Hiep Nguyen (JD '23) was the Senior Online Editor of the Berkeley Journal of International Law and the Senior Technology Editor of the California Law Review.
This piece is co-published with the California Law Review.
A rally at Berlin’s Brandenburg Gate protesting the unprovoked Russian invasion of Ukraine. Photo by Leonhard Lenz.
Article 1, Section 2 of the United Nations Charter enshrined the “self-determination of peoples”—the ability to choose one’s destiny—as a fundamental right of every country. In 1970, the UN General Assembly passed the Friendly Nations Declaration, which further defined this principle by making illegal any actions that would “dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states.” This declaration, complemented by similar language in Article 6 of the International Covenant on Civil and Political Rights, codifies each country’s right to self-determination free of forced foreign interference over their internal affairs or unprovoked invasion of their sovereign land.
Russia broke these international laws when it invaded Ukraine after months of troop buildup along its and Belarus’s borders. Russian President Vladimir Putin sought to expand his power, conquer another Slavic people, and end Ukraine’s pursuit of a democratic future away from his grasp as a member of the European Union and North Atlantic Treaty Organization (NATO). His government stated that Russia would topple Kyiv in three days and that Ukrainians would welcome Russian forces as “liberators.” He lied to his people about “denazifying” Ukraine while bombing a Holocaust memorial and conveniently ignoring that Ukrainian President Volodymyr Zelensky is Jewish and the son of Holocaust survivors. He shelled civilians in maternity hospitals, assisted care centers, evacuation sites designated for safeguarding children, and apartment blocks, killing over 20,000 innocent Ukrainians since his needless war began: a number likely undercounted as Russia continues using force against civilians. He flattened Mariupol and massacred hundreds of Ukrainians execution-style in formerly occupied cities like Bucha, with plans for mass graves and mobile crematoria to cover up his atrocities and reports of alleged chemical weapons use. He gave the world a devastating glimpse at the deadly regional conflicts, driven by dictators’ desire for power, that plagued Europe for centuries before World War II.
Yet, Ukrainians thwarted his ability to accomplish most of his objectives. They opened reservoirs and intentionally flooded roads to enhance the raputitsa (the Ukrainian mud season), immobilizing and trapping hundreds of Russian tanks north of Kyiv for Ukrainian farmers to seize. Supported by an unprecedented stream of arms provided by NATO and EU states, the Ukrainian Armed Forces (UAF) took advantage of poor Russian morale and planning to block Moscow’s advances on all fronts: stymying attacks from Chernihiv and Sumy to the east to Mykolaiv and Zaporizhia to the South by keeping key roads, ports, and airfields under Ukrainian control despite being outnumbered and outgunned. Using street blocks and buildings as shields, they have held Mariupol for nearly two months despite an intense Russian siege. And even in captured cities like Berdyansk and Kherson, citizen protests deeply undermined the Russian occupiers. This effective defense killed over 19,000 Russian troops and took out thousands of tanks, planes, vehicles, and other military equipment, forcing Russia’s defeat in its conquest of Ukraine and limiting the Russian military campaign to the Donbas region.
By withstanding and pushing back Vladimir Putin’s unprovoked invasion, Ukrainians determined that their future as a sovereign state is theirs alone to decide. In doing so, Ukraine galvanized the West to mount decisive sanctions and military aid to Ukraine that have crippled Russia’s ability to wage wars of conquest, thereby enforcing international laws on self-determination. Ukraine’s resistance, the West’s unity, and Russia’s naked aggression have sharply elevated public support for the post-World War II order governed by international rules regarding self-determination, democracy, and human rights, and institutions like the EU, which were formed to place these principles in action. It has also proved the indispensability of NATO (whose mutual defense pact protects member states from any country that violates their sovereignty) to Eastern European member states who fear potential invasions by Russia and Western political and economic unity on deterring Russian aggression. These groundbreaking precedents may also protect the rights of vulnerable countries far beyond Europe’s borders.
To begin with, Ukrainians determined their own democratic future by repelling Russia’s harrowing attacks on their land.
Russian military vehicles destroyed by the Ukrainian Armed Forces near Kyiv. Russia and Western experts severely underestimated Ukraine’s morale and fighting capability against the Russian invaders. Photo by the Government of Ukraine.
Putin, who has called the collapse of the Soviet Union one of the greatest tragedies of the last century, believes that Ukraine and most Slavic states constitute Russia’s historic sphere of influence. He thinks that Moscow is therefore entitled to control their affairs and ensure their friendliness to Russian domestic and foreign policies. Russia still exercises control over Belarus, and largely maintained a similar “friendly” arrangement with Ukraine for a decade until Ukrainians revolted and demanded their freedom in the Orange Revolution of 2004, and the successful Euromaidan of 2014. The latter resulted in the Kremlin-friendly president fleeing the country in disgrace and his replacement by duly elected successions of liberal governments.
Some Western pundits parrot Putin’s imperialist beliefs and argue that Ukraine and its neighbors should not “anger” or “provoke” Russia by pursuing democracy or EU and NATO membership, and that NATO countries were wrong to allow eastward expansion after the collapse of the USSR. They also goad Kyiv into accepting massive territorial concessions in exchange for peace. However, this “westsplaining” (a term coined by Professors Jan Smoleński and Jan Dutkiewicz) perpetuates imperialism and colonialism by denying Eastern European states agency in determining their future. It instead treats states like Ukraine as pawns in a game of global chess. It ignores the violent history Ukraine and its neighbors experienced under Russian domination that motivates their efforts to join NATO and the EU. In the USSR, their citizens experienced political repression, cultural genocide, and the Holodomor: a famine that killed millions and was designed to subjugate Ukrainians and force them to accept Soviet rule. This does not even begin to describe the Kremlin’s brutal crackdowns on democratic dissidents in countries behind the Iron Curtain.
Ukrainian refugees sheltering underneath a bridge near Kyiv after a Russian bombing. Photo by the Government of Ukraine.
Westsplaining therefore amounts to a blatant violation of fundamental principles of international law, which clearly state that no country is entitled to determine another’s affairs, no matter how large, aggressive, or expansionist they make themselves out to be. If Ukraine seeks to join the EU and NATO, that is their choice. If Ukraine feels it cannot negotiate until its full territorial integrity is guaranteed—including full control and removal of Russian troops from the Donbas region–that is their choice. Not Russia’s. Not Europe’s. Not the United States’s.
In addition, Ukraine’s resistance has united NATO and Europe to enforce international law by devastating Russia’s military and economic capability to wage war.
EU Commission President Ursula von der Leyen first announced Allied sanctions against Russia for its illegal incursions into Ukraine. Photo by European Commission.
International law has no true judicial enforcement mechanisms. For instance, Russia can withdraw from any International Criminal Court statutes they like, and neither Moscow nor Washington are parties to the International Court of Justice’s compulsory jurisdiction. This often leaves it up to alliances and countries to enforce international law. Examples include NATO enforcing UN resolutions against genocide by ending the mass killing of Muslim Bosnians and Kosovans in the Yugoslav Wars of the 1990s. Other examples include countries upholding international law against racial discrimination by divesting from and boycotting South Africa during its Apartheid era, and, most recently, Western countries sanctioning Russia for its illegal annexation of Crimea in 2014.
Putin’s invasion of Ukraine, which clearly aimed to decapitate the country’s leadership and install a favorable regime, demonstrates how far Russia and other illiberal actors will go to expand their power and defy global norms on sovereignty. Putin has hinted that he will not stop with Kyiv. He previously invaded Georgia and occupied Moldova’s Transnistrian region under the guise of “protecting” Russian minorities. His ultimatums to NATO included a withdrawal of Allied forces out of Eastern European countries, including Baltic NATO states that fell under Soviet domination before 1991. Foreign policy analysts routinely suggest that Putin aims to rebuild the old Russian Empire and restore what he sees as lost Russian influence over its neighboring states, much like how Hitler annexed most of Central Europe in the 1930s.
Russia’s terror, which portended continued and even more brazen upheavals of international law (and included threats to NATO members which would trigger its mutual defense pact), along with Ukraine’s spirited resistance, motivated the West to enforce global rules on self-determination and sovereignty. They did this, first, with the most destructive bevy of diplomatic and economic sanctions in modern history that have eroded both Russia’s ability to finance war, as well as its global and regional reputation. EU and NATO states have severed most Russian banks from SWIFT, the global payments system, and other key financial markets, effectively stopping Russia from importing any goods and freezing Russians’ ability to do business with the West. Russian companies may no longer raise money in most Western countries and are barred from exporting luxury items like vodka and diamonds. Russian oligarchs’ capital and assets have been frozen, its Nord Stream 2 pipeline is dead, and some Western nations have even gone as far as banning oil imports. This overwhelming response has prevented Russia from buying the microchips, materials, and equipment needed to replenish their military, and will cause Russia’s GDP to drop by over 30% by the end of 2022, abrading its ability to finance war. Moreover, Russia has been booted from both the Council of Europe and the UN Human Rights Council: severing many diplomatic channels it could have used to garner support for its war effort.
On top of these $1 trillion measures, which have effectively destroyed and isolated the Russian economy, the West still has many tools left to punish Putin. This includes completely banning all Russian banks from SWIFT, ending all Russian oil sales in Europe, and eliminating Russia from both Interpol and the UN Security Council, among other sanctions.
A young Ukrainian refugee awaiting resettlement at Przemyśl train station in Poland. Many parents have sent their children away alone or with older relatives to safer parts of Europe while they stay behind to defend their country. Photo by Mirek Pruchniki.
Second, NATO and the EU have delivered extensive weapons shipments to Ukraine, including advanced anti-aircraft defense systems, tanks, firearms, and protective equipment. This sustains the Ukrainian Armed Forces without risking a direct NATO engagement with the Russians. NATO complemented these weapons with a vastly increased troop presence and air coordination in NATO member states bordering or close to Russia—this enhanced military presence was welcomed by Eastern European states. NATO and the EU clearly and unmistakably warned Putin that Allied countries will fulfill their Article 5 commitments to defend every inch of NATO territory should Russia decide that its incursions into Ukraine are not enough.
These unified Western actions amount to a clear enforcement of international law on self-determination and sets a precedent of shattering economic consequences for any country that attempts to invade another sovereign state. This is not 1914. It is not 1938. It is 2022. The world aspires to rules that prevent unprovoked incursions—not regional powers or the whims of dictators. And Allied nations can and will give these rules teeth.
Lastly, the unprecedented unity of the West in its defense of Ukraine and international law has strengthened the rules-based world order to previously unseen levels. This will elevate democracy, human rights, and sovereignty throughout the globe.
EU, G7, and NATO leaders standing shoulder-to-shoulder, united in their commitments to Ukraine and democracy. Photo by White House.
Public support for Ukraine continues to reach new highs, with most Americans and Europeans supporting the war effort and the global institutions (like the EU and NATO) responsible for keeping the peace after World War II. As a partial result of this elevated public sentiment, EU and NATO countries have united to sanction Moscow and send humanitarian and military relief to Kyiv. These decisions allowed Allied countries to create a resounding collective impact that few predicted months and years ago, especially after the chaos of Brexit, populism, and the Trump presidency. Putin not only bet against this unity but actively sowed division in Allied nations for his benefit. He was wrong and has paid a heavy price.
The newfound unity of the West will have broad and transformative effects for the rules-based world order, strengthening its ability to stand up for smaller countries’ sovereignty and democratic institutions, just like it has in Europe.
This unity can first be seen in a fundamental reset in refugee policy towards Eastern Europe, with Poland taking in over two million Ukrainians displaced from war, Romania over 500,000, and the United States over 100,000 (a smaller number since many Ukrainians prefer to remain in Eastern Europe and return to their homes to rebuild after fighting ends). Thousands of volunteers have poured into Ukrainian border regions to help migrants access food and shelter—an effort Western countries have supported with billions of dollars in humanitarian relief money.
The growing threat of Russian aggression has motivated countries once on the fence about NATO membership to finalize applications to the Alliance—including Finland and Sweden, which are set to join by the end of the summer. Their additions will achieve the exact opposite of what Russia desired from its aggression–more NATO neighbors and greater enforcement of international law on self-determination.
Polish volunteers assist Ukrainian refugees in Przemyśl Główny. Poland has taken in roughly 2.1 million refugees fleeing Russia’s invasion as of late March 2022, or roughly 5% of its population. Photo by Pakkin Leung.
However, this reset is truer nowhere else than Asia, where China still muses about supporting the Russian invasion, actively threatens Taiwan, and continues to conduct incursions into the South China Sea and South and Southeast Asia that skirt the edges of the international law on self-determination. These actions are in addition to ethically questionable investment practices that have led African, Latin American, and Middle Eastern countries to owe Beijing large sums of debt and prevented them from condemning China’s egregious human rights violations against Uighur Muslims and Tibetans. A resurgent West, working together with its democratic partners in the Asia-Pacific, could coalesce again to hold China accountable for future violations of international law. Sanctions that could devastate Beijing’s economy and sever its goods and supplies from the global supply chain are all on the table, just like they were for Russia.
Hu Wei, who directs the Chinese government’s public policy institute, recently argued that democratic countries have recently formed regional alliances like the Quad (Australia, India, Japan, and the US) and AUKUS (Australia, the United Kingdom, and the US) that deepen their economic and defense cooperation in the Asia-Pacific. This already limits China’s potential for territorial incursions. However, with an enhanced reputation and strengthened resolve from their success in countering Russia’s authoritarianism, these democratic countries and others may be willing to form new supply chains and trade agreements with the West that decrease their dependence on China and bolster their ability and willingness to sanction Beijing in the event of a Chinese international law violation. This would effectively erode Beijing’s growing influence in the region and empower not only the defense of existing Asian democracies, but also inspire even more democratic reform within Asia.
Hu correctly analyzes that China’s only choice in the wake of Russia’s failure in Ukraine is to avoid antagonizing the West and its democratic partners. That means no more territorial incursions, human rights violations, or support for rogue states like Russia, whose invasion China has so far backed off from funding due partly to Western pressure.
Therefore, the deterrent of strengthened global democracies have the potential to effectively enforce international law, protect the sovereignty of smaller states across Asia and Europe, and perpetuate the rules-based, liberal world order for decades to come.
People taking to the streets in Europe to support Ukraine. Photo by European Commission.
“Be not afraid,” as Pope John Paul II continuously repeated in the face of Soviet repression and President Biden echoed in his resounding Warsaw speech in late March. The horrors of Russian aggression—communities terrorized by cluster bombs, children hiding from shelling in makeshift shelters, families starving to death in sieged cities—demonstrate the stakes at hand if the world is governed not by international norms and rules regarding self-determination, human rights, and democracy, but instead by regional powers hellbent on territorial expansion. This is how the world existed for millennia before World War II, and why per capita deaths from wars were consistently and disturbingly high prior to the 1940s.
But Ukrainians were not afraid. They refused to acquiesce and turn back the clock on liberty. In defending their sovereignty, they effectively united the West to enforce international law on self-determination through a devastating array of sanctions against Russia. The precedent set by these developments strengthen the rules-based world order and guarantee more sovereignty, democracy, and human rights for other vulnerable countries far beyond Europe’s borders.