This post has been contributed by Professor Wade Mansell, Module Convenor for Public International law.
This time last year when I wrote a ‘Christmas Blog’ for this module I chose to discuss the way the UK Government seemed prepared to break one of the principle premises upon which public international law is founded, namely that of pacta sunt servanda. This was because of it wishing to be no longer bound by the so-called Northern Ireland Protocol – an agreement between the UK and the European Union entered into in good faith by the parties. As a consequence of this and in clear breach of the Vienna Convention on the Law of Treaties, 1969, to which the UK is a party (see particularly Articles 26 and 27), the UK continues to threaten legislation which it says will override such international law. I leave you to consider the implications of this ill-considered threat.
This year I fear that my Blog will be even less cheerful. The aggressive war being waged by Russia against its European neighbour, Ukraine – a state whose independence Russia had recognised in 1991, challenges, even more fundamentally than does the UK and pacta sunt servanda, the American-led post war world order manifested most clearly in the UN Charter. While one cannot pretend that even the USA has been unequivocal in complying with the requirements of the Charter, yet all states continued to pay at least lip-service to its values if not the application those values required in particular circumstances. At the very heart of the Charter of course, lies Article 2 which asserts the equality of all its members (sovereign equality) and requires that ‘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…’. It is difficult to imagine a more flagrant violation of this provision, although I should acknowledge that Russia does not accept this characterisation of its actions which it insists is not a war of aggression, but rather a ‘special military operation’ aimed at the prevention of genocide and the protection of the Russian-speaking population in Ukraine. For a devastating analysis of the significance of the language of ‘a special military operation’ see the comment by Kostia Gorobets in May 2022, Russian “Special Military Operation” and the Language of Empire.
But of equal significance to this blatent use of force against Ukraine’s territorial integrity, for those studying international law, has been the reaction of UN member states. For whatever reason, the majority of the world’s citizens live in countries which failed to respond positively to the call from ‘the West’ for punitive sanctions against Russia. When, pursuant to the ‘uniting for peace’ power, the General Assembly did pass a Resolution, ES-11/1, approximately one week after the invasion, demanding that Russia ‘immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders’ the voting was 141 states for, 5 against, and with 35 abstentions. The full text is available at UN resolution against Ukraine invasion: Full text.
The abstentions, which included China and India, came despite the urging of the Secretary General that Russia’s action were in direct conflict with the most basic Charter principles to which each and every Member State had agreed. Thus the Secretary General’s clear direction was dismissed by two members of the Permanent Five of the Security Council, together with other such powerful states as India, Pakistan and South Africa. While this illustrated the clear need for the continued use of the ‘uniting for peace’ power of the General Assembly it also demonstrated the impotence of such resolutions in the absence of support from the Security Council – a Security Council tasked by Article 24 of the Charter as having ‘primary responsibility for the maintenance of international peace and security…’. No wonder, you might think, Antonio Cassese was led to the conclusion that the evolution of international had been ‘disappointing’ when it proves unable to sanction such a clear breach of its fundamental principles.
And yet! And this is the point of this Blog. The Public International Law module was at pains to observe a crucial distinction between international and domestic law while also recognising what they have in common. What they have in common is the ‘law way’ of resolving disputes, that is by selecting the legally relevant facts in order to define the dispute and then applying the law to the dispute it has defined. This, as the module argues, is problematic unless the parties to the dispute accept that the legal dispute does encompass the dispute to which they are parties. There are two important features of Russia’s war with Ukraine which are relevant to this point. The first is that Russia does not accept that the dispute can be resolved simply by reference to the UN Charter because of the historical and continuing ‘tension’ between the largely Russian speaking population of the Donbas region within the Eastern borders of Ukraine, and the national government in Kyiv. The second feature however is highly pertinent. It is that both Russia and Ukraine are at pains to try to have the ‘dispute’ defined in terms which enables each to claim its actions are in accord with international law. This after all is why Russia refuses to accept that it is at war with Ukraine (and imprisons its citizens who voice disagreement) rather characterising its actions as a ‘special military operation’ intended to protect a minority in Ukraine from genocide. I hope that this exemplifies what your module guide means when it speaks of international law as a ‘special mode of discourse’.
While to most Western international lawyers (and the ICJ) the Russian definition of the conflict seems little less than absurd, for whatever reason (and there are many), Russia is not without support, particularly from (populous) autocratic states. Much of this support has little to do with defining international law positions. Rather it derives from trading relationships, political alliances, and a feeling in much of the poorer world that an affluent ‘Fortress Europe’ is once more ‘privileging’ its own interests and disputes. This is where international relations may have the effect of invalidating the efficacy of international law.