WHEN INTERNATIONAL LAW DOESN’T WORK

Law Professor John Yoo in an article on Ricochet.com on April 25, 2014, commented on Russia’s annexation of the Crimean peninsula and its continuing military pressure on Ukraine demonstrates that the United Nations-centered system of international law has failed. Excerpts below:

It should be clear that Russia has violated the U.N. Charter’s restrictions on the use of force. It has resorted to “the use of force against the territorial integrity” and “political independence” of Ukraine in violation of Article 2(4) of the Charter’s founding principles. Russia has trampled on the fundamental norm that the United States and its allies have built since the end of World War II: that nations cannot use force to change borders unilaterally.

Like the League of Nations in the interwar period, the current system of collective security has failed to maintain international peace and security in the face of great power politics. According to widely-shared understandings of the U.N. Charter, nations can use force only in their self-defense or when authorized by the Security Council. Great powers with permanent vetoes on the Security Council (the U.S., U.K., France, Russia, and China) can always block formal efforts to respond to their own uses of force. Hence, the United Nations remains as powerless now as when Vladimir Putin ordered the 2008 invasion of Georgia.

Earlier this week, I released a new book, Point of Attack: Preventive War, International Law, and Global Welfare. In it, I argue that the U.N. and its rules have not reduced the level of conflict between the great powers. That doesn’t mean, though, that there has not been a steep drop in conflict, despite Russia’s invasion of Ukraine.

From 1945 to the present, deaths due to great power wars have fallen to a level never seen under the modern nation-state system. Collective security, however, is not the agent of this “Long Peace,” as diplomatic historian John Lewis Gaddis has called it. Rather, the deterrent of nuclear weapons and stable superpower competition reduced conflict during the Cold War.

Democratic nations’ commitment to maintaining that liberal international order — not the collective security of the U.N. Charter — has kept peace among the great powers.

U.N. rules only constrain democracies that value the rule of law, while autocracies don’t seem troubled by legal niceties. Paralysis continues to afflict the democratic response to the invasion of Ukraine. The United States responded to the invasion of Ukraine and the annexation of the Crimea with the symbolic measures of sanctioning a few members of Vladimir Putin’s inner circle, kicking Moscow out of the G-8, and halting NATO-US military cooperation. Russian officials mocked the United States and raised the price of natural gas sold to Ukraine, an implicit warning to other European nations that depend on Russian natural gas. The Russian and U.S. stock markets sighed with relief that no serious economic disruptions would follow.

Now Russian intelligence agencies are apparently fomenting unrest in eastern Ukraine and Russian troops have massed on the border. It should be clear that Putin sees Russia’s relationship with the Western democracies as one of competition, not cooperation.

The United States could take the first step by terminating treaties with Russia that treat the former superpower as if it still has great power status. We can send a clear signal by withdrawing from the New START treaty, which placed both the U.S. and Russian nuclear arsenals under the same limits. There is no reason to impose the same ceiling of 1,550 nuclear warheads on Russia, which can no longer afford to project power beyond its region, and the U.S., which has a worldwide network of alliances and broader responsibilities to ensure international stability.

Next, the United States could restore the anti-ballistic missile defense systems in Eastern Europe.

Another area where the White House should downgrade Russia’s status is in Syria. After threatening to bomb the Assad regime for using chemical weapons on the rebels, the United States leapt at the chance to have Russia jointly oversee the destruction of Syria’s chemical arsenal. Bashar Assad has taken advantage of the withdrawal of American threats to seize the momentum in the civil war, backed up by Russian and Iranian support. The United States should not consider Russia an equal and joint partner on any matter, but certainly not on whether to allow the Assad regime and Iran to continue to destabilize the Middle East.

President Obama might even undertake a longer-lasting and more effective blow against Russia’s claims to great power status: ejecting Russia from the United Nations Security Council. Along with China, Russia has used its veto to act as the defense attorney for oppressive regimes throughout the world. Of course, the United States cannot amend the U.N. Charter to remove Russia from the Security Council. But it can develop an alternative to the Security Council, which has become an obstacle to the prevention of harms to international security and global human welfare. The United States could establish a new Concert of Democracies to take up the responsibility for international peace, which would pointedly exclude autocracies like Russia and China. Approval by such a Concert, made up of the world’s democracies, would convey greater legitimacy for military force and would signal that nation’s that resort to aggression to seize territory and keep their populations oppressed will not have a voice in the world’s councils.

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