EU’s mutual defence clause revisited : neutrality and collective defence in the shadow of new challenges

Abstract

“International law is not just an empty promise.” These are the words of Jean-Marc Thouvenin, one of Ukraine’s legal counsel, before the International Court of Justice (ICJ) on February 27. Thouvenin was appearing during the oral hearings following the application of Ukraine for provisional measures based on the Genocide Convention. But ten months since the Russian war machine crossed into Ukraine, the images of civilian humanitarian suffering make people wonder whether international law has any value at all in the middle of an armed conflict. Where is international law within the “fog” of war? The Russian invasion of Ukraine flagrantly violates the post-second world war international legal order. The Russian invocation of individual or collective self defense is of no legal merit. This remains the case even if you accept the most elastic interpretation of the notion of “imminent attack” which Russia might use to justify invading – such as “anticipatory” or even “preventive” self-defence. Similarly, Russian references to “genocide” in eastern Ukraine to justify its intervention cannot be substantiated and offer no justification for military action under international law. Instead, Russia has violated the principle of jus ad bellum (the law relating to the prohibition of recourse to force). Its action constitutes an act of aggression in breach of the cornerstone legal principle of the prohibition of use of force, laid down in the UN Charter. From the very first days, the UN General Assembly has demanded that Russia immediately cease its illegal use of force against the territory of Ukraine in the strongest terms.

Within this context, the current proposal will examine the legal significance of this aggressive war from a twofold perspective; first it will it will question the legal relevance of traditional rules of neutrality in the face of contemporary developments regarding aggressive wars. If aggression is a jus cogens norm and the crime of aggression is a core crime under the Rome statute , can we still use the old language of neutrality? In other words, has the legal acknowledgment of aggression fundamentally changed basic premises of international law and if yes, to what extent? And second, if there is a normative swift, what does that entail overall for the evolution of EU’s mutual defence clause?

Public talk by Dr Maria Varaki (King's College London held at the Institute for European Studies Library/EDC on 3 May 2023