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How International Law Bears on Ukraine

by SaltyD

I kept wondering how Russia was breaking international law (according to western media). I found this essay that gives it fairly decent context. The essay is 25 pages but it gave context to my questions and it is worth reading. And Lavrov’s article quoted later rounds out the context.

BTW this is the only essay I could find on this subject with a fairly balanced presentation. I’ve probably read a dozen articles, essays, treatises and studies produced by “impartial think tanks and educational institutions” ( some as long as 350 pages) and all of which demonize Russia in a russophobic way.

Introduction to the essay:

“The way in which commentators have looked upon the legal issues raised by Russia’s war in Ukraine is inadequate. Western leaders have focused exclusively on Russia’s violation of Ukraine’s territorial integrity, both in 2014 and 2022. By territorial integrity is meant the principle that every state has a right to preserve itself in its own borders against external aggression. Undoubtedly, that is an important principle of international law. It is what makes the invasion or occupation of another state’s territory a categorically unjust act. This principle alone does not fully penetrate the legal issues, however, because its standing has to be assessed alongside other important principles in international law, especially the right of revolution and the right of national self-determination.

By choosing to view the Ukraine crisis solely through the lens of territorial integrity, Western policymakers systematically overlook one critical aspect of sovereignty. The principle of territorial integrity is only the external dimension of sovereignty—the more holistic concept. It is the application of international law to the external boundaries of states. But sovereignty also has an internal dimension: the right of a people to choose the sovereign whose authority they will abide by.”

Quote source: https://peacediplomacy.org/2022/05/17/sovereigntys-other-half-how-international-law-bears-on-ukraine/

Essay download link is below.

However, read Lavrovs explanation first.

Lavrov explained why Russia was justified to intervene in the Donbas. He sites the same sources as Hendrickson but with an emphasis on the peoples right of self determination (as defined in the UN charter).

In Summary:

“… The citizens of these republics and regions made a conscious choice based on the right to self-determination.

This is fully in keeping with the principle of equality and self-determination  enshrined in the UN Charter, the 1970 Declaration On Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations and many other documents. The abovementioned Declaration, which was unanimously adopted at the UN General Assembly, reads: “Every State has the duty to refrain from any forcible action that deprives peoples … of their right to self-determination and freedom and independence.” In accordance with the Declaration, peoples can resist such forcible action and are entitled to seek and receive the support of the international community. A great deal is being said today publicly that the principle of territorial integrity, also enshrined in the UN Charter, has an absolute priority over the right to self-determination. In this connection, I would like to draw the attention of those who may be interested that the Declaration of the UN General Assembly (1970) contains a clear answer to the proponents of this view. The Declaration seals the duty of states to respect the territorial integrity of states “conducting themselves in compliance with the principle of equal rights and self-determination of peoples… and thus possessed of a government representing the whole people belonging to the territory.”

There is no need to prove that the Kiev regime does not meet the said criteria and has for years grossly and massively violated the above mentioned UN requirements….”

Above quote taken from his speech:

Here you can find his speech from 4 October – “Foreign Minister Sergey Lavrov’s remarks at a plenary meeting of the Federation Council of the Federal Assembly of the Russian Federation”:

https://www.mid.ru/en/foreign_policy/news/1832391/

David Hendrickson is an American with primarily a western view so take it with a grain of salt. However, his essay is worth reading if not only to provoke some discussion here. I think it is fairly well balanced in its presentation (although totally western in perspective) and I think his conclusion below has a lot of merit.

His organization who published this paper says (about us)

“The Institute for Peace & Diplomacy (IPD) (peacediplomacy.org) is a non-profit and non-partisan North American international affairs think tank operating in the United States and Canada dedicated to promoting dialogue, diplomacy, prudent realism, and military restraint—principles which we believe are the four cornerstones of sustainable peace in an increasingly complex and dynamic international system.” Take it with a grain of salt.

BTW – the site has now hidden this essay and you can only find it if you search specifically for it. It is also no longer available on David Hendrickson’s own site. The empire strikes again!!

The following is the conclusion reached in the essay by David C. Hendrickson of the Institute for Peace and Diplomacy. (Sovereignty’s Other Half: How International Law Bears on Ukraine)

You can download the full essay here:

https://peacediplomacy.org/wp-content/uploads/2022/05/Sovereigntys-Other-Half-%C2%B7-How-International-Law-Bears-on-Ukraine-1.pdf

Conclusion: Law as Practical Reason

“This essay has argued that the architecture of reasoning embedded in classic international law helps us navigate the great conflict over Ukraine, which now threatens to engulf the world. There are two faces to sovereignty in law, not just one. While the West has focused solely on territorial integrity, the conflict in Ukraine can neither be properly understood nor peacefully resolved without careful attention to self-determination.

In the ongoing crisis, neither the United States nor Russia survives unwounded in their encounter with international law. Each state has pursued policies in Ukraine that violated the law. The United States was most guilty in the first instance, eespecially in scandalously supporting an extra-constitutional revolution in Ukraine in 2014, and then in not acknowledging as a basis for peace discussions that both Crimea and the Donbass should have a say in their own fate. Russia’s 2022 invasion fares no better under the eye of the law. It violates Ukraine’s right to national self-determination.

With two wrongs in the balance, I have set forth as a fundamental prerequisite of peace-making a version of the self-determination principle – that the least number of people be subject to rule by people they hate, or who hate them. That principle should also constitute a limit on the military objectives the United States and the West seeks in Ukraine. It is both dangerous and unjust to make the restoration of Ukraine’s territorial integrity — the repossession of Crimea and the Donbass — the principal war aim of the United States, and it is entirely foolish to put this choice entirely in the hands of the Ukrainians, as Secretary of State Antony Blinken has vowed. If there is to be any settlement at all, then the respective rights of the two peoples who inhabit that territory, now more estranged than ever, need to be the basis for that settlement. “One side takes all” cannot be the basis of a peace treaty. It is rather the recipe for a war between nuclear powers.

In appealing to International Law, I might be charged with appeal to a phantom, for there is in the public mind no fixed idea of what International Law signifies or demands. It has shape-shifted in the unipolar era in dramatic ways. I mean by it the law of the United Nations Charter, or what is called pluralism or Charter liberalism. In the thirty years that followed the end of the Cold War, that older view was displaced by a new set of ostensibly legal standards that have served to justify a wide range of U.S. interventions (invariably requiring a violation of the territorial integrity of other states). The United States appealed to International Law throughout these interventions, and indeed International Law came to be viewed in many quarters as a warrant for intervention. This great paradigm shift, however, also constituted a great inversion, for the older law was, at its core, a barrier to intervention. In that law, states were to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.

These new interventionist doctrines, based on rules made up in the West, never actually displaced the United Nations Charter as a law for planet earth; they were more pretend law than real law, but who could tell? The public and the for- eign policy establishments in the West, not having studied the matter, had no way of determining what was real and what was fake by way of an appeal to international law.

The older law, the one that constitutes a barrier to intervention, is the law on which we need to focus. It is the law of the UN Charter, the distant heir to the law of nature and nations. It is the law that accords equal rights to all peoples of the earth. This law offers a route to practical wisdom, that is, a way of both protecting interests and respecting norms. Political leaders who flout the law, to be sure, always do so in the belief that they are getting away with something, when they are usually getting themselves into far deeper trouble, mistaking the true interests of their state.

There are many instances of such practicality in the history we have reviewed. Respect for the advantages of neutrality as keeping Ukraine from danger is one such idea. Respect for constitutionalism, as forbidding support for internal revolution, is another. Respect for the principle of self-determination when people descend into anarchy or war is a third. Respect for the principle that, in a world of many nations, one nation cannot pretend to be the ultimate umpire or arbiter of it all, rounds out these legal and ethical verities. Some may dismiss them as reveries; in fact, they are intensely practical.

The United States disliked the lessons taught by the older law and charted another path in violation of them. The more prudent course would have been to submit to their basic wisdom. This would have spared the world a lot of trouble.”

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