International law is in turmoil, and under challenge. It has been likewise for centuries, but particularly since 24 February this year. It does not mean that international law has to be suddenly capable of terminating the aggression mounted against Ukraine. It has never been in the realm of international law to halt aggressions or the use of force in general, as far as the “halt” implies enforcive and effective action.

However, the challenge posed to international law and international lawyers is existential, calling their values into question. It was President Zelensky of Ukraine who, in his online address to the UN Security Council on 5 April, accused the Security Council of insufficient action, and then thrusted forward a defiant query: “Are you ready to close the United Nations? Do you think that the time for international law is gone?”

One should not disregard this query as a howler by someone lacking expertise in international law, on the “expert” ground that the UN Charter is designed not to work in cases of aggression by any of the permanent members. Such an expertise is of no use if it cannot stop homicide and destruction. On the contrary, Zelensky’s real challenge was addressed toward whether or not we international lawyers can remain complacent about the (pre-determined) ineffectiveness of international law and international organization for peace and security. Whether they can solve the conundrum or not, international lawyers have to face this critical query.

What was also disturbing was an utterance by Vladimir Parkhomenko, former Ukrainian Minister of Education, in an TV interview, where he had this to say: “There is no international law to stop a war.”  I would not dare to say that I had known it from the beginning. Important is the fact that little effort has been made about rectifying this fatal defect. There is not a single treaty article which specifically can stop wars, even though rules exist about enforcement actions that punish lawbreakers — except for the permanent members of the Security Council.

Zelensky’s challenge in the Security Council reminded me of Sir Hersch Lauterpacht’s lecture at Cambridge on 16 November 1938, titled “The League of Nations” (Lauterpacht, International Law: Collected Papers, vol.3, CUP 1977, Chapter 5). It was only two months after the so-called Appeasement of Munich, where Great Britain and France (two of the permanent members of the League Council) agreed with Germany and Italy (already mavericks from the League) to the cession of Sudentenland of Czechoslovakia.

Lauterpacht was apparently indignant at this flagrant violation of international law, and the inability of the League to take action, although it was meaningless to expect it with both Britain and France being the co-author of this “non-violent” aggression. Judging that the principal object of the League has failed, he pleads vigorously: “That failure has now become part of the law; or, to put it in other words, the Covenant of the League is now, in law, no longer what it was in 1919,” which has amounted to “a change in law.” And the crux of his asseveration is this:

Ought we to abandon the League and start afresh as soon as the obstacles disappear? Ought we to maintain it and to adapt it to the needs of a retrogressive period? Ought we to pursue the idea of universality by reforming the League so as to make it acceptable to anyone? Ought we to admit that if peace cannot be achieved by collective effort, there are other good things that can be achieved through it? (ibid. p.583)

   We are being challenged exactly in the same way by President Zelensky’s provocative yet legitimate query. Are we to abandon the United Nations and relinquish international law, or are we to murmur to ourselves that this is no failure of the UN, to be made up with something better? I do not believe in either position. We will keep needing the normativity with which to run the world, and the multilateralism with which to frame the relations between states, neither of which may not be able to remain the same as hitherto.

   Also, the heritage from Lauterpacht is not whether we should associate Russia with Nazi Germany, but whether we can share the qualitatively same professional sense of responsibility as well as an analogous social scientific sensibility. He was undoubtedly guided by an aspiration for a peaceful and just world order, instead of being contented with an apparent “objectivity” which one may derive from exclusively dealing with positive law. The task of international lawyers should not be confined to such a mechanistic handling of rules. In the same vein, we should not be deluded to believe that we international lawyers are guaranteed to be the guardian of order and justice simply because we talk about law. As Martti Koskenniemi puts it:

In a way, international legal history became a history of individual lawyers acting like so many chivalrous knights, defending the oppressed against the oppressors, peace against war, carrying the torch of civilization (from Greece to Rome) through dark ages to the present. It was not kings or diplomats but writers and scientists who finally woke up “das schlummerende Rechtbewusstsein der zivilisierten Welt.” * (Koskenniemi, The Gentle Civilizer of Nations, CUP 2001, p.78)

(* the dozing legal consciousness of the civilized world = quoted from Bluntschli, Das moderne Völkerrecht)

Being professionally responsible and social scientifically sensible does not mean that we are called upon to politically choose either Ukraine or Russia. It is not a matter of taking side with this or that state.

On the one hand, it seems safe to say that the Russian act was a crystal-clear aggression, as recognized by the General Assembly on 2 March 2022 (GA/RES/ES-11/1. Aggression against Ukraine). This may turn out to be a new precedent of the manner to recognize aggression by the General Assembly instead of the Security Council. Although it seems taken for granted that the determination of the existence of an aggression resides with the Security Council in accordance with Article 39 of the Charter, this article does not endow upon the Council an exclusive power to do so. On the contrary, it would be meaningless to presuppose so, for there is no chance for the Council to decide on an aggression by a permanent member. If so, its non-determination of aggression cannot logically be final. It is at best a political action that creates no legal effect, leaving room for an alternative organ, such as the General Assembly, to determine aggression according to the will of the majority.

Some voices were heard that NATO was responsible for inducing Russia to mount an attack, though unprovoked, as it had had grievances against Ukraine and NATO. This is a political consideration which we may have to take into account when we make a judicial decision, yet it cannot override a prima facie legal determination of an aggression. Political grievances cannot offset the violation, if prima facie, of the most fundamental norm of the post-World War II legal order, if we are not cynical about international legal order.

Some secondary legal questions have arisen as regards, for example, the non-discriminatory application of the laws of war. It can be an exercise of Rechtshermeneutik, but not the most responsive action to the challenge of the grave situation. If there is anything where the non-discriminatory principle should be promptly and sweepingly applied, it is the Martens Clause of the Hague Convention on land warfare of 1899 and 1907, which declared that: “(I)n cases not included in the Regulations adopted by [the High Contracting Parties], populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.”

On a strict condition that the author of aggression will eventually be held legally responsible, the urgent task at this moment is to cease homicide and other destructions, whether by the aggressor state or the victim state. If international law was unable to prevent an aggression, it ought to be instrumental in a subsequent application of the laws of humanity.

We international lawyers are equally challenged about the reconstruction of multilateralism which I myself have defined as collective action based on collective decision in accordance with collective norms.　The kind of multilateralism around the Security Council at its center did and does not work. In this regard, we may have to be more robust than Lauterpacht in judging that the UN system, at least the Charter provisions of the security system, ought to be reviewed and recreated, lest it be forsaken by the world population. At the same time, some measures should be taken to uphold the minimum multilateralism so that the world can avoid the total collapse into conflicting camps. Some ostracizations of Russia have taken place in some organizations/organs such as the Council of Europe, and the UN Human Rights Council, which may be necessary and justifiable to some extent as sanctions. But they cannot continue in an unlimited way. The period “after Ukraine” will have to be one of reconstruction, and not a system of exclusion sine die. Russia should be legally reproachable, but after the halt of destruction, we have to construct a multilateral system where we can live with a former aggressor.  

Toshiki Mogami is Visiting Professor at the University of Basel.

Read more about this topic in the Asian Journal of International Law.