At the beginning of this year, the armed conflict between Russia and Ukraine shook the world. Although Russia’s military action against Ukraine has not been smooth sailing for Moscow (Johannesson, 2017), politicians and media of the U.S. and other western countries regarded Russia as the aggressor, and on various occasions requested other countries to join them in accusing, sanctioning, and dealing with Russia. However, China, India, Brazil, Turkey and other countries took a different position and remain neutral. These two attitudes and propositions led to significant divergence around the world, and heated and sometimes emotional debates occurred in the UN Security Council and various diplomatic occasions, as well as in we-media and various social platforms. History is continuous, and the international order, expressed in the form of law, should maintain its necessary stability. Today’s international community already has the international law order widely recognized around the world, which should constitute the basis for today’s discussion of the two basic issues of international law, i.e. aggression and neutrality in the face of the Russia-Ukraine conflict.

The legal norms on aggression in the international law have undergone and are still undergoing a thought-provoking development process. From the 17th century to the 19th century, the scholars of international public law, represented by Grotius, were mainly interested in the distinction between just wars and unjust wars when discussing wars between countries, but they did not form any statutory international law on such distinction, nor did they form a legal concept of aggression. From the mid-19th century to the early 20th century, enthusiasm for the distinction between just and unjust wars gave way to attention on the relationship between belligerent and non-belligerent States, resulting in the development of a series of neutrality laws in the form of international conventions. At that time, the concept of aggression had not yet been created in the international law, and waging war was regarded as a right of sovereign States to handle international relations. There were no binding provisions in the international law, and only neutrality law and international humanitarian law were legally binding on acts of war, which sounds unbelievable to people today. After World War I, the Covenant of the League of Nations, adopted in 1919, stipulates that war could only be waged by one State against another after three months of arbitration and judicial settlement as set forth in the Covenant. Failure to comply with this provision was a breach of the Covenant, and other Members of the League undertake to prohibit intercourse with the covenant-breaking State, but have no obligation to take military action to stop the war. In such cases, the right of the State to wage war still exists and its act of war shall not be considered a violation of the international law¹. The adoption of the Kellogg-Briand Pact in 1928 marked a major turning point, and through this Convention, the international community abandoned war as an instrument for promoting national policy. This Convention served as the basis of the international law for determining crimes against peace at the Nuremberg Trials in 1946. However, the shortcoming of this Convention is that it stipulates things mostly in principles without operational provisions. During the birth of the UN Charter, the international community discussed this issue in depth and came up with the following solution in the Charter: Article 2 of the UN Charter stipulates that all Members shall settle their international disputes by peaceful means and refrain from the use of threat or force; then in Chapter VII it states that the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and choose to take the action provided for in the Charter (Liang, 1998). Aggression is at that point prohibited under the international law and there are specific procedures for dealing with it. Thereafter, in the course of their compliance with the Charter, various countries believed that the determination of aggression was not clear in terms of substantive law and should be perfected. As a result, the United Nations General Assembly adopted the Resolution on the Definition of Aggression in 1974, which stipulated seven acts that constitute aggression, such as the attack by the armed forces of a State of the territory of another State, armed forces, merchant ships, etc. As long as one of them exists, the act of aggression can be determined. It is important to note that the text of the Resolution expressly states that it shall not affect the functions and powers of the Security Council under the Charter, and the Security Council has the power to determine that acts other than those seven constitute acts of aggression, and to determine, on the basis of other circumstances, that those seven acts do not constitute

acts of aggression.² Therefore, failing within the definition of aggression set out in the Resolution is not a sufficient condition for concluding that an act of aggression has been committed, and it’s not correct to say that any State or individual can rely on this definition to determine that a State has committed an act of aggression.

According to the provisions of the UN Charter, when the Security Council makes a determination on an act of aggression, it needs to follow the voting procedures stipulated by the Charter. Specifically, when the Security Council determines nonprocedural matters such as an act of aggression, determination can only be made by an affirmative vote of nine members including the concurring votes of the five permanent members. The Security Council shall not determine that there is an act of aggression if one of the five permanent members disagrees or affirmative votes (including concurring and abstentions but excluding votes cast against the proposal and being absent) of the non-permanent members are less than four. Then came a misleading situation: in 2010, the amendments on the crime of aggression was adopted by the Conference of States Parties of the Rome Statute of the International Criminal Court, which defines the crime of aggression and sets out the conditions under which the jurisdiction of the International Criminal Court can be exercised. Some people think that the amendments give the International Criminal Court the right to determine acts of aggression, but that is not the case. Although complex and ingenious efforts in procedures were made through these amendments to give the International Criminal Court jurisdiction over the crime of aggression, they clarified at the same time that a determination of the crime of aggression by the International Criminal Court shall not contradict with the determination made by the Security Council. Only when the Security Council does not make such determination, and it does not request the International Criminal Court to stop investigation and prosecution on the crime of aggression, can the International Criminal Court make a determination on the crime of aggression.³ Even if the Court makes a determination on the crime of aggression in such circumstances, it does not mean that the International Criminal Court substitutes for the Security Council in determining the acts of aggression, because there is another important condition for the Court to exercise its jurisdiction over the crime of aggression, namely, the acceptance by the State concerned of the Court’s jurisdiction over the crime of aggression.⁴ This shows that the Rome Statute only provides the legal procedure for punishing the crime of aggression with consent by State concerned as the precondition, which is totally different from the Security Council’s power to determine the acts of aggression.⁵ Above all, under the international law today, only the Security Council has the power to determine the acts of aggression on behalf of the international community, and whatever the actual circumstances are, the Security Council has the power to determine that there is no act of aggression, or it can make no determination as to whether an act of aggression is constituted. This is the institutional arrangement for determination of acts of aggression in the contemporary international law.

The UN Charter’s institutional arrangement for determining acts of aggression seems not fair and democratic enough, because this power is delegated not to the UN General Assembly, which is composed of a large number of member States, but to the Security Council, which is composed of only a dozen or so members. Moreover, among these countries in the Security Council, there are five permanent members with permanent seats, who have the right to veto. Such an institutional arrangement seems to be quite vulnerable to criticism. But in fact, it was the result of a long and in-depth discussion within the international community after the two painful world wars. It was agreed by the vast majority of countries in the world. For more than 70 years since its formation, it was never opposed by a majority of countries. Instead, it is insisted by the majority of countries repeatedly. The international law was not formulated according to the logic of fairness and democracy by elected or recommended legislators. Rather, it was formed through negotiation by all sovereign States of the international community and is a reflection of the common will of States based on the consent of sovereign States. Respect for and compliance with international law mainly means respecting and following the common will within the international community of sovereign States on the basis of negotiation and consensus, which is the basic legal doctrine of the international law.⁶

The legitimacy of the UN Charter’s institutional arrangement for determining acts of aggression can also be understood from its practical effects. Since the birth of the UN Charter, its institutional arrangement of Security Council’s exclusive power to determine and take action against acts of aggression has played an important and irreplaceable role in the maintenance of international peace and security in three aspects. First, it curbs the impulse of some States to determine, on their own, that other States have committed acts of aggression and to compel international community to take military and non-military action. Whenever there is an armed conflict between States, it’s not uncommon for an individual State or some States to conclude that a State has committed an act of aggression, and try to mobilize forces in the international community to take its or their desired action. Without the provisions of the Charter for the Security Council to determine and take action, it will provide convenience for an individual State or some States to judge by themselves the behavior of other States, while other States will lack basis from the international law to restrain their own judgment and unilateral action. The provisions of the Charter are conducive to curbing unilateralism and maintaining international peace and security on a larger scale. Leaving the power for determination of acts of aggression to the Security Council rather than to any single State or some States acting on their own, will greatly enhance the credibility of the judgment about whether a war is a just war and the legitimacy of the use of force in the name of the international community. Second, it ensures coordination, consistency and mutual balance among major powers in the maintenance of international peace and security. The five major powers recognized by the international community as permanent members of the Security Council enjoy the equal right of veto, therefore when faced with major issues relating to international peace and security, political issues can be transformed into legal ones, so that the major powers can try their best to reach consensus in law and minimize serious differences among them. Through the voting procedure of the Security Council, if a consensus of the major powers can be reached, every party will be satisfied; if one of them does not agree, the other major powers should give up, which is another form of consensus of the major powers. For more than 70 years, the ratio for occurrence of the ideal situation of unanimity among the major powers is not high, especially when the conflicts involve the major powers themselves, it is almost impossible to reach unanimity at the Security Council. The unanimity system of the major powers at

the Security Council plays a balancing role to a large extent.⁷ Third, it has helped the international community to solve many issues that threaten and undermine international peace and security. For more than 70 years, the Security Council has made relatively few determinations on and taken relatively few actions against acts of aggression, but this institutional arrangement has been applied to the UN peacekeeping operations to a large extent. To date, there have been 71 United Nations peacekeeping operations implemented pursuant to Security Council resolutions. Without the institutional arrangement regarding the Security Council, UN peacekeeping operations as well as the military action taken in response to Iraq’s aggression towards Kuwait in 1991 would have lacked basis in the international law. Therefore, it must be said that the UN Charter’s institutional design of entrusting the Security Council with the primary responsibility for the maintenance of international peace and security embodies the legal wisdom of the international community and should still be firmly respected and complied with today.

The institutional arrangement for determination of acts of aggression in contemporary international law restricts the State’s right to be neutral (Jennings & Watts, 1985). The provisions of the UN Charter indicate that, following an armed conflict between States, if the Security Council makes a determination of the act aggression and takes actions to stop the aggression in accordance with the provisions of the Charter, or authorizes Member States to take actions to stop the act of aggression, then all UN Member States shall not be neutral, that is, they cannot refuse to implement Security Council resolutions with the excuse of being neutral, and such refusal constitutes a violation of the international law⁸. A typical example of such situation is the Iraq’s aggression towards Kuwait in 1990, which was followed by a series of Security Council resolutions concluding that Iraq had committed an act of aggression and authorizing all UN Member States to use all necessary means to implement the Security Council’s resolutions dealing with Iraq’s act of aggression. In the following year, the multinational forces led by the United States launched a military offensive against the Iraq army with authorization by the Security Council, forcing Iraq to accept the Security Council resolutions and withdraw from Kuwait. In that process, no UN Member State had the right to be neutral between Iraq and Kuwait, to be neutral to Security Council resolutions or to be neutral between the multinational forces and Iraq, which means that the right to be neutral of all UN Member States is restricted by the relevant Security Council resolutions and such restriction derives from the force and effect of the international law granted by the provisions of the UN Charter concerning determination of acts of aggression.

However, contemporary international law does not restrict the right of Member States to remain neutral or to be neutral within certain limits, in the absence of a determination by the Security Council of an act of aggression, or even in the absence of a decision by the Security Council on action against a State that commits an act of aggression after determination by the Security Council. Some more detailed analysis can reveal that the right of a State to remain neutral still exists under international law in the following four situations. 1) Following an armed conflict between States, the Security Council fails to adopt a resolution determining that a State committed an act of aggression. In such situations, Member States cannot assume their obligations under the Charter and cannot be asked to renounce their right to remain neutral. 2) Following an armed conflict between States, the Security Council has made a determination that a State committed an act of aggression, but has not adopted a resolution on action to stop such act of aggression. In such cases, Member States have an obligation to condemn the act of aggression in accordance with Security Council resolution, but they have no obligation to renounce their right to be neutral in action. 3) Following an armed conflict between States, the Security Council has made a determination that a State committed an act of aggression and has adopted a resolution on the taking of action other than by force to stop the act of aggression, but has not adopted a resolution on the taking of action by force to stop the act of aggression. In such cases, Member States have an obligation to condemn the act of aggression in accordance with Security Council resolution and to take actions other than the use of force to stop the act of aggression, but they have no obligation to renounce their right to be neutral with respect to the use of force. 4) In cases where the Security Council determines that a State committed an act of aggression and decides to take actions both with or without the use of force to stop aggression, and if the Security Council only explicitly calls for the participation of some Member States in the action of force to stop aggression and does not require the participation of all Member States in such action, any Member State that is not required to take part in the action of force still has no obligation to renounce its right to be neutral with respect to the use of force. To understand the above four scenarios together, we can find the right of UN Member States to remain neutral towards any State in conflict shall be limited and shall only be limited by Security Council resolutions. The restriction on the right to remain neutral shall be dependent on the extent of contents in the resolution, and in areas not covered by the resolution, the right to be neutral of Member States shall not be limited. These are sufficient to demonstrate that the contemporary international law reserves a great space for sovereign States to have the right to remain neutral in case of conflicts between other States.

The neutrality laws are among the oldest laws of the statutory international law, which came into being before the UN Charter. As early as the 17th century, the rules of neutrality were put forward in the works of international publicists⁹. From the second half of the 19th century to the beginning of the 20th century, the international community adopted a series of international conventions¹⁰ on neutrality and quite systematic neutral laws were formed. The academic research on neutrality laws home and abroad shows that neutrality is the right of a State not to take part in a war between other States. When there is an armed conflict between States, a State not involved in the conflict has the right to choose not to participate in the war, which is called the right to be neutral of the nonbelligerent State¹¹. Academic research also shows that the right to be neutral is a natural right of a State, and is the natural derivative of a sovereign state’s rights of independence and equality, the two basic rights recognized by the international community. The right to be neutral already exists even without any international treaty to grant such right, has been widely recognized by the international community and is an international customary law. In real life, the exercise of the right to be neutral is very simple. If a State does not want to take part in the war between other States, there is no need to express anything, then the State is in a neutral position and the right to be neutral is exercised already (Charles, 1987). This way of exercising the right of “silence is the excise of choice” also indicates that the right to be neutral is a natural right of a State. Until now, only Security Council resolutions with the determination that peace is threatened and undermined and act of aggression is constituted, and action shall be taken can restrict the right to be neutral of UN Member States. In other circumstances, a State’s right to be neutral shall not be restricted and therefore neutral laws remain in force. This is recognized by international publicists and members of the international community¹². The international law literature produced in recent decades, such as the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994)¹³, the Manual on International Law Applicable to Air and Missile Warfare (2009)¹⁴ and the Tallinn Manual on the International Law Applicable to Cyber Warfare (2012), have special chapters on relevant neutrality rules (Xiao, 2016). In the Gulf War, the Afghanistan War, the Iraq War and the armed conflicts in West Asia and North Africa during the recent three decades, we keep seeing States that exercised their right to be neutral¹⁵.

The fundamental reason for the long history of neutrality laws during international law development and its vitality in today’s world lies in its positive significance in maintaining international peace and security as much as possible. As noted by the commentator of the Manual on International Law Applicable to Air and Missile Warfare, the principles and rules on neutrality can be summarized as serving a double protective purpose. On the one hand, they are to protect Neutrals and their nationals against the harmful effects of the ongoing hostilities. On the other hand, they aim at the protection of interests of any Belligerent Party against interference by Neutrals and their nationals to the benefit of the enemy. Thus, these rules and principles aim to prevent an escalation of an ongoing

international armed conflict¹⁶. Thus it can be seen that neutrality laws regulate relations between belligerent and non-belligerent States, provide rules for them to deal with each other and keep their distance, and are conducive to avoiding misunderstandings or infringing upon their respective rights and interests, and therefore have the positive effect of preventing the escalation of the situation and the spread of the flames of war. Therefore, in today’s world, after more than 70 years since the birth of the UN Charter, there is still a distinct practical need for all States to have the right to be neutral, fulfill the obligations of neutrality and abide by the principles and rules of neutrality on the premise of abiding by the UN Charter. Since the beginning of the conflict between Russia and Ukraine, the unfortunate things going on in Ukraine that some States do not abide by the principles and rules of neutrality are proving that, in the absence of Security Council’s determination of the act of aggression, the provision of military, rather than humanitarian, assistance to a belligerent party can only lead to an escalation of hostilities and make it impossible for the parties to negotiate. As a result, the conflict is escalated, and the flames of war linger, spread and expand, which do not help conflict resolution at all. Of course, neutrality does not mean standing by, nor is it the only method of dealing with a conflict. But it is a necessary attitude, position and behavior taken by a party outside of the conflict to help a party in it to resolve the conflict. Without neutrality, there will be no trust and no basis for good offices and mediation in person. The International Law textbook written by the German international law jurists in 2001 for German students expresses this so brilliantly: The rights and obligations of neutral States are important factors to restrict conflicts in the international law. Through a clear distinction between neutral States and States involved in conflicts, the international law can prevent more States from getting involved in conflicts. Only in this way can neutral States help parties to a conflict to maintain or re-establish relations, so as to alleviate the suffering of victims and pave the way for the eventual peace.¹⁷ To think about the Russia-Ukraine conflict in a bigger picture, the choice of the neutral position and the observance of neutral rules essentially involve the big question of whether or not a State wishes to build a new world of healthy competition and peaceful coexistence. In this historical period of major transformation of the international pattern, if a State is unwilling to welcome a new world and insists on the old pattern and the old world, then it will not choose the neutral position and abide by the rules of neutrality. There is no doubt that wrong thinking and choices can only cause harm to both sides, and also cause all human beings to suffer great pains that could have been be avoided.

Generally speaking, aggression and neutrality are the two basic issues of international law that cannot be avoided by the international community today in dealing with the conflict between Russia and Ukraine. Based on the historical review and legal theory analysis, we can reach a series of credible conclusions related to the conflict between Russia and Ukraine as follows: First, according to the UN Charter, only a determination of aggression by the Security Council has legal effect under the international law. And individual or collective determination made by any country that Russia’s military action in Ukraine constitutes aggression cannot be the basis under the international law for any action of intervention. Second, we should have a deep understanding of the positive role and practical significance of the Security Council’s voting procedures established by the UN Charter in the maintenance of international peace and security, and respect the Security Council’s discussions and voting results, which are obligations of all UN Member States under the international law. Third, western countries such as the United States regard Russia’s military action against Ukraine as aggression, which is their nations’ viewpoint and position, but has no legal effect under the international law. That is because they have given the right to determine aggression to the Security Council by signing and ratifying the UN Charter, and taking the action of intervention without a Security Council resolution is an illegal act in violation of the UN Charter. Fourth, in the absence of a determination by the Security Council, the taking of neutral position by China, India, Brazil, Turkey and other countries towards the Russia-Ukraine conflict is a natural right of these countries based on their rights of independence and equality, which should be highly respected and should not be arbitrarily criticized, and pressure shall not be exerted on these countries. Fifth, western countries such as the United States regard Russia as an aggressor only based on their own judgement. If they only express this viewpoint orally, we do not need to criticize too much; If they provide the Ukrainian side with troops, weapons and other support in action, these acts violate rules of neutrality that already exist for a long time and are still effective under the internal law. By making these people, articles and actions hostile, the Russian side can exercise its legitimate right to carry out military strikes against these hostile objects; at the same time, these will lead to the spread of war flames of the Russia-Ukraine conflict, which is not conducive to the peaceful settlement of the conflict between Russia and Ukraine. Sixth, in the absence of a determination by the Security Council, the taking of neutral position and compliance with rules of neutrality by China, India, Brazil, Turkey and other countries constitute the correct approach towards the Russia-Ukraine conflict. These will not only help avoid the escalation of the situation and the spread of the flames of war, but also play a positive role in the settlement of the conflict between Russia and Ukraine. They are conducive to the comprehensive mediation of the severe national security contradictions between Russia and Ukraine, mainly caused by NATO’s eastward expansion and other issues, and help the two countries to negotiate, bring about a ceasefire, restore peace and maintain the international order.

The authors declare no conflicts of interest regarding the publication of this paper.

Zhao, K. R., & Xiao, F. C. (2022). Aggression and Determination: 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Two Basic Issues of International Law in the Russia-Ukraine Conflict. Beijing Law Review, 13, 278-289. https://doi.org/10.4236/blr.2022.132018