11 Apr Inherit the Wind: Collective Security, Non-recognition, and Russia’s War of Aggression Against Ukraine
[Francisco Lobo is a Doctoral Researcher at the Department of War Studies, King’s College London and a Legal Theory and International Criminal Law lecturer. He holds an LLM in International Legal Studies (NYU), an LLM in International Law, and an LLB (University of Chile).]
During the past weeks a flurry of legal opinions concerning Russia’s aggressive war against Ukraine has flooded the internet, evincing that, if for some war effectively silences the law – inter arma silent leges in the classic realist formula – it most certainly does not drown lawyers out who are willing to speak up against flagrant violations of the international legal order. It appears that there is no such thing as inter arma silent advocati. Indeed, opinions abound as to the many breaches of international law committed by Russia – including its lack of jus ad bellum justifications, its unabashed mockery of the international legal language, arguably a continuation of a long history of similar breaches by hegemonic powers, with the international backlash generated by the invasion of Ukraine offering a glimmer of hope at the same time, including some proposals for achieving the ever-elusive post bellum accountability. There has also been defiance to the realist mantra through the reaffirmation of all those IHL standards that are fully applicable to the armed conflict, especially as damning evidence of war crimes committed by Russian forces on the ground accumulates by the day.
Further, in light of the unequivocal armed attack committed by Russia, some have called for the exercise of collective self-defense even though Ukraine does not belong to any military alliances, but drawing directly on Article 51 of the UN Charter. In this opinion I would like to suggest an additional legal argument to justify the international community’s firm reaction against this blatant breach of the cornerstone prohibition on the use of force under international law, by combining the nature of the UN as a collective security system and the doctrine of the duty of non-recognition of breaches of international law.
The UN as a Collective Security System
Just as its predecessor, the League of Nations, the Organization of the United Nations has the main purpose of putting into effect a collective security system. Its main body, the Security Council, is entitled under article 39 of the Charter to determine the existence of threats to peace, breaches thereof or acts of aggression, being able to decide non-forcible or forcible measures (arts. 41 and 42). Such collective security regime coexists with that of collective self-defense under the Charter.
According to Hans Kelsen, collective self-defense differs from collective security in that under the former states have the faculty to intervene when invited by the victim state, whereas under the latter every state has the duty to intervene. A higher level of collective security is reached when forcible measures are centralized, yet still leaving room for the exceptional right to self-defense of each state. Kelsen argues that the collective security system inaugurated by the UN Charter presents a centralized monopoly of force by the Security Council. Further, as suggested by Yoram Dinstein, a collective security system is essentially “introspective”, inasmuch as it aims at reestablishing order among members of the same community or the same “house divided”, whereas self-defense tries to repel “external” threats. It is worth pointing out that in the current crisis there is no external challenger to the UN system, such as ISIS, but both parties to the conflict belong to the same collective security system. As stressed by President Zelensky in his address to the UN Security Council on 5 April 2022: “This undermines the whole architecture of global security”.
An alternative approach to such centralizing ambition, as acknowledged within the same UN Charter in Chapter VIII, has been taken by some regional systems that had revisited the “solidarity” clause of the erstwhile League of Nations, interpreting an attack against one member of the group as an attack against the whole. Such has been the approach taken by the OAS Charter (art. 28) and the Rio Treaty (art. 3), the Non-Aggression and Common Defence Pact of the African Union (art. 4.a), NATO (art. 5), and the European Union Treaty (art. 42.7).
The Duty of Non-recognition Under International Law
After the illegal occupation of Manchuria by Japan in 1931, the United States adopted the “Stimson doctrine,” whereby the legal effects of such a blatant breach of international law would not be recognized. This doctrine would be shortly after enshrined in the Montevideo Convention on the Rights and Duties of States, of 1933. A decade later, through the Moscow Declaration of 1943, the Allies qualified Germany’s annexation of Austria in 1938 as “null and void.” The OAS Charter of 1948 also closely follows this doctrine (art. 21).
After the declaration of independence issued by the racist regime of Southern Rhodesia in 1965, the Security Council passed Resolution 217, calling states not to recognize this violation of international law (par. 6). Shortly afterwards, the same body would declare as “illegal” the continued presence of South Africa in Namibia, in its Resolution 276 of 1970 (par. 2). After being consulted about the same situation, the International Court of Justice declared in 1971 the existence of an erga omnes obligation not to recognize the legality of the presence of South Africa in Namibia (pars. 119; 126). The non-recognition doctrine would also be embraced in Resolutions 2625 (Principle 1, par. 10) and 3314 (art. 5.3) issued by the General Assembly, on relations of friendship among states and the definition of aggression, respectively. In 1983 the Security Council again declared as “invalid” the proclamation of independence of the “Turkish Republic of Northern Cyprus” (Resolution 541, par. 7). In 1990, the Council declared “null and void” the annexation of Kuwait by Iraq and called upon states not to recognize it, through its Resolution 662 (pars. 1-2).
All these developments were epitomized with the inclusion of the non-recognition doctrine in the Articles of State Responsibility for Internationally Wrongful Acts prepared by the International Law Commission in 2001 (art. 41.2). The International Court of Justice reaffirmed its customary nature a few years later in its advisory opinion on the Wall (par. 159). Accordingly, the UN General Assembly passed a resolution in 2014 calling upon all states, international organizations and agencies not to recognize the illegal annexation of Crimea by Russia in 2014.
What the Duty of Non-recognition Actually Requires
Now, what is the specific content of the duty of non-recognition under international law? According to Ian Brownlie, such duty comprises two negative obligations, or duties to refrain from acting: (i) not to recognize the legality of situations that seriously infringe upon international law; and (ii) not to render any assistance or support to maintain those situations. Still, could this institution comprise positive duties as well?
In Namibia, the International Court of Justice held that “the qualification of a situation as illegal does not by itself put an end to it. It can only be the first, necessary step in an endeavour to bring the illegal situation to an end” (par. 111). Once the situation had been denounced by the Security Council, the Court added:
“A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence. Once the Court is faced with such a situation, it would be failing in the discharge of its judicial functions if it did not declare that there is an obligation, especially upon Members of the United Nations, to bring that situation to an end” (par. 117, emphasis added).
This criterion was further developed in the separate opinion of the Vice-president of the Court, Judge Ammoun. Recalling the precedent of the aforementioned Moscow Declaration of 1943, Judge Ammoun regretted the fact that the Court did not make clear all the consequences derived from the Council’s declaration of an act of aggression. Later on, in its advisory opinion on the wall in Palestine, the Court recalled that the duty of non-recognition entails a duty to bring the illegal situation to an end, always within the framework set forth by the UN Charter (par. 159).
The Situation in Ukraine
As the Security Council remains unsurprisingly paralyzed after Russia’s invasion of Ukraine, the UN General Assembly decided to step in, holding an emergency session on 1 March 2022 that resulted in a resolution recalling the Uniting for Peace procedure of 1950 and reaffirming that no territorial acquisition resulting from the threat or use of force shall be recognized as legal. Thus, to cite the ICJ in the Namibia opinion, a competent organ of the United Nations has made a determination (although not binding as it is a General Assembly resolution) to the effect that a situation is illegal, and therefore such a determination cannot remain without consequence in keeping with the legal duty of non-recognition under international law.
Could such a legal duty of non-recognition entail positive forceful acts by the international community against Russia, that might work in parallel to the collective self-defense argument already advanced by some? In the past, the duty of non-recognition has more than once entailed positive acts by states, even through military action. As early as in the Moscow Declaration of 1943 the Allies pledged to free Austria, obviously through the force of arms. When the Security Council declared the illegality of the creation of Southern Rhodesia in Resolution 217, it did so by instructing expressly the United Kingdom to put an end to the situation (par. 1), and even “to quell” the rebellion in the region (par. 4).
This might suggest the existence of an exceptional enforced duty of non-recognition within the otherwise centralized collective security system that is the UN. Yet, such a duty does not exist yet in international law, at least not without the imprimatur of the Security Council as the doctrine of non-recognition requires states to bring to an end through lawful means any serious breach of a peremptory norm giving rise to this duty of non-recognition in the first place (ARSIWA, art. 41.1). Pursuant to the collective security system envisaged in the UN Charter, should they entail the use of force, such lawful means could only amount to self-defense or to an action authorized by the Security Council under Chapter VII (for instance, as happened with the illegal situation in Namibia).
Still, unlike self-defense which remains a faculty or permission for states, the duty of non-recognition imposes some minimal obligations upon states, comprising certain abstentions, i.e. not to recognize and not to render any assistance to maintain the illegal situation, and even positive actions, i.e. to bring the situation to an end through lawful means. Since the duty of non-recognition is operationally connected to a breach of a peremptory norm of international law (ARSIWA, arts. 40-41), perhaps the doctrine established by the ICJ regarding the duty to prevent genocide might shed some more light on what the international community is supposed to do to redress a similar breach of a peremptory norm of general international law by Russia, in casu the prohibition of aggression.
In its decision on the dispute between Bosnia and Herzegovina and Serbia and Montenegro, the ICJ concluded that the obligation to prevent genocide is one of conduct and not one of result. This means that states are expected to employ all means reasonably available to them, doing everything within their power and acting with due diligence (par. 430).
In the same vein, we may conclude that in the case of an ongoing breach of another jus cogens norm such as the prohibition of aggression, states are also required to do everything within their power to “bring that situation to an end”. In order to ascertain what is reasonably available, states have to factor in considerations of both law (in keeping with the legal doctrine of non-recognition and its emphasis on lawful means) and policy (lest escalation lead to an even worse state of affairs for the region and the world in general).
Strong economic sanctions and a bona fide willingness to join collective self-defense efforts to stop current Russian aggression and deter future attacks against other states might amount to such diligent endeavors to restore the collective security system to which all parties to the conflict belong, including the aggressor as one of its founding members. After all, a house divided against itself cannot stand, and rather than being rewarded with legal recognition, those who trouble the international legal order should know they shall inherit the wind.