Russia Attacks Ukraine | Invasion Or Collective Self-Defence? What International Law Says About Putin Action

Black smoke rises from a military airport in Chuguyev near Kharkiv after Russia invaded Ukraine on February 24, 2022 | Photo: AFP

Many of us woke up Thursday to the news of Russian troops entering Kiev. As a student of international law, it was not surprising for me. But many may have questions regarding the action. Was it legal for Russia to invade Ukraine? What does international law say about it? 

Let’s discuss.

Outlawing Of 'Use Of Force'

In order to comprehend the legality of the Russian action, we need to look into the international constitutional law of international legal order. The international law that constitutes present world order is embedded in the provision of the UN charter. 

The UN charter is an international legal document that provides for the fundamental rules of international law on which the present-day international legal order or world order is constructed. If these fundamental rules are violated or disregarded, the world would come crumbling down. 

The fundamental rule that is necessary for the current international legal order to continue functioning states that ‘use of force’ by any State is completely prohibited in international relations if the use of force affects the territorial integrity or political independence of another State [Art. 2(4), UN Charter]. This law is also called Jus ad Bellum (law of just war) — albeit some authors have called the UN charter as Jus Contra Bellum (law on the prevention of war). 

Now, the question that arises is has Russia violated this law of the UN charter? In simple words, is Russian action in Ukraine a use of force affecting territorial integrity or political independence of Ukraine? 

Prima facie, it appears that every ingredient of the UN charter is present in facts pertaining to the Russian action in Ukraine. However, that’s not how Russia views it. The Russians carefully designed and then meticulously executed their Ukraine plan within the system of UN charter. 

Here is how.

Collective Self-Defence

The law of prohibition of use of force in the UN charter has an exception in the form of law of self-defence and collective self-defence (Article 51). In the present case, we must focus on the concept of collective self-defence. 

Right to collective self-defence provides that a State is within the four walls of international law and the UN charter if they act in self-defence on behalf of other states.

Let’s assume State A has used force against State B. This makes State A an aggressor in international law. In this case, the law of self-defence in the UN charter allows the victim state to legitimately use force against the aggressor state. In this case, there are two uses of force, one is by State A, since it is an aggressor State, it has violated the UN charter [Art.2(4)]; the second use of force is not prohibited as it is legitimate use of force of self-defence under Article 51 of the UN charter. 

Now, what if State B is no match to the might of State A? Can State C step in and use force on behalf of State B? The question is legitimate because use of force is not used against State C. Under the law of collective self-defence, it is perfectly within the scheme of the UN charter if State C uses force against State A on behalf of State B. The use of force by State C is covered under the right to collective self-defence and is outside the purview of Article 2(4) of the UN charter.

This is what the Russians have engineered, and here is how.

Russia first carved out two states from the troubled eastern region of Ukraine by recognising their independence and sovereignty. Thus, two more states were born out of Russia. Since these States invited Russia to protect them from the Ukrainian Armed Force, Russian troops entered their territory without violating Article 2(4). They called the Russian forces in the States carved out of Ukraine as peacekeeping forces.

Subsequently, it was argued that Ukraine attacked these new territories after their independence. Consequently, Russia argued invocation of Article 51, UN charter, i.e. collective self-defence. 

In other words, it acted on behalf of the States of Donetsk and Luhansk, the breakaway States of Ukraine according to Russia. Thus, Russia is arguing that it is invading Ukraine in collective self-defence. 

The West Argument

Now, while this is the Russian argument, let us see what is the argument from the other side — the West. The West is arguing that Donetsk and Luhansk are still part of Ukraine, and therefore any action by Ukraine in these regions is not use of force in international relations because Article 2(4) of the UN charter does not prohibit use of force if it is not in the context of ‘international relations’. 

Since there is no use of force by Ukraine, the Russian argument of using force, which does not fall in the category of prohibited use of force, does not hold water as it does not have any right to collective or individual self-defence. On the contrary, Russia has force which is proscribed under Article 2(4) of the UN charter, thereby making Russia an aggressor. 

Therefore, whether Russia is an aggressor State or a State acting in self-defence depends upon which set of facts you subscribe to.

The author is a PhD fellow at Hamburg University. He has written two books on financial laws.

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