International law has faced existential questions since its inception; most of these questions arise out of legitimacy concerns about the institutions that apparently undertake the law-making function. The enforcement and compliance part of the international law remains under attack, almost in all emerging situations in relation to maintaining international peace and security. In this context, the Russian-Ukrainian conflict once again revived the discourse about the non-existence of international law, especially after 22nd February 2022 (when the conflict is reckoned to have escalated).
The position, however, has never been so straightforward. As soon as a diplomat or a commentator on international relations or international security is required to express views on the emerging situation in the Russia-Ukrainian conflict, the poverty of the claim of challenging the existence of international law stands exposed as there is no other way to express one’s position save as resorting to the constructs of international law. Invariably, the language of international law is employed and the framework of international law gets attracted to the positions taken by respective parties and to the observers who make diplomatic statements on the situation. This brief essay will try to outline select areas of international law that came under discussion, so far, in the context of the Russian-Ukrainian conflict.
Read more: Russia-Ukraine military standoff and it’s global implications – Part 1
1. Territorial integrity and use of force
The use of force and resultant aggression is the chief theme that defines the conflict. While the West has opted to categorize the conflict as an invasion in violation of article 2(4) of the United Nations Charter which requires all states to respect the territorial integrity, political independence and sovereignty of other states, Russia and countries under its influence have chosen to categorize it as an issue of self-defense. Russia has used international law to justify its position by arguing that it was an act of preemptive self-defense against the eastern expansion of the North Atlantic Treaty Organization (NATO), which is, in itself based on another international treaty.
North Atlantic Treaty provides a mechanism for collective defence for its members and its circumventing expansion towards Russia was being viewed suspiciously. The position of Russian is diplomatically and academically challenged by many in the West. For example, Professor Gabriella Blum and Professor NazModirzadeh of the Harvard Law School, US have expressed serious concerns about the interpretation of the exception of preemptive self-defence that is the basis of the case of Russians.
Insofar as Pakistan’s position is concerned, it will be noted that it is near to the framework of the UN Charter. The principled position is in line with its foreign policy and is also consistent with its past conduct where it has urged states to resolve disputes through negotiations. It has, therefore, asked that the issue of Kashmir should be reconciled in the light of the resolutions of the UN Security Council and the matter be treated as multilateral.
2. Remedial secession of the Donbas Region
International law, under exceptional circumstances, recognizes the concept of ‘internal self-determination in response to excessive oppression (like gross human rights violations and genocide) and terms it as ‘Remedial Secession’.Without using the term, Russians have tried to use this concept of ‘Remedial Secession’ to justify their annexation of the Donbas Region of Ukraine. The West, on the other hand, does not extend this benefit of the doubt to Russia owing to its past conduct. In 2008, Russia annexed the Georgian regions of Abkhazia and South Ossetia, and in 2014, it annexed Crimea (from Ukraine).
Read more: Russia-Ukraine military standoff and it’s global implications – Part 2
These regional ‘secessions’ were excited by the military action of Russia and there was no evidence of gross human rights violations to justify ‘Remedial Secession’ if any. Pakistan has always supported the right to self-determination of the people of Kashmir and Palestine but has never supported any designs of ‘Remedial Secession’ of any kind. Besides, the annexation of territories by legal devices or by military intervention has never found any favour by Pakistan. Accordingly, it opposed the legal annexation of Kashmir by the repeal of article 370 of the Indian Constitution by India (against international commitments) in 2019.
3. The obligation under international humanitarian law
International Humanitarian Law (IHL), or the law of war as it was called earlier, remains applicable in such conflicts. The Geneva Conventions (1949) and their Additional Protocols (1977) oblige the parties to the conflict to only target military targets and to ensure that the civilian population is protected.
Any failures to protect civilians and prevent gross human rights violations against women and children are likely to trigger international criminal law into action that criminalizes war crimes and arms the international community with universal jurisdiction. In addition, the principles of necessity and proportionality must be adhered to by Russia insofar as its military operations in Ukraine are concerned. It must be noted that Russia has usually supported the cardinal principles of IHL in contradistinction to its position on international human rights law.
4. Sanctions and countermeasures
Sanctions are not new to international relations. These have always been there. But in the context of existing black letter international law, Article 41 of the UN Charter may be considered the legal basis of international sanctions. The language of article 41 does not use the word ‘sanction’; instead, it uses the word ‘measures’ and includes all actions except military actions. These measures were an exception. However, as noted by Professor Boris Kondoch, Editor of Journal on International Peacekeeping, there were only two sanction regimes (against South Africa and Rhodesia) before the end of the Cold War.
Afterward, international sanctions were mainstreamed and till 2016, there were fifteen international sanction regimes applicable to many countries across the globe. Despite so many regimes, there is no definition of sanctions and there is little agreement on what constitutes a sanction under international law. Russia’s military actions in Ukraine have been condemned in the UN General Assembly, but so far, the UN Security Council has not been able to impose any new international sanctions regime on Russia. Nonetheless, the West (led by the US and followed by the EU) has imposed many international sanctions that are essentially economic and financial in nature.
Read more: UK spy chief says Putin losing Ukraine war
In response, Russia has also imposed its countermeasures. The impact, if any, of these sanctions has to be seen in the coming weeks and months. These economic and financial sanctions have consequences for countries like Pakistan, which remain in the crosshairs of the Financial Action Task Force (FATF). The FATF, in its latest review, has conditioned Pakistan’s performance with the implementation of these sanctions by retaining it on the grey list.
By way of conclusion, it may be noted that when it comes to great power’s actions, the binding effect, if any, of international law evaporates making it ineffective. Eroding values of respect between nations, in the ultimate analysis, is attributable to both the West and Russia as both have tailored it to their advantage. In the longer run, this is likely to lessen international cooperation in dealing with global challenges like climate change and pandemics that harm human existence.
Kamran Adil is currently serving as Deputy Inspector General of Punjab police. He studied law at Oxford University and writes and lectures on international law. The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.