Russia’s Legal Justification for War in Ukraine
Current global news headlines reflect a common fear: is the international community about to enter a Third World War? It’s difficult to provide a concrete and accurate answer to this question, but understanding the Russian Federation’s intentions and justification for heightened military action in Ukraine is essential in comprehending the headlines that pervade every news outlet.
In order to understand Russia’s legal justification for invading Ukraine, it is pivotal to understand the geopolitical tensions surrounding Ukraine. As a former Soviet State, Ukraine is caught in a tug-of-war between Europe and Russia. In late 2013, President Viktor Yanukovych announced that he would not sign a free trade agreement with the EU, which pushed Ukraine towards Russian influence. Extensive and violent protests ensued, and protesters called for Yanukovych’s resignation. The former president fled to Russia, and the Ukrainian parliament unanimously voted to remove him from his position. In February 2014, “Russian Troops” entered into the Crimean peninsula, and by the end of March the Crimean parliament voted to secede from Ukraine and join the Russian Federation; Putin formally agreed to the annexation. In April 2014, Russia began supporting separatist movements in Eastern Ukraine, specifically in the Donbass region. Fighting ensued until September, with the signing of the First Minsk Agreement; the Second Minsk Agreement was signed in February 2014, but neither agreement has been successful in preventing violence. Additionally, the provinces of Luhansk and Donbass have both passed declarations of secession from Ukraine, and only until very recently have they been acknowledged by Russia.
The Right to Self Determination and International Recognition
Article 1(2) of the UN Charter affirms the right to self determination; however this right is not absolute. In Article 2(4), Member states are not permitted to threaten or use force, “against the territorial integrity or political independence of any state.” In essence, parts of states can secede, but other states cannot use force to violate the territorial integrity of the state. In the case of Ukraine, the territories of Donetsk and Luhansk have the right to “freely determine their political status and freely pursue their economic, social and cultural development,” even if it comes at odds with the existing territorial integrity of Ukraine. However, foreign states, such as Russia, cannot intervene in the process of secession, as that would violate Article 2(4) of the U.N. Charter.
The Donetsk and Luhansk independent republics justified their secession on the basis of security — the Ukrainian government could no longer provide for their needs. The nature of the voting is heavily contested, as the Ukrainian government has reported that the vote was only initiated by separatists who seized the parliament building, and not by the whole of Donetsk.
Another legal theory regarding secession is called the remedial right to secede (RRS). This theory stipulates that under international law, people can declare themselves independent (or join another state) when they feel that their government can no longer provide for them. However, a more compelling argument is that states do not have this right to secede, but instead garner recognition by other states upon seceding, which really gives states power. Thus, there is a careful balance between such recognition: international recognition after an illegal secession is the only way states can come into the international sphere, but such international recognition is not always properly monitored for justness.
On February 22nd, 2022, President Vladimir Putin acknowledged the independence of the Donetsk and Luhansk People’s Republics. Russia is currently the only state that acknowledges the independence of these two regions, but it is possible that more of Russia’s allies will follow suit. When Russia occupied and recognized the territories of Abkhazia and South Ossetia in August 2008, a month later Nicaragua and Venezuela recognized the territories, and in the following years Nauru followed and Syria established diplomatic ties. The limited recognition of the territories, however, is insufficient to grant them international privileges, such as joining the U.N.
International Law and Russia’s Strategy
In the case of Donetsk and Luhansk, Russia moved troops across the Ukrainian border promptly after recognizing the independence of these two regions. It is no coincidence that Russia’s actions were so tightly coordinated. If Russia acknowledges that these two territories are independent states and have their own representation in the international sphere, then the Republics can use their right to collective self-defense against the Ukrainian government for violating their territorial sovereignty under Article 51 of the UN Charter. This right allows for states to call on 3rd party states to ensure their protection; in this case Russia supporting the separatists.
This line of thinking is of course severely flawed. In actuality, Russia is violating the borders of Ukraine under Article 2(4) of the U.N. Charter, as it is using military force against another member state. Additionally, the territorial sovereignty of the Republics is not acknowledged by other states and the territories do not exhibit the rights of Members of the United Nations, and thus are unable to use Article 51 to their advantage. Russia’s justification for invading is a guise for its annexation of these territories without any real consideration for the people who live there.
This instance is similar to the case of Namibia v South Africa. Namibia was a former colonial mandate of South Africa, however in 1966 this regime was terminated. However, by 1970 South Africa continued its administration in Namibia. South Africa justified its continued presence because the League of Nations enacted the mandate, and the League of Nations was no longer present to revoke the mandate. The ICJ delivered an advisory opinion against South Africa’s actions, stating that 1) the former system has come to an end, as the mandate states that the system will continue until the agreement has been concluded, and thus 2) South Africa’s conclusion that Namibia is unfit to administer its territory comes second to Namibia’s desire for independence, and 3) in particular its status as a former colony further amplifies the need for its independence.
The situation in Donetsk and Luhansk is thus comparable to Namibia. Ukraine’s territorial sovereignty is violated by Russia, even if Russia believes that the region needs and wants its help in administration. A state cannot simply strongarm its presence into another state, no matter the justification. If Ukraine had signed a treaty formally relinquishing the territory, it would be a different story.
As the situation in Eastern Ukraine develops, Russia’s intentions — and its purported justification for an invasion — will become obvious. With the current statements, and Russia’s previous action in Ukraine, the logic follows that Russia is using the independence movements in Luhansk and Donetsk to justify its involvement in the region, and furthermore secure the territories under its control. If Russia is successfully able to justify its actions under international law, it could open the gate for other countries to engage in similar behavior. Most importantly for the people in Ukraine, Russian intervention and loss of territorial sovereignty puts all neighboring countries, especially former Soviet States, at risk.
Olwyn Kells is a junior concentrating in International and Public Affairs and Slavic Studies. She currently serves as a staff writer for the BULR Blog, and can be reached at olwyn_kells@brown.edu.