The Limits of Permissiveness: International Law, the UN, and the War in Ukraine

Russia's full-scale invasion of Ukraine is widely considered to be a gross violation of the Charter of the United Nations and, for some scholars, just another example of a major power undermining the international rule of law, akin to the beginning of the ‘War on Terror’. However, new scholarship on the justificatory power of international law provides a different outlook: While international law is used to serve political interests, there are limits. States must make appeals to law that accomplish a level of ‘plausible legality’ for their actions, or risk contestation and condemnation on the grounds of their betrayal of universal international principles. But, how are these discursive limits imposed by the international community and to what extent do they constrain state behavior?

In this thesis, I analyze the United Nations (UN) debates and resolutions that occurred in response to the war in Ukraine as a potential best case study for exploring how states draw upon international law in opposition, and the extent to which mass legal contestation impacts state behavior. Through a qualitative analysis of the first five resolutions and six meetings of the United Nations 11th Emergency Special Session, I show how legal principles dominate states’ efforts to discredit and delegitimize Russian actions and that states use broadly accepted legal principles to do so, like the UN Charter. Regardless of their position, states seek to portray themselves as supporters of the international rule of law, either by stating directly their disagreement with or indirectly distancing themselves from Russian actions.

Further, I investigate whether, by acting against an ‘illegal’ act, states can establish a discursive notion of “Russian illegality” to justify and empower actual cost-inflicting actions. I find that although states’ efforts to contest Russia’s actions on legal grounds is viewed as fair, there are varying degrees of and a limit to the amount of permissiveness that states can pursue when making legal arguments. Indeed, some states’ extrapolation of legal arguments seem to pass a limit of permissiveness, where their actions no longer clearly follow from the universal legal principles under discussion, leaving the door open to counter-contestation and dissent. In this light, legal contestation can be understood as a self-interested process, in which states attempt to use their questioning of other states' legality to build their own empowered position from which to act. This thesis provides insight into questions about the relevance and effectiveness of international law in foreign policy justifications and the extent to which law can both empower and constrain states’ actions and positions.