REPRISE: Crumbling world order: Power politics and international law

First published on September 10, 2015

See

Stefan Kornelius, “Putins Machtspiele; Ruhe in der Ukraine, Druck in Syrien. Russlands Präsident sendet rätselhafte Signale. Sucht er einen Weg aus der Isolation? Oder einen neuen Schauplatz, um Stärke zu zeigen?” Suddeutscher Zeitung, 9. September 2015 (19:05 Uhr).

MICHAEL R. GORDON and ERIC SCHMITT, “U.S. Moves to Block Russian Military Buildup in Syria,” New York Times, September 8, 2015.

The post-World War II political and legal order appears to be crumbling. At no other time since 1945 have the fundamental norms of the United Nations Charter and the prohibition of the threat or use of force been so widely violated with such an absence of invocation of international law by major countries in the world.

Russia has invaded and seized part of the Ukraine, the Crimea, and almost nowhere does one hear serious demands for Russian withdrawal and a return to the status quo ante, as required by international law. When U.S. Secretary of State John Kerry traveled with a delegation to meet with Vladimir Putin and the Russians in Sochi, the issue was not even mentioned.

Russia continues its invasion of the eastern Ukraine, with thousands of Russian troops, tanks, artillery and other war equipment stationed in the Donetsk and Luhansk provinces (Oblasts) of the Ukraine.

In Syria, the United States and other NATO countries, including Turkey, are engaged in military activities against the so-called Islamic State, the al-Nusra Front, and other jihadist groups. Ankara has been attacking the PKK in Kurdish parts of Syria, and recently has even launched attacks against claimed PKK targets in Iraqi Kurdestan. A number of countries are assisting Iraq and the U.S. in attacking IS positions within Iraq.

In Yemen, a Saudi-led coalition is conducting air strikes against Houthi- held positions.

Within the last year Egypt conducted airstrikes against Libyan militia groups in retaliation for the murder of Egyptian workers.

Israel has conducted a number of air strikes within Syria aimed at preventing the transfer of weapons to Hezbollah in Lebanon, and also launched air strikes against targets in the Golan Heights.

Beyond these obvious uses of military force, the United States has launched drone attacks and special operations attacks against jihadist leaders and other militants. Sometimes they have been “signature strikes” against victims whose names are not even known, and who are executed because of a pattern of activities suggesting they are members of terrorist groups. The attacks and special forces operations are not limited to the Afghanistan and Pakistan war theater.

In Syria itself, the Bashar al-Assad regime has carried out war crimes and crimes against humanity on a massive scale, resulting in the deaths of some 220,000 to 250,000 people, the displacement of millions of Syrians, and the current scramble by millions of refugees to find a safe haven in Europe, or other countries.

One of the greatest challenges to international law has become the failure of states to report the use of force to the Security Council as required by Article 51 of the Charter, or to even acknowledge that they are the authors of state actions.

This is a spillover from the use of covert actions to achieve military objectives. Yet without acknowledgement of state behavior, much less attempts to legally justify it, international law governing the use of force cannot really deter future violations.

Perhaps the greatest casualty from these events has been a loss of awareness of the relevance and critical importance of international law and institutions in controlling the international use of force, and demanding compliance with the terms of treaties related to the sovereignty, territorial integrity and political independence of different states or countries throughout the world.

The president of the United States, Barack Obama, has virtually eliminated the use of the term and concept of international law from his discourse, going back as far as his Nobel Prize Acceptance Speech in Oslo in December, 2009.

Moreover, we should not forget that the entire edifice of international human rights is based on international law treaties and the development of customary international law norms in the human rights area.

Human rights are a creation of international law. We should not be too surprised, therefore, to find that the human rights policies of a president who holds little regard for international law have themselves been quite disappointing.

While Russian President Vladimir Putin and his foreign minister, Sergey Lavrov, have invoked international law from time to time, they can hardly be taken seriously so long as Russia stands atop its military conquest in the Crimea, and continues its invasion of the eastern Ukraine.

With these developments, and Obama’s obvious lack of regard for international law, the risk is great that the West, including the U.S., NATO, and the EU, will try to solve the great problems it faces by reverting to the use of “great power politics”— without regard for the development of international law and institutions, and state practice, that has occurred in the last 100 years.

Using this aproach, deals could be struck with Russia to recognize the conquest and annexation of the Crimea, with the lifting or easing of sanctions, in exchange for Russian “cooperation” in solving the Syrian problem.

In this way, the Russians who are themselves complicit in the commission of war crimes and crimes against humanity within Syria, might secure permanent bases and recognition of al-Assad’s continuing hold on power, at least in a rump state in the North and along the Mediterranean where a high percentage of the Alawite population is found.

So, are we to simply give up on the concept and accumulated state practice of international law governing the use of force?

Or is there some way of dealing with the power politics dimension of international affairs without giving up on international law?

These are the questions for current leaders in the world, from Washington, Brussels and Berlin, to Taipei, Manila and Hanoi, and even Argentina.

What would the world look like without international law governing the use of force, or the protection of human rights?

These are not idle or theoretical questions. For the answers we come up with will determine the future kind of world we live in.

Nor are these new questions. They were fully considered by the Drafters of the U.N. Charter, and by generations of leaders who sought to uphold its provisions.

Moreover, not only leaders need to consider and answer these questions, but also political elites, media, and the populations of different countries.

For their continuing and incessant demand for legal justifications of state actions under international law may be the best and perhaps the only way to ensure that the gains achieved over the last 100 years will not be lost.

No one can take the international law governing the use of force for granted. Only persistent demands for legal justification can guarantee its continuing relevance and deterrent power in a world that threatens to sink increasingly into armed conflict and chaos.

In a nuclear age—and we need always to remember that we still live in one— “power politics” without international law is a formula for disaster, and for the eventual annihilation of the human race through nuclear war, or newer and even more efficient means of mass destruction.

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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