International Law's Legacy vs. The Cases of Ukraine and Syria
This article originally appeared in The Huffington Post on March 27, 2014.
By Karen Alter
It has been a bad year for international law. The Syrian government was exposed for using chemical weapons against its people, and leaders continue the slaughter of civilians with conventional weapons. Nothing happens.
Recently Russia annexes the Crimea with a staged election held under the threat of force. To defend its land grab, Vladimir Putin is trotting out the many examples where the West's behavior arguably or definitely violated international law.
But international law is not going away. Indeed no world leader, not President Barack Obama, not Prime Minister Angela Merkel, not China's President Xi Jinping, and not even President Putin, really wants international law to go away.
International law is surely an imperfect solution to the world's many problems. But since the end of World War II it has been a vital force for peace and stability. Indeed if we think about the major global changes in over the last 70 or so years, it is truly remarkable how peaceful they have been.
Peoples of the world experienced the decline of empires, the change from 51 states in 1945 to 196 countries today, and the rise of American and perhaps now Chinese hyper-power, without the outbreak of World War III. International law is a key reason for this relative peace.
Law sets the rules of the game, defining as "legal" actions that promote the public good and "illegal" actions that are corrosive to the public good. For international law, the public good being protected is world order. Order is something we take for granted when all functions as it should, and pine for when we face the humanitarian disaster that is Syria and the wobbling grenade that is Putin's Russia.
Remembering what law can do also involves remembering what law is not. Law is not the guide to ethical behavior. Respect for the law is not the same thing as justice. Law does not replace morality, empathy and compassion as a guide to the betterment of human kind. And since governments and legislatures write the law, it really is no surprise that law reflects and instantiates power.
Nor should it be a surprise that when the titans of law and power clash, only sometimes does law win. When power wins, however, the answer is neither that international law is irrelevant nor that we should move on from the expectation of an international rule of law.
The United Nations charter is the international compact created on the ash heap of the destroyed European continent. The UN charter lays out a political and legal process for dealing with threats to regional and world peace and security.
The problems of this UN process are why governments and peoples often take matters into their own hands, often in violation of international law. The conflicts in Syria and the Ukraine show us two faces of international law -- its deep problems, and the reasons why we still want to retain international law.
The United Nations is the cornerstone of the international legal order. The supreme political and legal body of the United Nations is the United Nations Security Council. Governments can bring their concerns to the Security Council, which has the power to authorize a collective or unilateral response that can include sanctions, embargoes and the use of force. The system often works as planned.
But there are many problems with this UN response system. One problem is the ability of the permanent five -- the United States, Russia, China, France and Great Britain -- to veto any Security Council action.
This veto power is the central reason why the Syrian conflict goes on, and why Obama's red-line threats to respond to Bashar al Assad's use of chemical weapons raised charges that any US action would violate international law.
In short, Russia would not agree to any authorized legal response to Syria, thus any U.S. military action would arguably violate the UN Charter's Article 2(4) requirement.
Another problem is that this system favors governments over people. Mali's government can legally invite France to send in troops to fight the rebels terrorizing it citizens. Syria's people cannot invite in foreign troops to stop their own government from terrorizing them.
A third problem is that this system prioritizes what international relations scholars call "border-fixity." We thus end up with countries like Somalia and the Central African Republic where the government is unable to assert control or order within the territory, yet the outside world pretends that the state is still functioning.
The preference for maintaining current borders also traps peoples where they may not want to be. Tibet's people would surely like to be independent.
Governments support international law in part because their concerns are given more weight than that of citizens. When push comes to shove, international law and the international community of states prioritize maintaining current borders over the right to self-determination.
These problems with international law help us understand why sometimes governments violate international law, yet world leaders and even public opinion sometimes see the illegal response as justified and legitimate.
It is at this point that politics enters the process. Those who behave badly but legally, invoke the law to suggest that their action is acceptable. Ambiguities within the law make it difficult to cut through these politics. This is currently the situation we face in Syria and the Ukraine.
International law contains provisions that are in tension with each other. The United Nations Charter prohibits governments threatening or using force against the territory of another state, and it authorizes governments to use force in self-defense.
If we accept that violations of the law will exist, we must also accept that the failure to remedy violations will sow doubt. So violations of the law will occur. Law violators will spin a tale in which their actions appear legal, and if not legal at least legitimate. And sometimes people will get away with murder even if they should not.
The solution to all of these less than optimal situations should be to improve the law. But sometimes the imperfect status quo nonetheless has many strengths, and thus we learn to live with a flawed system of rules.
From the comfort of America, it is easy enough to lament the failings of international law yet conclude that there is nothing to be done. But people are desperate and dying, and desperation is the fuel of further instability.
The problems presented by Syria and the Ukraine are not going away. For Syria, the problem is that its internal instability is spilling into the region. Arab governments are arming sides in the dispute. Populations outside of Syria are becoming radicalized. What began as a local conflict has become a major source of regional and even world instability.
For the Ukraine, the problem is both the precedent that is being set and that a lack of response may lead Putin to expand Russian borders even further.
Given the way Putin went about the Crimean annexation, there is no choice but to respond with heavy sanctions. The sanctions should be used to force Putin to stop further claims, and to reach an agreeable settlement with Ukraine's government.
Given Ukraine's dependence on Russian energy, it is quite likely that Russia will be heavily involved in Ukrainian politics going forward.
Law provides the roadmap to recast the annexation of Crimea.
International law allows for secession and even a decision to join another country. But the process needs the assent of Ukraine's government, which is why the recent hasty vote was a violation of international law. The United States and Europe must force Putin and Ukraine to come to a mutually agreed upon solution that either validates or reverses Crimea's accession.
To demand respect for the law still leaves many political questions on the table. Law provides a process-based guide, but it does not determine the political outcome or tell us what foreign policy makes the most sense.
Law does not provide a roadmap of how to end Putin's aspirations or Syria's conflict. Putin and Assad must find it simply too costly to continue on their current path. Until this occurs, the contagion of political instability is likely to spread further.
The only viable way forward is to restore our expectations that international law is either followed, or that there is a very good reason to violate the law. This requires that we demand evidence rather than conjecture.
Violations of international legal rules must be allowed only when the need for protection outweighs the harms that occur. Otherwise, the goal and our demand is that governments respect international law.
- Karen Alter is a professor of political science and law at Northwestern University.