International Law and the Russian Invasion of Ukraine

The invasion of Ukraine by Russia constitutes a breach of international law and the UN Charter. It flagrantly violates Article 2(4) of the UN Charter which declares that a state shall refrain from the threat or use of force against the territorial integrity or political independence of any state. The UN Charter contains two exceptions to the above prohibition. The first permits the UN Security Council to use force on behalf of the UN to maintain peace and security. However, a unanimous resolution by the Security Council member states is required prior to such use of force. The second, Article 51 of the UN Charter recognizes a state’s inherent right of self-defence and collective self-defence against an armed attack.

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

Turkish invasion of Syria is a breach of International Law

Turkish invasion of Syria constitutes a breach of international law and the UN Charter. It reflects a grand new strategy that articulates a vision of Turkey as a unipolar state entitled to operate above the confines of international law and international institutions to further its national interest. It introduces in international law the “safe zone” concept as a unilateral right to invade without the need to show grounds of “self-defence”. It provides a dangerous precedent that inevitably risks undermining global peace and security whilst questioning the legitimacy and effectiveness of international law.

Background 

A few days ago, Turkish President Erdogan announced to the world that Turkey was unilaterally beginning “Operation Peace Spring” - an assault on Syrian-Kurds living in northeastern Syria. He further announced that the operation also aimed to establish a “safe zone”, facilitating the return of million Syrian refugees to their country. Turkish troops have now invaded Syria and bombed Kurds living in the north-east region. It has been reported that within 48 hours hundreds of people have died and 64,000.00 people have been forced to leave their homes - this number is expected to soon rise to 300,000.00. 

In effect what Turkey is really trying to do is to contain Syrian-Kurdish power. It wishes to quash any future possibility that a Kurdish state may be created. By creating a space inside Syria, where millions of Syrian refugees currently hosted in Turkey can be settled (disposing of the existing Kurds), it creates a buffer zone that serves its perceived national interest. 

United Nations Charter 

Pursuant to Article 2(4) of the UN Charter “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”. The UN Charter makes it clear that the use of military force in the territory of a sovereign state without its consent is permissible only under at least one of two conditions: 

• By unanimous approval of the Security Council pursuant to Chapter VII whereby the Security Council should authorize what action should be taken to restore peace and security; and 

• Pursuant to Article 51 of the United Nations Charter. Amongst other this Article states that “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” 

To date the UN Security Council has not authorized any invasion of use of force. 

Self Defence? 

Turkey has defended it invasion pursuant to Article 51 of the United Nations Charter. It maintains that there is a presence of what it views as a “terrorist organization,” and maintains that pursuant to Article 51 it has the right to invade and create a “safe zone” or “peace corridor” along its border. 

Such defence is absent of any legal merit. Firstly, the people Turkey refers to as a Terrorist organization are the same Syrian-Kurdish fighters who are US allies and instrumental in delivering recent victory against ISIS. Indeed only a few days ago US President Trump referred to them as “special people and wonderful fighters”. Secondly, Turkey has not provided any evidence to the Security Council of any existing or imminent attack. Indeed, no armed attack against Turkey has taken place, has been threatened or is imminent or may reasonably be deemed imminent and arising from Syrian-Kurds. 

Turkey is attempting to re-write international law and create a new “safe zone” doctrine that grants it a “right to invade”. This concept means self-defense is no-longer a necessary pretext. To accept Turkish claims means to accept that, without any evidence whatsoever, any country may claim that a terrorist organization exists in another country and as such: 

• claim a legal right to invade such other country;

• create a “safe zone” along the border; 

• amend borders and re-populate this zone with millions of refugees from other areas thus completely altering the demographic composition of an occupied territory. 

The above are not permitted under international law. Turkish invasion of Syria is illegal, and the international community must immediately act to stop it.

By Vasilios Giavris - Lawyer & Political Scientist

Friday, 11 October 2019

Thucydides, Realism and International Relations: Might -v-Right?

National security is not determined in vacuum. It is underpinned by a variety of analytical languages which provide a conceptual framework upon which national security and foreign policy decisions are analyzed and explained. Whilst there are a plethora of analytical languages and theoretical perspectives, including Marxist, constructivist, idealist and liberal internationalist which provide competing explanations of world affairs, realist notions of state conflict and international relations have dominated foreign policy agendas and perceptions of national security.

Realism

The adoption of a unified realist theory is a difficult task given the existence of a variety of strands to such an approach but a core set of common values can be relied upon.The realist account of world affairs is centered on the notion that the state holds supreme power and authority which helps assure order and security “internally” for within states “human nature usually is tamed by hierarchical political authority and rule” (Waltz 1979 & Donnelly 2000). Realists claim that the “the state of nature is a state of war” which encourages the worst in human nature and results in states being forced to operate in total anarchy and chaos (Waltz 1979).

Realists take the view that other institutions and instruments, such as the United Nations and International Law, cannot be relied upon to secure peace and guarantee a state’s survival and security since in an anarchic order “self help is necessarily the principle of action” (Waltz 1979). Realists like Morgenthau oppose the use of a “legalistic” or “moralistic” approach to national security (Simpson 2005). They maintain that international law can only exist in circumstances where there is a balance of power between states (Jütersonke 2006). According to Oppenheim in circumstances where states cannot keep one another in check, no rules of law will have any force, since in a unipolar world the most powerful State will always act in accordance to its discretion and as such disobey the law (Jütersonke 2006).

Thucydides

The extent to which national security should be influenced by issues of “morality” and “law” has been the issue of serious debate amongst scholars and foreign policy officials alike. This issue was discussed in an exchange between Alexander Hamilton and Thomas Jefferson in 1793 where Jefferson maintained that the US was legally compelled to support France in its war against England whereas Hamilton maintained that no legal obligation could require the US to jeopardize its national interest (Moore 1973). 

However, the inception of this debate is generally accredited to Athenian historian and political philosopher Thucydides (460 – c. 400 BC). Perceived by many scholars as the father of political realism, Thucydides raised the question whether the norms of morality and justice should prevail or dictate relations among states as opposed to power and brutal force. In his History of the Peloponnesian War Thucydides provides an account of the dialogue that took place between the representatives of Athens and those of the island of Melos just before the Athenians were to instigate an attack on the island (the Melian Dialogue).

The Athenians demanded Melian submission and royalties appealing to the reality that they were a superior military power and as such claiming that it was in the interest of the Melians to surrender to their demands. According to Thucydides, the Athenian’s articulated the belief 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”. 

The Melians rejected such argument themselves relying on the notion of decency and morality. It was their view that there is "such a thing as fair play and just dealing" and that they were standing "for what is right against what is wrong". Ultimately the Melians refused the Athenian demands and were defeated. This resulted in all male Melians of military age to be killed and all women and children sold as slaves.

Moral Chaos

The repeated failure of international law and the United Nations to deter and punish illegal wars of aggression (i.e. punishing Turkey for its illegal invasion and continuing military occupation of Cyprus) may, to some, give credence to the realist account of the world. However, the question remains whether such account should always endure or whether international society must finally recognize that to achieve peace all nations must adhere to the rule of law and common standards of morality. Lasting peace and stability cannot be achieved without justice, accountability and reconciliation for to borrow Dutch humanist Erasmus’s words, justice “restrains bloodshed, punishes guilt, defends possessions and keeps people safe from oppression”. 

The History of the Peloponnesian War was written by Thucydides in Athens more than 2,500 years ago. It is time to re-visit the questions Thucydides first posed in this book and understand the dangerous practice of abandoning morality in international affairs. Moral chaos breeds an international society drunk with desire for more power and wealth ultimately leading to continual failure, misanthropy and brutality.

by Vasilis Giavris (Lawyer & Political Scientist) 

http://vasilisgiavris.blogspot.com.au/

Turkey & Greece, Airspace violations and International Law: What's good for the goose is good for the gander?

by Vasilis Giavris (Lawyer & Political Scientist)

The recent decision by Turkey to shoot down a Russian military plane for allegedly entering Turkish airspace for a few seconds and the statement by US President Obama that Turkey had a right to defend its airspace has rightly raised the issue of the continued violation of Greek airspace by Turkey. After all, despite inherent inadequacies international law cannot be selectively applied and must not equate to the rendering of justice with double standards.

Turkish Violations of Greek Airspace 

Turkey violates Greek Airspace daily. Indeed, it has been well published that only in 2014 Turkey violated Greek Airspace 2,244 times! As a result, for many years both Greece and Turkey have engaged in aerial fights which have resulted in mid-air collisions and in May 2006 the unfortunate death of a Greek pilot.

Issues of Legal Dispute: 

• Demarcation of Aegean Sea Airspace

It is a customary rule of international law that a state is entitled to the sovereignty of the airspace above its territory and its territorial waters. This is reflected in Article 2 of UNCLOS III which expands the sovereignty of a state to include the airspace above its territorial waters. Similarly, Article 1 of the Convention on International Civil Aviation 1944 (ICAO) provides that “every state has complete and exclusive sovereignty over the airspace of its territory”, whilst Article 2 of the ICAO defines territory as including the land areas and territorial waters adjacent thereto that are within a state's sovereignty.

Greece established its air zone in 1931 by Presidential Decree 5017/1931 pursuant to which Greece declared a 10 nautical mile territorial sea and air defence zone for aviation and air policing purposes. In effect Greece has established two different limits for its territorial sea. It retained a 3 nautical mile territorial zone of general application, which was expanded to 6 nautical miles in 1936, and a ten nautical mile limit for aviation and air control. Greece justifies its practice of having a twofold hybrid arrangement on acquired historic rights and local customs founded on long standing practices. It should be noted that these practices did not raise any objection or protestation from any other state including Turkey until 1975, that is, 44 years after the 10 nautical mile air zone was established. As such, Greece correctly maintains that Turkey is legally prevented from objecting to such practice.

Greece further justifies its practice on the basis of its entitlement to extend its territorial waters to 12 nautical miles pursuant to Article 3 of UNCLOS III. This does not preclude Greece, under international law, from defining its territorial waters at a distance of 10 nautical miles from its coasts for aviation and air policing purposes. As such Greece contends that it had chosen to exercise its full sovereignty with regard to the six nautical mile limit and less than full sovereignty to the belt between six and ten nautical miles from its coasts. 

It should be noted that the only reason Greece has not extended its territorial waters to 12 nautical miles (but has always reserved the right to do so in the future) is the declaration by the Turkish Parliament that such extension would constitute a casus belli, i.e. reason to go to war. 

Turkey opposes the 10 nautical mile national airspace claim articulated by Greece on the basis that it exceeds the territorial sea of Greece. Turkey contends that the Greek claims lack any precedents and views the airspace between Greece’s 6 nautical mile territorial waters and it’s declared 10 nautical miles national airspace as being part of international airspace. This, according to Turkey, permits Turkish military planes to enter such space without any permission from Greece. 

• Flight Information Centre (FIR’S)

The dispute over airspace use is not limited to territorial airspace but rather extends to the Flight Information Regime (FIR) in the Aegean. In 1951 the International Civil Aviation Organisation (ICAO) granted air traffic control responsibility for the Aegean FIR to Greece and fixed the demarcation line between Istanbul and the Athens FIR at the median line between the eastern Aegean Greek islands and the Turkish coast. Turkey did not oppose this demarcation until 1974 when, subsequent to the Turkish invasion of Cyprus, it protested over the Greek ten nautical mile territorial airspace claim and issued a Notice to Airmen (NOTAM) 714 demanding that all aircraft provide a flight plan to Turkey when crossing the median line in the Aegean between Greece and Turkey. Greece immediately responded by issuing NOTAM 1018 which deemed the Turkish notice to be in breach of ICAO rules and as lacking legal merit. Greece followed this with NOTAM 1157 which, subject to some minor exceptions, declared the airspace in the Aegean Sea a danger zone resulting in all international airlines suspending routes between Turkey and Greece. These were only reinstated in 1980 when both countries withdrew their respective NOTAM’s and the established FIR status quo was returned.

It is commonly accepted that Turkey intentionally infringes air traffic regulations in a concerted effort to link the airspace issue with the continental shelf dispute and challenge the existing status quo in the Aegean Sea. Greece maintains that Article 3(d) and Article 39(3) of UNCLOSS III requires military planes to observe the rules of the air as established by the ICAO and as such requires Turkish military planes to submit their military flight plans to Greece prior to entering the Athens FIR. This is required so that the safety of civilian flights can be secured and effectively applied. Not surprisingly, Turkey continues to refuse to submit flight plans for its military aircraft to Greece.

The adoption of a policy of “repeated violations” whereby without any permission from Greece Turkey continues to use the airspace beyond the 6 nautical mile territorial sea of Greece for military flights needs to immediately end. The US, NATO and the EU need to insist on the uniform application of international law. After all "what's good for the goose must be good for the gander".

The refugee crisis must not be used as a vehicle for Turkey to assert sovereignty in the Aegean Sea

by Vasilis Giavris (Lawyer and Political Scientist)

"Greece has only de facto, and also temporary, rule over EGAYDAAK and its administration there does not invalidate the fact that those islands are the territory of the Republic of Turkey,"

*Turkish Minister of Defence, İsmet Yılmaz, (Statement made in March 2015) 

"I suggested, and came across with strong reactions, Greeks and Turks to form together a coastguard which will patrol the sea areas between Turkey and the Greek islands. Turks agree, Greeks don’t,...should we fight over for a sea area of 10 kilometers wide, who is responsible and where or should we try to save human lives?”.  

*Jean-Claude Juncker President of European Commission (Statement made in November 2015)

The magnitude and gravity of the refugee crisis in Europe makes it imperative that both Greece and Turkey work together to find ways to avert refugee suffering and deaths, deal with security issues and fight human trafficking. However, Turkey must not be permitted to use the refugee crisis as a vehicle to assert sovereignty over Greek islands, waters, airspace and continental sea shelf. 

Recent commentary stemming from the European Union about joint patrols and cost guards in the Aegean Sea at best fail to recognise that Turkey continues to challenge and dispute the sovereignty of numerous Greek islands, islets and rocks in the Aegean Sea. According to Turkey, such territories have not been specifically ceded to Greece by way of international treaties and are "grey zones". In effect Turkey refuses to recognise EU borders in the Aegean Sea. 

Turkey continues to maintain that no agreement concerning the delimitation of maritime boundaries between the two countries exist in the Aegean Sea and as such these are territories without sovereignty and therefore stateless! 

Turkey has gone as far as to claim that 132 islands and islets in the Aegean, currently under Greek administration, belong to Turkey including five Greek inhabited islets in the proximity of Samos and the Dodecanese that have been under Greek administration since 1912 and 1947 respectively. 

Legality of Turkish Claims

The claims made by Turkey lack legal merit under international treaty and customary law. Greece, quite rightly, denies the existence of any grey zones in the Aegean Sea and denies the existence of any dispute in this regard. The issue of sovereignty in the region has long been settled by the Lausanne Peace Treaty of 1923 and the Paris Peace Treaty of 1947. 

The Lausanne Peace Treaty 1923, to which both Greece and Turkey are signatories, settled the Anatolian and East Thracian parts of the partitioning of the Ottoman Empire and the borders between Greece and Turkey. Pursuant to Article 12 (1) of this Treaty, the islands of the Eastern Mediterranean including Lemnos, Samothrace, Mytilene, Chios, Samos and Nikaria were ceded to Greece whilst the islands of Imbros, Tenedos, the Rabbit Islands and islands situated at less than three miles from the Asiatic coast remained under Turkish sovereignty. 

Pursuant to Article 15 of the Lausanne Peace Treaty 1923, Turkey renounced in favour of Italy all rights and title over the Dodecanese islands, Kastellorizo and the islets dependent thereon. Moreover, pursuant to Article 14 of the Paris Peace Treaty of 1947, signed by Italy and the allied powers after the culmination of World War II, Italy ceded full sovereignty over the Dodecanese islands as well as the adjacent islets to Greece. 

This treaty makes it clear that all islands and islets situated outside the three mile zone around the Turkish mainland coast, other than the islands of Imbros, Tenedos and the Rabbit Islands, have been awarded to Greece and those located within this zone awarded to Turkey. 

The demarcation is clear-cut which explains why there is no need for these treaties to refer by name to all the islands and islets especially given that there are over two thousand islands and islets involved. Turkey erroneously interprets this provision to mean that all islands and islets not specifically named in Article 12 or not specifically ceded to Greece by way of Treaty belong to Turkey as the rightful heir to the Ottoman Empire or otherwise remain as "grey zones" that need to be delimited by way of agreement between Turkey and Greece. 

Whilst it is important that Greece and Turkey work together on refugees this does not have to be at the expense of the implementation of United Nations Resolutions, International Conventions, European Acquis and International Law in the Aegean Sea.