While fighting subsided following the agreement's signing, it never ended completely, and the agreement's provisions were never fully implemented.
Negotiation, mediation, mediation-arbitration, diplomacy, and creative peace building are only a few of the approaches and procedures aside from force for dealing with conflict. Herein, the most effective methods would include negotiations, bargaining and imposition of sanctions not forgetting the duty to rehabilitate and handle the effects of the conflict so far. Assuming that Russia is acting in defence to protect the status quo, as may be the realist analysis according to Mearsheimer warrants a recommendation that the West accept the status quo to achieve stability. This solution however is majorly dependent on Russia’s intent to keep things as they are. In that regard, as much as it has become clear that Russia is dissatisfied with the status quo, policy recommendations will still dwell on even more assumptions made by parties looking into the issue.
While the available steps may appear insignificant in comparison to President Putin's actions, while they cannot turn back the clock or reverse Russia's aggression on their own, a show of unity and imposition of costs by outside powers represents the best hope for bringing the region, and the world, back to a more stable order. The Western Powers and their allies must maintain pressure on Russia while keeping the option of a diplomatic settlement open. But the current state of affairs – in which the international community offers only words of condemnation and sanctions, while Russia escalates, gains territory, and further aggrandizes its power – is untenable. The United States and its allies must take immediate steps to impose costs on Russia.
The United States and other major powers have the ability to and ought to demonstrate unity in imposing sanctions, including on Russian officials, elites, and military, if Moscow continues its aggression. These should include increasing European-led sanctions against Russia, including in the energy, defence, and financial sectors; and providing support for the Baltic states, Poland, and others to increase their defences. They should also strengthen NATO and other alliances to deter further aggression and reassure allies. Perhaps most importantly, the United States and its allies must come together to impose costs on Russia in a coordinated manner. However, this appears not to have weakened Russia and the sight of the war ending appears to be a mirage.
The options are limited, but include reversing the occupation of Crimea and returning the region to Ukraine’s sovereignty and territorial integrity; pulling its forces back to their bases; and ceasing its support for militants and proxy forces in Eastern Ukraine. The United States and its allies will also keep up the maximum pressure on Russia in the sanctions arena by continuing to expand the list of people and entities that will be sanctioned if Moscow doesn’t change course. This will increase the costs of continuing to pursue an aggressive foreign policy, while sending a clear signal to Putin that he will face increasing isolation unless he reverses course. In the longer term, the West should also consider additional steps.
In addition to this, it is important to mention that the more non-aligned countries can inform Moscow about the reputation consequences of its aggressiveness, the better. In return, these countries and businesses in the region will be better able to cope with Russian aggression, while also avoiding tit-for-tat escalation. This will allow all parties to maintain their deterrence posture while simultaneously reducing the risk of war. This is the most constructive approach. It will also help us avoid the “Thucydides trap”: when one power is too powerful, it risks becoming the dominant power in the region.
Conclusion
The ongoing conflict between Russia and Ukraine has posed a series of questions for international law scholars. Firstly, is international law only effective in peaceful circumstances and can be disregarded without consequence in times of conflict? Secondly, are those countries wielding substantial amount of power empowered to perform some acts they see as legitimate, but not necessarily legal? How certain is international law? What remedies do we have for these discrepancies? And when all these issues are considered, one remedy stands out: There is a need for a discussion regarding the shape of international law, effectiveness being the chief concern. Importantly, there is need to take into account the actual power play in the world, as international law does not exist in a vacuum.
