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16 Newcastle L. Rev. 1 (2021-2023)

handle is hein.journals/nwclr16 and id is 1 raw text is: Vol 16 The Newcastle Law Review (2021-2023) SPECIAL CONTRIBUTION SELF-DETERMINATION OF PEOPLES - ORIGINS, APPLICATIONS AND PROBLEMS IN THE RUSSO-UKRAINE WAR OF 2022* THE HONOURABLE MICHAEL KIRBY AC CMG** Se/-determination takes its meaning rom its context; likewise the word jpeople'. This journal reent/ypublished an ana/ysis by Ajysoun Boyle of sel-determination as applied in private law and to individual mediations. This article concerns the sel- determination of peoples referred to in the UN Charter and otherpublic law. Although controversial, the idea has a long histoy which the author describes. It is relevant to the Ukrainian conflict, as recognised b> President Putin; a/though unfavourab/y. Internationallawh as not developedclearprinciples and institutions togive the conceptmeaning and the intended effect. This article describes the work of an expertgroup of UNESCO (1985-91), which the author chaired, charged with defining who constitute a 'people' and how their self-determination might be achieved. The special urgeny of the Ukrainian, Crimean and Donbas war demands fresh attention to the peoples' rights of self-determination. Is the concept a potential solution orpart of the problem? I. THE UKRAINE INCURSION OF FEBRUARY 2022 On 24 February 2022, after months of denial, the Russian Federation launched a military incursion into Ukraine, a contiguous nation-state and member of the United Nations. The attack involved the invasion of territory earlier recognised as part of the nation of Ukraine. That nation had been recognised by the Soviet Union and the Russian Federation (USSR) as part of the Soviet Union, a federal state. The USSR was dissolved in December 1991, including the Ukrainian Soviet Social Republic. It became a wholly separate nation later that month. Much of the residual USSR became the Russian Federation (Russia). The attack in February 2022 was launched by military, naval and air force units of Russia. Under the UN Charter, an attack by a member country of the United Nations is forbidden. There are only two exceptions recognised by international law. The first is pursuant to a resolution of the Security Council under Ch VII of the UN Charter, absent in that case. The second was pursuant to the right of self-defence. Russia claimed the latter, instancing the encroachment upon Russian territory by adjacent territories. It claimed that Ukraine was threatening its territory by pursuing an application to join the North Atlantic Treaty Organisation (NATO).' No attempt was made by Russia to secure support or approval for its invasion from the Security Council of the United Nations under provisions of the United Nations Charter. According to Russia's President, Vladimir Putin, the incursion was not a 'war' but a 'special operation'. The Economist newspaper noted that 'tellingly' that Based on address given to the Law School, University of Newcastle, NSW, on 5 May 2022. Earlier versions were delivered for the University of Queensland and the Law Society of Queensland. * Justice of the High Court of Australia (1996-2009); President of the International Commission of Jurists (1995-1998); Chair and Rapporteur of the UNESCO Expert Group on Self-Determination of Peoples (1991-1994). Stuart Kaye, 'The Russian Invasion of Ukraine in International Law' (2022) 96 Australian Law Journal293, 294 5. 1