Recent International Legal Scholarship on the Crisis in Ukraine

by Chris Borgen

As the fighting in Ukraine continues into its second year, recent reports have variously focused on the promise of a weapons withdrawal and the risk that there is the opening of a new front opening. Recent international legal scholarship has attempted to frame the conflict within the context of international law and consider topics such as issues of legality and responsibility, the role of international law in conflict resolution, and what the conflict itself may show about the state of  international law and the international legal profession.  Following are two recent volumes and a set of videos covering a variety of such concerns:

The first is the current volume of the US Naval War College’s International Law Reports, which contains papers prepared for an October 2014 workshop organized by the West Point Center for the Rule of Law of the U.S. Military Academy and the Stockton Center for the Study of International Law of the U.S. Naval War College. These articles tend to focus on use of force and international humanitarian law related issues including Lieutenant Colonel Shane Reeves and Colonel David Wallace on the combatant status of “little green men,” Geoff Corn on regulating non-international armed conflicts after Tadic, and Opinio Juris’s Jens Ohlin on legitimate self-defense.

I was also one of the workshop participants and my paper, Law, Rhetoric, Strategy: Russia and Self-Determination Before and After Crimea, considers how and why Russia has used international legal arguments concerning self-determination in relation to its intervention in Ukraine. I address the question “of what use is legal rhetoric in the midst of politico-military conflict” by reviewing the laws of self-determination and territorial integrity and considering Russia’s changing arguments concerning these concepts over the cases of Kosovo, South Ossetia, and Ukraine.

In March, the Centre for Polish-Russian Dialogue and Understanding and the Institute of Law Studies of the Polish Academy of Sciences hosted a conference in Warsaw that brought together international lawyers from Russia, Ukraine, across Europe. (I was one of two participants from the U.S.) Given the breadth of views, the discussion was lively. Videos of the presentations are now available online. Panel topics include self-determination and secession (1, 2), use of force issues (1, 2), reactions of the international community (1, 2), issues of recognition and non-recognition (1), and the international responsibility of states and individuals (1).

In the West, we don’t often hear the Russian analyses of the international legal issues in the Ukraine conflict, so I want to highlight contributions by Prof. Anatoly Y. Kapustin, Institute of Legislation and Comparative Law and President of the Russian International Law Association (starting at the 36th minute of the panel on reactions of the international community), Prof. Vladislav Tolstykh of Novosibirsk State University (starting at the 52nd minute of the self-determination panel), and Prof. Evgeniy Voronin of MGIMO University (starting in the 54th minute of the use of force panel).

By the way, my own talk on the self determination panel begins at the 27th minute.

Third, the new issue of the German Law Journal is devoted to a broad range of approaches to assessing the conflict. The opening section uses the perspective of public international law. The next section, as described in the introduction by issue editor Zoran Oklopcic:

upset[s] traditional approaches by interrogating the professional commitments of international lawyers, insisting on the legal and factual hybridity of the conflict, and exposing larger ideational frames and their socio-economic underpinnings that make the conflict in Ukraine legally legible in a particular way.

Following this are discussions steeped in constitutional law and theory and normative political theory. The closing section proposes broader reform agendas and reconsiderations of the roles of law and of international actors. Contributors include organizer Zoran Oklopcic on early-conflict constitution-making, Brad Roth on the rules of secession, self-determination and external intervention, Mikulas Fabry on how to uphold the territorial integrity of Ukraine, Boris Mamlyuk on the Ukraine crisis, Cold War II, and international law, Umut Ozsu on the political economy of self determination, and Jure Vidmar on the annexation of Crimea and the boundaries of the will of the people.

I invite readers to point to other examples of scholarship on the Ukraine crisis via the comments section (or an e-mail to me). I think we all hope that this will become a historical incident rather than continue as a current event.

http://opiniojuris.org/2015/07/24/recent-international-legal-scholarship-on-the-crisis-in-ukraine/

2 Responses

  1. Response…Fascinating commentary Chris.

  2. Veronika Bílková, “The Use of Force by the Russian Federation in Crimea”, ZaöRV 75 (2015), 27-50.

    Olivier Corten, “The Russian intervention in the Ukrainian crisis: was jus contra bellum ‘confirmed rather than weakened’?”, Journal on the Use of Force and International Law 2 (2015), 17-41.

    Luzius Wildhaber, “Krim, Ostukraine und Völkerrecht”, RSDIE / SZIER 25 (2015), 159-170.

    Peter Hilpold, “Die Ukraine-Krise aus völkerrechtlicher Sicht: ein Streitfall zwischen Recht, Geschichte und Politik”, RSDIE / SZIER 25 (2015), 171-182.

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