Symposium: Use of force, territorial integrity, and world order: continuing the debate

Use of force, territorial integrity and world order:
a response

by Professor Ingrid (Wuerth) Brunk and Professor Monica Hakimi
Published on 29 March 2023

“Plaque supporting territorial integrity of Ukraine at Checkpoint Charlie”. This file is licensed under the Creative Commons Attribution-Share Alike 4.0 International license.

We are grateful for the challenging and interesting responses to our editorial comment on Ukraine and for the opportunity to continue the conversation on CIL Dialogues.

We begin by identifying our core claim and by noting that we largely agree with (or do not address) many important assertions that the other contributors to this Dialogues series have raised. Then, we identify what we think are the key points of disagreement and defend our position against them. Finally, we consider how states should respond to the invasion.

I.     The claim

Our claim is that Russia’s invasion of Ukraine—which began a little over year ago—is among the most significant disruptions to the global order since World War II. This claim is about the stability of the global order, especially the global legal order. We argue that Russia’s invasion is more destabilising than the many other wars that have occurred during this period. First, it violated international legal norms against conquest—by which we mean, the norms that prohibit forcible annexations of foreign territory. Second, it lacked any plausible limiting principle to distinguish this invasion from any number of others that might be committed for territorial gain.

From the outset, Russian President Vladimir Putin clearly described the war as an effort to eradicate Ukrainian statehood, deny its self-determination, and acquire its territory. Ukraine, he said, ‘is not just a neighbouring country for us. It is an inalienable part of our own history, culture and spiritual space.’ Ukraine, Putin continued, ‘never had stable traditions of real statehood.’  And of course, we now know that Russia has taken steps to annex illegally some Ukrainian territory that it took by force, confirming the purpose of the conflict. 

We underscore in the piece that the stability of the international order is distinct from the justice or desirability of that order. The existing order is deeply flawed. Traoré calls it a ‘fundamentally unjust international system,’ and Chehtman, the result of ‘colonialist, imperialist, and racist projects.’ Our claim is not a defence of this order. Others who are deeply critical of great powers rivalry and of the current order, including Shivshankar Menon, the former National Security Adviser to Indian Prime Minister Manmohan Singh, argue, as we do, that the war has created a ‘weakening world order’ with profound effects for ‘countries outside the West.’

Thus, our claim is not a moral claim. We do not argue, for example, that the war in Ukraine is more morally reprehensible than the wars in Iraq and Kosovo. Neither do we suggest (much less defend the view) that the West is somehow ‘morally superior’ to Russia (Imseis). Nor do we make claims about the human suffering, the levels of destruction, or the economic damage inflicted in this war. Nor, finally, do we say or suggest anything about international criminal accountability for the architects of this war or for anyone else who might be accused of aggression (Traoré).

Some comments in the response essays make important assertions with which we largely agree. We will not discuss them here because they do not directly engage our claim. They include the following:

    • Wars directed against the political independence of states, rather than against their territorial integrity, can also violate international law, including (but not limited to) Article 2(4) of the UN Charter and the right to self-determination (Kotova & Tzouvala) (Traoré);
    • The United States and other Western powers have repeatedly acted in ways that have pushed the boundaries on or violated international law, causing great harm and diminishing the prohibition on the use of force and other important international legal norms (Chehtman) (Imseis) (Kotova & Tzouvala) (Traoré);
    • The reactions to the Ukraine war from the Global South are not surprising; they follow to some extent what has been done in response to other forcible operations by the West, often against states of the Global South (Traoré);
    • Wars directed against the political independence of other states can be equally or more deadly and harmful than wars for territorial acquisition (Chehtman) (Kotova & Tzouvala);
    • The prohibition on forcible annexations does not have a special legal status, as compared to other prohibited uses of force (Kotova & Tzouvala); and,
    • Other violent and unlawful territorial annexations have occurred (and are occurring), including in the Golan Heights, the West Bank, and Western Sahara, and the United States has in various ways supported these unlawful actions (Imseis) (Kotova & Tzouvala).

These points are developed in more detail in other contributions to this Dialogues series; we recommend them to you.

II.     The Stability of the International Order & Western (U.S.) Imperialism

We see three main points of contention with our claim and discuss them here.

A. Relationship to Western Imperialism & U.S. Power

First, our argument that Russian’s invasion of Ukraine is especially destabilising means that the questionable uses of force by the United States and other Western states were not as destabilising. Thus, our argument might be taken as supporting or excusing Western imperialism. As Kotova & Tzouvala say, ‘US imperialism has operated through coups, containers, and investment treaties rather than annexations.’ They explain:

‘Western imperial powers did not resort to annexation because they did not need to:  the combination of military bases all around the world, advanced logistics, international economic and commercial law, as well as targeted uses of force, mean that they can exercise significant degree of control over other political communities through the post-World War II institutional architecture.’

Yes. Without attributing motives to Western states (or endorsing any specific causal narrative), we agree that the international legal order is structured in ways that permit economic coercion, the projection of military might, and other benefits for powerful states, especially the members of the P-5. The invasion of Ukraine is more destabilizing than prior conflicts in part for this reason: it is a ‘different form[] of imperial violence’—one directed forcefully and squarely not only at Ukrainian statehood but also at the West, particularly the United States. Put differently, the international legal order that has been destabilised by Russia’s invasion was partially a hegemonic order.

For better or for worse, the war in Ukraine threatens the stability of that order. Indeed, many of the reactions to it can be understood in these terms. For example, the Chinese failure to condemn the war seems to be driven more by its displeasure with Western imperialism than by a desire to permit wars of territorial conquest. States of the Global South, which do not necessarily condone territorial annexations, might want to communicate that they are not lining up behind the West. In short, our claim that the war has destabilised the global order is consistent with the claim that that order was hegemonic and unjust. But of course, there are many ways to resist hegemony and injustice that do not involve wars of territorial conquest or the instantiation of colonialism. And it is possible for one unjust order to be replaced by another, even more unjust order.

B. Reason Giving

        Second, Russia relied on Western precedent to justify its conduct, suggesting that Western precedent is what destabilised the international order. If so, Russia’s use of precedent still weakens the international legal order because the reasons given by the West for previous uses of force are now also openly used by other states. Again, that shift might or might not be justified, but it is in any event destabilising; it “democratises” a form of reason-giving in the service of colonialism.

        We think, however, that there are meaningful differences between the Western wars that are often cited as precedents (i.e., Kosovo, Libya, Iraq, and Syria) and Russia’s conduct in Ukraine. The former were—again, for good or for ill—built on actions by international institutions, including the UN Security Council, that condemned the conduct of the states against which force was used. Nothing like that preceded the war in Ukraine, and we think there’s a reason why: the security threats that international institutions identified in those countries, before Western states used force in them, were simply not present in Ukraine. Others might disagree. But to the extent that the institutional determinations that provided the normative frameworks for Western interventions were due not to security threats on the ground but to the power of Western states to create credibility, Russia’s war is still different. It is a bid for individual states to create credibility without antecedent actions by the relevant institutions. That, too, is destabilising. It is destabilising, even if it is justified. And we’ll confess that, in this case, we don’t think it is.

C. What’s so Special about Territory?

        Third, the crux of our claim is that conflicts over territory are different from other kinds of conflicts. A cluster of international legal norms are designed to limit such conflicts. These norms include not only the prohibition on the use of force in Article 2(4) of the UN Charter and customary international law but also: the Stimson Doctrine, pursuant to which states do not recognise sovereignty over territory acquired by force; uti possedits, which requires the preservation of inherited borders; the lack of a right to secession as a part of the right of self-determination; doctrines that render it especially difficult to displace treaties that establish international borders; and the definition of statehood, which presupposes a defined territory. These doctrines together reflect a basic principle of the post-World War II legal order: that states, once constituted under international law, are entitled to the preservation of their own territory. 

        A distinguishing feature of the war in Ukraine is Russia’s explicit denial of Ukrainian statehood and clear efforts to annex Ukrainian territory. The invasion did not just violate the prohibition on the use of force; it also undermined these other doctrines and their efforts to avoid territorial conflict, tearing more deeply at the fabric that holds contemporary international law together. Indeed, although many new states have been created (or recognised) since the end of World War II, including from the process of decolonization and the break-ups of the Soviet Union and Yugoslavia, state death resulting from forcible annexation has been extremely rare. If the Russian war in Ukraine is successful and Ukraine ceases to exist as a state, it will stand as virtually alone in the post-World War II era. 

            There is, in our view, good reason for this. If history is any guide, conflicts over territory are especially likely to escalate into broader regional and global conflicts. The global response to the war in Ukraine reflects, in our view, a particular concern about territorial annexations. As Traoré points out, the UN General Assembly Resolution on the Territorial Integrity of Ukraine received broad support, with only five votes against and 35 abstentions—the most unified vote to date condemning Russia. That vote can be contrasted with the more fractured vote on reparations for the war. We think the two together reflect reasonable concerns about Western motives and methods in the push for reparations and, at the same time, a re-affirmation of the core norm prohibiting territorial conquest and annexation.

III.     The Global Response

 The war in Ukraine undermines a world order in which the United States and the West have been very powerful. We understand the challenge of asking countries in the Global South to condemn the war in Ukraine in the name of ‘stability,’ when we concede that stability has often served powerful countries in the West, and when those powerful countries have themselves undermined international legal norms to suit their interests.

But to oppose the war (through words and deeds) is not to endorse the current world order.  The war is not a referendum on the United States. Neither should opposition to this war be understood as support for the United States or the West more generally. Indeed, the contributions to this symposium all condemn this war, although all are critical of the West. We, like the other authors, want a better world. But we do not think we will get one, if territory is suddenly again up for grabs. To the contrary, we think such a world would be harsher and more dangerous for everyone, with the brunt of it falling again on those who are already most vulnerable and disadvantaged. Thus, opposition to the war should be seen as an effort to ensure territorial security for existing states in an increasingly unstable global order. Our argument reframes the war in those terms, which are often obscured in the broader media coverage and international legal conversations.

States together—including the United States—should reinforce the basic norms that are designed to preserve existing boundaries and deny annexations by force. They should do so not only in Ukraine but also in other contexts in which these norms are, as Dr. Imseis describes, deteriorating. But at the moment, the most open, dramatic, and blatant contestation of those norms is happening in Ukraine.  If they are not upheld there, the interests of justice and equality that many in the Global South now rightfully champion, including in other places in which territory is at stake, are, in our view, very unlikely to follow.