Rusia invade Ucrania. Hilo general

es británica muajajajaja

I think it’s important to understand how bad this is, not just from the perspective of Ukraine, but for individuals in other places too. Obviously, war between states is bad, and I mean really bad, but I also think most people, especially people watching this like a sports game, don’t understand how much it hurts them too.

A lot of people regard the laws of war between states (i.e. when states can use force against each other) as something that doesn’t matter, and think that international law as a whole is irrelevant, or simply a code of ethics. At least as of 2022, I am of the opinion, based on what I see every single day as a lawyer, that this is not true. I am also of the extremely strong opinion that most people should continue to hope that it remains that way. I’ll come back to why later though (if people actually want to read any of this).

The global state system has generally known that war for the purpose of attaining power, be it economic or otherwise, is morally wrong, for centuries. Indeed, in 1740, Emer de Vattel, one of the most influential international lawyers of all time (yes there were international lawyers back then) stated in his now-essential legal treatise The Law of Nations:

We shall shew, in treating of the just causes of war, that a nation is not allowed to attack another with a view to aggrandize itself by subduing and giving law to the latter. This is just the same as if a private person should attempt to enrich himself by seizing his neighbour's property.

As far back as 1740, scholars and states recognized that aggressive international war for the sole goal of plunder was morally, and here for the first time, legally, wrong. That said, don’t think I need to tell anyone here that states still went to war, but most either attempted to justify that war through something other than that aggrandization. Vattel didn’t describe states as thinking all war was bad; only certain kinds of war. And that’s where things became complicated. Despite knowing that going to war for self-aggrandizing reasons is wrong, and probably knowing it for centuries, states consistently derived reasons they were entitled to certain land, be it through historic claim, ethnic struggle, self-determination of their people or (horribly) through arguing that the land they were invading is not a state.

This came to a point in north America in 1837 when the United States almost went to war with Canada (Britain at the time). This was the incredibly important case of the Caroline. In essence, Ontario, Canada was dealing with a rebellion and the rebels camped out on a small island in the United States. Canada received intelligence that the rebels were about to raid part of southern Ontario and preemptively sunk a rebel troop-carrying boat that was still in the United States. At first, the United States considered this to be a use of force on its territory (what was at that time called an act of war). Canada argued to the United States that this use of force was justifiable and the American ambassador to Canada assisted in bringing this argument to the President. The argument was that the use of force was necessary to prevent harm, was proportional to that harm, and was only used insofar as was necessary to stop the harm. This became the eventual test used up until today to justify a use of force.

However, how international law works, it doesn’t matter that Canada and the United States had derived this test. It doesn’t just become customary international law because the United States and Canada say so. And in fact, Europe did not find this test customary at all, which was made clear during the First World War.

Again, in the First World War in Europe, all states had their own “just war” theories, that were largely upheld only in victor states. It wasn’t until after World War I that the world, or at least part of the world decided that international war was universally a bad thing. They recognized that it led to massive economic and social instability, and that it was to be avoided no matter what. They also recognized, however, that international relations and politics are difficult, and a forum whereby every state is able to say their piece and created the League of Nations, which for the first time ever, recognized that international use of force was at all times prohibited except in self-defence under Article 10:

The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.

This was the first time a massive, powerful, and multilateral agreement recognized that aggression was unjustified for any reason. Indeed, it was so important that the entire League of Nations failed specifically because it could not uphold this single Article because a single state in 1933 decided that it didn’t care about it (foreshadowing). When the United Nations rose in place of the League, it included a further enhanced United Nations Charter Article 2(4):

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

This single statement is so important in international law that it is one of exceptionally few considered jus cogens or law above all law. It is no exaggeration to state that this is also probably the most important concept ever agreed to by civilization in human history. It is the cornerstone of the international state system. It is why we have cross-border financial flows, reliable open trade, predictable travel, access to services, and it is why we are even capable of settling disputes with negotiation before they even become real disputes.

So why does all of this matter now?

One of if not the largest misconceptions when it comes to international law is that it is a list of rules imposed upon states. It is not. It never has been. When Vattel wrote The Law of Nations he wasn’t imposing rules on countries; that would be ridiculous. Rather he was describing and codifying the current state of international relationship between states. That is what international law is. International law is a codified description of the various forms of behaviour states have bound themselves to through treaty or statement and a derivation of what is “allowed” and “not allowed” based on these obligations upheld by a social contract of reciprocity that states, “I will do this for you if you do the same thing for me”.

It assures states that the international community will tolerate certain behaviours and will not tolerate others. It says “we have noticed that this is how you treat others, and that these are the things you believe have force of law, and because of that and because we believe the same things we will also treat you the same way”. In other words, it codifies the things that each individual state, and the system of states as a whole believes about the world. Again, and most importantly in this circumstance, this codification makes state behaviour predictable. In a post-nuclear age, no matter if you are the most IR realist human on the planet, predictability of international relations is a very good if not essential thing.

When Russia says to the world “I know this isn’t legal under international law, but I’m doing it anyway” the world is forced to react to protect the idea that no state can use force against another. If it doesn’t, states essentially state that what Russia is doing is legal, which affects the rights of all states and makes the law of war less predictable, indeed because of how international law works it may gradually change that law even if its actions are not accepted internationally.

When the United States invaded Iraq in 2003, it attempted to re-codify international law around justifiable use of force and took us back a step in our interpretation of just war. The United States argued that ideas such as “preventative” self-defence and the “unwilling and unable doctrine” were legal justifications for war. While most states do not agree with these defenses, some now do. This, from that moment on, left all states less sure and therefore less secure about when their actions will invoke state intervention because while general customary international law says that these are not good reasons for war, many countries now disagree.

Regardless of whether states react in opposition or not the fact that Russia has done this in the first place and the fact that states are responding to it will say something about the very cornerstone of the international state system. This put states in a catch-22 situation where the more strongly they react, the less stable they’re going to make the situation for themselves, but the more stability they will provide to the law. The latter has been such a strong motivator recently that states have reacted against their own economic interests to disincentivize Russia from using force. This is genuinely one of the worst possible things a country can do and will likely make the entire world less stable for the foreseeable future, just like its invasion of Crimea when it attempted to open the door to “protection of nationals” as another allowable defence to use of force in another country which it is now using as a justification here.

I’m running out of room, and I haven’t done this justice, but I doubt anyone wants to read a multi-comment treatise right now, and the poor mods here have dealt with these walls of text for a while. So I don’t know… I guess today I’m just sad.