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  • thomcheney

In Defence of International Law

I write this on the morning of Thursday 24 February 2022. I have woken up to the news of the Russian invasion of Ukraine.[1] This is a brutal, flagrant violation of international law, and the basic norms of the international order. After Vladimir Putin’s tirade of Monday night[2] only the most shameless of apologist can pretend it to be anything other than that. The refrains that the world has changed are right, we are in a new era now. Whether this is the post-post-Cold War or the post-post-post-Cold War will be for historians to figure out, but what that era will look like is to for us to figure out.

References to World War Two are overused to the point of cliché, but in this case the analogies are valid. This is the gravest challenge to the international legal order since the start of World War Two. Putin’s justifications for his attack on Ukraine are a direct assault on the foundational principles of the international legal order established at the end of the Second World War: the prohibition on the use of force, the primacy of territorial integrity, sovereignty and self-determination. That is not to say that all borders are correct or perfect, indeed the legacy of colonialism has left many states with borders simply drawn on a map by colonial administrators, but the point is those borders shouldn’t be redrawn by military force or without the consent of the people living in those states. As Kenya’s Ambassador to the UN, Martin Kimani[3], said to change these borders through war would simply invite a devolving spiral of brutal violence the likes of which the UN was established to end. And while its true that the past 80 years have hardly been peaceful utopia, these principles have generally been upheld. It is important they are not a causality of this war.

Putin wants to turn back the clock. He wants to return to a time of imperial expansionism and great powers. He views Russia as one of those great powers, of course. If he succeeds he will most likely not stop with Ukraine. Read his speech again, this is clear. Others will also take heed, because if he succeeds, he will have rewritten the rule book. Might not right will prevail. Power not law will be the foundational principle of this new order. And it will be an order drenched in blood, just like it was before 1945. Therefore, it is of vital necessity that we rally to the defence of international law (and the United Nations), and the reasonably peaceful, stable order that it has created.

There is a common refrain, and I’ve personally been on the receiving end, many times, that international law isn’t real or is pointless. This is something we need to push back on. On one end is the reality that international law facilitates the world that we live in. Whether its communications, international commerce, banking, travel, or indeed the internet you are reading this on, international law is of vital importance to the basic functioning of the modern world. Then there are the bigger picture concepts, such stopping the invasion, occupation and annexation of other countries. Granted, we can all point to examples of violations of international law, but that should not invalidate the concept of international law. After all, a murder is not justification for doing away with the law against murdering people. The key is ‘enforcement’[4] and yes enforcement is tricky. Countries are not people, and we can’t put Russia in jail (theoretically we could jail Putin[5], but I won’t get into that). But I also feel that the focus on ‘enforcement’ somewhat misses the mark.

Law, whether domestic or international but more so for international law, is a social and political construct. It exists because people ‘believe’ in it – sure you can impose ‘order’ through force but even in the most totalitarian of states that has limitations. Most of us refrain from murder not only because it is ‘against the law.’ The success (and failure) of ‘mask mandates’ during the COVID pandemic should have served as a ‘crash course’ in the limits of law (and enforcement) without broader social backing. So ‘enforcement’ of international law isn’t the problem to solve, but rather the broader ‘support’ for international law among the international community. In order for international law to succeed, we need to believe in it and support it.

I am under no illusions that Putin will realise his error and back down, whatever is going to happen in Ukraine will have long lasting repercussions, and probably, perhaps necessarily, result in something akin to a ‘new Cold War’. The world has changed, the optimism of the post cold war 1990s is long gone, but that doesn’t mean we should or have to simply accept decent into the bleakness of the implications of accepting Putin’s ‘revolution’. He wants to destroy the post-1945 international order, we cannot let him, because to do so will return us to the dark days, and simply lead to more war. If Putin succeeds in Ukraine why wouldn’t North Korea consider following suit in South Korea; or China, in Taiwan…[6] There are bound to be other examples around the world.

So, we need to stand for the international order, we need to defend it and promote it. We need to call out violations (the UK needs to sort out the Chagos Islands situation – by which I mean return them to Mauritius), promote its virtues (functioning satellites are pretty nifty), and work for its development and reform through peaceful means and appropriate venues.

This stretches from the mundane of ITU regulations and regulatory standardization, to the exciting possibilities of regulating space activities. It also involves recognizing, and dealing with the injustices of international law, which for all the positives of the past 80 years is still fundamentally rooted in the injustices of European colonialism. Which is one of the reasons that criticism of international law by the likes of Putin does resonate. Of course, Putin doesn’t want to undo those injustices but create new ones. Therefore, it is necessary not only to defend international law but to improve it. Defending the principles of the post-1945 international order, the principles of the peaceful settlement of disputes, the principle of territorial integrity, the principle of sovereignty and equality of states, the principle of self-determination, the principle of the prohibition of the use of force, doesn’t mean that we defend international law as some sort of perfect or system. But Putin doesn’t want to ‘reform’ international law, he wants to destroy it. Again, read his speech, read his own words. He’s not quibbling points of law, he rejects the system.

Ultimately it comes down to what future do we want. Do we want a future in which a few great powers get to carve up ‘smaller’ and ‘weaker’ states as they see fit[7] – or do we want a better future. One in which disputes are solved peacefully, and the international rule of law prevails?

Now there will be those who declare that I am naïve, and idealistic, and that international law is irrelevant. And well, to those people, I say you are part of the problem. The so-called ‘realists’ who declare that the foundation of ‘international order’ is power share the foundational world view of Vladimir Putin. They may not approve of his specific actions but they do approve of his justification, because they too view power as its own justification. So quite frankly, I’m not interested in the rebukes of those people.

So where do we go from here… well, the invasion of Ukraine needs to be dealt with. That isn’t a cry for war, but action. Putin’s Russia needs to be a pariah state. As I discussed above, law, particularly international law, is a ‘social and political construct’, it works because the community, the society, wants it to work. If Putin rejects the fundamental rules of the international community, the society of states, then he doesn’t get to enjoy the benefits of it. Russia needs to be kicked out of the Council of Europe; prevented from participating in international sporting events like the Olympics[8] or the World Cup; Russian participation in the ISS needs to end, even if that means the end of the ISS (same with other forms of space cooperation by ESA and NASA); and so on and so on. On an individual level this is something we can do to; don’t go to Russia or engage with the Russian government or state-owned entities. If Putin wants to behave like a thug, then he can be treated like one. Values and principles are important. International law is important. International Law mattes. It matters for climate change. It matters for dealing with any number of global challenges facing humanity. It matters for making a more peaceful, humane, and just future for humanity. On or beyond Earth. If we don’t take a stand, we will return to anarchy. The future is at stake.

Please consider supporting Save the Children’s Mission in Ukraine as they support children and families affected by the conflict ongoing since 2014:

[1]Not forgetting the invasions in 2014

[2]The official Russian Government English translation is here:

[4]Well hold on to that thought….

[5]And yes, I’m totally in favour of the Office of the Prosecutor of the International Criminal Court opening investigations into Tony Blair and co for Iraq, but I’m not going to indulge whataboutery

[6]Ok, yes, the US has different political/legal/moral obligations to S. Korea and Taiwan than Ukraine so that may sufficiently act as a deterrent

[7]And again, not interested in whataboutery; US imperialism is bad, spend plenty of time criticising it, but the last time the US annexed any territory was in 1947 when it took over the Mariana Islands from Japan

[8]And, actually, properly kicked out, not allowed to compete as the ‘Russian Olympic Committee’

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