War and peace : The title of the great Tolstoy sums up in two words what is happening today, after the war of aggression launched by Russia against Ukraine. In this case the essential: the dignity of the human person, respect for the sovereignty of the state, the struggle with unequal weapons between law and violence. What do standards weigh against weapons? What can the law, especially international law, do in the face of an invasion strategy and systematic practice of humiliation, degradation and destruction of both combatants and the civilian population? In the wake of the massacres of Boutcha, Mariupol and elsewhere, the legal questions may seem very theoretical. However, they are essential if we are still to believe in the possibility of a world that does not return to the wild state.
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The Geneva Conventions not respected
International law is of course under attack today. First, in terms of concepts. The invasion of a sovereign state is the supreme negation of its territorial integrity and sovereignty, fundamental principles of public international law, at least since the end of World War II, if not the First, in both philosophy and doctrine. Likewise, international humanitarian law is the subject of major violations: the Geneva Conventions are not in the least respected in the current conflict.
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So in terms of settings. Collective security is at the heart of the UN system, which derives from the San Francisco Charter of 1945. The Security Council, created to remedy the failures of the League of Nations, which is notoriously able to intervene effectively against the ravages of the Fascism and Nazism, is intended to act effectively in the event of a crisis: this is the whole purpose of chapters VI (peaceful settlement of disputes) and VII (action in the event of a threat to the peace, violation of the peace and acts of aggression) of the charter. This body is paralyzed today, as it is precisely one of its permanent members, endowed with a veto right over the resolutions underlying the aggression.
The International Court of Justice in The Hague has taken a strong decision on Ukraine, but the lack of a response from Russia will have no consequences, in the absence of a sanction mechanism at the Court’s disposal. Hopes remain that the International Criminal Court will eventually be able to deal with the crimes committed in Ukraine.
Paralyzed International Institutions
Many other international institutions are nowadays, mutatis mutandis, who face similar problems in their respective areas of competence. The World Trade Organisation, where decisions are made by consensus, is today struggling to bring points of convergence forward on key challenges facing the global economy, and its dispute settlement body has been blocked. The World Health Organization has not convinced many of the relevance of its action during the pandemic, and the essential International Labor Organization has been weakened compared to the major international economic institutions.
→ LARGE MODE. “Let’s stop pretending the conflict in Ukraine is a return to tragedy”
Disputed in its principles, paralyzed in its institutions, often condemned by populists of all kinds, is international law doomed to obscure? Nothing is less certain and nothing could be more serious for our common humanity. Immanuel Kant’s dream of ‘eternal peace’ must remain an ideal to strive for.
It is international law that needs to be reinvented. Multilateralism, as it has gradually asserted itself since 1945, has persisted, at least in the short and medium term, to the extent that it fails to prevent the return of brutal contradictions between the major world players (United States, European Union, China, Russia, major emerging countries). Perhaps a new era of international law dawned on the occasion of the Ukrainian tragedy: that of an international law with a less universal and global purpose, of an international law more regional in origin, but no less effective in its application.
A new form of international normativity
The European Union, an interstate entity sui generis the most integrated in the world, has thus created a series of unprecedented sanctions, both in terms of speed of adoption and implementation and in terms of their magnitude. Many states have acted in the same direction and the consequences for the Russian economy are enormous, even if the essential – an embargo on hydrocarbons – is not registered at this stage. This creates a new mixed form of international normativity: on the one hand, interventions by many states (United States, Canada, Japan, etc.), unilateral in form, but converging in content; on the other, EU law, the specificity of which is that they are multilateral in their inspiration – the member states validate them together on the proposal of the European Commission – but unilateral towards the other parties, once they have joined the international order .
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The obvious risk of this approach is the temptation to go it alone and the right of the fittest. The extraterritoriality of US law is an example of this, which affects foreign actors when they ignore not an international norm, but only a rule of US law, without any real reciprocity at this stage. However, the confirmation of the European Union at the international level during the war in Ukraine is a new, important fact, possibly structuring for the future. It’s also a meager sign of hope, in an era that is showing itself to be frugal.