Interview: “International Law Abused”

Professor Christian Walter is Chair of Public International Law and Public Law at LMU.

How should we assess the Russian justification for its invasion of Ukraine from an international law perspective?

Christian Walter: The Russian government has employed abusive argumentation that distorts international law. It has combined false or at best unproven claims with contentious legal positions in such a way as to turn the law upside down. Fundamental principles of international law such as territorial integrity and prohibition of the use of force are being cast aside with spurious arguments based upon the right of peoples to self-determination, which is supposedly being denied to Russians in Donbas, in order to justify a war of aggression. In fact, Russia is not engaged in a small military operation, as Putin has claimed, but a military attack that fulfills all the conditions of aggression as defined by the United Nations in 1974.

What does the right of a people to self-determination entail?

Christian Walter: The right to self-determination primarily provides for autonomy within the existing national federation. Only in the case of the worst rights violations such as genocide does it countenance a right to secession. But in the current case of Ukraine, there is nothing to indicate that such a threat exists.

We already saw this instrumentalization and abusive application of law during the invasion of Crimea in 2014. The sovereignty of Crimea back then was just an extremely short transitional stage. Directly after the declaration of independence and sovereignty, Crimea was absorbed into Russia and thus – insofar as it emerged at all as an independent subject of international law – immediately disappeared again. Arguments of this nature are an abuse of law. Russia’s instrumentalization of the right to self-determination is designed to expand its own territory by means of forcible annexation. This is an affront to the principles of international order.

What influence can international and supranational institutions have on pacification of a conflict?

Christian Walter: The most important forum is the Security Council of the United Nations. In the war against Ukraine, the Security Council is clearly incapable of making decisions, because one of its permanent members is involved. The dominant position of the five permanent members is a relic of the political balance of power after the Second World War. Whether this structure should persist is one of the questions that the Ukraine war brings to a head. In any case, it is difficult to accept that Russia not only possesses a right of veto in this conflict, but because of the rotating nature of the presidency even chaired a session in its own case. It’s obvious that such procedural arrangements can only be dysfunctional. Currently, the UN General Assembly is debating its response to the attack on Ukraine. However, its resolutions have no binding effect.. Irrespective of the outcome of the war, fundamental questions will be raised once it ends about the future role of the UN and the position of the permanent members in the Security Council. In this respect, too, the war could prove to be a historical turning point.

What role does the International Court of Justice have to play?

Christian Walter: The ICJ only has jurisdiction if the parties to the conflict have recognized its jurisdiction over the specific legal dispute. This is not the case for the use of military force between Russia and Ukraine. However, such recognition can also come about at an abstract level prior to the specific conflict – for example, in a clause of a treaty that establishes the jurisdiction of the ICJ for disputes between the parties to the treaty in relation to its interpretation and application. Such a clause exists in Article IX of the Genocide Convention from 1948. On this basis, Ukraine has now filed a claim against Russia with the purpose of establishing that Ukraine itself has not committed any genocide. That is a creative approach, which could allow the ICJ to indirectly make a statement about the unlawfulness of the military attack on Ukraine via the Genocide Convention.

What is the purpose of international law when it clearly cannot prevent wars, as we can see in the case of Ukraine?

Christian Walter: The principal function of law consists in limiting and circumscribing power. This presupposes the existence of a common legal culture, a fundamental respect for values that are enshrined in law and must absolutely be observed. In simple terms, it’s about respect for the law. Anyone who sees the images of the war in Ukraine and compares them with the legal arguments of the Russian government will recognize immediately that such a basic consensus – respect for the law – is lacking on the part of the Russian government. When things have gone this far, then of course the law faces difficult challenges.

And so it is all the more heartening to witness the surprising speed – after some initial bumps in the road – with which the West has come up with a unified response. The obvious violation of international law by the Russian invasion is being condemned on all sides. Without this clearly demonstrated shared sense of legal conviction and the resulting outrage, the unity of the response we are currently witnessing would not be possible. Unfortunately, this does not in the slightest alleviate the humanitarian catastrophe that the war in Ukraine has set in motion. But it nourishes the hope that Russia’s attack on an international order built on shared values will fail.