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When International Law Doesn’t Work—John Yoo
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. The pressing question is not whether Russia has violated norms against aggression – it has – but how the United States and its allies should respond in a way that will strengthen the international system.
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. Since the fall of the Soviet Union, the United States has continued to supply the global public goods of security and free trade on its own. 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.
As someone who worked in the Bush administration during the 2003 Iraq War, I am struck by today’s absence of criticism of for Russia’s violations of international law and its effective neutering of the United Nations. About a decade ago, criticism of the United States for our failure to win a second Security Council resolution authorizing the use of force reached unprecedented heights The United States and our allies claimed that we already had authority based on Iraq’s refusals to obey its obligations at the end of the 1991 Gulf War and its continuing threat to regional peace. Some of the U.S.’s closest European allies, such as France and Germany, violently disagreed – although these nations seem to urge compromise today with Russia. Even though the United States went to war without Security Council authorization, we did seek to build a legal case in support of our actions.
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. Putin has used the goal of restoring Russia’s great power status to win popularity at home. He has never ridden as high in domestic opinion polls as he is now. One response, in keeping with international law, should be to remove Russia from a position of superpower equality, which would only formalize Russia’s steep decline in military capability, its shrinking population, and its crumbling economy (which now relies on commodity prices for growth).
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. Concerned about Iran’s push for ballistic missiles and nuclear weapons, the Bush Administration had begun the process for deploying advanced ABM systems in Poland and the Czech Republic. As part of its effort to reset relations Russia, the Obama Administration canceled the program without any reciprocal benefits from Moscow or Iran. Redeploying the missile defense systems would provide an important signal of American support for our NATO allies — especially those on the front lines with Russia — and raise the costs on Russia if it seeks to keep pace.
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.
What do you think? How can we best reshape our international institutions and alliances?
Published in General
The essence of international law is that there’s a formal process that bestows legitimacy on countries when they act. It makes sure that everyone knows when one country has gone “rogue.”
Remember the movies War Games and Crimson Tide, where the one thing that kept everyone safe was the fact that no one could launch a nuclear missile by themselves? Using force is only legitimized when multiple people agree. The UN was supposed to be the place to create those agreements, but because it insists on unanimous agreement, it winds up preventing any use of force.
Strategically, of course, that creates an inverse result. By making it harder to respond to aggression, it invites aggressors to act, since they have minimal fear of resistance. The UN only exerts influence on people who are unwilling to act in the first place. It’s kind of like gun laws; they inhibit the people for whom they’re unnecessary, which in turn empowers those who need to be stopped.
The “Concert” idea is attractive because it’s a diplomatic forum that bestows legitimacy when a substantial number of countries agree, but doesn’t require unanimous agreement.
I favor creating a League of Democracies as a competing power center to the UN. We should rig the rules such that international bed-wetters and fire-starters like France are excluded.
We should pursue making the UN as irrelevant as possible. This can cause no harm because no good has come from the UN that wouldn’t have emerged by some other means anyway.
Because the only way the UN Security Council “acts” is by passing resolutions the best way to marginalize the UN is to incapacitate the UNSC’s ability to pass a resolution. We can do this by adding so many members to the UN Security Council that it will be incapable of passing another UN Security Council resolution. The UNSC is already so unwieldy that has much difficulty passing resolutions as it is. Doubling the size of the UNSC should do the trick.
I think far more important than diplomatic isolation is economic isolation of Russia. We need to make it impossible for any Russia citizen or business to perform internationally, and we should dissuade all American companies and individuals from doing business in Russia or with Russian citizens.
What would happen if the US abandoned the UN altogether and further developed NATO instead? I’m sure this is overly simplistic, but it seems to me that whatever resolutions the UN passes are, in the end, only backed up by the US military. I may be wrong, but I don’t see any of the European countries as being able to defend themselves let alone enforce anything the UN does. If the US backs out, the UN becomes largely irrelevant.
It might be worth a shot, but the same argument largely applies to NATO.
Be consistent.
As terrible as these wars are, is our inability to stop totalitarian regimes like North Korea make those wars acceptable? If we had resumed hostilities and toppled the North Korea’s government at the price of more casualties, would we have saved more lives in the end?
I’ve heard that argument with regards to the Japanese Empire, and our dropping the atomic bomb as soon as possible. The longer they remained in power, the more people that were governed by them would die.