In an earlier post published about three months ago, I discussed the relevance and profile of inter-disciplinary research agenda against the background of the changing power political balance in the world. The current crisis in Ukraine makes the issues raised in that discussion even more acute.
It has been repeatedly, and correctly emphasised that Russia’s legal justifications of its use of force in Ukraine are false and implausible, notably in posts published by Fuad Zarbiyev and Marc Weller. Weller suggests that that “It took the disasters of the 20th century and the two World Wars to teach us that war is no longer – and can no longer be – a means of national policy. On the face of it, the Russian invasion appears to brush this aside, the first large scale armed action since 1945 to do so.” However, while it could hardly be contested that Russia’s military operation in Ukraine lacks justification under international law, it is not as clear whether the disasters of the 20th century has taught great powers the lesson Weller alludes to. Let us not pretend that Russia’s violation of jus ad bellum in Ukraine is the first one of the kind in the modern history. Such pretence would let us overlook wars waged by Western powers against Vietnam, FRY, Iraq, Afghanistan, and Syria. Just as in the case of Ukraine, States using force those other cases have twisted and manipulated the international legal reasoning to claim justifications of their wars, for instance on the basis of “humanitarian intervention” or “pre-emptive” self-defence.
Weller has suggested that, “In relation to Kosovo, there was a genuine humanitarian emergency of vast proportions: half of the population forcibly displaced, and the concern that the genocide from Bosnia-Herzegovina would be replayed in that territory. The emergency had been duly attested in Chapter VII Security Council Resolutions. Action was limited to implementing the aims enunciated in those texts, even if the authority to use force had to be based on the doctrine of humanitarian intervention.” However, the actual use of force against FRY was never authorised by the Security Council (any more than it was authorised with regard to Iraq in 2003). The Security Council never formed a view that such use of force was mandated or required. The argument that UN member-States are entitled to unilaterally enforce Security Council resolutions may be old, but it is generally discredited.
Legal academia has not been out of tune with the political mainline either. Symposium on Kosovo published in American Journal of International Law in 1999 and evidence given to the UK Parliament by international lawyers, published in International and Comparative Law Quarterly in 2000 have both clearly manifested the division among international lawyers on the issue of the legality of the use of force. A paradoxical situation has obtained that, while 132 non-aligned States clearly said that humanitarian intervention had no basis in international law, a solid body of international legal opinion suggested that it was otherwise. Even as late as 2018, in a place no other than British Yearbook of International Law, an argument can be found that Security Council resolution 1441(2002) could not be seen to refuse legitimation of a unilateral use of force against Iraq, simply because British negotiators were instructed by the Government not to agree to a proposal to that effect. In addition, the thesis is endorsed that a legal argument may not be a quality inherent to international law itself, and could instead be “decided by those engaged in the field”. Against this background, the political mainline could not fail to notice that on basic issues the international legal opinion was divided. This could only enhance the impression that selective application of international law is feasible, and that international legal argument is mainly about what the political and ideological mainline wants it to be. If so, where is the line beyond which political agenda has to capitulate to the rigours of legal reasoning? In other words, where is the line beyond which a legal argument becomes Watts’ “rubbish” and Zarbiyev’s “bullshit”? In addition, which authority decides that it has done so?
Similar to Weller’s above argument on Kosovo was the position voiced by Anne Peters in the wake of Crimea referendum in 2014, about whether the West has paid price for its intervention in Kosovo and its support for that province’s unilateral secession from Serbia. What this overlooks, however, is that the issue of whether the West has paid the price for intervention in Kosovo is not determined by whether Russia’s actions in Ukraine are illegal, but by whether Russia’s actions have altered the relative gains balance as between Russia and the West.
Compliance with international law weighs in heavily when relations between great powers develop. History is replete with instances that major wars have started because one great power was not happy with another great powers’ privileged position, for instance in terms of the latter’s possession of colonies or a greater navy. While such wars cannot be justified, they should not be provoked or encouraged and their risks should not be increased either. It ought not have been difficult for anyone to figure out that a great power that already has, among others, the largest nuclear arsenal in the world and a permanent seat in the UN Security Council would not easily accept that it cannot manipulate the international legal reasoning when its national interest so requires while other, namely Western, great powers could do that on a repeated basis; or that some dreamed “liberal international order” stewarded by the sole remaining hegemon could prevent it from doing so. In the area of the use of force at least, Western States have never been able to change international law or adjust it to their political preferences, because they do not possess the authority that could only be exercised by a world government. All the practice of unilateralism has generated is the more and reciprocal practice of unilateralism.
The price the West (and Ukraine) have paid is becoming obvious when we discuss how we should move forward from where we are now. For instance, what should happen with regard to the two Donbas regions? Weller has suggested the possibility of a “sadly realistic negotiating outcome would offer a finely balanced formula that excludes a future challenge to the present situation without formally recognizing it. The sides could pledge not to challenge the territorial status quo, without endorsing its legitimacy” (and see further here). That would be, however, nothing short of the actual recognition, because the promise not to challenge the legality of a situation is in effect indistinguishable from recognising that situation. How could it possibly be asserted that one is not recognising a situation if one pledges not to pose a challenge to its legality or validity? And at any rate, any settlement on such terms would be one obtained through Russia’s use of force – one to which but for Russia’s use of force Ukraine would never agree – and hence null and void ab initio. This shows that there are limits not only what the international legal system could achieve, but also on what politics can achieve. Politics, after all, is not omnipotent either.
Achieving a settlement will be incredibly difficult in the current crisis, if possible at all. Even if a settlement were to be backed up by a Security Council’s Chapter VII resolution, as Weller has suggested, more legal problems would be likely to emerge afterwards. These may concern the interpretation or challenge to validity or the scope of application of the relevant agreements, on a diplomatic plane as well as before international or national courts. For now, a more pressing issue from the academic perspective is not just to emphasise that Russia’s actions are illegal, but also to look backwards and reflect on what international lawyers have been doing all these years and decades. The community of international lawyers, prevailingly based in the West, has so far failed to adopt a coherent stance about the primacy and rule of positive international law in relations between States, whether large or small, whether Western or not. This could only foster the feeling among political and bureaucratic elites that a selective application of and reliance on international law is feasible, both legally and politically. What Russia or others have done or will do should not, therefore, come as a surprise. What could be done about this situation is a separate issue for wide-ranging discussions, unless history proves that it is already too late.