Dictators' distortions of international law

By Park Jung-won

Russian President Vladimir Putin and Chinese President Xi Jinping held a summit on March 21 after which they reaffirmed their solidarity, strongly criticizing the hypocrisy of the current U.S.-led rules-based international order. They argued that the world order should be a multipolar system in which each country's sovereignty is respected under international law. Xi may have wanted to look like a neutral mediator in the Russia-Ukraine war to the world, but he had no intention of mediating from the outset.

The two leaders opposed unilateral sanctions without the approval of the U.N. Security Council. They did not mention, however, that Russia's veto power prevented the possibility of any official U.N. sanctions on Russia. They spoke of respect for sovereignty, but not Russia's clear violation of Ukraine's sovereignty. They noted the fundamental norms of international law, but the meaning behind these words was completely different from that used by most normal countries. As a matter of fact, Putin has frequently referred to international law to justify Russia's actions in Ukraine, but these repeated tributes to its virtues have been an exercise in distorting and perverting the very substance of international law which he acclaims.

Putin has accused the West, including the U.S. of dressing up Kosovo's unilateral independence from Serbia in 2008 as an exercise of the right to self-determination, arguing that it was illegal and an infringement of Serbia's sovereignty. However, Putin also presented Kosovo's independence as a "precedent" justifying Russia's annexation of Crimea in 2014.

In fact, the case of Kosovo can be seen as a legitimate exercise of the right to self-determination by the Kosovar people, who had long been subjected to extreme human rights abuses, including brutal genocide, by the Serbian government. Although it was unilateral, its independence was achieved within the framework of an international process. This included NATO's humanitarian intervention to protect the Kosovar people and the U.N. supervisory mission in Kosovo, along with peaceful international efforts to negotiate Kosovo's future status.

In contrast, Russia's annexation of Crimea was fundamentally different, because it was not a legitimate exercise of the right of self-determination of the residents of Crimea. Instead, it was merely a violation of Ukraine's sovereignty. The referendum in Crimea used to justify Russia's annexation, held amid Russian military threats and a heated atmosphere, cannot be considered legitimate. In the absence of extreme human rights violations and a blatant denial of ethnic or national minority rights, the unilateral separation of a region from a state cannot be permissible.

In addition, Putin defended Russia's so-called "special military operation" in (or rather its illegal invasion of) Ukraine in 2022 as the result of Russia's legitimate exercise of collective self-defense and humanitarian intervention because the two republics of Donetsk and Luhansk in the Donbas region were linked to Russia by treaty relations. Russia's recognition of the two republics' statehood on February 21, 2022, was an illegal act and an infringement of Ukraine's sovereignty, with no recognition by the international community.

Putin even maintained that because the Ukrainian government had committed genocidal acts against ethnic Russian residents in the Donbas, Russia had to intervene to protect those people, in the same way that NATO intervened in the Kosovo region of Serbia in 1999. When an armed attack has occurred or is imminent, it is necessary to present proof of the perpetrator's actions or threat in order to justify the use of force under self-defense.

Russia provided no such concrete evidence, giving only a shallow excuse that NATO's eastward expansion had caused an unacceptable security threat to Russia. There was also no concrete evidence presented by Russia showing that ethnic Russian residents faced genocide by the Ukrainian government in the Donbas.

Dictatorial leaders such as Putin and Xi, who face no domestic democratic constraint, can justify their countries' illegal actions in this way by distorting the fundamental norms of international law ― such as self-determination, self-defense and humanitarian intervention ― and manipulating previous cases in which patterns that might appear similar on the surface differ greatly in a substantial context upon close examination.

Putin frequently mentions the 2003 Iraq War and actively uses it as a rebuttal to the U.S.' and the West's condemnation of the Russian invasion of Ukraine. The Iraq invasion, led by the U.S. and U.K., was obviously a foreign policy disaster and its legitimacy is questionable. However, the case of that war should be reviewed in the context of Iraq's invasion of Kuwait in 1990 and the subsequent U.N. collective action (the first Gulf War) which led to a ceasefire with conditions imposed on Iraq. Iraq's continued violations of these conditions contained in U.N. Security Council resolutions provided the background to the 2003 invasion. To suggest an equivalency of the Iraq War with Putin's war in Ukraine is both historically inaccurate and morally deceptive.

Unlike the case of domestic legal order, international legal order is composed of abstract language. There is always the risk that fundamental international norms can be misused and distorted by hegemonic or autocratic states in situations that look similar in appearance but are quite different in substance from established precedents. In the absence of a unified world government, there may be no way to solve such problems except through the formation of international public opinion with persuasive arguments presented by states, international organizations, and members of global civil societies.

Through this "justification process" of international norms, members of the international community should judge the rights and wrongs of each case in as much detail and as concretely as possible. This is why the Russia-Ukraine War should not end with an uneasy truce without consequences for the aggressor. Unless such repercussions occur, the vicious distortion of international law by delinquent states like Russia will continue unabated.

Park Jung-won (park_jungwon@hotmail.com), Ph.D. in law from the London School of Economics (LSE), is a professor of international law at Dankook University.