Within 48 hours, important declarations on war and peace were made in Europe, which deserve reflection because of their implications. The first are those of US Secretary of Defense Lloyd Austin at the end of his visit to Kyiv on Tuesday. “We want Russia to be weakened to the point where it can no longer do the things it did by invading Ukraine,” the Pentagon chief said. It’s not just the promise of new weapons in support of anti-Russian efforts.
The other words noted in the notebook are those of Sergio Mattarella, spoken yesterday in Strasbourg at the Parliamentary Assembly of the Council of Europe. In a wide-ranging speech, after remembering Robert Schuman (“Peace can only be achieved with creative efforts in relation to the dangers that threaten it”), the head of state said that today we are “Helsinki and not Yalta: dialogue, not a showdown between great powers, who have to understand that they are less and less such”. “It’s about,” said Mattarella, “strongly reaffirming the rejection of a policy based on spheres of influence,” because “security and peace cannot be entrusted to bilateral relations – Moscow versus Kyiv.”
We discussed that with Pasquale de Sena, President of the Italian Society of International Law and Ordinary Law at the University of Palermo. His observations are three.
For De Sena, the real question is whether “the composition Mattarella speaks of can be based on rigorous adherence to the principles which underpin the international legal order as we know it”. And his answer is no. The second observation is that Austin’s doctrine of preventive action is contrary to international law. Finally, the lawyer “raises serious doubts that the Italian participation, albeit through the shipment of arms, violates Article 11 of the Constitution”.
Mattarella said the example to follow is Helsinki, not Yalta. Is this a hope that can lead to a solution?
An overall compilation of the questions raised by the events taking place is necessary, and Mattarella is correct on this point. My doubt is different: can the composition mentioned by Mattarella be based on the rigorous maintenance of the principles that underpin the international legal system as we know it?
His answer?
Unfortunately, it seems to me that the situation has deteriorated too much and has, so to speak, escaped the framework in which it might have been placed. Will a solution be found that avoids jeopardizing any fundamental principle of the legal system? In other words, can we really assume that Putin will give up Donbass and Crimea?
Where is the line between realism, waiver or acknowledgment of the infringement?
Putin has not only subjected Russia to an unprecedented economic crisis, but has also claimed the lives of thousands. Wrongly, of course. But the way of saying he was wrong, what is that? To bring him down at the cost of deepening the conflict? I point out that NATO’s superiority over Russia in conventional arms does not eliminate, on the contrary, it approaches the nuclear risk that we would all like to avert.
Yalta was a compromise in its own way.
Yalta was also a global composition. It realistically recognized the existence of other great powers. A composition that began to unravel in Helsinki in 1975 while the two great powers remained; but that was beginning to be obsolete…precisely because Yalta had been there thirty years ago.
What does that mean?
Can we delude ourselves that China and Russia, and I regret to stress this, are not great powers today? I am the first to hope that Ukraine will return to its original borders; but is it realistic to demand it before this Russia, which has already suffered losses and casualties of a certain weight and which is therefore unlikely to return?
US Secretary of Defense Lloyd Austin said the Western strategy in support of Ukraine aims to weaken Russia’s military capabilities once and for all. How do you comment?
The US reiterates that the current action – both military and sanctions, but especially the former – is aimed not only at defending Ukraine, but also at preventing other possible aggressions by Russia and other states. But in this way, contrary to international law, an act of self-defense tends to become a preventive act.
Because?
Because the prevention of future aggression through the use and contribution to the use of armed force is not permissible under United Nations law or under general international law, which exceptionally only allows the use of force in response to armed attacks that have already begun. Acting as the preemptive protection of other states leads one to – paradoxically – look closely at the “preventive” action that Putin (among other reasons) indefensibly invokes to justify his “special military operation”.
Is there a precedent?
Yes, the famous doctrine of US President GW Bush, which gave ample space to “preventive war” as the United States’ response to international terrorism.
Why would preventive military action by the West be illegitimate?
As I have already told you, today neither the Charter of the United Nations nor general international law allows the use of force and contribute to the use of force to prevent armed attacks, nor to protect other States. And why it’s easy to understand. Rather, it would be left to the individual states to decide whether to do so: exactly the opposite of what the Charter of the United Nations – and the customary international law that corresponds to it – wanted.
It is the question of the ineffectiveness of the United Nations system.
The United Nations has always been weak in dealing with the use of force, especially during the Cold War but also over the past 30 years. Suffice it to consider that even during this period the model outlined by the Charter – based on the centralization of powers at the top of the Security Council – was never really implemented, leaving room for the practice of authorizing the use of force in favor of states, To be part of the Security Council itself. If, as I have already mentioned, we carry out preventive armed actions – make a military contribution to the defense of Ukraine, including to prevent further aggression against other states – we are in complete contradiction to this system.
Are you saying that the turn things are taking completely delegitimizes the United Nations?
It contributes to their delegitimization, because the support of armed actions for the purpose of preventive defense means that the decision to use force is in the hands of the states – of course the most powerful states – contrary to the logic of the central leadership (am Chairman of the Security Council) or at least controlled (by the Council itself) through the use of force, which is the logic of the United Nations.
If a Western military intervention took a similar turn and continued, would there be legal ramifications for Italian involvement in collective military action?
When the western military response detaches itself from art. 51 of the United Nations Charter and general international law, there are serious doubts that the Italian participation, albeit through the deployment of arms, violates Article 11 of the Constitution.
For what reason?
Because Article 11 of the Constitution must be interpreted in accordance with the Charter of the United Nations and general international law; the use of armed force for the purpose of preventive protection by other states – and the contribution to such use – is not compatible with either the UN Charter or general international law. Let one who argued at the beginning of this affair that sending arms – although politically questionable – not be unconstitutional precisely because of compliance with the UN Charter and general international law of collective self-determination – defense measures taken at the request of Ukraine will.
So what’s the difference?
Because if the delivery of arms becomes part of a collective intervention in the form of preventive armed action, compliance with the UN Charter and international law is lost, and with it Article 11 of the Constitution.
Chinese Foreign Minister spokesman Wang Wenbin said China does not want World War III and hopes for a diplomatic solution to the conflict between Russia and Ukraine. How do you rate these statements?
They are a positive sign, more so than Guterres’ visit to Moscow on Tuesday and Kyiv yesterday. A negotiated solution to the conflict can only come about through the approval of the negotiations by the two great powers, namely the United States and China. While China is an authoritarian and undemocratic power, it seems to me that it is the only global player clearly poised for such a solution. In short, Guterres went to Moscow to represent a deeply divided Security Council. Which deprives his attempt of any authority.
Where does the solution come from?
I continue to think that it is moving from a serious and realistic negotiation approach capable of restoring legal-political imagination to the level it is today. Zelensky himself suspected this when the Kiev delegation announced on March 29 that they wanted to “freeze” the Crimean issue for the next 15 years. From my point of view, that was the moment when we came closest to unblocking the situation.
And instead?
After Russia’s withdrawal from central-western Ukraine, it was decided not to go down this path in order to defeat the Russian army on the ground and force it to withdraw from Donbass. At the same time, it was preferred to go into the terrible facts of Bucha quite consistently.
How do you mean?
Consider Biden’s comments on the genocidal nature of the crimes against Russian troops. This would not have been appropriate for the immediate future if a negotiated settlement had been sought.
British Defense Secretary Wallace said Putin must be defeated in Ukraine, Ukraine must be supported to do so, and Ukraine must decide when to accept peace.
Mah. It strikes me as a commitment to political unrealism, if not a cynical, very cynical calculation.
(Federico Ferraù)
– – – –
We need your input to continue to provide you with quality, independent information.
SUPPORT US. DONATE NOW BY CLICKING HERE
© REPRODUCTION RESERVED