There is no doubt that from a statist perspective, Russia violated international law by non-defensively using force to acquire territory belonging to Ukraine, another sovereign state.
Russia’s international legal wrongs were accentuated by breaking a treaty it signed with Ukraine in 1994 to respect the existing borders. This agreement also stipulated that Ukraine transfer its stockpile of nuclear weapons to Russia for safekeeping following the breakup of the Soviet Union.
If I were a Ukrainian nationalist, I would wonder at this point whether Ukraine’s borders would have been respected had the government retained its nuclear weapons – and whether Russian President Vladimir Putin’s actions will rekindle less powerful states’ interest in acquiring such weapons as a deterrent.
The Economist has berated Putin’s actions as a dangerous repudiation of international agreements, describing them as a kind of “revanchism” in which hard power is used to challenge the territorial integrity and political independence of a neighbouring country. Russia’s argument for intervention, it is alleged, could be used by other countries to “rescue” unhappy minorities elsewhere.
The magazine calls for firm leadership from US President Barack Obama and the imposition of heavy penalties on Russia. The world’s rising powers, it says, “should reflect on what kind of a world order they want to live under. Would they prefer one in which states by and large respect international agreements and borders? Or one in which words are bent, borders ignored and agreements broken at will?”
There are two types of issues raised here – conceptual choices and policy options. On conceptual matters, there is the issue of coherence. Should Russia be expected to abide by international agreements while the West seeks to challenge the internal dynamics of self-determination in an important country on its border? The Economist makes no mention of covert Western efforts to destabilise the admittedly corrupt Ukrainian government headed by Viktor Yanukovich and entice Ukraine to accept Western credit arrangements and a pro-Europe alignment. These moves were aimed at incorporating eastern Europe into the European Union and at deploying defensive missile systems in countries surrounding Russia.
To have a world order based on international law, which The Economist and the West abstractly favour in this context, these advocates should be prepared to live by a similar set of rules and agreements in other situations. Putin referred to the precedent of Kosovo declaring independence from Serbia as a quasi-legal justification for seizing Crimea – and this has some plausibility, although there was a strong argument that Serbia had forfeited its sovereign rights in Kosovo by committing crimes against humanity in the course of resisting the breakup of the former Yugoslavia.
A much better precedent is the US-led invasion and occupation of Iraq in 2003, after the UN Security Council rejected involvement. Here was an instance of blatant aggression on false, trumped-up premises; an intrusive, regime-changing occupation; and the deliberate manipulation of religious and ethnic tensions by the occupying power to create the kind of Iraq that it wanted to emerge. Is this the world that The Economist and those of similar inclinations have in mind?
The Iraq precedent
When done by Russia, such behaviour is criticised as disruptive. But when done by the US, the use of force is benignly described as “the aggressive pursuit of American values”. Such a pattern, it seems to me, sets a worse precedent than Putin’s worldview in regard to Ukraine. Although The Economist editorial doesn’t ignore the Iraq issue, it dismisses it as a momentary diversion, an ill-advised move “puffed up by the hubris of George [W] Bush” in “the unilateral world” following the Soviet collapse, a venture that “choked in the dust of Iraq”.
But is Iraq such a deviation from the US approach to the use of force? After all, the US has caused bloody consequences in its covert interventions in a number of countries, including Iran (1953), Guatemala (1954), and Chile (1973). And what about its use of lethal drones in countries including Pakistan, Yemen, and Somalia?
In the end, then, we have to ask the question: What kind of world order has the US pursued in recent decades? Is it the same one that The Economist seems to be promoting? And can it really be claimed that before the Ukraine crisis, the dominant states in the West had displayed a consistent respect for international law?
Of course, international law is invoked as a matter of diplomatic convenience whenever it seems to support one’s foreign policy. The US is adept at mounting such arguments. The real test of adherence to international law, however, is the behaviour of a leading government when international law poses an obstacle to a preferred course of action. To insist that one’s adversaries adhere to international law, while claiming discretion to act on one’s own interests, is a hegemonic form of world order that accepts the inequality of states as a given. This goes against the major premise of international law that presupposes all states should be held to the same standard.
The leading state or states set the rules of the game in a statist structure, which either establishes a law-oriented world order or subverts it. The US, and to a lesser extent Europe, have, since 1945, wanted it both ways: freedom of action for themselves, rule of law for their adversaries. The Ukraine crisis shows both sides of the argument, as well as its pitfalls.
In the current setting, “American exceptionalism” has been unashamed of mounting a patently hypocritical argument. Benjamin Rhodes, Obama’s deputy national security adviser, said he supports banishing Russia from economic summit events for “as long as Russia is flagrantly violating international law”. Until Russia is willing to reverse its policy on Ukraine, it is, according to Rhodes, “outside the rules of the road”.
Russia is within the rules of the road so far as the geopolitical game is concerned. If international law did indeed set the rules, then Russia is acting outside the rules – but so are those who now purport to act as its enforcers. Nothing is more corrosive of respect for international law than double standards – which is the hallmark of geopolitics.
What remains to be considered is the policy response to Putin’s moves. Here, the facts and complications make any firm set of conclusions an expression of dogma rather than a nuanced interpretation of context. In truth, there are no guidelines or rules of the road, when external actors destabilise and silently intervene on one side, and the other side reacts more overtly. The people are caught in between. As the African proverb puts it: “When two elephants fight, the grass is destroyed.”
I believe that the sort of posturing generated by the Ukraine crisis works against responding to the question posed by The Economist: What kind of world order have we had, and what kind do we want and need?
A more humane future can be ensured by adopting an international law approach to peace and justice, but only if it is done consistently and reciprocally. As matters now stand, the foreign policy of major states continues to be principally dictated by perceptions of vital national interests, and not by the obligation to obey the rules of the road as set forth by international law and as administered by the UN.
The geopolitical logic at play is not only hypocritical, but it also tends to escalate conflicts. We hear loose talk about preparing for a second Cold War, with all the embedded dangers, including the potential horror that nuclear weapons might be used. It seems strange that our most heralded realist gurus do not dare speak about nuclear disarmament as a way to avoid catastrophe, and erect a firm safety barrier to contain of future wars.
All things considered, rather than view the recent events involving the Ukraine as a sign of “the new world order”, it would be more appropriate to regard them as depressing evidence of the persistence of “the old world order”. And it is this that we should regret. It is not only provocative behaviour in violation of basic rules of international order, but it is a system of sovereign states preoccupied with their national interests that encourages violence and predatory behaviour, lacking a moral, spiritual, and vital institutional centre capable of protecting global human interests.
This is the second part of Richard Falk’s essay on global order and international law. The first part was published on Saturday, April 5.
Richard Falk is Albert G Milbank Professor Emeritus of International Law at Princeton University and Research Fellow, Orfalea Center of Global Studies.He is also the United Nations Special Rapporteur on Palestinian human rights.