Two Weeks in Review, 14 – 27 February 2022

The Situation in Ukraine

Over the last week, we’ve been offering legal analysis and commentary on the situation in Ukraine.

Marko Milanovic has been writing key commentary from the start, when Russia first recognised the separatist Donetsk and Luhansk republics in Eastern Ukraine as independent states. He compares the Russian positions regarding the self-determination of Kosovo and Donetsk and Luhansk before concluding that ‘this is an excellent example of how a “progressive” theory such as remedial secession/self-determination can be used for decidedly non-progressive ends, such as justifying territorial conquest.’

It is also, in that regard, simply incontestable that, no matter how fantastical some Russian claims may be, the credibility of Western allies in responding to Russia’s violation of Ukraine’s sovereignty remains deeply undermined, on the law and on the facts, by their own previous misadventures, including the 2003 invasion of Iraq.

Read more analysis on the issue of recognition by Milanovic here. 

Diane Desierto also writes on the issue of recognition, and appealed to the international community not to treat the situation as involving any ‘factual ambiguity’. The annexation of Crimea in 2014 is a continuing illegality and serious violation of international law, the consequences of which should not be recognised by states, and argues there should be ‘no ambiguity today that the ongoing annexation of Ukraine is just as internationally unlawful.’ As a result, all states have an obligation not to recognise internationally unlawful situations, especially violations of jus cogens norms such as annexation. Read further analysis by Desierto here.

Frédéric Gilles Sourgens discusses the implications on energy security and the proliferation of energy transition wars, in light of the sanctions being employed by states against Russia for its continuing violation of international law, including the decision by Germany to halt the certification process of the Nord Stream 2 pipeline. Read more of Sourgens’ analysis and his calls for a robust dispute resolution mechanism here.

Marko Milanovic identifies the possible legal justifications offered by Russia for its decision to use force against Ukraine, which appear to include: 1) Russia is using force in self-defence, pursuant to Article 51 of the UN Charter, to protect itself from Ukrainian threats; 2) Russia is using force in collective self-defence of the (‘supposedly independent’) Donetsk and Luhansk republics; and 3) ‘there is something like a humanitarian intervention argument’. Milanovic briefly assesses these three grounds and appears unconvinced. Read more here.

Devika Hovell asks ‘What do we do when the world’s Council of war becomes a Council at war?’ highlighting that the UN Security Council, which is meant to be responsible for maintaining or restoring international peace and security, is currently deadlocked by P5 vetoes. Hovell reminds us the structure of the UNSC was intended to create a balance of power and ensure no P5 member could ever pursue their own interests. Instead, the UN General Assembly becomes ‘the obvious candidate’ for addressing the situation in Ukraine. Read more here.

Rebecca Barber takes up that call and assesses what role the UN General Assembly could play in addressing the situation in Ukraine, including a resolution condemning Russian aggression and recommending that member states adopt sanctions. Barber concludes:

In the face of Russia’s aggression in Ukraine, the obligation to cooperate surely requires member states to fully exploit all tools in the General Assembly’s toolbox, that have even the faintest prospect of bringing the aggression to an end.

Other posts

Diane Desierto also comments on the ICJ’s Reparations Judgment in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), which awarded the DRC US$330 million as compensation for damage caused by Uganda’s violations of international human rights law, international humanitarian law, and international law – a 17 year gap since its Judgment on the Merits in 2005. Desierto assesses the Court’s methodology, including the notion of a “global sum”, for determining compensation and  its consequences for human rights claims, that might be better served by a Supervisory Unit capable of monitoring state compliance with reparative judgments.

Vito De Lucia discusses plans to de-orbit and ‘junk’ the International Space Station, which is reaching its end of life, in an area of the Pacific Ocean known as Point Nemo but also known as the ‘spacecraft cemetery’. However, there are environmental concerns about these ‘splashdowns’ and calls to preserve the ocean commons. Read more analysis on splashdowns by De Lucia here. 

All recent Events and Announcements can be found here.

The European Journal of International Law has new advance articles and advance reviews available to read online.

They include a review of Nicolás Perrone’s Investment Treaties and the Legal Imagination: How Foreign Investors Play by Their Own Rules by Taylor St John and an article by Amrita Bahri and Daria Boklan on ‘New Gender Exception in Trade Agreements’