Should Russia Seek a Settlement with Ukraine in World Court?


I was deeply impressed by the geopolitical genius of Xi Jinping and Vladimir Putin as reported in this press briefing from the Ministry of Foreign Affairs of the People's Republic of China when I read it yesterday. Today I want to take a few moments to revisit one sentence of the briefing in particular: 

"As forces for stability, progress and development in the international community, China and Russia should continue to firmly stand together, resolutely safeguard the UN-centered international system and the international order underpinned by international law, and continuously promote an equal and orderly multipolar world." 

This is exactly what many in the West want to hear from China and Russia. However, there is a widely felt sense that Russia violated the UN Charter when it invaded Ukraine in February of 2022 - allegations of NATO provocation notwithstanding - and that Russian annexation of Ukrainian territory in September of 2022 is inadmissible under international law. This sense of violation in turn gives rise to a fear that China and Russia are not genuinely committed to the UN Charter. 

Why should China not encourage Russia to allay this fear by seeking a settlement of Russia's dispute with Ukraine at the International Court of Justice? Do Russia and China have concerns about the fairness of the World Court? If they do, is it time to start discussing amendment of the ICJ statute? 

Article 51 of the UN Charter is not more important than Article 26. We should be using the World Court, not military confrontation, to settle high-level disputes like whether NATO's open-door policy was an act of aggression in the Ukrainian context, or whether Russian annexation of Crimea in 2014 was a justified reaction to an illegal coup in Kiev. Surely NATO expansion wasn't an act of aggression in the case of Finland. Why would NATO expansion into Ukraine be any different? What makes Russian military intervention under Article 51 of the UN Charter uniquely lawful in the Ukrainian case, from the Russian (and Chinese) point of view?

Military parades in Moscow are only one aspect of Russian power. Satyagraha, Gandhi's term for nonviolent truth force, matters too. Russia's lawyers must be even more powerful than its tanks, and they must win western hearts and minds in a fair and competent court - if they can. WW2 is in our past. Most of us would prefer to avoid WW3. That is what the UN Charter means to us: peaceful resolution of disputes. And that is why we have the ICJ.

On a related front, I note with a mixture of respect and misgiving that international legal experts at the EU and Council of Europe are moving forward a plan called the Special Tribunal for the Crime of Aggression Against Ukraine (cf. Ukraine: Press remarks by High Representative Kallas following the informal meeting of Foreign Affairs Ministers | EEAS and Frequently Asked Questions | Special Tribunal for the Crime of Aggression against Ukraine). How will China and Russia respond to this international legal development?

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