The Russian invasion of the Ukraine has generated a discussion about how the actions of the Russians in attacking the Ukraine violates the ’rules’ of international law. In most cases there is a proposition that somehow these rules are well-established, universally recognised and generally applicable. It might be useful to set out a brief analysis of what these ‘rules’ might be.
The Rules of International Law:
There are basically two origins of these rules. The first is that of a common agreement on what is acceptable by civilised nations as good behaviour between nations. The second is that law which is derived from treaties, contacts and agreements by nations which they have contractually agreed to pursue.
In international law, the concept of a “Jus Cogens” rule (a peremptory norm) is described in the Vienna Convention on the law of Treaties as follows: “…a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” It is a rule that is so widely accepted that every and any State must comply with. It is seen as essential to international law, leaving no room for reservations by certain actors on the international stage. The prohibition on the use of force is part of Jus Cogens, and therefore not subject to reservations or derogations. A Jus Cogens rule is the highest class of rules in the hierarchy of international law. Deriving from the universality of the Jus Cogens is the concept of “Erga Omnes”.
“Erga Omnes” obligations refers to specifically determined obligations that states have towards the international community as a whole. The concept of “Erga Omnes” (‘in relation to everyone’) has origins dating as far back as Roman law and is used to describe obligations or rights towards all. An Erga Omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. because every state has an interest in the protection of the rules that generate Erga Omnes obligations. For example, a state does not need to be directly or indirectly involved in a case of genocide in order to be able to complain about it. Another example of Erga Omnes norms includes piracy.
There are some clear recent opinions of the International Court of justice which illustrate Erga Omnes norms.
· In its advisory opinion of 9 July 2004, the International Court of Justice found "the right of peoples to self-determination" to be a right Erga Omnes. The finding referred to article 22 of the Covenant of the League of Nations.
· In its judgment of 20 July 2012 between Belgium and Senegal, the International Court of Justice found that in relation to the Convention against Torture "any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations Erga Omnes partes".
· In its order on provisional measures of 23 January 2020, the International Court of Justice found that The Gambia had prima facie standing in the Rohingya genocide case it brought against Myanmar on the basis of the Genocide Convention.
Perhaps the most important, and in this case immediately obvious, principle of international law is “Ex Injuria Jus Non Oritur” which states that a party cannot create legal rights for itself by virtue of an act of aggression or injury that it has committed. In summary “illegal acts cannot create law”. Any state which obtains land by nondefensive war, or other aggressive actions, cannot claim any legal rights to that land unlawfully obtained. The illegality of the Russian invasion of the Ukraine is not diminished by holding putative referenda on its aggression or pretending to absorb the conquered territory into itself.
The Treaty Obligations of Russia Relating to The Ukraine
In addition to the anterior obligations of Russia towards the Ukraine deriving from the principles of international law, there have been a series of legally binding treaties signed by the parties which has established the contractual relations between them.
In 1992, the USSR broke apart into the Russian Federation and a host of former territories once part of the USSR. These formerly allied states of the USSR were granted or asserted their autonomy and became independent states. Some joined NATO. The former Warsaw Pact nations were no longer in the thrall of Moscow and went their own way. It was only the Ukraine which was a problem.
In April 1991 Gorbachev had prepared a treaty recognising the breakup of the USSR into autonomous republics but was prevented from signing the treaty by the attempted coup against him in August of that year. On August 24, 1991, the coup had failed and Kravchuk, the head of the Ukrainian parliament, passed a motion declaring the independence of the Ukraine with him as its first leader. A referendum in December 1991 voted Kravchuk in as the first President of an independent Ukraine.
It was at that point that the U.S. became deeply involved in Ukrainian politics. The U.S.’s primary concern was strategic, the control of the Ukrainian nuclear weapons. At that time, the Ukraine was the third largest nuclear power in the world. The U.S. demanded that the Ukraine immediately remove its nuclear weapons to Russia where they would be destroyed; and they demanded that the Ukraine immediately sign the SALT 1 and the Nuclear Non-Proliferation Treaty (NPT).
In 1994 Ukraine's denuclearization was resolved with three important international treaties. First, on January 14, 1994, Yeltsin, Clinton, and Kravchuk signed the Trilateral Accord in Moscow, in which Ukraine committed itself to "the elimination of all nuclear weapons, including strategic offensive arms, located in its territory." The accord contained several paragraphs of American-Russian security guarantees. The United States and Russia stated that they “would reaffirm their commitment to Ukraine, in accordance with the principles of the CSCE [Conference on Security and Cooperation in Europe Final Act], to respect the independence and sovereignty and the existing borders of the CSCE member states and recognize that border changes can be made only by peaceful and consensual means; and reaffirmed their obligation to refrain from the threat or use of force against the territorial integrity or political independence of any state, and that none of their weapons will ever be used in self-defence or otherwise in accordance with the Charter of the United Nations.
In a private letter to Clinton, Kravchuk promised that Ukraine would he nuclear free by June 1996. The three parties met again in Budapest with the U.K. on the 5th of December 1994 and signed the NPT and, most importantly, the Budapest Memorandum. According to this Budapest Memorandum, Russia, the U.S., and the UK confirmed, in recognition of Ukraine becoming party to the Treaty on the Non-Proliferation of Nuclear Weapons and in effect abandoning its nuclear arsenal to Russia that they would:
1. Respect Ukrainian independence and sovereignty and the existing borders.
2. Refrain from the threat or use of force against Ukraine.
3. Refrain from using economic pressure on Ukraine in order to influence its politics.
4. Seek immediate United Nations Security Council action to provide assistance to Ukraine, "if Ukraine should become a victim of an act of aggression or an object of a threat of aggression in which nuclear weapons are used".
5. Refrain from the use of nuclear arms against Ukraine.
6. Consult with one another if questions arise regarding these commitments
These obligations clearly stated that Russia would recognise the legal existence of the Ukraine and its borders; refrain from economic or other pressure on the Ukraine, and never use nuclear arms against Ukraine. In summary, there is no legal, moral or contractual reason for Russia’s invasion of the Ukraine and, when the West accuses Russia of violating international law and principles, the case against Russia is obvious.