Abstract
The invasion of Ukraine by Russian forces on February 24, 2022, surprised the world. In two speeches made by Russian President Vladimir Putin just before the attack, he presented a claim seemingly based on the theory of fundamental rights of States in nineteenth-century international jurisprudence. However, it should be noted that the most important feature of the development of contemporary international law was based on the rejection of the logic that States naturally have fundamental rights prior to international law, of which jus ad bellum was deemed as a prominent example. Russia’s invasion of Ukraine must be seen as a denial of the very paradigmatic principle on which the historical development of international law over the past century or more has been based. To repel this challenge and to maintain and restore the contemporary international legal order, it is not sufficient to simply halt the ongoing military invasion by Russian troops. The world must declare that the military activities based on the old-fashioned “self-preservation” logic that underlies Russia’s invasion of Ukraine is unacceptable by utilizing legal apparatuses developed throughout the twentieth century, or else it will be seen as tolerating Russia’s attempts to seek a return to the nineteenth century’s international legal order.
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Notes
- 1.
OHCHR (2023). Data as of March 20, 2023.
- 2.
UNHCR (2023). Data as of March 24, 2023.
- 3.
See Bielieskov (2021).
- 4.
- 5.
UN Security Council (25 February 2022) UN Doc. S/2022/155.
- 6.
UN Security Council (27 February 2022) UN Doc. S/Res/2623.
- 7.
Aggression against Ukraine, UN General Assembly (2 March 2022) UN Doc. A/Res/ES-11/1.
- 8.
UN General Assembly (28 March 2022) UN Doc. A/Res/ES-11/2.
- 9.
UN General Assembly (8 April 2022) UN Doc. A/Res/ES-11/3.
- 10.
UN General Assembly (13 October 2022) UN Doc. A/Res/ES-11/4.
- 11.
UN General Assembly (15 November 2022) UN Doc. A/Res/ES-11/5.
- 12.
Russia’s invasion of Ukraine and forced annexation of eastern Ukraine clearly falls under Article 3, item a, of the UN General Assembly Resolution on the Definition of Aggression (UN Doc. A/Res/3314(XXIX), adopted on 29 November 1974), which states that “The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof” shall qualify as an act of aggression.
- 13.
Russian Government, Address by the President of the Russian Federation (21 February 2022):
Meanwhile, the so-called civilised world, which our Western colleagues proclaimed themselves the only representatives of, prefers not to see this, as if this horror and genocide, which almost 4 million people are facing, do not exist. But they do exist and only because these people did not agree with the West supported coup in Ukraine in 2014 and opposed the transition towards the Neanderthal and aggressive nationalism and neo-Nazism which have been elevated in Ukraine to the rank of national policy.
- 14.
Russian Government, Address by the President of the Russian Federation (24 February 2022):
The purpose of this operation is to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kiev regime. To this end, we will seek to demilitarise and denazify Ukraine, as well as bring to trial those who perpetrated numerous bloody crimes against civilians, including against citizens of the Russian Federation.
- 15.
Ibid.
- 16.
See OHCHR (2021), pp. 6–7.
- 17.
It is well known that the legality of the humanitarian intervention itself is debatable and it has been a controversial issue. See, Kolb (2018), pp. 417–434; Corten (2020), pp. 797–856. If President Putin were to recognize humanitarian intervention as an exception to the prohibition of the use of force, it would be a major change in Russia’s previous position regarding humanitarian intervention. See Averre and Davies (2015), pp. 813–814; Mälksoo (2015), pp. 172–175.
- 18.
Russian Document (2022), para 20.
- 19.
Terry (2014), pp. 94–97, 103–113.
- 20.
Eventually, Russia, on September 30, 2022, annexed the south and eastern territory of Ukraine, including these two “Republics,” as its own territory. See Russian Government News Report (September 30, 2022).
- 21.
See Russian Government, Address by the President of the Russian Federation (21 February 2022):
Ukraine is not just a neighbouring country for us. It is an inalienable part of our own history, culture and spiritual space. These are our comrade, those dearest to us—not only colleagues, friends and people who once served together, but also relatives, people bound by blood, by family ties.
[M]odern Ukraine was entirely created by Russia or, to be more precise, by Bolshevik, Communist Russia. This process started practically right after the 1917 revolution, and Lenin and his associates did it in a way that was extremely harsh on Russia—by separating, severing what is historically Russian land.
[T]he Ukrainian authorities […] began by building their statehood on the negation of everything that united us, trying to distort the mentality and historical memory of millions of people, of entire generations living in Ukraine. It is not surprising that Ukrainian society was faced with the rise of far-right nationalism, which rapidly developed into aggressive Russophobia and neo-Nazism. This resulted in the participation of Ukrainian nationalists and neo-Nazis in the terrorist groups in the North Caucasus and the increasingly loud territorial claims to Russia.
A role in this was played by external forces, which used a ramified network of NGOs and special services to nurture their clients in Ukraine and to bring their representatives to the seats of authority.
To reiterate, our Western partners have once again vocalised the all-too-familiar formulas that each state is entitled to freely choose ways to ensure its security or to join any military union or alliance. That is, nothing has changed in their stance, and we keep hearing the same old references to NATO’s notorious “open door” policy. Moreover, they are again trying to blackmail us and are threatening us with sanctions, which, by the way, they will introduce no matter what as Russia continues to strengthen its sovereignty and its Armed Forces. To be sure, they will never think twice before coming up with or just fabricating a pretext for yet another sanction attack regardless of the developments in Ukraine. Their one and only goal is to hold back the development of Russia. And they will keep doing so, just as they did before, even without any formal pretext just because we exist and will never compromise our sovereignty, national interests or values.
- 22.
Russian Government, Address by the President of the Russian Federation (24 February 2022).
- 23.
For detailed examination on the development and characteristic features of the theory of the fundamental rights of States in the nineteenth century, see Motsch (2022), pp. 105–204.
- 24.
This point is well summarized by Motsch, stating:
Les droits fondamentaux seraient ainsi au fondement de l’ordre juridique international, tout comme les droits de l’homme seraient au fondement de l’ordre juridique national des États modernes. Sans l’existence de ces droits fondamentaux qui constituent « l’extrême réduit de normes rationnellement nécessaires», le droit international serait impossible.
[…]
Il est vrai que faire exclusivement des droit fondamentaux étatiques le fondement du droit international, sans enrichir ce fondement de principes objectifs, a sonné le glas de la théorie des droit fondamentaux étatiques.
Ibid., pp. 199–200 (footnote omitted). See also d'Aspremont (2015), pp. 506–511; Neff (2015), pp. 490–491.
- 25.
Motsch (2022), p. 205.
- 26.
Phillimore (1854), pp. 188–189.
- 27.
Even today, it is sometimes seen that the right of self-defense is referred to as a fundamental right. See Legality of Nuclear Weapons, Opinion (1996), p. 263, para 96 (“the Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defense, in accordance with Article 51 of the Charter, when its survival is at stake”). However, it only indicates that the right is considered to be of high importance among the rights currently recognized under international law. It does not mean that they are distinctive in character, as distinguished from other “ordinary” rights in the sense that the latter rights are derived from, and auxiliary to, the fundamental rights. The theory of fundamental rights of States in the nineteenth-century international jurisprudence recognized exactly such a characterization of certain rights, of which source is the statehood itself. The fact that Article 51 of the UN Charter refers to the right of self-defense as “inherent” does not imply that the theory of fundamental rights of States in the nineteenth century has survived even today. See d'Aspremont (2015), p. 518; Roscini (2015), pp. 648–660.
Recent renewed academic interest in the fundamental rights of States is not a revival of the nineteenth-century theory based on an atomistic view of international society of States. Rather, it is an attempt to address the question of how a State or Nation, as a political entity of people, should be viewed in contemporary international legal order, in which regulations on State authority and competence have become extensive and dense. This point is quite clear in the following remarks in the introductory article by Joyner and Roscini for the special issue of Cambridge Journal of International and Comparative Law on the theme of the fundamental rights of States:
As the international legal system matures, grows increasingly complex, dense and fragmented, and moves towards a more complete legal system, it would appear to be manifestly sensible and necessary for states, and particularly developing and less powerful states, to have clearly developed understandings not only of their obligations within that legal system, but also of their rights, which can potentially be used as a shield against excessive encroachment upon their sovereign independence by other more powerful actors.
Joyner and Roscini (2015), p. 478. See also Motsch (2022), pp. 317–560; Aust (2015), pp. 538–546; Aloupi (2015), pp. 566–570; Tyagi (2015), pp. 610–613; Tzanakopoulos (2015), pp. 632–633; Joyner (2015), pp. 662–669.
- 28.
- 29.
Hall (1880), pp. 37–38. As for the views of other publicists in the nineteenth century on the restriction to the right of self-preservation, see Motsch (2022), pp. 129–133. For a contemporary view on that right, especially on the relationship between it and the principle of territorial integrity, see Vidmar (2015), pp. 552–565.
- 30.
Russian Document (2022).
- 31.
See generally, Hofer et al. (2018).
- 32.
It is often overlooked, but the principle of sovereign equality is not a rephrasing of the right of equality of States. Legal notion of sovereign equality of States was a re-defined basis of the international legal order to be established by the adoption of the United Nations Charter at the San Francisco Conference. See Fassbender (2012), pp. 140–147, paras 15–18.
- 33.
- 34.
By setting forth, in Article 2 of the UN Charter, the basic principles in the post-World War II international order, the international community declared a decisive departure from the traditional international legal order. See Paulus (2012), pp. 125–127, paras 8–11.
- 35.
UN General Assembly (24 October 1970) UN Doc. A/Res/2625(XXV).
- 36.
- 37.
Even if a State is not formally obligated to abide by the decisions taken by the United Nations organs, they may be opposable to that State, as was pointed out by the International Court of Justice in the Namibia case:
As to non-member States, although not bound by Article 24 and 25 of the Charter, they have been called upon in paragraphs 2 and 5 of resolution 276 (1970) to give assistance in the action which has been taken by the United Nations with regard to Namibia. In the view of the Court, the termination of the Mandate and the declaration of the illegality of South Africa’s presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of a situation.
Namibia Opinion (1971), p. 56, para 126.
- 38.
Dawidowicz (2010), pp. 683.
- 39.
It may seem strange not to mention here that States should respond with military measures. Article 51 of the UN Charter recognizes the right of collective self-defense as an “inherent right” that States can use regardless of whether or not they have concluded a treaty for collective defense with a State suffering aggression. Therefore, in response to the current Russian invasion of Ukraine, even if there is no such treaty of collective security as NATO, States have the option, based on their right of collective self-defense, to withdraw Russia from Ukraine via military measures. Nevertheless, that choice is impossible without risking an eventual World War III. Moreover, the UN Charter does not envision a direct military confrontation among the permanent members of the UN Security Council; on the contrary, the UN regime is supposed to be based on cooperation and coordination among these members, as evidenced by the fact that the veto power is incorporated into the decision-making procedures of the Security Council. Given those circumstances, it is difficult to judge whether it is appropriate for States to respond to Russia’s aggression by resorting to military measures to maintain the contemporary international legal order. Admittedly, the current situation, whereby Russia is militarily overrunning Ukraine, is not compatible with the UN regime and the contemporary international legal order; however, whether military intervention should be undertaken based on the right of collective self-defense by States is a matter of highly-political decision.
- 40.
Brownlie (1963), pp. 57.
- 41.
Barcelona Traction (1970), p. 32, paras 33–34.
- 42.
ILC Yearbook (2001), pp. 137–139, para 1.
- 43.
See Alland (2002), pp. 1223–1233.
- 44.
- 45.
- 46.
ILC Yearbook (2001), p. 139, para 7.
- 47.
- 48.
Iwatsuki (2018), pp. 151–163 (arguing that non-military unilateral coercive measures taken by third States in response to widespread and systematic human rights violations against people by their government or by a foreign State have been accepted through State practice as a special legal institution whose purpose and function is to secure the right to self-determination (internal and external) of those who are suffering such flagrant violations, even though there is not sufficient State practice establishing the third-party countermeasures as a general institution of the breach of obligations erga omnes).
- 49.
See Costelloe (2017), p. 77.
- 50.
In Dawidowicz’s words, “Both in conceptual and practical terms, it seems that what is decisive is not the individual character of the peremptory norm but that the unlawful situation flowing from the breach of such a norm results in a legal claim to status or rights by the wrongdoing State which is capable of being denied by other States” (emphasis by the original author). Dawidowicz (2010), p. 683.
- 51.
However, it is difficult for non-party States to appear before the International Court of Justice to seek a declaration of the invalidity of treaties concluded under Russia's threat or use of force against Ukraine. Indeed, the Vienna Convention on the Law of Treaties, to which Russia is a contracting party, provides, in Article 66, for the compulsory jurisdiction of the International Court of Justice for disputes over the invalidity of treaties on the grounds of violation of jus cogens norms. However, Article 65 limits the States that are entitled to engage in this procedure only to States which are party to the treaties in question. Therefore, to claim invalidity on the grounds of violating jus cogens norms for treaties to which a State is not a party, it is necessary to use other forums that do not have such limitations. Krieger (2018), pp. 1222–1224; Villiger (2009), p. 807.
- 52.
Ukraine v. Russia, Application (2022), paras 1–12, 26–29.
- 53.
Ukraine v. Russia, Order (2022), paras 43–49, 86.
- 54.
As of March 29, 2022, declarations of intervention have been filed by the following 33 States: Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czechia, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the United Kingdom, and the United States of America.
For the latest information on the declaration of intervention in this case, see https://www.icj-cij.org/case/182/intervention.
- 55.
Most of the States submit their declarations of intervention in this case as a non-party to the case. Though, if they plead, they would be recognized as having jus standi of their own, given the recent decisions of the International Court of Justice in the cases brought to the Court alleging the violation of obligations erga omnes partes, especially those provided in the Genocide Convention. Recently, the Court stated without any ambiguity that:
The common interest in compliance with the relevant obligations under the Genocide Convention entails that any State party, without distinction, is entitled to invoke the responsibility of another State party for an alleged breach of its obligations erga omnes partes. Responsibility for an alleged breach of obligations erga omnes partes under the Genocide Convention may be invoked through the institution of proceedings before the Court, regardless of whether a special interest can be demonstrated. If a special interest were required for that purpose, in many situations no State would be in a position to make a claim. For these reasons, Myanmar’s purported distinction between the entitlement to invoke responsibility under the Genocide Convention and standing to pursue a claim for this purpose before the Court has no basis in law. […] For the purpose of the institution of proceedings before the Court, a State does not need to demonstrate that any victims of an alleged breach of obligations erga omnes partes under the Genocide Convention are its nationals.
Gambia v. Myanmar, Judgment on Preliminary Objections (2022), paras 108–109. See also, Belgium v. Senegal, Judgment (2012), pp. 449–450, paras 68–70.
- 56.
As of March 29, 2022, the situation in Ukraine has been referred to the International Criminal Court by the following States: Albania, Australia, Austria, Belgium, Bulgaria, Canada, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czechia, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, New Zealand, Norway, the Netherlands, North Macedonia, Montenegro, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom.
For the latest information on the referral of the situation in Ukraine to the International Criminal Court, see https://www.icc-cpi.int/situations/ukraine.
- 57.
Article 12 (3) of the Rome Statute of the International Criminal Court.
- 58.
Article 15 bis of the Rome Statute of the International Criminal Court.
- 59.
E.g., European Parliament (2023).
- 60.
European Union Agency for Criminal Justice Cooperation (2023).
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Iwatsuki, N. (2023). Challenge from Russia Against Jus Contra Bellum Under Contemporary International Law and Legal Responses to Be Taken by the International Community. In: Furuya, S., Takemura, H., Ozaki, K. (eds) Global Impact of the Ukraine Conflict. Springer, Singapore. https://doi.org/10.1007/978-981-99-4374-6_1
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