Tyranny and the Global Legal Order: The War in Ukraine Commentary
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Tyranny and the Global Legal Order: The War in Ukraine
Edited by: JURIST Staff

A critical attribute of tyranny is its multi-faced character. We are familiar with tyranny with its domestic face, and it is largely understood that this domestic face often turns outward through war and imperialism. That tyranny turns about-face back to the domestic sphere as the laws, policies and practices of external tyranny return to roost are also familiar. Tyranny’s Janusian nature is long documented, with commentary from classical Greece through to Third World Approaches to International Law demonstrating the non-linear traffic of tyrannical practices. In each of these analyses, the state remains the pivot and this is not without necessity I’ve written elsewhere about the possibilities of tyranny within the Trump administration. But in looking to the global legal order, beyond the horizontal inter-state back-and-forth, something else is revealed.

The state and rooted in this, the horizontal plane of international law, shuts out tyranny as a basis for analysis. Tyranny cannot be present within the global legal order because it is horizontal and so there is no hierarchy from which to exercise tyrannical power. Yet, this makes the global legal order the first and potentially the only legal-political system where power is exercised but where tyranny cannot take root. While that would be wonderful, it is unlikely. In fact, I want to argue it is present, and through the prism of the illegal war in Ukraine, demonstrate how it operates.

Before discussing Ukraine, I will set out what I mean by tyranny. In my book, Tyranny and the Global Legal Order, I outline a history of tyranny in its normative form and, particularly, its relationship with law. I also examine the history of tyrannicide and tyrannophobia. Following on from this, I develop a taxonomy of tyranny. This taxonomy reflects the morphing nature of tyranny as it adapts to political, social, economic and cultural contexts, including the global. The taxonomy begins with the impetus behind tyranny, which rests with the benefits that accrue to tyrant(s) and their cohort – political, financial, psychological or otherwise. Tyranny establishes itself through illegitimacy either in office or while coming to office, tyrannical rule proceeds through rule by law, silence (as the absence of contestation, there is often plenty of noise and sometimes, though not always, accompanied by violence in its broadest sense), and beneficence which can include ‘bringing’ order, material gain or psychological benefits. Tyrants maintain rule through a variety of modes, be it via the politics of scale, through imperialism, through bureaucracy and technology, and is very often gendered.

Two components halt tyranny, constitutionalism, but more emphatically contestation. An active, boisterous public sphere where all, and critically, it is all – if some groups are intimidated into silence or can only be heard as echoes it does not count – can engage is most likely to prevent tyranny’s emergence. We are all familiar with the stereotype of the single tyrannical figure cruel and/or excessive in wealth or ascetics – but what is more common – be it in dictatorships, totalitarianism or other descriptors which encompass tyranny – is an order where a minority benefit and rule by law ensures that operative silence is maintained. There may be some benefits to the whole, but most lie with the minority. Laws are often plentiful, acting as a shroud of legitimacy to wrap tyranny within.

There are many aspects of the global legal order that could be discussed, from the UN Security Council’s counter-terrorism machinery where law is made through the politics of scale at the global level, by a very small number, and imposed at the bodily level on an individual whose recourse options are severely limited. Likewise, global economic law operates in nether regions, where historic divisions between the public and the private are collapsed, and decisions ascribed as internal matters of self-determination, for example, public spending, occurs beyond elected officials by technocracies within global economic organisations or private banks or funds and away from public scrutiny. Each is discussed in my book.

In discussing Ukraine, the most obvious starting point is Russia and centring on the inter-state laws of war with a heavy reliance on the UN Charter. This is, of course, a necessary discussion. But going beyond a horizontal view of international law tells us much. Elsewhere, regarding Syria, I consider the role of tyranny, alongside anarchy and hegemony, to create a granular account of how law plays its role in its ongoing devastating war, with Russia as a key actor. Seeing Russia’s internal tyranny, yes, but much more beyond.

Russia’s permanent Security Council membership – a role it gained as the USSR which included Russian mass violence and famine in the 1930s and 1940s in Ukraine is significant. It is significant because the benefits it accrues from being on the Security Council be it merely stopping binding resolutions condemning it, having a permanent platform which Ukraine cannot access (making Ukraine reliant on other members of the minority who hold that benefit to offer it) and ensuring the UN’s Secretariat remain hamstrung in undertaking its independent functions. Within the global legal order, Ukraine would be silent were it not for the beneficence of other powerful actors. The silence of many suffering through violence – be it military violence, gendered violence or the violence of living with extreme poverty – is all pervasive. The global legal order has bodily effects and while the interplays are complicated where the benefits accrue are clear.

The international legal relationship between Ukraine and Russia plays out in narratives of self-determination and imperialism. Many Ukrainian and Eastern European scholars have called out Western scholars for ignoring Ukrainian self-determination and the role that imperialism plays in both the legal political position of Russia and the structures of (legal) power that Russia gains through imperial exploits as a prominent player in the global legal order. The legal infrastructure buttresses Russia in that context, for instance, the temporal frame that it places on the war. Be it something to do with Khrushchev or Catherine the Great or the Kievan Rus, the temporal frame within the global legal order supports such imperial roots, and by doing so, Russia. Ukraine’s 2014 territorial loss of Crimea remains framed by that region’s links to Russia and those links are all engrained in Russia’s imperialist history. It is not framed by the global legal order by the Tatars – a non-statist group whose own self-determination is ever further undermined. This is true of many territories across the world, from Western Sahara to the Chagos Islands. The global legal order is calcified in 1945 when imperialism remained a core, legitimate frame of international law, a global legal order, it thus remains all but impossible to move beyond that mode of tyrannical government.

The legal economic frame also plays a part. The role of global economic institutions in both Russia and Ukraine since the end of the Cold War is important, and no doubt will be again after the war ends. These legal economic interventions must be seen alongside the role of non-legalised regulation. Oligarchs and the movement of money out of Ukraine (and Russia) into Western banks and property, the unilateral freezing of assets and the ability to move money quickly out of the reach of individualised sanctions all occupy a space intentionally outside the frame of international law but firmly within the global legal order. A rule by law system, that while it may presently support Ukraine, over the longer term, has aided in destabilising its domestic governance by supporting corruption. Those that benefited from this, the oligarchs and those in the West who profited from the banking, property consumption or financial support (or indeed sporting aid) means there were beneficiaries in a system designed to be beyond scrutiny. Even if unilateral state interventions to curtail Russian money are now politically desirable, there was no requirement to act, and the longer-term impact of the system means that many oligarchs’ financial health remains intact.

Returning to the multi-faced character of tyranny. We can see with the Ukrainian war that the global legal order plays out across multiple temporalities and scales. The main beneficiary of the global legal order in this specific context is Russia but also its oligarchs. Russia’s relationships across global institutions, economic and political, its ability to utilise the non-legalised spaces of global finance where there is law but law that places scrutiny beyond the public realm and its utilisation of a system where those that maintain the benefits of their historical imperial modalities, repurposed for the present, reiterate that power and thrive within without any impetus to reform, is key, but to see its full extent it is essential to move beyond the horizontal frame. The beneficiary in this context is Russia, but in other scenarios the specific beneficiaries change, but the structures that buttress those benefits remain. Ukraine does not have its own space for contestation, its self-determination is funnelled through those that also benefit from the current legal order, but who happen to support the validity of their claim.

This is not to condemn international law or indeed the global legal order outright. There are benefits in the system and those that strive to inculcate contestation and a sense of fairness do, at times, succeed. It is also far from unique when it comes to political-legal orders. Tyranny is an ever-present consideration wherever there is governance and maintaining vigilance is necessary. Those that call for vigilance are sometimes accused in the words of Thomas Hobbes, to suffer from tyrannophobia, a foolish fear of tyranny. Yet rather be foolish than to either consider the global legal order beyond tyranny’s reach or to accede to the notion that it should not be held to the same standards we demand to live under at the state level. The global legal order now reaches the individual in multiple ways and forms and we must be alive to the possibilities of tyranny that lie here.

Professor Aoife O’Donoghue teaches at the Queen’s University Belfast – School of Law. She is also Co-Director of the Northern/Ireland Feminist Constitutions Project and was previously Co-Director of the Northern Ireland Feminist Judgments Project.

Suggested citation: Aoife O’Donoghue, Tyranny and the Global Legal Order: The War in Ukraine, JURIST – Academic Commentary, January 31, 2023, https://www.jurist.org/commentary/2023/01/tyranny-and-the-global-legal-order.

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