Cast your minds back to just over a year ago. On February 24, 2022, Russian President Vladimir Putin launched the largest ground war in Europe since the end of World War II. At the time, the situation looked bleak. Many believed that Ukraine had little hope to hold out in the face of a full-out assault by its much larger, better-armed neighbor. Russia’s military far exceeded Ukraine’s: It had nearly five times the number of active military personnel, almost five times the number of armored fighting vehicles, and ten times the number of aircraft. Overall, it spent roughly ten times the amount on its military annually. Perhaps most important, Russia possessed the largest nuclear arsenal on the planet, and it was clear that no state, not even the United States, was prepared to engage it in open warfare as a result. To top it off, Russia held one of the permanent five seats on the United Nations Security Council, which gave it a veto over any enforcement actions that the U.N. might undertake. If there was ever a case where law would capitulate to power, this was it. Indeed, as the war began, it looked like we were witnessing the end of the modern global legal order.
And yet the worst has not come to pass. On the eve of the war, Putin predicted that his “Special Military Operation” would take mere days, and yet here we are more than a year later with the Ukrainian government retaining control over the vast majority of the country. Many of the gains Russia made early in the war have been reversed. And the international system has proven imperfect but robust.
Today, I will consider what the war has taught us about the strengths and weaknesses of the international legal order.
WHAT IS AT STAKE: THE PROHIBITION ON WAR
When Russia launched its aggressive war against Ukraine, it violated the prohibition on the use of force embodied in Article 2(4) of the United Nations Charter. Scott Shapiro and I argued in our book, “The Internationalists,” that this principle is the fundamental underlying international legal principle of the modern era. War, we argued, used to be perfectly legal and legitimate. Indeed, war was a key way in which states resolved their disputes with one another. International law not only did not prohibit war, but it relied on war to enforce its rules. That changed first with the 1928 Kellogg-Briand Pact, which for the first time outlawed war and set in motion a range of legal transformations.
That transformation was reaffirmed in the U.N. Charter at the close of World War II in 1945. The prohibition on the use of force embodied in Article 2(4) of the charter is not just one legal principle; it is the key legal principle on which the rest of the system relies.
When Putin launched his war, he put that underlying principle at risk. But the test of a legal rule — whether domestic or international — is not determined simply by whether it is violated. It is determined, too, by the response when it is violated. We would never say that, for example, there is no value in laws prohibiting theft because theft still takes place. We would point to the fact that when people who steal are caught, there are legal consequences. Those consequences not only aim to punish the person responsible but they are also intended to deter others from engaging in violations in the future.
So, to see whether the law remains effective, we have to look not just at whether Russia violated the law — which it clearly did — but at the consequences that Russia has faced for that illegal war.
Read the full article. https://www.brookings.edu/on-the-record/how-russias-invasion-of-ukraine-tested-the-international-legal-order/
