caught between Roman and International law
24th June 2022
Russia has crossed the Ukrainian border with its army and now occupies circa 20% of Ukraine’s territory. All countries recognize the borders of Ukraine as they stood before the 24th February 2022. The de facto borders are different from the de iure ones.
Borders are a contribution of Roman legal thought to European civilization. Hadrian’s Wall in Scotland is a visible roman border. A border divided two different legal systems. Within roman borders, since 212 AD everyone was a roman citizen (edict of Caracalla) and had the right to an equal treatment before the law. Starting from 533AD, contradictory laws were eliminated, and the code of Roman law was issued in Constantinople (today’s Istanbul), the capital of the Roman Empire. It applied to all those living within roman borders. Those outside the roman polity, lived with overlapping and contradictory legal codes, with uncertain definitions of crimes and punishments. Those who were not roman citizens looked in admiration. The Arabs adopted the byzantine word for customs house (jumruk in Arabic – gümrük in Turkish – from Greek kommerkiarion/κομμερκιάριον). Turkish adopted the East Roman word for border (Greek synoron / σύνορον – Turkish sınırı).
Borders and customs represented certainty. Clear terms guarantee valid commercial contracts and flourishing trade. Clear terms mean collaboration is possible even among those who are not familiar or even unacquainted with each other. Disrupting borders and custom houses means fudging the distinction between two types of law: national and international. The Romans distinguished between civil law (ius civile) and the law of nations (ius gentium). Civil law cases were regulated by courts and tribunals and concerned only roman citizens. Law of nations was used for international relations and allowed the contact between different legal systems but were the exclusive competence of the roman emperor who had only his instinct to decide such cases. Putin has decided to limit the territory where Ukrainian civil law applies. Yet he has not incorporated the conquered territories into the Russian civil jurisdiction. The war zone is a situation of legal chaos. Civilian life cannot continue.
The collapse of roman civil law ushered what some might call the Dark Ages. The demise of this secure legal system brought social instability which progressed towards political uncertainty. The value of roman civil law today is that it reveals how weak international law is. Indeed, the roman emperor provided an army to support his claims within international law when a conflict rose with another country. Today armies defend the internal constitution of countries. Putin has taken advantage of the defenseless nature of international relations and keeps advancing since no one knows how to stop him. The Russian Parliament will discuss a law proposal (presented by Fëodorov) to cancel the recognition of Lithuania as an independent country. The proposal claims that the recognition of the independence of Lithuania is allegedly worthless according to the internal laws of the Soviet Union, and its successor state, Russia. It is a legal point of view, and rather legalistic, that reveals that international law has no instruments to counter such an argument. If the duma adopts such a law, the west will send a letter to complain rather than take any action. Lithuania is worried, as are all other Baltic states and several Eastern European EU and NATO member states.
Putin advances into Ukraine and suspends civil law in the occupied areas, while cancelling international treaties with Russian national law. Such a legalistic approach does not accept the principles of roman law, based on the distinction between ius civile and ius gentium, a defining element of European civilization.