Fundamental Perspectives on Ukraine

 

Dr. John Van Doorn

              Nothing demonstrates the intersection of the disciplines of International Law and International Relations better than the current debacle in Ukraine.  And the importance of jurisprudence (legal theory) as the starting (and perhaps ending) point of discussions about the situation there.  In neither discipline is there a single guiding theory, and thus where “you stand is where you sit” (Neustadt).  We provide an overview table of leading jurisprudential theories of international law in Fundamental Perspectives on International Law Seventh Edition (Cambridge University Press, 2023; abbreviated here as FPIL 7).  From the perspective of Liberal jurisprudence in International Law, the Russian invasion of Ukraine is absolutely “illegal” according to first principles, and therefore cannot be allowed to stand, no matter what the military and economic cost to the other states in the world.  No state should be the sole “judge of its own actions” but rather must obey jus cogens (fundamental, universal norms) such as territorial sovereignty, non-aggression, and respect for human rights.  Starting point citations for such jus cogens instruments here would be the UN Charter (especially Article 2.4) and the Helsinki Accords.  Russia made a specific promise not to invade Ukraine, but rather “protect” the security and sovereignty of Ukraine in the Budapest Memorandum of 1994.

             But the contrary thread in both I.L. and I.R. posits that in a world of sovereign states, states themselves are the only judges of the correctness of their actions, and they can do whatever they have the means to achieve in a “self-help” world (pretty close to “might makes right”).  Realizing that this could lead to near-constant warfare, many Positivist/Realist scholars tend to fall back on a “spheres of influence” concept to keep the peace, or at least more stability.  In this view, Ukraine is clearly within Russia’s sphere, as Taiwan would be within China’s sphere and others should just turn a blind eye to whatever goes on there.  Positivists would add that a simple local “conflict” should not interrupt the much larger range of international issues (especially trade) between sovereign countries.  There seems to be some sympathy in some of the lesser-developed states (the Global South) in the world to this argument, dependent as many are on inexpensive Russian petroleum products.

             Even if one accepts the value of Liberalism as a foundation of international law, the Ukraine crisis exposes at least one of its flaws that could perhaps be ameliorated through theoretical refinement by future international law thinkers.  That flaw is territorial adjustment.  As we discuss in FPIL 7, there is currently no accepted method for territorial adjustment, even when it is strictly necessary (say, after a major war in which the losing side temporarily gained additional territories, as Germany did in World War II), or when a state is no longer able to administer territory over which it held a previously viable sovereignty claim.  These situations are arising with ever greater frequency as a result of rising nationalism, irredentist claims, and anti-globalist backlash, as we explore further in FPIL 7e.  We discuss several “workarounds” to territorial adjustment in FPIL 7, but none has obtained the status of either treaty or customary international law.  Perhaps one of the most promising would be an international boundary commission composed of historians, diplomats, judges, and other subject-matter experts who would be acceptable by all sides, often a tall order.

             Even with its shortcomings, these arrangements created under Liberal jurisprudence would be seen as vastly superior to the “method” of territorial adjustment prescribed by Positivist jurisprudence (and Realism in International Relations theory), war-as-change-agent (Gilpin 1983).  If nothing else, Ukraine is an abject lesson in the folly of this stance, not only for the direct deaths that have resulted, but also the world-wide economic deprivation, nuclear risks, etc. that it has caused.

             It is not too soon to be thinking of the best international-law framework to adjust borders (and other outstanding issues) in the inevitable conclusion of the Ukrainian invasion.  Borders could simply be frozen when both sides are too exhausted to continue, as in the Armistice that occurred in the Korean conflict in the early 1950s.  But there are some significant differences between Korea and Ukraine, the most important of which was the manner in which each conflict started.  In the former, there was a messy continuation of World War II by all of the major (external) Great Powers in that conflict over the territory of a much weaker small state with fluid borders (Korea).  In the latter, there was a crisp, undeniable all-out invasion of one well-defined sovereign state by another, i.e., a clear aggressor and victim state.  This brings us once again to the matter of first principles (or perspectives!).  Liberal jurisprudence would dictate one set of solutions and Positivist jurisprudence another.  Adding even more complication to the picture would be the lesser-known jurisprudential stances in International Law, e.g., Third World Approaches to International Law (or TWAIL; see FPIL 7, pp. 1-15 for further detail).  This perspective might see the situation of a former imperial overlord (Russia) attempting to continue a historical pattern of exploitation and, as a result, should actually loose territory as a deterrent and as an equitable compensation (restitution) for past bad behavior.  Interestingly, however, very few Global South states have publicly expressed this point of view at present.  This may be due to the success of Russian apologists that Russia has never been “imperialist” in the sense that western European powers were (in Africa and Latin America, for example).

             Readers are invited to explore these and other foundational matters to help them be far more informed about the stakes in Ukraine and likely outcomes.  Fundamental Perspectives on International Law Seventh Edition can be obtained directly from Cambridge University Press at www.cambridge.org/FPIL7 or at any reputable bookseller (such as Amazon).  We may post additional blogs in this thread on this site, at our discretion.

 Cited source: R. Gilpin, War and Change in International Politics (Cambridge University Press, 1983).

Confusion over “Near-Space” Sovereignty in International Law

 

23 February 2023

John Van Doorn

             The overflight of the continental United States by a Chinese balloon (with apparent surveillance capabilities) during the period of 3-10 February 2023 has brought an obscure international law topic to top-of-mind for specialists and ordinary citizens alike.  It has also been revealed that Chinese balloons have overflown at least 40 other states as well.  Is this even allowed?  How could the Chinese be so brazen?  Does everybody do this, and we just don’t know about it?  Is there any danger to floating balloons over other states?  If so, at what altitude, or does that matter?

             As noted in our book, Fundamental Perspectives on International Law Seventh Edition (Cambridge U.P., 2023), the limits of a state’s airspace sovereignty have not been established in international law, despite a UN body being specifically tasked with doing so in 2002.  In that way, not much has changed since the 1960 shoot-down of a high-altitude U.S. surveillance plane by the then-U.S.S.R. (now Russia) as seen in the Powers v. the U.S.S.R case. 

             For a time after the Powers case, the major countries in the world took the opposite tack, that it was better to be (somewhat) more transparent to other Great Powers, lest their intentions and capabilities be misunderstood by a potential foe.  This resulted in the Open Skies Treaty (not to be confused with the Open Skies Agreement) which remains in force, although two of its most powerful signatories, Russia and the U.S., had rejected it by 2019.  This treaty allows for almost unlimited mutual overflights by designated military aircraft.

             To avoid a repeat of the Chinese balloon incident, on 16 February 2023, President Biden called for “sharper rules” and “common global norms” to make clear what is—and what is not—allowed in this vague “near-space” air zone.  It was not clear from the President’s remarks whether these rules would just apply to the U.S. or would serve as the basis for a new treaty proposal.  We concur that the need for universally agreed upon and applicable rules which define the limits and uses of “near space” are long overdue, although we are skeptical that such rules could be adopted by “a sufficient number of states” in the present climate to become effective and legally binding.  On the contrary, it appears that evolving Chinese doctrine (and perhaps Russian as well) envisions “near space” to be both a strategic and possible war-fighting domain, and would therefore resist new international rules, regimes, or treaties.  This is in sharp contrast to earlier Chinese and Russian calls to de-militarize (and perhaps de-commercialize) outer space (see the text). 

             Beyond these concerns for security in the international law of extraterrestrial sovereignty is the practical need to regulate—and lessen—the number of objects allowed which can pose navigational hazards to aircraft and spacecraft in these air and space zones.  An example of this is the thousands of internet satellites that have already been launched by the SpaceX corporation, with many more launches planned.

             For a practical and non-jargony treatment of this timely and significant topic, we invite you to explore further in our book, and on the companion website, both available at www.cambridge.org/FPIL7 !  We would be happy to publish here on our blog selected responses from general readers, teachers and students on this and other topics treated in the book.