By Joe Lauria, Consortium News, 2/10/23

This doesn’t necessarily reflect my view of the situation, but it’s an interesting analysis. – Natylie

Joe Lauria is editor-in-chief of Consortium News and a former U.N. correspondent for The Wall Street Journal, Boston Globe, and numerous other newspapers, including The Montreal Gazette and The Star of Johannesburg.

In his impassioned address to the United Nations Security Council on Wednesday, in which he appealed to the council’s humanity to bring about a ceasefire in Ukraine, British rock legend Roger Waters called Russia’s military action “illegal.”

That has gotten some attention and raised the question again of the legality of the military operation according to international law. As is often the case with law, the question is not as simple as it might seem.

What the Charter Says

The U.N. Charter has something to say about the legal use of military force. It allows it in two cases: when it is authorized by the Security Council and when it is legitimately used in self-defense. Council authorization for force is contained in Chapter VII, Article 42:

“Should the Security Council consider that measures provided for in Article 41 [economic sanctions] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

The second instance allowing armed force is in self-defense, explained in Chapter VII, Article 51:

“Nothing 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

So, on these narrow legal grounds, the U.N. Charter only permits the use of force after authorization by the Security Council or in self defense by a “member state.” Russia entered the eight-year Ukrainian civil war on Feb. 24, 2022 to defend against attacks against the majority-ethnic Russian oblasts of Donetsk and Luhansk, which had declared independence from Ukraine in 2014.

Russia only recognized their independence on Feb. 21, 2022, three days before its intervention. It intervened without authorization from the Security Council, where the U.S., Britain and probably France would have vetoed it.

As the self-defense article pertains only to U.N. member states, it could not apply to Donetsk and Luhansk. Russia is a member state but the article says “if an armed attack occurs” against it, and there was at the time no armed attack against Russia.

So according to the U.N. Charter, Russia’s military intervention was not legally authorized.

Montevideo Convention

However, states are not prohibited by the Charter to request the presence of foreign forces on their territory. There is no language in the Charter about it. Officially inviting foreign forces onto one’s territory would not be considered an illegal occupation. Article 42 of the 1907 Hague Convention says:

“Territory is considered occupied when it is actually placed under the authority of the hostile army.”

The Russian army is certainly not seen as hostile in Donetsk and Luhansk. The murkiness of the legal issue arises then on the question of whether Donetsk and Luhansk were independent states in February of last year — states that could invite foreign forces onto its territory — or were they at the time still part of Ukraine? (Ukraine and the West argue they still are today. The republics passed referenda in September 2022 to join the Russian Federation.)

So what makes an independent state? According to the Montevideo Convention of 1933, “The state as a person of international law should possess the following qualifications:

a permanent population;

b. a defined territory;

c. government; and

d. capacity to enter into relations with the other states.”

This is key: Article 3 of the convention adds, “The political existence of the state is independent of recognition by the other states.” That means no other other country has to recognize their independence if the above criteria are met.

Donetsk and Luhansk met the four requirements of the Convention including capacity to enter into relations with other states, as it has relations with the Russian Federation. The Convention says a state need not be recognized by other states. They have been recognized by Russia, Syria and North Korea.

So the Russian intervention is considered illegal under the U.N. Charter because it was not authorized by the Security Council nor does it meet the test of the self-defense Article 51.

But the Charter does not prohibit a state from inviting foreign forces onto its territory. A legal argument based on the Montevideo Convention can be made that the two territories were independent states at the time of Russia’s intervention and had the right to request foreign forces to enter their territory. In that sense, Russia’s military action in February a year ago was legal.