President Putin in his speech dated 23 February 2022 sought to validate his actions under international law by referring to Article 51 of the UN Charter. He argued that Russia’s invasion was an act of self-defence and collective self-defence protecting both Russia and the separatist enclaves in Donetsk and Luhansk from an armed attack by Ukraine and NATO. However, Putin’s claims lack legal merit.
Firstly, Ukraine has not attacked Russia, nor has it threatened to attack Russia. Secondly, whilst the doctrine of collective self-defence permits one state to defend another state that is being attacked the separatist enclaves in Donetsk and Luhansk are not states but Ukrainian sovereign territory and Article 51 does not apply to non-states. In fact, these enclaves were only a few days ago recognized as states by Russia. Thirdly, Russia’s claims lack in factual basis as Ukraine has not attacked these enclaves, but rather Russian armed militia have sought to enforce secession causing an armed conflict there. Finally, even if Russia could muster some legal justification, this does not excuse a full-scale invasion of Ukraine and the unfolding humanitarian destruction. Its use of force is disproportionate and not limited to what is needed to prevent any alleged infringement.
International Law and Politics
The relationship between law and politics has forever been a troubling affair. The extent to which national security should be influenced by international law or issues of “morality” has been the issue of serious debate amongst scholars and foreign policy officials alike. For decades the West and its global allies have adopted a more liberal international view of international relations. They have established international rules and institutions between states aiming at long term co-operation and effective dispute resolution. It is the “institutionalized cooperation between countries on the basis of established rules and mutual respect” that proponents of liberal internationalism propagate. They project values of “order, liberty, justice, and toleration in international relations”. Moreover, liberal internationalists maintain that the adoption of democratic principles by states is the key to securing peace since democracies are perceived as rarely going to war against each other.
On the contrary, realist proponents of international relations believe in the anarchical nature of the world. They question the extent to which international law has any relevance in the formulation of foreign policy and national security agendas. Indeed, realists maintain that states should not always comply with their legal obligations especially when to do so threatens vital national interests. Traces of this debate can be found in antiquity in Thucydides’ Melian Dialogue and in the Athenians pronouncement that “the standard of justice depends on the equality of power to compel and that in fact the strong do what they have the power to do and the weak accept what they have to accept”.
Leaders like Russian President Putin, Former US President Trump, Chinese President Xi Jinping and Turkish President Erdogan seem more comfortable in a “might is right” view of international relations as opposed to a more democratic and legal rules based view. Indeed, Putin’s attack on Ukraine ultimately is also an attack on the liberal democratic view of the world. And as such must be vehemently opposed.
Is International Law dead?
President Putin, in his speech dated 23 February 2022, alleged previous Western violations of international law in Kosovo, Iraq and Libya. Of course, these have no bearing to the illegality of Russia’s invasion of Ukraine today. Nonetheless, there is an element of truth that the prohibition of the use of force and respect of territorial integrity has been undermined by the West in the past.
However, whilst Russia today and some Western states in the past have circumvented international law in favour of perceived national security interests or humanitarian grounds this does not and should not render international law dead or irrelevant. To deem so will be both erroneous and an oversimplification. It is international law that shapes the debate and provides a most powerful language through which states like Russia try to justify their actions. Whilst Putin is flagrantly breaching the UN Charter, he still tries to defend his conduct by appealing to exceptions or justifications contained within the UN Charter itself. Most importantly however, whilst international law was not able to prevent Russia to wage war against Ukraine there is law and it is the breach of such international law that has resulted in global sanctions, protests, dissent and the delegitimating of Russian power.
The decision by Putin to invade Ukraine signals the end of the post-Cold War era. What will follow remains unknown. However, our values of democracy, freedom, territorial integrity, and the rule of law should never be abandoned. Democracies should always ensure that their global behaviour also adheres to these values. Democracies should not appease; they need to bound together and fight aggression. Citizens of democracies should never take for granted the importance of our values based system and how easy these can vanish when authoritarian demagogues take power.
It is imperative that we oppose Putin’s actions not only because we must support the Ukrainian people in the face of aggression but also because it is a breach of international law and because relationships and problems between states should always be shaped and resolved by adherence to legal principles.
By Vasilis (Bill) Giavris
Lawyer & Political Scientist
