INTERNATIONAL LEGAL MATTERS IN THE RUSSIA-UKRAINE WAR

Hakkı Hakan ERKİNER^*

ABSTRACT:

On February 21, 2022, Russian President Vladimir Putin signed the decree recognizing the independence of the Donetsk and Lugansk People's Republics, the two de facto administrations formed in the eastern Ukraine by pro-Russian separatists in 2014, at the Kremlin Palace. Immediately afterwards, Russian President Putin instructed the Russian Army to maintain peace in the Donetsk and Lugansk republics. Thus, the Minsk Agreements, which were accepted in the United Nations (UN) Security Council resolution of 2015 and numbered 2202, were violated. On February 24, Putin launched an armed offensive against Ukraine, which Russia called Special Military Operation. The President of Russia tried to base this armed attack, which is a mandatory rule of international law brought by Article 2/4 of the UN Treaty, in other words, the violation of the prohibition on the use of force, which is the jus cogens norm, on the grounds that can be specified under four headings. These are listed as follows: 1. Ukraine is a threat of armed attack for Russia; 2. Ukraine commits genocide in Donbas; 3. There is a Neo-Nazi Regime in Ukraine; 4. Ukraine is historically part of Russia. International Law is a normative system that will give a legal reaction to this event with the mechanisms of International Peace and Security Law and International Responsibility Law. Although its effectiveness and functionality will be examined, the obvious point that does not need to be examined is that legitimacy claims and illegitimacy accusations are made with the concepts, institutions and mechanisms of International Law. For this reason, it is essential to scientifically illuminate the struggle for legitimacy between states to determine whether the arguments put forward by Russia are legitimate or illegitimate ones according to International Law. In this context, Russia's arguments are related to the following concepts and institutions of International Law: Regarding Russia's first argument, prohibition of use of force, threat of use of force, armed attack, imminent danger, certain danger, possible danger, legitimate right of defense, power to use force; Regarding Russia's second argument, the right to self-determination, colonial rule, genocide, independence; with regard to the third argument, the prohibition of interference in internal affairs; with regard to the fourth argument, sovereignty, territorial integrity, jus cogens norm, erga omnes obligation. For the first argument, for example, let's present the following determination: The exception to the prohibition of the use of force in International Law is the right of self-defense, which is also regulated in Article 51 of the UN Treaty. The event that gives rise to this right is to have been subjected to an armed attack. There is also the right of collective self-defense. However, the right of self-defense against an imminent and serious threat of armed attack, which has not yet happened, but is certain to happen, exists as a rule of customary international law accepted and implemented by states. Despite this, the right of preemptive self-defense against a possible armed attack that has not happened yet but is not certain to happen is rejected by the states in international customary law, which has been accepted and applied. The threat of an armed attack by Ukraine, on which Russia is based, is only a possible threat of armed attack, and there is no legal possibility for Russia to rely on its right of self-defense. Likewise, all international law claims that Russia put forward as justification for legitimacy are examined in the statement summarized here, and it is proved by the norms of international law that they are illegal claims.

Issues of international law within the framework of the Russo-Ukrainian War are diverse and should be listed under a number of sub-headings. These topics are: 1. The implementation of the Montreux Straits Convention by Turkey on the grounds of the Russia-Ukraine War; 2. International Law and the question of the admission of Ukraine to NATO membership; 3. Self-defense is a right in International Peace and Security Law (UN Treaty art. 51) and a ground of lawfulness in International Responsibility Law (A/RES/56/83 art. 21 and art. 26) and its application to the concrete case; 4. The reason why the UN Security Council was paralyzed and how the system was designed; 5. International Law of Responsibility mechanism working against the paralyzed International Peace and Security System; 6. International Responsibility Law behind countermeasures against Russia and A/RES/56/83 m. 40 and m. 41; 7. Examining the application made by Ukraine to the International Court of Justice (ICJ) on 26 February 2022 with the allegation of violation of the 1948 Convention on the Prevention and Punishment of Genocide against Russia and the interim measures decision of the ICJ on 16 March 2022; 8. UN Treaty of ICJ resolutions against Russia, a permanent member of the UN Security Council, and against a permanent member in general, impossibility of enforcement according to 94/2; 9. Responsibility for sea mines; 10. Sabotaging the peace talks and the progress reached in the Istanbul peace talks; 11. War crimes and international criminal responsibility of persons and the international responsibility of the state arising from an international wrongful act. Although the aforementioned titles are not exhaustive censuses, they largely indicate the major international law issues related to the situation.

Keywords: Russia-Ukraine War, use of force, self-defense, self-determination, sovereignty, territorial integrity, international peace and security, international responsibility, humanitarian law, United Nations, A/RES/56/83, jus ad bellum, jus in bello, jus contra bellum, jus cogens, erga omnes.