No Crossroad for International Law

Note: I wrote this take-down piece back in March 2014, as a rebuttal to Jeffrey Sachs’ article in Project-Syndicate, titled “Ukraine and the Crisis of International Law.” Not PS nor any other outlet were interested in publishing it, so it never saw the light of day. Looking back however, I would argue that this piece got it right. But decide for yourself.

Jeffrey Sachs got it wrong. The Russian annexation of Crimea is not undermining the tenets of international law. In fact, the legal framework that has been governing state-to-state relations since the end of World War II is today stronger than ever before.

Sachs’s analysis is based on several wrongful assumptions that are fairly easy to rebuke. For instance, contrary to Sachs’s claim, the 1994 Budapest Memorandum does not impose an obligation on the parties concerned to protect the sovereignty and territorial integrity of the Ukraine. Indeed, the Memorandum is not even a binding treaty of domestic or international legal standing, which would have necessitated legislative approval to begin with.

There is also no evidence to support Sachs’s claim that the Crimean crisis negatively impacted on the non-proliferation regime. Throughout the unfolding events on the peninsula, US-Russian New START arms-controls continued unabated, Iranian nuclear talks proceeded as planned, and none of the 189 states party to the Non-Proliferation Treaty indicated any intentions to exit the agreement or restart their own nuclear program. In fact, from a legal perspective the Ukrainian case in 1994 encompasses all the traits of voluntary nuclear disarmament as practiced by South Africa, Belarus, Kazakhstan, and Libya. The latter case is of particular interest given that NATO’s military campaign against Tripoli in 2011 did also not undermine the non-proliferation regime as widely assumed at the time.

The global economic consequences Sachs is strenuously warning us about have also not materialized as indicated. Between February 26, when the Crimean crisis erupted, and April 4, the Moscow Currency Exchange (MICEX) dropped by 6% while the Dow Jones Industrial (DJI) rose by 1.3%. Within the same period the German Stock Index (DAX) and the Hong Kong Hang Seng (HSI) gained 0.35% and 0.32% respectively. Certainly these are not figures indicative of an imminent global economic downturn.

But Jeffrey Sachs is correct to point out that international law has been violated on numerous occasions prior to the Crimean crisis. Most notably by the United States and the European powers themselves, whether it was in Kosovo, Iraq, Afghanistan or Libya. Sachs however fails to explain to his readers that international law is merely a legal framework, which generally defines the rules of the game within the current international order. What states make out of it, has and will always, largely depend on the tectonic shifts occurring within the realm of great power politics.

Furthermore, since the monopoly of violence within the present international order is diffuse among the various players, most notably exemplified by the status of the five permanent members of the UN Security Council, international law does also not have the ways and means to simply impose justice upon states. In this instance, international law differs greatly from domestic law, where the monopoly of violence rests firmly within the grip of government.

That said, so far international law has been primarily violated for the sake of realizing foreign and security policy goals, and not due to motivations to fundamentally alter the legal character of international law itself. NATO did not go to war in Kosovo to redefine the concept of humanitarian intervention, the US did not invade Iraq and Afghanistan to alter the right of collective self-defense, and Russia did not annex the Crimean peninsula to protect its nationals abroad. But the very fact that these states felt the need and pressure to present legal arguments to justify their unlawful actions is in itself prove that international law is well and alive.

Indeed, the real story is that power politics is at a crossroad and not international law. This should not surprise anyone given the vast literature on the rise of China, the perceived decline of the United States, and the numerous unresolved and lingering conflicts across the globe. Power politics have always been shifting relentlessly, both regionally and globally even prior to the formation of nation states.

But maybe I am too young to understand what Jeffrey Sachs envisioned when he proclaimed that “the only possible route to safety is international law, upheld by the United Nations and respected on all sides.” My generation is certainly not eager to put their faith into the hands of the United Nations to preserve peace and stability. Our experiences were shaped by the ethnic cleansing in Srebrenica, the genocide in Rwanda, the crisis in Dafur, and now the slaughter in Syria and the Central African Republic. In all five instances the UN stood idly by while justice and international law are nowhere to be found.

Jeffrey Sachs ought to realize that we are all still living in a world governed by nation states. And that without pro-active great-power politics no one will impose or defend international law to begin with. This naivety does not stem from an overemphasis on the balance of power, but is based on the wishful thinking that we can stabilize a world that is inherently unstable. Greater emphasis on international law or even economic interdependence, as some proponents claim, will not change our utter failure to recognize reality. The international order we are living in is inherently unstable and sadly as it may sound, that is how it is supposed to be.