The West at a crossroads in the Ukraine: “Rechtstaat” or “Machtpolitik”?

Barack Obama, Angela Merkel, and other leaders from the West seem lost in the flow of events in the Ukraine, responding only to immediate pressures. Even when they react, they appear to do so only in a manner marked by pacifism and what can only appear to Moscow (and not only Moscow) as a deep-rooted fear of confrontation with Russia, either through countervailing force or the threat thereof, or through  broad economic sanctions that might actually dissuade Vladimir Putin from his current course.

Like the French and the English following the signature by Èdouard Daladier and Neville Chamberlain of the Munich Pact on September 30, 1938, ceding the Sudetenland to Germany in the face of a planned German invasion the next day, against all evidence the current leaders of the West continue to harbor the illusion that a little bit of aggression and a little bit of annexation will not deflect the current course of history and the enjoyment of “peace in our time”.

The deepest illusion they harbor is the belief that Russia will soon become like a Western European state, and not revert to the ruthless totalitarian state from which it emerged only in 1991, following the liberalizing reforms of Mikhail Gorbacev after 1985.

Such a development does not seem likely, at least not in the foreseeable future in which the leadership of Russia is likely to be controlled by Vladimir Putin and his entourage.

The issue does raise an important further question, however:

How are the policies adopted by the West likely to affect the interplay of domestic political forces in Russia that will determine the kinds of leaders and political forms that will emerge after Putin has left the scene?

A strong argument can be made that if the West seeks to foster the development of democratic forces in Russia which might assume power after Putin, it should respond to Putin’s aggression against the Ukraine in a principled manner, built on commitment to the rule of law. This commitment would need to apply both internationally, through insistance on compliance with basic norms of international law, and domestically, within both Russia and the Ukraine, by insisting on the observance and protection of the fundamental human rights of all individuals in each country.

Such an approach makes sense, because reformers in Russia–and every other country in the world–will take careful note of the values that the EU, the U.S., and other countries actually promote and defend through their actions, and not merely their words.

Robust Western defense of the rule of law will provide them with hope and implicit encouragement. Appeasement and disregard for the protection of the human rights of all Ukrainans would be likely to have the opposite effect.

The larger issue, which seems to escape the short-term calculus of the current leaders of the West, is whether they and their populations are willing to fight for, and make sacrifices for, the rule of law.

Are they willing to make sacrifices and impose sanctions which will also affect their own economies, in order to uphold the rule of law on the international level, to fulfill the purposes and goals of the founders of the United Nations, “to save succeeding generations from the scourge of war”?

Secondly, are they willing to make the sacrifices that may be necessary to uphold and protect fundamental human rights, secured by treaties, the U.N. Charter, and customary international law?

Will they stand up for the protection of the fundamental human rights of all individuals in the eastern Ukraine?

The constitutions of EU member states are founded on the rule of law and the protection of human rights, as is the U.S. constitution and the whole edifice of the European Union, the Council of Europe, and NATO.

At bottom, the critical question in the Ukranian crisis is whether Europe, the U.S., and other civilized countries are still willing to make serious sacrifices in order to uphold the rule of law, or whether appeasement and acceptance of some aggression, some annexation, and acquiescence in widespread violation of fundamental human rights in the eastern Ukraine is the preferred course.

The stark choice, as it was put in Germany in the late 1920’s, is between a world built on the concept of the “Rechtstaat” (democratic state governed by law) or “Machtpolitik”(the politics of military power).

Rechtstaat oder Machtpolitik? Oder?
(Rule of law state or the politics of power? Or????)

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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