(Ця стаття також доступна українською мовою тут. This article is also available in Ukrainian here.)
Shortly after the beginning of Russia’s full-scale invasion of Ukraine three years ago, when Ukraine’s future was fogged by uncertainty with Russian forces just at the gates of Kyiv, one of us wrote a piece arguing that the invasion could not and must not become a death sentence to the current international legal order. The invasion indeed did not do so (or rather, has not yet done so). However, as the world has passed the third-year mark of the invasion, another critical point is arriving as we edge towards negotiations on the war’s resolution.
There are various inflection points in history that chartered the international legal order’s metamorphosis. The signature of the Paris Peace Pact outlawing war, the Japanese invasion of Manchuria and ensuing invasions setting the stage for the collapse of the League of Nations, the Munich partition of Czechoslovakia, the commencement of World War II and its conclusion with the creation of the United Nations. Are we now standing at the precipice of another similar moment, facing down the Russian invasion and the extent to which Russia pays the price for its egregious attacks on the fabric that binds the international community together?
Reflecting on the past is only valuable if we then hold the future to account. It is high time today to turn around and take an honest look into the future’s eyes to what awaits us. The Russian invasion and states’ reactions thereto are setting the stage for possible changes to the international legal order. Are proposals for the war’s resolution – if given life beyond the dead paper on which they are written – capable of changing this very order to a degree of jamais vu? Can it turn us back to where the right to use of force, aggressive conquest, and annexation again become our new (old) reality in international law? Or will it withstand the pressure from those who claim to be “mighty”?
Turning Around: The Changing Face of the Current Legal Order
Let us put a mirror to the face of our modern legal order, tracing its changing features throughout the last three years. Even with Russia’s attempts to sabotage the order’s foundations, the core still stands, with the prohibition of the use of force at its heart. Although Russia’s use of armed force has persisted, the absolute majority of the international community (with the very few exceptions of Russia’s obvious satellites), including some ostensible Russian allies (such as Iran), have not recognized unlawful annexations of Ukrainian territory. Many states continue maintaining (and enhancing) the sanctions pressure on Russia in order to force an end to its aggression. States continue providing material support to Ukraine’s exercise of self-defense. The commission of atrocities has met domestic and international accountability responses.
However, even with the system’s core currently intact, nobody can turn a blind eye to the real changes materializing before us. The collective security system, as envisioned on the pages of the United Nations (‘UN’) Charter 80 years ago, has been exposed as a collective quixotic attempt to make a giant out of thin air. Another ominous sign is the ever-diminishing significance of the UN or certain regional security organizations (such as the Organization for Security and Cooperation in Europe) for the maintenance of international peace and security.
Instead, traditional means of securing statehood’s survival have re-emerged as substitutes. The Ukrainian government is seeking security guarantees from multiple sources and in various forms, apparently believing that this is the only way to protect itself, reminiscent of the classical international law system from centuries ago, where protectorate ties were necessary to secure a state’s existence from more powerful adversaries since no collective security system could. Where states had to pay tribute with economic payment or human bodies just to not be destroyed in turn. Paralysis of the collective security system signifies the ever-increasing centrality of the inherent right to self-defense – individual and collective – as ever inalienable, fundamental, and peremptory.
We have also learned that democracies that feel unthreatened can grow sclerotic. The loss of valuable historical memory means complacency has bled into the minds of people living in them. This results in a consistent dissonant inability to recognize existential threats or – even more broadly – to see anything as a threat. Individuals and states are falling into the same traps as before World War II, believing that aggressors who attacked once will not come back for more if given what they wanted and that they will paradoxically respect the rules of the order they fight hard to destroy. Individuals and states have failed to transmit the lessons woven into the structure of our modern international legal order. We are right to be left wondering whether it is all about to collapse around us.
The Might is Still Not Right
Can concessions to Russia, particularly secession of territory, if implemented in a future so-called “peace deal,” symbolize a new tectonic shift in the world order? For now, international law still contains enough safeguards to protect itself from the reign of force and conquest. Regardless of what a potential future agreement may say on paper, we have to be clear as to its real legal effects.
First, any agreement reached in relation to Ukraine without Ukraine’s involvement will not create any legal rights or obligations for Ukraine in the absence of its consent (VCLT, Articles 34-36). While it may be seen as a form of political settlement, a treaty concluded without Ukraine is not legally binding upon Ukraine and entitles Ukraine to legitimate non-compliance unless further validated by Ukraine’s genuine consent.
Second, while international law does not deny the legitimacy of temporary ceasefire agreements per se, any longer-term agreement – such as a peace treaty – procured through the threat or use of force directed against Ukraine as a state or the coercion of a Ukrainian representative, is entirely and ab initio void (VCLT, Articles 51-52). As we explained earlier, any imposed agreement ceding territory to Russia amidst the present conditions will fail the crash test of international law and will have absolutely no legal effect. Nor does its formally expressed “consent” matter in the absence of genuine free will. Likewise, the passage of time is irrelevant as a state is not estopped from invoking voidance at any moment.
Third, while Ukraine may be politically pressured to follow imposed conditions, it will be effectively entitled to disregard “obligations” forced on it at whatever point in the future. This is particularly significant for the right to liberate annexed territories. Regardless of whatever fanciful qualification of annexed territory conjured up by Russia and its satellites, under an imposed “peace agreement” or beyond, and even regardless of certain states’ recognition of such territory as Russian, sovereign title to such territory will remain Ukraine’s.
Any attempt to codify or validate annexation will also have no effect on the qualification of the Russian presence there as belligerent occupation. Since occupation resulting from an armed attack on another state’s territory amounts to a continuing armed attack, the attacked state does not lose its right to self-defense simply due to a passage of time and is entitled to liberate territories from foreign occupation no matter how long this unlawful presence remains (see Akande and Tzanakopoulos opposing Ruys and Silvestre).
Fourth, since Russian aggression against Ukraine and associated annexations constitute a serious breach of a peremptory norm (i.e., jus cogens), third states continue to be under the obligations not to recognize the unlawful situation created by such a breach, not to assist and aid in its maintenance, and to undertake positive action to bring the breach to an end (ARSIWA, Article 41). At minimum, this imposes an obligation on third states not to recognize any territorial changes associated with any peace initiatives, not to aid in their promotion, and to oppose their imposition through individual or collective means.
Where the modern legal order bends under the breaches of its fundamental rules, it does not break. Political strain may indeed force Ukraine to commit to certain acts against its will. But the backbone principles of international law continue to be directed at ensuring such actions are legally futile and making ill-gotten benefits obtained by Russia untenable in the long run. Violations and even their acceptance by deviant actors do not yet turn Might into Right.
What Will it Take for Might to be Right Again?
However, as international law continues to safeguard a defiant Ukraine, is it possible that international law as we know it … simply collapses under the pressure of gross violations and counteraction from powerful states? If Russia succeeds in imposing its self-servingly brutish vision on the international community, particularly through securing acceptance by various other third states, what follows for international law? In other words, what should happen for Might to be Right again?
A clear distinction here must be drawn between international law and the international order. Law reflects, as in any legal system, rules that have normative force – that are followed because its subjects consider them binding and authoritative. The order concerns the institutional structures built to effectively uphold these norms. In this way, so long as the community of states considers that certain normative rules apply (no matter their content), international law never dies. In fact, it cannot die so long as states consider that their interactions must be regulated. However, the disappearance of a certain world order is possible as a consequence of certain core rules of international law changing (as it so happened with the Paris Peace Pact and the ensuing tectonic shift discussed above).
The central norm at stake here is the prohibition of the use of force. If a so-called “peace treaty” is unlawfully imposed, or if it legitimizes or validates Russia’s purported annexation of Ukrainian territory, it would be a void treaty but a powerful message. It would glaringly expose a thread that could fully unravel the current international legal regime if it is pulled on by the rest of the international community. A warning shot that the use of force should be permitted, with its true fate to be determined by how other states react to this challenge, by whether they decide to follow international law’s current prescriptions or abandon them by the wayside. But what does it actually mean for the prohibition of the use of force to disappear as a legal norm?
The initial risk is its loss of peremptory status such that it becomes a “regular” rule of international law. Peremptory status is conferred to select rules that protect fundamental values of the international community. It is well recognized for the prohibition of the use of force, giving it supremacy over other norms and imposing obligations on all third states to push back against any serious breaches. But the moment a sizeable enough minority of states indicate that they consider the prohibition of the use of force to be derogable (or bluntly, to be non-existent), it would lose peremptory status. It would no longer fulfill the necessary criterion of being accepted and recognized by the international community of states as a whole (even if the definition of jus cogens prescribes that modification is only possible through a “subsequent norm […] having the same character,” it seems absurd to claim that the peremptory character persists where the underlying criterion of acceptance and recognition has disappeared – though this merits extensive discussion in a separate piece). This means that it would assume “regular” status amongst most other rules of international law – still meant to be respected of course, but stripped of the normative teeth that previously would have obliged states to defend and secure its compliance. Aggression would still be unlawful, but third states would be permitted to recognize and support its consequences.
While this is a rather bleak world order, even in this desolation, the prohibition of the use of force would narrowly hold on. It would remain anchored as a treaty rule within Article 2(4) of the universally-ratified UN Charter, a saving grace. In this position, it would remain superior to all other treaty norms (UN Charter, Article 103), but would remain vulnerable to the rise of conflicting customary norms (although some authors (e.g., 2006 ILC Special Report on Fragmentation, paras. 344-345) consider that Article 103 extends to customary rules, the ordinary reading, the intention of drafters, and subsequent practice push back strongly against this view). For example, if clear widespread and consistent practice arises which accepts as law that states are permitted to annex territories for their broad security interests, then the UN Charter’s prohibition would be eroded by this permission. Slowly eaten away by custom, it could fade into irrelevance.
Another threat to the existence of the prohibition of the use of force would be the abject collapse of the United Nations (and thus of the Charter’s normative force). While it would still exist in residual form (e.g., through the VCLT rules on voidance of treaties procured through use of force), it would have no clear basis in codified rules of international law and, given the realities of state practice leading to the undoing of the UN, it would certainly have no customary status either. In tatters and fragmented across only a few disparate sources, it would easily be overtaken by any new treaty or custom purporting to authorize the violent seizure of territory from others.
The prohibition of the use of force, as a principle underpinning international law’s current structure, is certainly resilient enough to survive whatever initial affront Russia and states willing to assist have planned for it. But it would be left precariously exposed to its possible true demise, whether slowly swallowed by custom or shattered by the UN Charter’s collapse as a treaty.
Looking Forward
Three years ago, on the first day of Russia’s full-scale invasion, Oona Hathaway and Scott Shapiro wrote that Russia alone cannot destroy the international order by its aggression: it would be successfully undermined only if the rest of the world let it. With a robust response from the international community, the legal order would not weaken – but rather strengthen.
Three years of Russian invasion indeed did not kill the modern international order. Its face is changing, for example, with the gradually diminishing role of the collective security system. But the core still stands. And states’ responses did show their strong commitment to this core. Three years later, the idea of Ukraine giving up sovereignty over its land remains broadly perceived as a nonsensical, abjectly dangerous idea, even if de facto recognition of the loss of territorial control is accepted.
Even if, in the upcoming year, Ukraine is forced into concessions undermining its sovereignty, international law continues to hold Ukraine’s back – permitting no binding obligations imposed on Ukraine without its consent or procured through force or its threat.
In short, current international law, even if it failed to shield Ukraine from atrocity, secures Ukraine the right to take back what it is owed for years and decades to come.
International law is not dead, decaying or moribund. Simply because it cannot be. Simply because at this stage of human civilization – as it has been throughout centuries – international law is unkillable: in one form or another, states will always seek regulation and it will always be there to regulate. After all, rules permitting wars as a central instrument of state policy were the very core of international law in previous centuries.
However, our legal order is not set in stone. Depending on how rules and their perceptions change, this legal order can continue being modified to a degree of jamais vu. Hardly conceivable but possible, prohibition of the use of force and associated rules can lose peremptoriness, become corroded, and contract to irrelevance.
In the end, this is a battle for a world where the war of conquest is a barbaric act rather than a legitimate right, a battle for states to take on that will rage in upcoming decades. Though states do not act through wills of their own. Behind the abstract of sovereign nations are always human beings, and we will all have to decide for which kind of humanity we stand.