Crisis and General International Law - Lessons From The Russia-Ukraine Conflict

Indonesian Journal of International Law
Volume 21 Number 1 Article 6
October 2023
Crisis and General International Law: Lessons from the Russia-

Ukraine Conflict
Atul Alexander
The West Bengal National University of Juridical Sciences, atulalexander100@nujs.edu
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Part of the International Law Commons
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Alexander, Atul (2023) "Crisis and General International Law: Lessons from the Russia-Ukraine Conflict,"
Indonesian Journal of International Law: Vol. 21: No. 1, Article
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Crisis and General International Law: Lessons from the Russia-Ukraine Conflict
Cover Page Footnote

The author would like to express his gratitude to Ms. Anjana Raghunath and Ms. Richa Maria Reginald
for the research assistance. Needless to add, I alone am responsible for the errors and infelicities.
This article is available in Indonesian Journal of International Law: https://scholarhub.ui.ac.id/ijil/vol21/iss1/6

Indonesian Journal of International Law (2023), Vol. 21 No. 1, pp. 1-28
https://doi.org/10.17304/ijil.vol21.1.1
CRISIS AND GENERAL INTERNATIONAL LAW:

LESSONS FROM THE RUSSIA-UKRAINE
CONFLICT
Atul Alexander
West Bengal National University, India

Correspondence: atulalexander100@nujs.edu
Abstract
The ongoing Russian aggression in eastern Ukraine has instilled fear in humanity, with
concerns of a possible third world war. Furthermore, international law has been criticized for
its lackadaisical role in halting the Russian aggression. The United Nations Security Council
(UNSC) has not been able to pass a resounding resolution condemning the attacks. Although
the United Nations General Assembly (UNGA) overwhelmingly adopted a resolution
demanding that Russia immediately cease military operations in Ukraine, the resolution is not
binding, despite being persuasive. This brief article highlights the structural crisis in general
international law to effectively combat the tragedy unfolding in Ukraine. Some of the structural
shortcomings studied include consent, veto, lack of accountability and flimsy sanctions regime.
This paper is divided into two main themes. Firstly, it maps the structural crisis in general
international law in the context of the ongoing Russia-Ukraine conflict. Secondly, it provides
a possible solution to address these issues. A structural crisis refers to a simultaneous crisis
in many fields of international law, or what might be called a generalized crisis. It is
concluded that although general international law provides several avenues to overcome these
structural crises, it has failed to deliver due to a lack of will from the States.
Keywords: Crisis, International Law, Russia, Sanctions, Ukraine
Submitted: 4 October 2022 | Revised: 11 December 2022 | Accepted: 18 September 2023
I. INTRODUCTION
The 24 February 2022 tops the agenda of international law, as it marked
the Russian intervention in the eastern Ukrainian regions of Donetsk and
Luhansk.1 Several legal scholars have stated that Russian intervention and
aggression constitute blatant violations of the foundational principles of
international law.2 Numerous avenues of international law are triggered to
1
“Russian forces launch a full-scale invasion of Ukraine,” Aljazeera, 24 February 2022,
accessed 2 June 2022, https://www.aljazeera.com/news/2022/2/24/putin-orders-military-
operations-in-eastern-ukraine-as-un-meets.
2
Atul Alexander, “Russia-Ukraine conflict: has international law failed?” The Leaflet,
accessed
9 June 2022, https://theleaflet.in/russia-ukraine-conflict-has-international-law-failed. See also,
James A. Green, Christian Henderson, Tom Ruys, “Russia’s attack on Ukraine and the jus ad
bellum,” Journal on the Use of Force and International Law 9, no. 1 (2022): 5.
Copyright © 2023 – Atul Alexander

Published by Lembaga Pengkajian Hukum Internasional
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end the Russian march. For instance, the United Nations Security Council
(UNSC), despite having the backing of eleven States, failed to adopt a draft
resolution for ending the conflict courtesy of the Russian veto.3 According to
Linda Thomas-Greenfield, a representative of the United States of America
(USA), “the resolution can be vetoed, but not the Member States’ voices, the
truth, principles, and the Charter or the principle of accountability”.4 States
like India and China, which remained neutral have called for the immediate
cessation of hostilities, therefore, the UNSC was divided in terms of votes.5
The deadlock in the UNSC prompted the United Nations General Assembly
(UNGA) to adopt an overwhelming resolution on 2 March 2022, with the
support of 141 against 5.6 The resolution “deplores in the strongest terms the
aggression by Russia and affirms the international community’s commitment
to the sovereignty, independence, unity and territorial integrity of Ukraine.”7
Similar with the UNSC resolution, some states select to remain neutral due to
strategic and historic ties with Russia.8 Olof Skoog, the EU Ambassador to
the United Nations in New York, stressed the historic significance of these
votes. Despite the unparallel support of the international community of states,
the UNGA resolution lacks efficacy due to its non-binding nature.9 Ukraine
also instituted proceedings in the International Court of Justice (ICJ)
regarding Russian unfounded claims based on the ‘Genocide Convention’
of 1948.10
3
“Security Council Fails to Adopt Draft Resolution on Ending Ukraine Crisis, as Russian
Fed- eration Wields Veto,” Press UN, 25 February 2022, accessed 4 June 2022,
https://press.un.org/ en/2022/sc14808.doc.htm.
4
Ibid.
5
Ibid.
6
“General Assembly Overwhelmingly Adopts Resolution Demanding Russian Federation Im-
mediately End Illegal Use of Force in Ukraine, Withdraw All Troops, Eleventh Emergency
Special Session, 5th & 6th Meetings (AM & PM),” Press UN, 2 March 2022, accessed 6 June
2022, https://press.un.org/en/2022/ga12407.doc.htm.
7
“India abstains on the UNGA resolution that deplores Russia’s aggression against Ukraine,”
New Indian Express, 2 March 2022, accessed 6 June 2022, https://www.newindianexpress.
com/nation/2022/mar/02/india-abstains-on-unga-resolution-that-deplores-russias-aggression-
against-ukraine-2425561.html.
8
Gareth Price, “Why is India staying neutral over the Ukraine invasion?” Chatham House, 9
May 2022, accessed 6 June 2022, https://www.chathamhouse.org/2022/05/why-india-staying-
neutral-over-ukraine-invasion. Tom Gillespie, “Ukraine invasion: China abstains from voting
on UN Security Council resolution condemning Russia,” News Sky, 26 February 2022, ac-
cessed 6 June 2022, https://news.sky.com/story/ukraine-invasion-china-abstains-from-voting-
on-un-security-council-resolution-condemning-russia-12551720.
9
“UN General Assembly demands Russian Federation withdraw all military forces from the
territory of Ukraine,” European Union External Action, 2 March 2022, accessed 6 June 2022,
https://www.eeas.europa.eu/eeas/un-general-assembly-demands-russian-federation-
withdraw- all-military-forces-territory-ukraine_en.
2
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10
Allegations Of Genocide Under The Convention On The Prevention And Punishment Of
The
3
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The ICJ unanimously directed both parties to refrain from any action that can
aggravate or extend the dispute before the Court or make it more difficult to
resolve.11 Despite these provisional measures, it is apparent from the media
reports, articles, and blog posts that the Russian aggression is unending. The
prosecutor of the International Criminal Court (ICC) had initiated an inquiry
courtesy of the unprecedented referral by the states. Moreover, cases are
being instituted against the Russian elites in the domestic courts under the
garb of universal jurisdiction.12
In addition to opening up cases and conducting investigations through
international institutions, unilateral sanctions have been imposed on Russia
to cripple its economy under the auspice of the USA, backed by the west.13
Russia has also been suspended from the Human Rights Council (HRC) and
the European Council due to gross and systematic human rights violations,
thereby losing its status as a party to relevant conventions.14 Amidst these
proactive measures by the international institutions and States, Russian
President, Vladimir Putin, denies the commission of genocide and war crimes
and seeks to be on the right side of the whole crisis.15 Despite all these
efforts, general international law has failed to curb Russian aggression. This
can be attributed to the existing structural crisis in international law.16
Therefore, this paper is divided as follows: the second section examines
the contours of structural crisis in general international law and maps its
relevance to
Crime Of Genocide (Ukraine V. Russian Federation), ICJ, Provisional Measures, 2022.
11
Ibid.
12
“Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt
of Referrals from 39 States Parties and the Opening of an Investigation,” ICC, 2 March 2022,
8
June 2022, https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-
ukraine-receipt-referrals-39-states.
13
“EU sanctions against Russia explained,” Council of the European Union, accessed 12
August 2022, https://www.consilium.europa.eu/en/policies/sanctions/restrictive-measures-
against-russia-over-ukraine/sanctions-against-russia-explained/. Deniz Baran, “What is the
International Law on Unilateral Sanctions? Examining the Case of Unilateral Sanctions Im-
posed on Russia,” Al Sharq, 22 April 2022, accessed 8 June 2022, https://research.sharqforum.
org/2022/04/22/unilateral-sanctions/.
14
“Russia Suspended From UN Human Rights Council For ‘Systematic Abuses,” RFE/RL, 7
April 2022, accessed 8 June 2022, https://www.rferl.org/a/united-nations-russia-rights-
council- suspension/31791510.html. See also, “Council of Europe suspends Russia’s rights of
representation,” Council of Europe, 25 February 2022, accessed 9 June 2022,
https://www.coe.int/en/ web/portal/-/council-of-europe-suspends-russia-s-rights-of-
representation.
15
Prabhas Ranjan, Achyuth Anil, “Debunking Russia’s international law justifications,” The
Hindu, 1 March 2022, accessed 9 June 2022, https://www.thehindu.com/opinion/lead/debunk-
ing-russias-international-law-justifications/article65094642.ece. Sergey Sayapin. “Thou Shalt
4
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Not Distort the Language of International Law,” Opinio Juris, accessed 9 June 2022, https://
opiniojuris.org/2022/03/07/thou-shalt-not-distort-the-language-of-international-law/.
16
Atul Alexander, “Russia-Ukraine conflict: has international law failed?”
5
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the Russia-Ukraine conflict. The third section proposes possible solutions

to address these crises, and the final section provides the conclusion and
recommendations for the way forward.
II. STRUCTURAL CRISIS IN GENERAL INTERNATIONAL

LAW
In simple terms, a structural crisis in general international law refers to
a situation where the discipline is unable to effectively mitigate global crisis
due to flaws in its internal function. This is exemplified by the Russia-
Ukraine conflict in this study. The legal typology of structural crisis is
elucidated by third-world scholar B.S Chimni, as follows, “The different
perspectives on crisis are also at the root of an epistemic crisis, which has
seen the emergence of several critical approaches to international law
(CAIL).”17 Chimni further defined a crisis as a way of exposing the gaps and
inadequacies in a specific sphere of international law, which could also be
termed a generalized crisis.18
Climate change is an example of a structural crisis, as it has the potential
to affect various branches of international law, such as trade, economic,
and international human rights laws cutting across regimes. 19 Crawford
emphasized the absence of crisis can be caused by any constitutional order,
other than that of the states. 20 Third-world scholars contended that the
crisis surrounding international law was rooted in imperialism. Therefore,
unless the deep structures and history were revisited, the notion of crisis
would remain unaddressed.21 Hilary Charlesworth stated that the absence
of women’s position in the context of international law reflected a crisis.
As a result, the template of international law ensured that it steered clear of
probing into the long-term structural crisis. 22 The structural crisis in general
international law was conspicuous in the recent Russia-Ukraine conflict.23 To
17
Bhupinder S. Chimni, “Crisis and International Law: A Third World Approaches to
Interna- tional Law Perspective,” in Crisis Narratives in International Law, Makane Moïse
Mbengue and Jean d’Aspremont, eds. (Leiden: Brill Nijhoff, 2021), 40.
18
Ibid.
19
Ibid., 42.
20
James Crawford, “Reflections on Crises and International Law,” in How International Law
Works in Times of Crisis, George Ulrich, Ineta Ziemele, eds. (Oxford: Oxford University
Press,
2019): 14.
21
On the issue of colonial and postcolonial realities of international law being obscured by the
analytical frameworks that governed traditional scholarship on the subject. See Antony
Anghie, “The Evolution of International Law: Colonial and Postcolonial Realities,” Third
World Quar- terly 27, no. 5 (2006):741.
22
Hilary Charlesworth, “International Law: A Discipline of Crisis,” The Modern Law Review
6
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65, no. 3 (2002): 389.
23
Atul Alexander, “Russia-Ukraine conflict: has international law failed?”
7
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understand the depth of this crisis, it was crucial to first clarify the concept of
general international law. The absence of cohesive legal unity in international
law could be attributed to the involvement of myriad legal actors and the
evolving subject matter over time. 24 The commonly accepted notion was that
general international law was tied to Article 38 of the ICJ Statute, derived
from treaties, customary international law, and general principles of law.25
Regarding treaties, it was important to note that not all of them fell under the
ambit of general international law as they were based on voluntarism, and did
not have the ability to legally bind third States. However, a few treaties, such
as the Charter of the United Nations, had attained universal or quasi-
universal nature.26
The Charter remains a crucial reference point in international law, with
other treaties, such as the four Geneva Conventions on humanitarian law also
playing a role. The number of treaties that have general international law
features is limited due to disagreements among nation-states on international
treaties.27 Although customary law emerges from general practice accepted
by law, it is dispositive and only applies when there is no answer in treaty
law (self-contained regime). Otherwise, customary international law remains
in the background.28 Some rules of customary international law are
considered peremptory norms of general international law or jus cogens and
cannot be overridden.29 However, the substantive content of jus cogens
remains vague, with only the core principles such as the prohibition of torture
and genocide30 clearly defined.31 The general principles of law recognized by
civilized countries play only a marginal role, mainly filling in gaps left by
treaties and customary international law.32
24
Rosalyn Higgins, “International Law in A Changing International System,” Cambridge
Law
Journal 58, no.1 (1999): 78.
25
Statute of The International Court of Justice, (opened for signature 26 June 1945 entered
into force 24 October 1945).
26
Fassbender Bardo, “The United Nations Charter as Constitution of the International Com-
munity,” Columbia Journal of Transnational Law 36, no. 3 (1998): 529.
27
Christian Tomuschat, “General International Law: A New Source of International Law?” in
Global Justice. Human Rights and the Modernization of International Law, Riccardo Pisillo
Mazzeschi and Pasquale De Sena, eds. (Springer International Publishing, 2018), 189.
28
Ibid., 202.
29
Ibid., 198.
30
Georg Schwarzenberger, “International Jus Cogens?” Texas Law Review 43, no. 455 (1964-
65): 469. Dr. Markus Petsch, “Jus Cogens as a Vision of the International Legal Order,”
Penn- sylvania State International Law Review 29, no. 2 (2010): 235.
31
Fourth Report on Peremptory Norms of General International Law (Jus Cogens) by Dire
Tladi, Special Rapporteur, A/CN.4/727, 2019, 36, available at https://digitallibrary.un.org/
record/3798216?ln=en.
8
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32
Rudolf B. Schlesinger, “Research on the General Principles of Law Recognized by
Civilized
9
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One of the common features of general international law is that it should

reflect the interest of the international community. Concepts such as those
enshrined in the UN Charter, jus cogens, erga omnes, and rules of treaty
interpretation would fall under the ambit of general international law.33 Also,
there is a lack of clarity on the precise source of general international la w.
While some consider it synonymous with customary international law, there
seems to be a consensus that general international law is applicable to every
subject, particularly States.34 Although the recent fragmentation phenomenon
has negatively impacted general international law, current treaty regimes are
self-contained in the sense that the application of the law would be generally
excluded.35 Therefore, no regime in international law should be read in
isolation from general international law, as shown by Articles 31 and 32 of
VCLT, which applies unless superseded by other principles of treaty
interpretation.36
The Russia-Ukraine conflict has opened Pandora’s box with respect to
the crisis in international law vis-à-vis regime. This present study contends
that structural crisis is apparent in general international law.
III. BREACH OF UNITED NATIONS CHARTER PRINCIPLES

The United Nations Charter system echoes the aspiration of the
international community and codifies some of the fundamental principles
of international law which forms an integral part of general international
law.37 Some of these principles include the prohibition on the use of force,
non-intervention, sovereign equality, right to self-determination, promotion
of human rights, and peaceful settlement of international disputes, among
others.38 Legal scholars contend that Russia has breached some of these
essential principles in its dispute with Ukraine, highlighting the current state
of crisis in international law.
Nations,” American Journal of International Law 51, no. 4 (1957): 735.

33
Tomuschat, “General International Law: A New Source of International Law?” 195.
34
Ibid.
35
Martti Koskenniemi, “Fragmentation of International Law: Difficulties Arising from
the Diversification and Expansion of International Law,” Report of the Study Group of the
International Law Commission, 2006, 37.
36
Michael Runersten, Defining ‘Self-contained Regime’ - A Case Study of the International
Covenant on Civil and Political Rights (Lund: Lund University Publications, 2008), 21.
37
Alfred Verdross, “General International Law and the United Nations Charter,”
International
Affairs (Royal Institute of International Affairs) 30, no. 3 (1954): 342
1
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38
1
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A. PROHIBITION ON THE USE OF FORCE AND NON-

INTERVENTION
The prohibition on the use of force, enshrined under Article 2(4) of the
UN Charter, constitutes both customary international law and jus cogens
norm.39 In any modern-day dispute involving States, the norm of non-use of
force takes precedence and is inevitably the first reference point.40 The recent
Russia-Ukraine conflict is no different, with Russia mounting a massive
attack on 24 February 2022 by stationing 130.000 troops on the ground. The
battle has been ongoing with Russia seeking to capture the southern regions
of Ukraine.41 Unfortunately, there seems to be no end in sight. There is small
doubt that the Russian invasion of Ukraine constitutes a blatant breach of
Article 2(4) of the UN Charter vis-à-vis aggression.42 However, the Russian
president has claimed that the military operation was justified under the ‘right
of self-defense (this was confirmed through Putin’s speech and a letter sent
to the UNSC, which is essentially the reporting mechanism under Article
51 of the UN Charter).43 Russia invoked both individual and collective self-
defense.44
In terms of individual self-defense, Putin considered NATO’s eastward
expansion as an impending threat. According to Putin, “For the US and its
allies, it is a policy of containing Russia, with obvious geopolitical dividends,
while for our country, it is a matter of life and death, a matter of our
historical future as a nation. This is not an exaggeration, this is a fact. It is
not only a very real threat to our interests but to the very existence of our
state and its sovereignty. It is the red line that we have spoken about on
numerous occasions. They [NATO] have crossed it”.45
39
Sondre Torp Helmersen, “The Prohibition of the Use of Force as Jus Cogens: Explaining
Ap- parent Derogations,” Netherlands International Law Review 61, no. 2 (2014): 167.
Władysław Czaplińsk, “Customary International Law on the Use of Force,” Wroclaw Review
of Law 8, no.
2 (2018): 98.
40
Malcolm Langford, Geir Ulfstein, “Russia Has Violated the Fundamental Rules of Interna-
tional Law. What Are the Consequences?” PRIO, accessed 16 June 2022, https://blogs.prio.
org/2022/03/russia-has-violated-the-fundamental-rules-of-international-law-what-are-the-con-
sequences/.
41
Natalia Zinets, “Ukraine steps up drive to retake Russian-controlled south with air strikes,”
Reuters, 29 July 2022, accessed 16 June 2023, https://www.reuters.com/world/europe/russia-
captures-power-station-redeploys-troops-toward-southern-ukraine-2022-07-27/.
42
John B. Bellinger, “How Russia’s Invasion of Ukraine Violates International Law,”
CFR,
28 February 2022, accessed 17 June 2022, https://www.cfr.org/article/how-russias-invasion-
ukraine-violates-international-law.
43
Green, Henderson, Ruys, “Russia’s attack on Ukraine,” 7.
44
Ibid., 8.
45
“Full text of Vladimir Putin’s speech announcing ‘special military operation’ in Ukraine,”
1
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The Print, 24 February 2022, accessed 18 June 2022, https://theprint.in/world/full-text-of-
vlad-
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To invoke self-defense, the existence of an armed attack is a prerequisite

and it should be of a ‘grave’ nature.46 It is evident that there has been no
use of force against Russia to trigger Article 51. However, Putin may have
perceived a ‘future threat’ against Russia and invoked ‘anticipatory self-
defense. According to Michael N. Schmitt, “there was no evidence to suggest
that NATO would attack Russia before Russian offensive”.47 Similarly,
James A. Green, Christian Henderson, and Tom Ruys emphasized “there was
no credible basis for Russia to assert that it faced an imminent threat from
NATO in February 2022. Interestingly, President Putin did not appear to
view the threat as an imminent one”.48 The experts proceeded to add that the
use of ‘pre- emptive self-defense’ was illegal in 2002 (USA had placed a
similar argument in the aftermath of the American intervention in Iraq) and
remained illegal in
2022.49 It was pertinent to note that in the armed activities judgment, the ICJ
observed, “security needs [that are] essentially preventative cannot sustain a
self-defense claim”.50 Assuming that customary international law legitimized
anticipatory self-defense, it would need to comply with the necessity and
proportionality requirements.51 In addition to individual self-defense, Russian
argument seems to focus on collective self-defense. Collective self-defense
can be invoked only when the victim State requests aid in response to an
armed attack.52 In the current situation, Russia has recognized the two regions
of Donetsk and Luhansk as sovereign states. According to Putin, “the Donbas
People’s Republic requested help from Russia” and Russia responded “in the
execution of the treaties of friendship and mutual assistance with the Donetsk
People’s Republic and the Lugansk People’s Republic, which were ratified
by the Federal Assembly on February 22”.53 Merely recognizing these
regions as state does not automatically grant them statehood. According to
Hersch
imir-putins-speech-announcing-special-military-operation-in-ukraine/845714/.
46
47
Michael N Schmitt, “Russia’s “special military operation” and the (claimed) right of self-
defense,” Lieber Institute, 28 February 2022, accessed 20 June 2022, https://lieber.westpoint.
edu/russia-special-military-operation-claimed-right-self-defense/.
48
Green, Henderson, Ruys, “Russia’s attack on Ukraine,” 11.
49
Ibid.
50
Armed Activities on The Territory Of The Congo (Democratic Republic Of The Congo V.
Uganda), ICJ Reports, Judgment, 19 December 2005.
51
David Kretzmer, “The Inherent Right to Self-Defence and Proportionality in Jus Ad
Bellum,”
European Journal of International Law 24, no. 1 (2013): 235.
52
James A. Green, “The ‘Additional’ Criteria for Collective Self-Defence: Request but Not
Declaration,” Journal on the Use of Force and International Law 4, no. 1 (2017): 6.
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53
The Statement of Russian Federation President regarding the Application on Dispute relat-
ing to Allegations of Genocide. The text available at https://www.icj-cij.org/public/files/case-
related/182/182-20220307-OTH-01-00-EN.pdf, accessed on 21 June 2022.
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Lauterpacht, ‘a premature recognition of separatist regions as a new state

during an ongoing internal armed conflict is a breach of international law’.54
Moreover, the UNGA unequivocally rejected Russian recognition of the
provision of Donetsk and Luhansk as breaches of international law.55 Should
Russia intend to espouse the ‘humanitarian intervention’ argument, it would
fail because the legality of such intervention without UNSC authorization is
still nascent and would violate the principles of non-use of force and non-
intervention. It is evident from the above discussion that Russia attempted to
use the language of international law to advance its security interest.
However, most of these claims lack legal justification and violate general
international law norms.56 Despite Putin’s criticism of the west’s
transgressions in the past, this does not justify the use of force by Russia.
B. RIGHTS OF SELF-DETERMINATION
Scholars contend that Russian aggression constitutes a clear breach of the
Right to self-determination. It is worth to note that Lenin contributed to the
development of the idea of self-determination during its emergence as a
political discourse.
According to Lenin’s writings in 1916,
“The dialectics of history are such that small nations, although

powerless as an independent factor in the struggle against imperialism,
play a part as one of the ferments and bacilli, aiding the real anti-
imperialist force and socialist proletariat, to emerge on the scene”.57
The notion of self-determination was fully embraced in the post-world
war era and subsequently codified in the UN Charter as one of the sacrosanct
principles. In simple terms, the right of self-determination means the right of
the people to determine their destiny, although the precise outcomes of exer-
cising this right remain unclear.
In 2014, Russia abused the right of self-determination by annexing
Crimea.
54
Hersch Lauterpacht, “Recognition of States in International Law,” The Yale Law Journal
53, no. 385 (1944): 394.
55
General Assembly Resolution ES-11/1, Aggression againts Ukraine, A/RES/ES-11/1 (2
March 2022), available from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/293/36/
PDF/N2229336.pdf?OpenElement.
56
Christian Marxsen, “Putin is abusing international law,” Max Planck Gesselschaft, 18
March
2022, accessed 23 June 2022, https://www.mpg.de/18442939/putin-is-abusing-international-
law.
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57
Vijay Prashad, “The Internationalist Lenin: Self-determination and Anti-colonialism,”
MRonline, accessed 28 June 2022, https://mronline.org/2020/08/10/the-internationalist-lenin-
self-determination-and-anti-colonialism/.
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The legal justification provided at the time was that the ‘Ukraine situation’
had created an extreme situation, preventing the exercise of the right of self-
determination within the constitutional framework of Ukraine. However,
Johannes Socher emphasized this argument lacks a sound legal basis and also
stated that
“Crimea arguably marked a shift away from legal argumentation

towards recourse to eclectic historical claims and restoration of
hegemonic power. While the right of peoples to self-determination
continues to function as a central legal argument, legal reasoning more
generally loses its dominant position in the official justification of
Russian state practice in the post- Soviet space”.58
In the recent Russia-Ukraine conflict, both USA and Russia have
consistently relied on the right of self-determination to justify their support
for the people of Donetsk and Luhansk. According to Russian argument,
the inhabitant of Donetsk and Luhansk are distinct ‘peoples’ and entitled to
an external right to self-determination due to the Ukrainian government’s
policy discrimination towards the people of these regions. This approach is
commonly referred to as the ‘remedial approach of peoples’. On 21 February
2022, Putin made a statement that “…the people of these regions were
fighting for their elementary right to live on their land, speak their language,
and to preserve their culture and traditions”. This statement was widely
condemned, even by the UN Secretary-General, stating that ‘the decision of
the Russian President was a violation of Ukraine’s territorial integrity and
sovereignty, and inconsistent with the principles of the UN Charter.’59
However, the irony is that Russia did not subscribe to this stance in
the cases of Kurds under the Syrian regime.60 There is still a reluctance to
acknowledge that external self-determination does not entail the right to cede.
One notable exception to this was Kosovo’s unilateral declaration of
independence, however, not all countries accept this position. According to
Sofia Cavandoli and Gary Wilson,
58
Johannes Socher, Russia, The Right to Self-Determination and Annexation, Russia and
the Right to Self-Determination in the Post-Soviet Space (Oxford: Oxford University Press,
2021),59.
59
Address by the President of the Russian Federation, 21 February 2022, accessed 5 January
2022, http://en.kremlin.ru/events/president/news/67828. Further condemnation came from the
U.S, French President, and Australian Prime Minister.
60
Loqman Radpey, “The Violations of Sovereignty and the Right to Self-Determination in
Rojava and Ukraine,” OpinioJuris, 25 April 2022, accessed 23 June 2022, https://opiniojuris.
org/2022/04/25/the-violations-of-sovereignty-and-the-right-to-self-determination-in-rojava-
and-ukraine/
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“Although over 100 countries worldwide, including the US and most

EU states, have recognized Kosovo’s independence, countries like China
and Russia have refused to recognize it as a legitimate state, citing the
importance of respect for the principle of territorial sovereignty as the
primary reason for their stance”.61
Historically, the people of both regions voted to cede in 2014 not
because of any denial of their rights, but due to the ouster of President Viktor
Yanukovych.62 Although the Ukrainian government has the right and has
truly promoted its official language to strengthen national identity, this action
does not justify the cession.63 According to state practice, the right to cede
for violation of the right to self-determination is rare in modern international
law and remains a contentious issue. Assuming Putin’s claim of genocide
committed by Ukraine was true, it was emphatically denied by the ICJ
through its provision orders of 16 March 2022.
IV. CRISIS IN GENERAL INTERNATIONAL LAW

The incessant violation of international law principles is conspicuous in
the Russia-Ukraine conflict.64 This has raised questions about how general
international law responds to such violations. Has general international law
come to the rescue of the victim or remained a mere bystander in a state of
crisis? The UN Charter, whose provisions are often disregarded, can respond
through resolutions, military assistance, sanctions, and peaceful settlement of
the dispute. However, the current conflict quintessentially reflects an
apparent crisis.
A. CRISIS IN UNSC
Despite the UN’s commitment to sovereign equality, its effectiveness
is often stymied by the coveted status of the permanent five States (P5).65
61
Sofia Cavandoli and Gary Wilson, “Distorting Fundamental Norms of International Law to
Resurrect the Soviet Union: The International Law Context of Russia’s Invasion of Ukraine,”
Netherlands International Law Review 69, (2022): 391.
62
For a detailed reading on the Russia-Ukraine war, refer to the book, Paul D’Anieri, Ukraine
and Russia: From Civilized Divorce to Uncivil War (2019). See also Daisy Sindelar, “Was
Ya- nukovych’s Ouster Constitutional?” RFERL, 23 February 2022, accessed 23 June 2022,
https:// www.rferl.org/a/was-yanukovychs-ouster-constitutional/25274346.html.
63
Cavandoli and Wilson, “The International Law Context of Russia’s Invasion of Ukraine,”
391.
64
Ibid.
65
Madeleine O. Hosli and Dörfler Thomas, “Why is Change So Slow? Assessing Prospects
for United Nations Security Council Reform,” Journal of Economic Policy Reform 22, no. 1
(2019): 37.
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The draft UNSC was blocked by Russia in the current conflict. According
to the Russian Federation representative, Vassily A. Nebenzia, “…Western
partners have issued Kyiv a carte blanche to attack the Russian language. The
authorities have been accused of murdering political opponents and
shuttering media outlets, making Ukraine a pawn in their game. The
responsibility for these actions does not only lie with the Ukrainian
Government, ‘but also lies at your feet”.66
The UN Charter, which was created in the aftermath of World War II,
epit- omizes the philosophy of victor’s justice. In chapter VII, the victors
were conferred unfettered power, which includes the authority to determine
the question of ‘threat to peace’.67 It is widely believed that the US
Congress would not ratify the UN charter without veto power.68 Even though
the Security Council undergoes reforms, such as expanding its membership
or doing away with the veto, there may be small headway. This is because
the west may still be reluctant to indulge in full-blown war as Ukraine is not
a member of NATO.
In brief, the UN Charter has been a victim of Russian aggression, and this
is not a one-off scenario. For instance, in 2003, the US coalition intervened
in Iraq, blatantly disregarding the provisions of the charter. It has been ar-
gued that the intervention implied implicit authorization from the UNSC.69
Therefore, it can be misleading to attribute the entire crisis solely to the UN
Charter’s failure, as it is accentuated by the reckless political leaders and ar-
mament race.
66
“Security Council Fails to Adopt Draft Resolution on Ending Ukraine Crisis, as Russian
Federation Wields Veto, 8979th Meeting (PM),” Press UN, 25 February 2022, accessed 23
June
2022, https://press.un.org/en/2022/sc14808.doc.htm.
67
Article 39 of the UN Charter reads as: The Security Council shall determine the existence of
any threat to the peace, breach of the peace, or act of aggression and shall make recommenda-
tions, or decide what measures shall be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and security.
68
Tarcisio Gazzini, “Can we Blame the United Nations for the Crisis in Ukraine?” Voelker-
rechtsblog, 6 April 2022, accessed 27 June 2022, https://voelkerrechtsblog.org/can-we-blame-
the-united-nations-for-the-crisis-in-ukraine/.
69
The intervention of the United States was premised on UNSC resolutions 678, 660 and
1441 according to the Bush administration. These resolutions required Iraq to disarm and
submit to the weapon inspection. The independent commission of inquiry established by the
Netherlands notes that ‘State cannot use force to compel Iraq to comply with the UNSC
resolution.’ In the aftermath of the United States intervention, the former prosecutor of the
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International Criminal Court (ICC) received 240 separate communications regarding the
legality of war.
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B. CRISIS IN UNGA
The failure of the UNSC prompted the UNGA to mitigate the crisis
through a resounding resolution.70 The UN charter stipulates that the UNGA
has the authority to make recommendations to realise human rights. For
instance, in 2012, the UNGA passed a resolution in response to the UNSC’s
failure to address the Syrian crisis.71 The UNGA urged “Syria to comply with
its obligations under international law, and demanded that the Government
immediately cease all violence and safeguard its citizens, as outlined in the
League of Arab States’ 2 November 2011, Action Plan, and its decisions of
22 January and 12 February 2012”. 72 Although the primary responsibility of
maintenance of international peace and security vests with the UNSC, it is
not an exclusive function.73 The ICJ, in its advisory opinion on ‘Certain
Expenses of the United Nations’, observed that “The responsibility granted is
primary”, but not exclusive. As stated in Article 24, this primary
responsibility is conferred upon the Security Council, “to ensure prompt and
effective action”.74
The UNSC and UNGA can simultaneously address the same issue.
Moreover, the UNGA’s functions are dictated by the doctrine of implied
power, enabling it to make decisions within the purpose and principles of the
UN, with the exception that such decisions should not disrupt the
organization’s functions.75
In matters pertaining to peace and security, the Uniting for Peace
Resolution (UPR) is a commonly used tool by the UNGA. Resolution 377A
70
“General Assembly resolution demands end to Russian offensive in Ukraine,” News UN,
accessed 30 June 2022, https://news.un.org/en/story/2022/03/1113152.
71
“Security Council Fails to Adopt Draft Resolution on Syria That Would Have Threatened
Sanctions, Due to Negative Votes of China, Russian Federation,” Press UN, 19 July 2012, ac-
cessed 1 July 2022, https://press.un.org/en/2012/sc10714.doc.htm. On the resolution passed
by UNGA in the context of the conflict in Syria by a recorded vote of 137 in favour to 12
against, with 17 abstentions, the Assembly expressed grave concern at the deteriorating situ-
ation in Syria and condemned the killing and persecution of protestors and journalists, and
sexual violence and ill-treatment, including against children see, “General Assembly Adopts
Resolution Strongly Condemning ‘Widespread and Systematic’ Human Rights Violations by
Syrian Authorities,” Press UN, 16 February 2012, accessed 2 July 2022, https://press.un.org/
en/2012/ga11207.doc.htm.
72
“General Assembly Adopts Resolution Strongly Condemning ‘Widespread and Systematic’
Human Rights Violations by Syrian Authorities,” UN Press, 16 February 2012, accessed July
2
2022, https://press.un.org/en/2012/ga11207.doc.htm.
73
Certain Expenses of The United Nations (Article 17, Paragraph 2, Of The Charter), ICJ
Advisory Opinion, 1962, at 163. The text is available at https://www.icj-cij.org/public/files/
case-related/49/049-19620720-ADV-01-00-EN.pdf.
74
Ibid.
75
“The Powers of The UN General Assembly To Prevent And Respond To Atrocity Crimes:
A Guidance Document,” Asia Pacific Centre For The Responsibility To Protect, 29 April
2
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2021, accessed 5 July 2022, https://www.globalr2p.org/resources/the-powers-of-the-un-
general-assembly-to-prevent-and-respond-to-atrocity-crimes-a-guidance-document/.
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was passed by the UNGA in the 1950s in response to the Korean war (1950-
1953).76 According to the resolution, “should the Security Council, due to a
lack of unanimity among the permanent members, fail to exercise its primary
responsibility for the maintenance of international peace and security in any
case where there appears to be a threat to the peace, breach of the peace,
or act of aggression, the General Assembly should immediately consider
the matter with a view to making appropriate recommendations to Members
for collective measures. This includes the case of a breach of the peace or
act of aggression and the use of armed force when necessary”.77 Although
some scholars viewed the UPR as an unnecessary encroachment on the
powers of the UNSC, others believed it merely conferred the power that was
already vested in the UNGA.78 In the landmark Kosovo Advisory opinion,
the ICJ emphasized that “it provided for the General Assembly to make
recommendations for collective measures to restore international peace and
security in any case where there appeared to be a threat to the peace, breach
of the peace or act of aggression, and the Security Council was unable to act
due to a lack of unanimity among the permanent members”. 79 In the ongoing
conflict, the UNGA passed a resounding resolution during its 11th
emergency special session, with the backing of 141 States, calling for the
unconditional withdrawal of military troops from the territory of Ukraine.
However, these were mere recommendations and their enforcement required
the approval of all the Permanent five (P5) States. Since any such move
would be vetoed by Russia, the resolution is unlikely to be enforced.
In an ideal scenario, Russia should be suspended from the UN. However,
does the existing international law open up such possibilities?80 The means
to suspend a member State from the UN is codified under Article 5 of the
UN Charter, stating that “a member of the UN who has faced preventive or
76
Nico J. Schrijver, “The Future of the Charter of the United Nations,” Max Planck
Yearbook, (2006): 14. For more on the Korean War refer Bruce Cumings, The Korean War: A
History (New York: Modern Library Chronicles, 2011), 33.
77
“Emergency special sessions,” UN, accessed 5 July 2022, https://www.un.org/en/ga/ses-
sions/emergency.shtml.
78
“The Powers of The Un General Assembly To Prevent And Respond To Atrocity Crimes:
A
Guidance Document, Asia Pacific Centre for the Responsibility to Protect,” Accessed 2 March
2022, https://www.globalr2p.org/resources/the-powers-of-the-un-general-assembly-to-pre-
vent-and-respond-to-atrocity-crimes-a-guidance-document/. Harry Reicher, “The Uniting for
Peace Resolution on the Thirtieth Anniversary of its Passage,” Columbia Journal of Transna-
tional Law, Vol. 10, no. 1 (1981): 48.
79
Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, Advisory Opinion ICJ Report 2010, 403, 421.
80
Rebecca Barber, “Could Russia be Suspended from the United Nations?” EJILTalk,
accessed
2
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5 July 2022, https://www.ejiltalk.org/could-russia-be-suspended-from-the-united-nations/.
2
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enforcement by the Security Council may be suspended from exercising their

membership rights and privileges by the General Assembly upon the recom-
mendation of the Security Council”.81 On a closer reading of the provision,
it is apparent that preventive measures are to be taken against Russia. Even
though Russia had not exercised its veto, it may certainly do. It is not
possible to circumvent the veto by dubbing it a procedural question, since
Article 18(2) of the UN Charter regards the suspension of membership rights
and privileges as an ‘important question’.82
C. CRISIS IN THE INTERNATIONAL COURT OF JUSTICE

(ICJ)
The primary purpose of the ICJ is to secure international peace through
the rule of law.83 In its provisional measures involving the Russia-Ukraine
conflict, the ICJ has called for both sides to respect international law.84 Al-
though other UN bodies have passed resolutions on the dispute, the order of
the ICJ was confined to the genocide Convention.85 Despite the provisional
measures, the attacks on Ukraine are unabated with Russia mooting to
capture the southern parts of Ukraine.86 It is worth noting that states are also
expected to comply with the provisional measures. 87 The binding nature of
provisional measures was augmented by the ICJ in the Lagrand Case. It was
observed that “according to the object and purpose of the Statute, as well as
the terms of Ar- ticle 41 when read in their context, the power to indicate
provisional measures entails that such measures should be binding, in as
much as the power in question is based on the necessity to safeguard and
avoid prejudice to the rights of
81
82
Rebecca Barber, “Could Russia be Suspended from the United Nations?” accessed 5 July
2022, https://www.ejiltalk.org/could-russia-be-suspended-from-the-united-nations/.
83
Hersch Lauterpacht, The Development of International Law by the International Court
(Cambridge: Cambridge University Press, 1958), 3. Peter Tomka, “Inaugural Hilding Eek Me-
morial Lecture By H.E. Judge Peter Tomka, President Of The International Court Of Justice,
At The Stockholm Centre For International Law And Justice: The Rule of Law and the Role of
the International Court of Justice in World Affairs Monday,” accessed 6 July 2023,
https://www. icj-cij.org/public/files/press-releases/8/17848.pdf.
84
Allegations of Genocide Under The Convention on The Prevention And Punishment of The
Crime Of Genocide (Ukraine v. Russian Federation), Provisional Measures, ICJ 2022. Avail-
able at https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-00-EN.
pdf.
85
Ibid.
86
Natalia Zinets, “Ukraine steps up drive to retake Russian-controlled south with air strikes,”
Reuters, 27 July 2022, accessed 7 July 2023, <https://www.reuters.com/world/europe/russia-
captures-power-station-redeploys-troops-toward-southern-ukraine-2022-07-27/.
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87
Lagrand Case (Germany v. United States Of America), Judgement, ICJ Report 2011, 466.
Available at https://www.icj-cij.org/public/files/case-related/104/104-20010627-JUD-01-00-
EN.pdf.
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the parties as determined by the final judgment of the Court. In the words of
Ukraine, the Russian Federation has turned the Genocide Convention on its
head by making false claims of Genocide”.88
One of the observations of the ICJ was “The Russian Federation shall
immediately suspend the military operations that it commenced on 24
February 2022 in the territory of Ukraine”, with thirteen judges in favor
and two against.89 Despite this decision, there has been little achievement in
terms of respecting the order. The Russian foreign minister even admitted
to having targeted a military boat in the port of Odesa.90 It is worth noting
that the provisional measures were rendered without the participation of
the Russian Federation.91 Although the ICJ did not delve into the merits by
determining whether genocide had been committed,92 it did hold the view that
the obligation to prevent genocide as contented by Russian Federation should
be interpreted in good faith. This means that the country “may call upon the
competent body of the United Nations to take such action, as they are
deemed appropriate under the Charter of the United Nations, to prevent and
suppress acts of genocide or any of the other acts listed in article III”. 93
Moreover, the obligation to prevent Genocide should be within the limits of
international law. Interestingly, the ICJ abstained from determining whether
Genocide had been committed or not.94
Based on its previous decisions, it could take years for the ICJ to make a
decision on the merits of case. Currently, there is a pending case before the
ICJ on the Application of the International Convention for the Suppression
of the Financing of Terrorism and the Elimination of All Forms of Racial
Discrimination (2019).95 The court has already decided on the provisional
88
Ibid.
89
ICJ, Ukraine V. Russian Federation, 19.
90
“Russia struck military boat in Odesa with cruise missiles – foreign ministry says,” Reuters,
24 July 2022, accessed 10 July 2023, https://www.reuters.com/world/europe/russia-says-it-hit-
military-boat-odesa-port-ukraine-2022-07-24/.
91
But as the ICJ observed in paragraph 22 of the provisional measures, “Though formally
absent from the proceedings, non-appearing parties sometimes submit to the Court letters and
documents in ways and by means not contemplated by its Rules”.
92
93
Ibid.
94
95
Application of The International Convention for The Suppression of The Financing of Ter-
rorism and of The International Convention on The Elimination of All Forms of Racial Dis-
crimination (Ukraine v. Russian Federation), Preliminary Objections Judgment, ICJ Reports
2019. Available at https://www.icj-cij.org/public/files/case-related/166/166-20191108-
JUD-
01-00-EN.pdf. For a nuanced understanding of the said case, see Atul Alexander, “Lack of
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‘Will’ or ‘Options’: A Study on the International Court of Justice’s Tryst with Racial
Discrimi-
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measures and heard preliminary objections in the case, rejecting the claims of
the Russian Federation. Since the case is still pending, it can take years
before the ICJ renders its decision on merits. Although the decisions are
considered final without appeal, there are limited ways to enforce the same.
The jurisdiction of the ICJ is premised on consent. Although there have
been several calls for the State to submit to the compulsory jurisdiction under
Art. 36(2),96 the original framework for the enforcement of the judgment
is outlined in Article 94 of the UN Charter. According to this article, “each
member of the United Nations undertakes to comply with the decisions of the
International Court in any case to which it is a party.” Since the decision of
the ICJ is considered final, post-adjudicatory compliance is largely political.97
Therefore, the compliance is rather a political act. According to Article
94(2), “should any party to a case fail to perform the obligations incumbent
upon it under a judgment rendered by the Court, the other party may have
recourse to the Security Council, which may, when it deems necessary, make
recommendations or decide upon measures to be taken to give effect to the
judgment”.98 It is worth to note that Russia being a permanent member of
the UNSC has the power to block any such moves. Therefore, as Aloysius P.
Llamzon eloquently sums up, “the enforcement of ICJ judgments involves
quintessentially political acts by both parties and the Security Council, in
which the Court has slight involvement and no power”.99
V. OVERCOMING THE STRUCTURAL

CRISIS
As already stated, general international law is under a state of structural
crisis, as the UNGA, UNSC, and ICJ are unable to prevent Russian progress
in Ukraine. There is a common view that the west’s involvement in the whole
crisis remains unexplored, however, this is more a matter of international
politics. According to John J. Mearsheimer, “…the US and its European
allies share most of the responsibility for the crisis, while the NATO
expansionist policy is considered the root cause of the trouble”.100
nation,” Indonesian Journal of International Law 19, no. 2 (2022): 213.

96
“Basis of The Court’s Jurisdiction,” International Court of Justice, accessed 2 March 2022,
https://www.icj-cij.org/basis-of-jurisdiction.
97
Shabtai Rosenne, The Law and Practice of the International Court 1920 – 1996 (BRILL
Publishers, 1997), 249.
98
99
Aloysius P. Llamzon, “Jurisdiction and Compliance in Recent Decisions of the International
Court of Justice,” European Journal of International Law 18, no. 5 (2008): 821.
100
John J. Mearsheimer, “Why the Ukraine Crisis Is the West’s Fault: The Liberal Delusions
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International law proscribed the ‘use of force’ as early as 1928 with the
Kellogg-Briand pact. On the aspect of the UNSC, the option of invoking Art.
51 of the UN Charter is open to Ukraine, and backed by the coalition upon its
request. Kuwait made a similar request to the international community when
it was invaded by Iraq in 1990.101 Stripping Russia of its permanent
membership in the UNSC is not an option, as the approval of the Permanent
five States (P5) is required. During an informal meeting of the UNSC under
the Arria formula, which included a range of participants from civil rights
societies, and human rights watch, several suggestions were made to
overcome the Russia-Ukraine conflict.102 However, there was no attempt to
change the formal structure of the Veto. The deployment of Veto power can
also hinder UNSC referrals to the ICC.103
Another option could be to take a chapter VI route, where Russia would
be precluded from exercising its Veto courtesy of Article 27(3) of the UN
Charter. According to the Article, “Decisions of the Security Council on all
other matters shall be made by an affirmative vote of nine members including
the concurring votes of the permanent members, provided that, in decisions
under Chapter VI, and paragraph 3 of Article 52, a party to a dispute shall ab-
stain from voting”.104 Although there are several suggestions for reforming
the UNSC, very slight progress has been made on these proposals. One of the
key proposals from the Report of the High-level Panel on Threats,
Challenges, and Change (2004) was for the UNSC to function democratically
and increase its accountability.105 It was also suggested to enhance its
membership. According to a previous report, ‘even outside the use of a
formal veto, the ability of the five permanent members to keep critical issues
of peace and security off the Security Council’s agenda has further
undermined confidence in the body’s work’.106
That Provoked Putin,” Foreign Affairs 93, no. 5 (2014): 83.
101
Christine Gray, “The US National Security Strategy and the New “Bush Doctrine” on Pre-
Emptive Self-Defence,” Chinese Journal of International Law 1, no. 2 (2002): 437.
102
“United Nations Security Council Arria-Formula Meeting Ensuring Accountability for
Atrocities Committed in Ukraine,” Human Rights Watch, accessed 17 July 2022, https://www.
hrw.org/news/2022/04/27/united-nations-security-council-arria-formula-meeting.
103
See generally, “UN Security Council: Vetoes Betray Syrian Victims In Face of Mounting
Pressure, Russia, China Block ICC Referral,” Human Rights Watch, accessed 18 July 2022,
https://www.hrw.org/news/2014/05/22/un-security-council-vetoes-betray-syrian-victims.
104
Charter Of The United Nations And Statute Of The International Court Of Justice. [online].
Available at <https://treaties.un.org/doc/publication/ctc/uncharter.pdf> Accessed: 18.07.2022.
105
“The Secretary-General’s High-level Panel Report on Threats, Challenges and Change, A
more secure world: our shared responsibility,” UN, 19 July 2022, https://www.un.org/ruleo-
flaw/files/gaA.59.565_En.pdf, 67.
106
“The Secretary-General’s High-level Panel Report on Threats, Challenges and Change, A
more secure world: our shared responsibility,” 2 March 2022, https://www.un.org/ruleoflaw/
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It has also been proposed to implement a mechanism of ‘indicative

voting’, where ‘no’ votes would not have the effect of veto.107 In the
aftermath of Russian intervention in Ukraine, the UN adopted a resolution
requiring the permanent members of the UN to justify their use of veto. The
UNGA resolution did not eliminate the possibility of exercising veto power,
but only requires the General Assembly “to hold a debate on the situation”
that led to a veto in the Security Council within ten working days. In
addition, they are required to give precedence on the list of speakers to the
permanent member who cast the veto.108 The UNGA and some of the
permanent members of the UNSC have echoed similar reforms to
democratize the decision-making in the UNSC. In the draft decision titled,
‘Question of Equitable Representation on and Increase in the Membership of
the Security Council and Other Matters Related to the Security Council’, the
President of the UNGA in 2020 identified the veto as one of the key issues
with regard to the UNSC.109 Moreover, there was a proposal to enhance the
membership of non-permanent members to twenty without eliminating the
veto.110
The nature of the UNGA is non-binding and is recommendary. With the
current logjam in UNSC, it is unlikely that much will result from its
resolution, but the UNGA can still persuade relevant stakeholders to
negotiate. For instance, in the 1980s, the UNGA requested the United
Nations Secretary- General (UNSG) to appoint a special rapporteur in order
to engage in the diplomatic process and enable a political solution. 111 This
could send a strong signal to the international community about the
commission of aggression. On the contrary, it could recommend the States to
impose unilateral sanctions.112
files/gaA.59.565_En.pdf, 66.
107
“The Secretary-General’s High-level Panel Report on Threats, Challenges and Change,
A more secure world: our shared responsibility,” 19 July 2022, https://www.un.org/ruleoflaw/
files/gaA.59.565_En.pdf, 68.
108
“UN adopts resolution requiring UNSC permanent members to justify veto use,” accessed
20 July 2022, https://www.trtworld.com/americas/un-adopts-resolution-requiring-unsc-perma-
nent-members-to-justify-veto-use-56658.
109
“Question of equitable representation on and increase in the membership of the Securi-
ty Council and other matters related to the Security Council,” United Nations, 21 July 2022,
https://www.un.org/pga/74/2020/08/26/pga-letter-on-the-draft-decision-entitled-question-of-
equitable-representation-on-and-increase-in-the-membership-of-the-security-council-and-othe-
r-matters-related-to-the-security-council/.
110
Nadia Sarwar, “Expansion of the United Nations Security Council” Strategic Studies 31,
no. 3 (2011): 260.
111
“The Powers of The UN General Assembly to Prevent And Respond To Atrocity Crimes:
A Guidance Document,” Asia Pacific Centre for The Responsibility to Protect, 21 April 2021,
24. Available at https://www.globalr2p.org/resources/the-powers-of-the-un-general-assembly-
to-prevent-and-respond-to-atrocity-crimes-a-guidance-document/.
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112
Ibid., 38.
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The UNGA has recommended such measures in the past, as in the 1970s and
80s, when it called on States to inter-alia sever economic and other relations
concerning Southern Rhodesia’s minority regime.113 This was also witnessed
in the context of South Africa’s apartheid regime, where the UNGA called
States to break off diplomatic relations. Its authority to recommend sanctions
is a step in the right direction. The hurdle is that since 1996, the UNGA has
adopted annual resolutions, asserting ‘unilateral sanctions’breach
international law.114
It is worth noting that although the UNGA has rendered a negative con-
notation to unilateral sanctions, it has not generalized unilateral sanctions as
the same. Unilateral sanctions are considered coercive when they a) apply
extra-territorially, b) fail to respect human rights and due process, and c) en-
croach on the domaine réservé (reserved domain) of the State.115The Draft
General Assembly Declaration on Unilateral Coercive Measures and the Rule
of Law (2019), prepared by the Special Rapporteur on the Negative Impact
of Unilateral Coercive Measures on the Enjoyment of Human Rights, lays
specific criteria that unilateral sanctions should comply with.116 Besides, in
accordance with the International Law Commission (ILC), States are obliged
to cooperate with the UN body to end any serious breaches of a peremptory
norm of international law.117 In the current scenario, Russia has violated the
peremptory norm of force use (aggression), therefore, should the UNGA pass
a resolution on this matter and impose sanctions on Russia, the States would
be obligated to comply with the same.118 Does this mean that States are ob-
ligated to comply with the western sanctions imposed on Russia? According
to Article 41(1), “States shall cooperate to end, any serious breach through
lawful means…”.119 However, such cooperation should take place within the
framework of the UN and not through unilateral sanctions imposed by States
113
Ibid., 41.
114
Ibid., 42.
115
For the report recommendation that unilateral coercive measures should be phased out as
early as possible starting with those found to have the most egregious effects in terms of
denials of human rights. See Elements for a draft General Assembly declaration on unilateral
coercive measures and the rule of law (updated), Report of the Special Rapporteur on the
negative impact of unilateral coercive measures on the enjoyment of human rights. Available
at https:// documents-dds-ny.un.org/doc/UNDOC/GEN/G19/257/21/PDF/G1925721.pdf?
OpenElement,
23 July 2022.
116
Ibid.
117
Ibid.
118
Rana Moustafa Essawy, “Is There a Legal Duty to Cooperate in Implementing Western
Sanctions on Russia?” accessed 25 July 2022, https://www.ejiltalk.org/is-there-a-legal-duty-
to- cooperate-in-implementing-western-sanctions-on-russia/.
119
Draft Articles Responsibility of States for Internationally Wrongful Acts 2001.
3
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without the endorsement of the UN. According to Rana Moustafa Essawy,

“… when states are concerned that article 41 (1) may trigger unilateral
measures, it is difficult to claim they have accepted a legal duty to cooperate
in the adop- tion and implementation of those measures”. 120 This essentially
means that a UNGA resolution could ensure the cooperation of states.
During the operation of the ICJ, several scholars suggested various
reforms. In 2021, a number of scholars commented on the missed
opportunities to clarify the aspect of ‘law’. 121 The ICJ’s use of jurisdiction to
decline cases means that its role in maintaining peace and security is not
fully realized.122
The call for reform is not unique to the ICJ but also extends to all bodies
of the UN.123 As far as the ICJ is concerned, the reforms need to stem from
its Statute, while for others, a more progressive interpretation by the court
may be required to accommodate the needs of the international society. The
state-centric nature of the ICJ is considered the core of the crisis, which is
perhaps exemplified by the lack of compulsory jurisdiction in cases of gross
human rights violations. Changing the entire structure of international law
may require an overhaul, which is unlikely.124 According to late ICJ Judge
Cancado Trindade, “…a considerable part of the legal profession has
continued to emphasize the overall importance of individual State consent,
regrettably placing it well above the imperatives of achieving justice at the
international level”. It was further pointed out that “The Court cannot
remain a hostage of State consent or keep displaying an instinctive and
continuous search for consent, as it ostensibly did in its decisions”. 125
Jeremy Sarkin and Eryn Sarkin suggested “…there are several other
aspects of the ICJ that require reform. These include the appointment process
of judges, its jurisdiction, as well as issues of compliance and enforcement.
120
Essawy, “Is There a Legal Duty.”
121
Alejandro Chehtman, “The Use of Force,” in The Cambridge Companion to the Interna-
tional Court of Justice, Carlos Espósito and Kate Parlett, eds. (New York: Cambridge Univer-
sity Press, 2023), 449.
122
Jeremy Sarkin, Eryn Sarkin, “Reforming the International Court of Justice to Deal with
State
Responsibility for Conflict and Non-Conflict Related Human Rights Violations,” accessed 26
July 2022, 19 https://ssrn.com/abstract=4147837.
123
See for instance, “A more secure world: Our shared responsibility, Report of the High-
level Panel on Threats, Challenges and Change,” United Nations, 16 July 2022,
https://www.un.org/
peacebuilding/sites/www.un.org.peacebuilding/files/documents/hlp_more_secure_world.pd
124
Shigeru ODA, “The Compulsory Jurisdiction of the International Court of Justice: A
Myth?”
International & Comparative Law Quarterly 49, no. 251 (2000): 254.
3
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125
Dissenting opinion of Judge Cançado Trindade in Application of the International Conven-
tion on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation),
257. Available at https://www.icj-cij.org/public/files/case-related/140/140-20110401-JUD-
01-
08-EN.pdf, accessed 2 August 2022.
3
Atul Russia-Ukraine
To address this issue, both the UN Charter and the Court’s Statute need to be
revised. The Court also needs to revise the way it functions and be more
willing to take cases and rule more forcefully in order to play a more
meaningful role in the world”.126 In the context of the Russia-Ukraine
conflict, the ICJ could play a decisive role, although reforms in its Statute
and UN Charter are necessary to achieve this goal.
VI. CONCLUSION
Despite international law providing several avenues for settling
international disputes, its effectiveness has been hindered by the reluctance of
states. Various bodies within international law have their inherent challenges
to overcome. While some of these are structural, others can be attributed to
the lack of will. As previously mentioned, there are available reform options
to overcome these challenges, which could positively impact the ongoing
Russia- Ukraine conflict. In the overall scheme of this discussion, general
international law can serve two important functions. Firstly, it acts as a
regulator and a tool for damage control, although resolving the larger
conflict requires political will. Secondly, it offers a ‘common language’ for
States to engage in dialogue. According to Onuma Yasuaki, a veteran
Japanese scholar, ‘International law provides common language and
framework for the exchange of claims in the argumentative process between
States.’127 In the case of the Russia-Ukraine conflict, general international
law can offer a common platform for negotiation through bodies, such as ICJ,
UNGA, or UNSC. In addition, international law can play an active strategic
role by reminding the aggressors of the illegality of their actions, which will
isolate the perpetrator and fix accountability.
126
Jeremy Julian Sarkin and Eryn Sarkin, “Reforming the International Court of Justice to
Deal with State Responsibility for Conflict and Non-Conflict Related Human Rights
Violations,” International Human Rights Law Review 11, no 1 (2022): 17.
127
Onuma Yasuaki, “International Law in and with International Politics: The Functions of
International Law in International Society,” European Journal of International Law 14, no. 1
(2003): 130.
3
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Indonesian Journal of International Law

Volume 21 Number 1 Article 6

Crisis and General International Law: Lessons from the Russia-

Follow this and additional works at: https://scholarhub.ui.ac.id/ijil

Part of the International Law Commons

Cover Page Footnote

This article is available in Indonesian Journal of International Law: https://scholarhub.ui.ac.id/ijil/vol21/iss1/6

CRISIS AND GENERAL INTERNATIONAL LAW:

West Bengal National University, India

Submitted: 4 October 2022 | Revised: 11 December 2022 | Accepted: 18 September 2023

Copyright © 2023 – Atul Alexander

the Russia-Ukraine conflict. The third section proposes possible solutions

II. STRUCTURAL CRISIS IN GENERAL INTERNATIONAL

One of the common features of general international law is that it should

III. BREACH OF UNITED NATIONS CHARTER PRINCIPLES

Nations,” American Journal of International Law 51, no. 4 (1957): 735.

A. PROHIBITION ON THE USE OF FORCE AND NON-

To invoke self-defense, the existence of an armed attack is a prerequisite

Lauterpacht, ‘a premature recognition of separatist regions as a new state

“The dialectics of history are such that small nations, although

“Crimea arguably marked a shift away from legal argumentation

“Although over 100 countries worldwide, including the US and most

IV. CRISIS IN GENERAL INTERNATIONAL LAW

enforcement by the Security Council may be suspended from exercising their

C. CRISIS IN THE INTERNATIONAL COURT OF JUSTICE

V. OVERCOMING THE STRUCTURAL

nation,” Indonesian Journal of International Law 19, no. 2 (2022): 213.

It has also been proposed to implement a mechanism of ‘indicative

without the endorsement of the UN. According to Rana Moustafa Essawy,

Book and Book Chapters

Springer International Publishing, 2018.

RFE/RL. “Russia Suspended from UN Human Rights Council For ‘Systematic

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