Legitimacy and the Ukraine invasion

Russia's actions are predictable but illegitimate

Nitin Desai

Legitimacy is a desired garb for ancient kings who sought priestly blessings or a latter-day President who values the approval of a foreign foray by a UN Resolution. For the powerful yearn to be rightful rulers. How credible is the garb of legitimacy that Russian President Vladimir Putin has sought for his military intervention in Ukraine?

The principal source of legitimacy today for international political action comes from what is permitted by the UN Charter. Some goals of the charter are drawn from the preamble:

• “to save succeeding generations from the scourge of war”;
• “to reaffirm faith ... in the equal rights ... of nations large and small”;
• “to ... live together in peace with one another as good neighbors”.

Quite clearly all of these have been violated in the Russian invasion of Ukraine.

The UN Charter forbids interference in matters that are entirely the internal affairs of any member state. In this sense it is clearly classical in its premises about state sovereignty. It assures every state the promise of collective security against external aggression and by implication protects all existing boundaries from being changed by external force. In this sense it seeks to protect the status quo with respect to sovereignty.

The Charter does include Chapter VII, which authorises the Security Council to take “such action ... as may be necessary to maintain or restore international peace and security” even if the states affected are opposed to it. Till the 1990s, this authority was interpreted in terms of an imminent threat of military aggression. However, the interpretation has evolved and could be said to cover other risks like violations of human rights or the threat of genocide.

The doctrine of humanitarian intervention is a more recent idea that justifies direct interference in the internal affairs of a state when violations of human rights are deemed to be egregious, through more active measures like

sanctions or armed interventions. What is missing, however, is a multilateral process to determine facts on the ground, a clear standard to define what is unacceptable, a willingness to apply it without fear or favour and a multilateral procedure for reaching a decision in specific cases that commands general respect.

The actual history of the UN view of what should be considered legitimate interventions against the “internal affairs of a state” is ambiguous. The case of the apartheid regime in South Africa offers an interesting example. The actions taken in the UN against this regime were not mandated through the Security Council acting under Chapter VII. The Security Council was also not supportive of unilateral actions taken by some states against obvious and gross violations of human rights and risks of genocide, for instance, by Tanzania against the Idi Amin regime in Uganda, by India against the Pakistani forces in Bangladesh, and by Vietnam against the Pol Pot regime in Cambodia.

Mr Putin has justified the Russian invasion of Ukraine as a response to “genocide” in the Russian-backed separatist areas in Eastern Ukraine. This is an attempt to secure legitimacy by relying on the acceptance of “humanitarian intervention” as a just reason for action against a state, a norm which generally Russia has not supported.

However, his long February 21 speech announcing the recognition of the two breakaway regions in Eastern

Ukraine (Donetsk and Luhansk) gives a rather different justification. He delves into history and challenges Ukraine’s right to sovereignty and states that “(it) is an inalienable part of our own history, culture and spiritual space” and that “modern Ukraine was entirely created by Russia or, to be more precise, by Bolshevik, Communist Russia” and that the union republics which were part of the Soviet Union “did not have any sovereign rights, none at all”. He deplores the recognition by the Central Committee of the Communist Party of Soviet Union in 1989 that “the republics of the USSR shall possess all the rights appropriate to their status as sovereign socialist states”.

The second reason he gives in this speech is the steady expansion of the North Atlantic Treaty Organization (NATO), which incorporated many former Eastern Bloc countries in five waves, the growing attachment of Ukraine to the West, and its possible incorporation into NATO. He mentions that in 2000 he asked then US president Bill Clinton how he would look at Russia joining NATO and got a restrained response, which he interprets, perhaps fairly, as an indication that the eastward expansion of NATO was essentially meant to contain Russia.

Mr Putin’s February 24 speech cites Article 51 of Chapter VII of the UN Charter as the basis for Russia’s military intervention in Ukraine. This is the article that states that “(n)othing in the present Charter shall impair the inherent

right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”. The possibility of NATO expanding into Ukraine is hardly a basis for applying this article. Moreover, the blatant rejection of Ukrainian sovereignty, which has been recognised not just by the UN but also by Russia, is clearly a violation of the respect for national sovereignty required by the Charter.

The UN secretary-general has stated clearly that the actions of the Russian Federation are “violations of the territorial integrity and sovereignty of Ukraine and inconsistent with the principles of the Charter of the United Nations”. In principle that requires the Security Council to take action.

This will not happen. The UN was born out of the breakdown of this 19th century system of international relations and the futile corrective attempts in the inter-war period. The oligarchic principle was maintained in the design of the Security Council, though the multilateral principle was strengthened with the mandatory jurisdiction of the Council on peace and security matters and the broad role assigned to the General Assembly. Like all such arrangements it fails to function effectively when the conflicts to be resolved are between the oligarchs or their client states.

Multilateralism is about the balance between power and consent. Yet this need not mean simply recognising the hegemony of the most powerful. That is not realism. That is fatalism. Realism requires that though the powerful play a disproportionate role in decision making, they do so within a framework of democratically agreed norms and in a collegial context that includes others. This balance was missing when the US and UK invaded Iraq in 2003, on the false pretext of lethal weapons proliferation. It is missing now in Russia’s invasion of Ukraine. One must, therefore, conclude that Russia’s actions are predictable but illegitimate.

The author was Under-Secretary General of the United Nations 1993-2003