Professor Ardi Imseis

As news continues to break on Russia’s invasion of Ukraine, international law expert Professor Ardi Imseis shares his insight on the conflict between the two countries, immediate international legal issues at play, actions available to the international community, and an issue for Western states to consider. 

Last night Russia launched a full-scale invasion of Ukraine by land, sea, and air. Ukraine has declared a state of martial law, and its president, Vlodoymyr Zelenskyy, has called upon his citizens to put up a fight, with armed hostilities expanding in multiple locations and casualties mounting. 

Roots of the conflict

With the dissolution of the USSR in 1991, Ukraine became an independent state. While the majority of its population (77 per cent) are ethnic Ukrainians, a sizable minority (17 per cent) are ethnic Russians. In 2013, following a decision by former president Viktor Yanukovych to seek closer ties with Russia and distance Kyiv from its Western allies, a popular uprising sent him into exile. The country has since been fractured between pro-West nationalists and pro-Russian separatists. In March 2014, Russia annexed Crimea (a self-governing part Ukraine) following a disputed referendum in which its population (mostly ethnic Russians) voted to re-join Russia. This was followed by similar referenda in the Donestsk and Luhansk regions of eastern Ukraine, also with considerable Russian populations. Since then, Moscow has aided pro-Russian separatist armed forces in eastern Ukraine, resulting in the killing of more than 10,000 people, and injury of over 24,000 others. Just before its invasion of Ukraine, Russia recognized the new breakaway states of Donestsk and Luhansk. Western countries continue to support Ukraine, economically and militarily, with NATO forces bolstering their presence in eastern Europe, threatening an expansion of this conflagration.  

Immediate international legal issues at play

The international legal issues at play are considerable, but relatively clear. The starting point is art. 2(4) UN Charter, which affirms a general obligation on states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” The only recognized exceptions to this rule are where such force has been authorized by the UN Security Council (art. 42) or where a state invokes its inherent right of self-defence after having been subjected to an “armed attack” (art. 51). As the Security Council has not authorized use of force in Ukraine, and Russia has not been the subject of an armed attack, neither of these exceptions to the general prohibition on the use of force can be invoked to justify Russia’s invasion. For these reasons, on its face, Russia’s invasion of Ukraine qualifies as an act of aggression, a violation of the territorial integrity and political independence of Ukraine, and third states have obligations to see to it that this situation is bought to a swift end in accordance with international law. 

What must the international community do?

The scope of action available to the international community is larger than one might think. Of course, collective action at the Security Council is not possible, owing to Russia’s permanent membership and veto power. But one workaround is to utilize the General Assembly, which is likely to happen in days ahead. Indeed, following Russia’s annexation of Crimea in 2014, a number of states (including Canada) sponsored General Assembly resolution 68/262 which affirmed “the sovereignty, political independence, unity and territorial integrity of Ukraine.” In his address to the Security Council yesterday – and before news of the invasion had broke – the UN Secretary-General denounced Russia’s recognition of “the so-called ‘independence’” of the Donetsk and Luhansk regions as “violations of the territorial integrity and sovereignty of Ukraine and inconsistent with the principles of the Charter of the United Nations.” At the heart of these affirmations are two peremptory norms of international law, derogation from which is not permitted, namely the prohibition of the acquisition of territory through threat or use of force, and the obligation of all states to respect the right of peoples to self-determination. These are the bedrock international legal principles that underpin third states’ justification for taking coercive measures against Russia, including economic, political, and other similar sanctions, as has already been done by the United States, Canada, the United Kingdom, France, Germany, Australia, and Japan. Looking ahead, there is also the possibility of providing military support to Ukraine, but given the Security Council dynamic the only way this could happen in conformity with international law is by invitation of the Ukrainian government in Kyiv, exercising its right to self-defence. This has yet to happen.

Western hypocrisy as a weak point

One problem for third states, particularly in the West, is the issue of the selective application of international law. As has been pointed out by Russia, there is no shortage of cases, present and past, in which the very same principles that the West cites in response to Moscow’s invasion of Ukraine have been violated. This includes: NATO’s bombing of Kosovo in 1999; the U.S./U.K. invasion of Iraq in 2003; the U.S. recognition of Israeli sovereignty in occupied Syria in 2019; the U.S. recognition of Moroccan sovereignty in occupied Western Sahara in 2020; and Canada’s ongoing recognition and importation of goods produced in occupied Palestine as “products of Israel.” Each of these cases are clear cut violations of the prohibition of territorial conquest and the violation of a people’s right to self-determination, thereby providing Russia with welcome, if unintended, support for its current position. 

None of this is to suggest that two wrongs make a right. It is only to say that international law is only as strong as the willingness of states to ensure its universal application in similar situations. If Russia is to be held to account for its illegal invasion of Ukraine – as it must – Western states, including Canada, need to get serious about their own international legal obligations and refrain from cynically invoking international law when it suits their narrow domestic or geopolitical interests to do so.

Professor Ardi Imseis is an international lawyer and former UN legal counsel who focuses his research on the intersection of power, politics, law, and justice, and the practical impact of those phenomena on international relations in general. The United Nations High Commissioner for Human Rights appointed him a Member of the Group of Eminent International and Regional Experts to investigate and report on violations of human rights and humanitarian law in the conflict in Yemen from 2019 to 2021.