Russia and Ukraine: Can the United States Intervene?

Ukraine is a former Soviet Union member with deep social and political ties to Russia.[1] As a result, Russia has long resisted the Ukraine’s growing association with European (Western) institutions.[2] Tensions between Ukraine and Russia erupted in 2014, when Russia seized Crimea, a peninsula on the south east border of Ukraine.[3] The United States committed more than $5.4 billion in assistance to the Ukraine since the 2014 invasion.[4] The United States does not recognize Russia’s claims to Crimea and is committed respecting Ukraine’s sovereignty.[5]

Despite the efforts of the United States and other members of the UN, Russia continues to resist Ukraine’s efforts to disassociate. In recent months, Russia’s actions have led many to believe that Russia intends to invade Ukraine.[6] In response, the United States has supplied Ukraine with defense equipment and authorized the transfer of US-provided weaponry and equipment from allies to Ukraine.[7] However, these capabilities alone may not be enough to protect Ukraine from Russian invasion, leading many to question the United States’ next steps.

To protect Ukraine from Russian invasion, the United States can legally intervene through military action. Article 2(4) of the United Nations Charter provides that “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”[8] Article 2(4) reinforces customary international law, which prohibits the use of force for all member states.[9] The term “force” encompasses violent situations beyond the state of war.[10] Furthermore, the inclusion of “threat” creates an expansive restriction on member states.[11] It would seem that Article 2(4) prohibits the United States from intervening to protect Ukraine. However, Article 51 of the United Nations Charter provides an exception to the Article 2(4) limitations.[12]

Article 51 states “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security…”[13] Article 51 preserves the right of individual or collective self-defense apparent under customary international law.[14] It authorizes self-defense in response to illegal use of force and extends this right to all members of the United Nations.[15] In other words, any member of the United Nations may use force against a state guilty of an armed attack.[16] The right to engage in collective self-defense brings the United Sates into the fold as a legal actor in a defense against Russia.

The next question is, when? Members of the UN debate whether Article 51 allows for anticipatory self-defense.[17] The majority considers anticipatory self-defense lawful under customary international law.[18] Assuming this interpretation continues to control, the United States could legally intervene in collective self-defense before Russia invades Ukraine.

Alana McAndrews is a staff member of Fordham International Law Journal Volume XLV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.
—

[1] See Paul Kirby, Is Russia preparing to invade Ukraine and what does Putin want?, BBC News (Feb. 3, 2022), https://www.bbc.com/news/world-europe-56720589.

[2] See id.

[3] See Jonathan Masters, Ukraine: Conflict at the Crossroads of Europe and Russia, Council on Foreign Relations (Dec. 2, 2021, 7:00 AM), https://www.cfr.org/backgrounder/ukraine-conflict-crossroads-europe-and-russia.

[4] See United States Department of State, United with Ukraine, https://www.state.gov/united-with-ukraine/ (last accessed Feb. 19, 2022).

[5] See Masters, supra note 3.

[6] See Russia massed troops on the border of the Ukraine in Fall 2021(which remain by the border) and conducted a cyberattack of Ukrainian government websites in January 2022. Timeline: Ukraine’s turbulent history since independence in 1991, Aljazeera (Feb. 2, 2022), https://www.aljazeera.com/news/2022/2/2/timeline-ukraines-turbulent-history-since-independence-in-1991.

[7] See Tara Copp & Marcus Weisgerber, US Sends More Military Equipment to Ukraine, Defense One (Jan. 21, 2022) https://www.defenseone.com/threats/2022/01/us-sends-more-military-equipment-ukraine/361042/. 

[8] U.N. Charter art. 2(4).

[9] See Elizabeth Henderson, Article 2(4) of the United Nations Charter: whimsical ideal or binding legal obligation in relation to operation Iraqi Freedom?, 10 Canterbury L. Rev. 105 (2004). 

[10] See id.

[11] See id.

[12] See id.

[13] U.N. Charter art. 51.

[14] See Henderson, supra note 9.

[15] See Hans Kelsen, Collective Security and Collective Self-Defense Under the Charter of the United Nations, 42 Am. J. Int’l L. 783, 791-92 (1948).

[16] See id. at 791.

[17] See Henderson, supra note 9.

[18] See Leo Van den hole, Anticipatory Self-Defence Under International Law, 19 Am. U. Int’l L. Rev. 69, 74 (2003).