Unlawful culture of occupation, annexation
THANKS to the so-called rules based order whose centrifugal forces have tattered the fabric of the United Nations Charter, unanimously agreed by the allies’ power of the Second World War.
Both the Cold war and the post-Cold war periods fully served the evidence that the international establishment’s role has profoundly been pivotal to safeguarding geopolitical interests of the global powers, thus, shutting its eyes on the blatant transgressions of international law, thereby setting a dangerous precedent of unlawful occupation and annexation in the Middle East, Eastern Europe, and South Asia — and yet understandably, in the current scenario, the ongoing Russian occupation of Ukraine is not any exception to this rule.
From the western point of view, the ongoing conflict in Ukraine raises fundamental questions regarding the implications of international law features.
In the given situation, after the Russian announcement of recognizing the independence of some parts of East Ukraine, accompanied by its ongoing war of occupation in Ukraine is the chief concern is the waning efficacy of the international legal order as well as territorial integrity, and right to the self- determination.
In principle, the underlying obligations between Russia and Ukraine with regard to territorial integrity and the prohibition of the use of force are contained in a number of bi- and multilateral agreements.
These two principles are clearly expressed in Article 2 (4) UN Charter and in the Helsinki Final Act.
The 1994 Budapest memorandum was concluded to provide Ukraine security assurances for acceding to the Treaty on the Non-Proliferation of Nuclear Weapons as a non-nuclear-weapon state.
For giving up Soviet nuclear weapons, the United States, the United Kingdom, and Russia committed to “respect the Independence and Sovereignty and the existing borders of Ukraine”…Simply put, since early 2000s, the Kremlin’s policy toward Ukraine has been adopting a hard line—glaringly reflected in Russia’s invasion of Ukraine in 2014 when it annexed Ukraine’s Crimean Peninsula.
It has been further argued that Russia’s opposition to the intervention of the North Atlantic Treaty Organization (NATO) in Kosovo in 1999 was again in alignment with generally accepted principles of international law concerning the use of force.
At that time, and still to this day, military humanitarian intervention without Security Council authorization was not unequivocally permissible under international law.
In relation to the emerging notion of the responsibility to protect (R2P), it could be argued that Russia has adopted a centrist position among major powers.
Russia, like some others, was reluctant to agree to decisive commitments on R2P, since this would constrain its decision-making powers, including in the Security Council.
Nonetheless, per se, under the very concept of contingent sovereignty, the Ukrainians have a deface right to fundamentally defend against any Russian intervention-cum-aggression.
Under the UN’s R2P, Ukraine has also the right to defend its territorial sovereignty.
But at the same time, the Russian assertion has been that that any western or the Ukrainian attempt to recover the control of Donetsk and Luthansk in the Eastern Ukraine will be tantamount to crossing the red line.
And yet arguably, in order to make its case more viable and convincing— thereby not changing the terms of the Minsk Protocols— Kyiv could seek to put the Budapest Memorandum back on the table.
The Budapest Memorandum is a befitting reminder, which was signed in December 1994 by the leaders of Ukraine, Russia, the Great Britain, and the US to formalize the handover of Ukraine’s vast Soviet-era nuclear arsenal.
Thus, there appears to be a regional diffusion of international legal order that is a revisionist concept of international law, which seeks to validate Russia’s sphere of influence accompanied with the right to intervene within it.
This is because Russia has consistently used international legal arguments to justify its actions—and has in turn charged western nations with being revisionist and infringing international legal rules.
Russia’s justification for its actions in Crimea have related to self-determination, humanitarian emergency, and self-defence—actions that have been undertaken to protect the Russian-speaking population in Ukraine.
However, these justifications do not betray a revisionist international agenda; they are perhaps simply ‘lawtalk’ or an unrestrained merging of law and strategy for realpolitik motivations.
And yet arguably, If attempts to grasp conflicts without a full consideration of the moral and legal framework in which they are played out are bound to be, on the whole, incomplete, this need is even greater when the pertinent norms are universally heralded as central components of the contemporary international order yet remain contested, as they have been in the case of Russia’s engagements in Ukraine.
In this regard, the ICJ’s observation says:: ‘’A prohibited intervention must… be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely.
One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones’’. ICJ Reports 1986, Judgment, June 27, 1986, p.14, 108 (para.205).
Keeping in view this legal indoctrination, US, Israel, India, and Russia all are accusers and violators of international law.
Since the Six Day Arab- Israeli War in 1967, the conscienceless world has been blatantly ignoring the Israeli occupation of the West bank, its annexation of the East Jerusalem, and also, since the UN resolutions on Kashmir in 1948, the UN and the global justice institutions remain silent over the Indian occupation of Kashmir and its unjust annexation with New Delhi in August 2019.
The further examples of this fascist growing world order rest with the 20 year occupation of war in Afghanistan, US Iraq war and its occupation of the Iraqi territory.
Whereas the western trajectory of NATO’s eastward expansion is a clear sign of imposing the western sovereignty in the Eastern Europe, which has motivated the Kremlin to occupy Ukraine.
All the while, the global powers equally share their negative role to make a travesty of international law in terms of state independence, sovereignty, and human rights.
As for the Ukraine issue, Professor Roy Allison an expert on Russian and East European Studies argues, “Russia is a major power, with a permanent seat at the UN Security Council, which aspires to shape and constrain interpretations of law and international norms in the wider community of states as well as its own neighbourhood.
This legal contest has potentially serious implications for the international system.
” Nevertheless, the collective peace diplomacy must work to end the ongoing war in Ukraine.
—The writer, an independent ‘IR’ researcher-cum-international law analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law.
