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A CRB Discussion of Crimea and International Law

By: Jeremy Rabkin, Angelo M. Codevilla, Paul Pillar
June 30, 2014

Jeremy Rabkin’s Claremont Review of Books essay, “A More Dangerous World,” examines Russia’s aggressive actions in the Crimea. Two other scholars of international relations, Angelo M. Codevilla and Paul R. Pillar, have accepted our invitation to join Prof. Rabkin in examining the question more closely. Angelo Codevilla is a professor emeritus of international relations at Boston University and the author of, most recently, To Make and Keep Peace. Paul Pillar is a senior fellow in Georgetown University’s Center for Security Studies. Prof. Pillar retired in 2005 from a 28-year career in the U.S. intelligence community, in which his last position was National Intelligence Officer for the Near East and South Asia. Jeremy Rabkin is a professor at George Mason University School of Law. Before joining the faculty in 2007 he was, for over two decades, a professor in the Department of Government at Cornell University.


Angelo Codevilla: “A More Dangerous World”’s thrust is clear. Jeremy Rabkin starts by telling us that the Obama Administration’s reaction to Russia’s annexation of Crimea, more than the annexation itself, is terribly important. The bulk of the article is a history of the many ways in which international power has shifted in recent centuries and especially since 1945, the point of which is to show that, these shifts notwithstanding, one country’s outright annexation of another’s territory is quite unusual. After pointing out that Russia’s spoliation of Crimea from Ukraine and American acquiescence thereto happened despite a weasel-worded U.S. guarantee that it would not happen, Rabkin ends with: “If we don’t want to guarantee all borders everywhere…we have to decide what guarantees we mean to keep and make that clear…. Instead, we send signals of doubt and hesitation.”

The bulk of the article’s relevance to its thrust is less clear. At one point, Rabkin gives the impression that the states that joined to reverse Saddam Hussein’ s conquest of Kuwait did so “to make good on the U.N.’s demand.” Perhaps Rabkin meant “and made good…” In fact the states that joined did so out of regard for the U.S. rather than for the U.N. Friends in the French government told me at the time that their internal discussion amounted to something like: “the Americans are going to reshape the Middle East. We cannot afford to be absent.” Regardless of the reasons, consensus about existing borders has been remarkable indeed.

Rabkin is not clear about whether he thinks the U.N. Charter’s guarantee of its members’ territorial integrity has any meaning. On the one hand he notes that it is taken from the League of Nations’ similar guarantee, which turned out to be a mockery. But then he seems to suggest that Western acquiescence in Russia’s annexation of Crimea in violation of the Charter is due in part to Putin being a less forcefully fearsome figure than Hitler. If Putin had more going for him, Western statesmen would have stood up to him. Just like their grandfathers did to Hitler? The logic here—that people are naturally moved by lower degrees of fear than by higher degrees of fear—is novel.

Then, Rabkin mixes two facts that are not self-evidently related: that, in the past, forceful changes in borders were usually accompanied by attempts to secure agreement to them, and that the flouting of agreements was seen as an offense against honor. The latter becomes the basis of the rest of the article: the expectation that commitments will be kept, that “pacta sunt servanda” is the one solid basis of international order. Absent statesmen who do not feel honor-bound to honor commitments, international affairs are not merely a jungle, but a wholly unpredictable madhouse in which the maddest of madmen has the advantage: “If you can’t rely on law, you need to rely on a reputation for strength and courage—and for keeping your promises.”

There follows Rabkin’s gravamen: the U.S. government did promise to support the territorial integrity of Ukraine. And than it supported it the way a rope supports a hanged man.” Rabkin implies that this demonstration of un-seriousness is a violation of the natural law of international affairs.

The world’s map is full of arbitrary borders. No law guarantees them. Stability is the one thing that is guaranteed not to happen. Nothing has ever been able to prevent powerful states from exercising various levels of control over weaker neighbors. Rabkin does not suggest that the U.S. government invest itself with the task of guaranteeing borders or of limiting other major nations’ spheres of influence, and is certain that no other nation or combination of nations will even try.

His beef, a worthy one, is “the classic 21st-century response: saying that the situation is unacceptable while tacitly accepting it and hoping for the best.” False hopes. Theodore Roosevelt had summed up solvency in international affairs in the formula: “speak softly and carry a big stick.” The U.S. government’s behavior re: Ukraine (and so many other things) has been the epitome of insolvency: talk big and then either slink away or, worse, engage and get beat. That guarantees endless war.


Paul Pillar: Jeremy Rabkin’s essay is a useful standing back from current developments involving instability in Ukraine and redirection of our thinking to some broader principles that can have wider effects. It also is a salutary reminder that international law is much more than just background mood music as realist statesmen compete in international politics. The main general point of the essay, as I understand it, is that it is important, in the interest of minimizing international disorder, to preserve international boundaries in the face of forceful attempts to alter them. The more specific point is that somehow the world should have done something more to stand up to Russia when it annexed Crimea.

First, an observation about the more general argument. Different principles of international law and international conduct often point in different directions. Rigorous, consistent observance of any one principle is not a prescription for a less dangerous world insofar as it leaves some other principle unobserved. The principle of the permanence of borders most often bumps up against the principle of self-determination: the right of peoples to be part of a nation-state that corresponds best to their own national self-identity. Professor Rabkin recognizes this by devoting a section of his article to self-determination, but his purpose is to portray self-determination as occupying a lower rung on a ladder of principles of international conduct—one that has been and should be, in his view, subordinated to the maintenance of existing boundaries.

He is right, of course, that messy ethnic geography in much of the world would pose major challenges to almost any effort to redraw boundaries in the interest of self-determination. But parsing a couple of lines of the United Nations Charter greatly understates the extent to which the principle of self-determination has been validated and emphasized multilaterally. This has been reflected in the empire-dissolving and de-colonizing missions of first the League of Nations and then the United Nations, with its trusteeship system, which has now pretty much completed its work.

As Rabkin points out, there has been a strong tendency to stick with the existing non-ethnically-aligned boundaries in Africa and the Middle East. That preference stems neither from a respect for international law nor from a wider concern about how dangerous the world as a whole might become, but instead from self-interest. As the article notes, it is “leaders of the region’s existing states” who most resolutely oppose any revision of existing boundaries. Of course they do. Our concern, however, ought to be with not just description of current self-interested behavior but rather what patterns and principles make for a more dangerous rather than a less dangerous world. There are many dangerous messes in Africa and even more so in the Middle East, and the disjunction between international boundaries and ethnic and sectarian geography have a lot to do with them. Iraq and Syria are today Exhibits A and B.

Rabkin dismisses the many U.N. resolutions pertaining to the Israeli occupation of Palestinian territory (not only East Jerusalem) first on grounds that the State of Palestine “never exercised sovereignty there,” but the fundamental issue concerns whether such a sovereign state ever will be brought into existence. As far as international sanction and the multilateral application of principles are concerned, one need look no further than the U.N. partition plan of 1947, which laid out boundaries for separate states so that Palestinian Arabs and Jews could each realize self-determination. One of those states, with boundaries expanded as a result of warfare, came into existence; the other state never did. It is probably true that Israel “has become a kind of proxy for Muslim expressions of rage at the course of the modern world,” but self-determination, and the frustration of it, is today a big part of this highly salient and destabilizing conflict.

Bringing Crimea into this discussion involves deciding whether to treat the Russian annexation as sui generis or as representative of a larger class of cases. One cannot have it both ways. Vladimir Putin described his move—rather powerfully and eloquently—as in the same tradition as map-revising moves by other states, such as the Western intervention that split Kosovo off from Serbia. It is not enough for us to respond by noting that one instance involves incorporation into an existing state and another involves creation of a new state. If both involved the use of force by outside powers to carve a chunk out of an existing state, why is one any less of a hazard to international order than the other? It is geographic and historical happenstance, not different degrees of observance of norms of international behavior, that account for why it would not have made sense to anyone for the United States or some other member of NATO to have annexed Kosovo, but it made sense to many Russian residents of Crimea to be annexed by Russia.

Nor can any distinction with a practical difference be made between the annexation of Crimea and what Russia has done with military force in Abkhazia and South Ossetia. Those two breakaway regions of Georgia are under Russian military occupation. Independence for them is a Russian fiction. Most other governments officially view the situation as one of Russian occupation. French President François Hollande described it that way when he was in the region last month.

The article ultimately relies on a representative-of-a-larger-class way of looking at Crimea in suggesting that the annexation sets a damaging precedent for mischief elsewhere, including by Russia itself. It is as easy to understate the uniqueness of the Crimean situation, however, as to overstate it. The unusual circumstances of the historical Russian connections with Crimea, Nikita Khrushchev transferring administration of the territory from one subordinate unit of the USSR to another one, followed many years later by achievement of independence by those units, does not really have an equivalent elsewhere. Putin has given plenty of indication that he will digest his triumph rather than assume the costs and risks of using military force to try to chop off other pieces of land in Ukraine or in other former Soviet republics.

Respect for territorial integrity and international boundaries is indeed an important ingredient in determining whether the world will be less rather than more dangerous. But absolute enforcement of that principle may run up against not only some other principle such as self-determination but also against the sort of geopolitical constraints that statesmen have to deal with all the time. Ignoring that fact is apt to raise other dangers. The story of what Russia did in Crimea and how Western governments have responded is not a matter of one side having “determined aims” and the other side being “resolute only for avoiding confrontation.” It is instead a story of Russia having much stronger interests in and around Ukraine than the West has, not to mention having more immediate ways of pursuing those interests. Maybe “severe economic sanctions” would lead Putin to do some reconsideration of his “current course,” but it would not lead him to cough up Crimea and reverse all the political gain he has achieved with his caper. Whether we like it or not, Russia will need to play a major role if Ukraine’s larger problems, with whatever dangers they present to the rest of the world, are to be resolved.  


Jeremy Rabkin: Since the U.N. Charter went into effect in 1945, no member state has ever annexed contiguous territory of another member state. Angelo Codevilla seems to believe that was just a matter of good luck: “The world is full of arbitrary borders. No law guarantees them.” If that is true, international law is simply a matter of ceremony.

It follows that when we oppose another state’s aggression, we are just saying we have different priorities but there is no standard to determine which side is right. The biggest guns win. I don’t think that is true. I don’t even think it is plausible. I am sure it will not persuade the American people (nor people in other parts of the world) to put lives at risk to resist aggression: we are fighting for arbitrary assertions, but they are worth fighting for, because they are our arbitrary assertions!

Paul Pillar is somewhat more nuanced: “Respect for territorial integrity and international boundaries,” he says, “is indeed an important ingredient in determining whether the world will be less rather than more dangerous.” In other words, there’s no law here but there is a value—but there are also competing values: “absolute enforcement of that principle may run up against...some other principle such as self-determination but also against the sort of geopolitical constraints that statesmen have to deal with all the time.”

Actually, we have not had to deal with this challenge in 70 years. I accept that life is complicated and international politics is complicated. But Pillar shrugs off the unbroken rule with much too much complacency.

I acknowledge Pillar’s point that Russian occupation of Georgian territory (Abkhazia and South Ossetia) since 2008 had previously undermined the principle of respect for “territorial integrity”—as, I think, did NATO’s support for Kosovo separatists in 1999. But occupations tend to be temporary, as the category implies: to “occupy” is to station forces in territory you acknowledge is not yours. Even a secession (like Kosovo’s from Serbia) requires international recognition to be secure—Kosovo is still not a U.N. member, because nearly half the U.N.’s current members question its legal status. So, with South Ossetia. Even if Kosovo attains international recognition, it may not be attentive to NATO promptings over time (nor South Ossetia to Russia). That often happens with independent states—they go off on their own way.

Annexation is, in itself, the imposition of final terms—it means, this territory is simply ours, fully, openly, irrevocably controlled by our government. Until this year, no nation had the brazenness to cross that bright line, separating disputable intervention from outright self-aggrandizement. So I think it is very regrettable that we have allowed Putin to casually disregard this fundamental prohibition.

If the annexations stop at Crimea, we may content ourselves with expressions of regret and a sigh at the imperfection of international institutions. But why expect that it will stop there? What’s happened in the past few months to suggest that Putin has only a very limited appetite for Russian expansion? What’s happened that would make him think any outside power means to enforce the previous rule against annexations?

We have resolved nothing in Ukraine. We’ve simply moved on to gawk at new spectacles, as terrorists redraw the borders of Iraq and Syria. Expect more of that. We will pay a high price for shrugging off the few meaningful limits on aggression we have managed to sustain over the past 70 years.


Codevilla: My original comment on “A More Dangerous World” noted that Jeremy Rabkin was not “clear about whether he thinks the U.N. Charter’s guarantee of its members’ territorial integrity has any meaning.” Now he is very clear that he thinks it does: “Since the U.N. Charter went into effect in 1945, no member state has ever annexed contiguous territory of another member state. Angelo Codevilla seems to believe that was just a matter of good luck.”

No. Luck has had no more to do with the relative lack of annexations (Israel did annex the Golan from Syria and produces good Chardonnays there) than did the U.N. charter. Rabkin’s statement that the American people believe—and that “peoples on the other side of the world” believe as well—that the post-1945 borders have something so inherently right about them as to be worth the risk of life boggles the mind. At least mine.

And no. This does not mean that international law is simply a matter of ceremony. International law, as Rabkin well knows, is neither more nor less than a network of treaties—of promises—among sovereign powers. The international system is based on the sovereign equality of those powers. In the final analysis, this means that each party is equally the sole judge of its own and of others’ obligations. “Pacta sunt servanda.” But what this means in any given situation is inherently disputable. The fact that two or three or a hundred states are of opinion A does not necessarily mean anything to the one state that is of opinion B.

Nor does number endow opinion A with any truth, goodness, or beauty.

Rabkin’s dismissal of reality recalls Elihu Root’s acceptance of the 1912 Nobel Peace Prize. Root saw international law as a code that comes to exist over and above individual treaties. How? Modern economic well-being requires peace and order. Governments support the network itself because it is profitable to do so, and because increasingly educated, sophisticated peoples will support only their governments’ just demands. The people must surely force governments to do only what is profitable and honorable.

Root said:

[F]irst, there has come to be a public opinion of the world; second, that opinion has set up a new standard of international conduct which condemns unjustified aggression; and third the public opinion of the world punishes the violation of its standard…. The spread of education, the enormous increase in the production and distribution of newspapers…the telegraph…the new mobility of mankind…travel by steamship and railroad . . . the vast extension of international commerce, [the nations’] dependence on each other for the supply of their needs [will make sure that the peoples will push for peaceful, rational inter-national relations.]

Morality, as well as “economic science,” demands it. Hence “must” equals “will.” “When any people feels that its government has done a shameful thing and has brought them into disgrace in the opinion of the world, theirs will be the vengeance and they will inflict the punishment.”

Sure.


Pillar: Readers can be assured that every party in this discussion believes respect for territorial integrity is a good thing, and that none of us is complacent about it. I have invoked repeatedly the principle involved when addressing events in the region I write about the most, which is the Middle East. Take, for example, the application of U.S. military force against Iraq. One of the major reasons (though not the only one) that Operation Desert Storm in 1991 was a laudatory action, and the launching of the Iraq War of 2003 was not, involves this very principle. The first action was the reversal of a blatant act of aggression—Saddam Hussein’s invasion and annexation of Kuwait—and as such was exactly the kind of international response that Professor Rabkin presumably would applaud. By contrast, in 2003 the United States was the aggressor—a fact at the core of Putin’s later effective references to U.S. behavior in his public justification of snatching Crimea.

Rabkin acknowledges that the earlier Russian chomps of territory out of Georgia were also violations of territorial integrity, but he continues to aver that there is an important difference between occupations, which “tend to be temporary,” and annexation, which is “the imposition of final terms.” Regimes use, or don’t use, these terms—or use, or don’t use, legal forms that correspond to these terms—in various ways for their own purposes, but without these usages necessarily corresponding to facts and events on the ground. We are still dealing with linguistic distinctions that don’t always make a meaningful difference.

To illustrate, consider an example I mentioned in my previous comments but to which Rabkin declined to return: Israel’s seizure of territory through military force. In June 1967, Israel initiated a war by invading Egypt. Syria and Jordan, which were allies of Egypt at the time, entered the war on Egypt’s side—which would seem to be the sort of thing allies are supposed to do, according to Rabkin, when a member of their alliance is invaded and has territory captured. Israel’s military decisively defeated all three allies and seized territory from each. (This included sovereign territory of Egypt and Syria in the case of the Sinai and Golan Heights, and territory designated for a Palestinian state under the United Nations partition plan but administered in the meantime by Egypt or Jordan, in the case of the Gaza Strip and West Bank.) Today the West Bank and Golan Heights remain firmly under Israeli control. Israel has applied Israeli law to East Jerusalem and the Golan Heights; although Israel does not use the word “annexation,” this is what everyone else accurately calls it. Indeed, Israeli leaders have repeatedly and emphatically declared that Israel’s incorporation of East Jerusalem is irreversible and constitutes an imposition of final terms. So even limiting our purview to annexation and not to other violations of territorial integrity, it is not true that Russia’s grabbing of Crimea is a challenge we had not had to deal with in the previous 70 years.

The rest of the West Bank is under Israeli occupation (although Israel, again for its own reasons, eschews that term and instead speaks of “disputed territory”). That occupation has now lasted 47 years. It has been accompanied by other elements of an imposition of finality, most notably the Israeli settlement program. How long does it take, and how many facts need to be created on the ground, for occupations, which “tend to be temporary,” to become something else? And what has the international community done in response?

Meanwhile, there is still the question of what policies toward Putin’s Russia, in the wake of the Crimean affair, would be most conducive to international peace, stability, and order. Rabkin asks, “What’s happened in the past few months to suggest that Putin has only a very limited appetite for Russian expansion?” Although new events could suddenly prove any of us wrong, the answer to that question as of this writing is, “He hasn’t made any moves to seize any more territory, either in Ukraine or elsewhere.” He has not made any such moves even though dissidents in eastern Ukraine have staged an armed rebellion and more recently have come under heavy pressure from a revived Ukrainian military. All the indications so far are that Putin really does see Crimea as sui generis—and right now Moscow has its hands full in establishing an effective administration in Crimea that will not make more residents of the peninsula, including ethnic Russians, regret that the annexation ever took place.     


Rabkin: Angelo Codevilla seems to think borders have no claim to respect unless they are “inherently right.” By this logic, we should all feel indulgent toward looting, so long as the existing distribution of private property is less than inherently right.

Meanwhile, Codevilla denies there really has been any firm rule against annexation over the past 69 years. But he cites only one counter-example: Israel, he says, annexed the Golan Heights. In fact, Israel has only said it will apply its own law on the Golan. It has not asserted that the Golan is a formal, let alone an irrevocable, part of Israeli territory. Since the early 1990s, Israeli leaders have repeatedly entered into negotiations with the Syrian government—or with U.S. secretaries of state, shuttling between Damascus and Jerusalem—to work out terms on which the Golan might be returned to Syria.

Codevilla might have cited better examples. Communist China annexed Tibet in 1951. North Vietnam annexed South Vietnam in 1976. Neither of the annexing states belonged to the U.N. at the time, however, nor did the annexed territories belong to a U.N. member state. India (which was a U.N. member at the time) annexed the Portuguese colony of Goa in 1961. Most U.N. members regarded the seizure as an acceptable act of “decolonization,” since Goa was not an integral component of Portugal. The Crimean annexation—of contiguous territory of a U.N. member state—remains unique.

Codevilla says the prevalence of the anti-annexation norm did not depend on the U.N. I don’t think the rule was upheld by vigilant action of the Security Council; the Security Council doesn’t do vigilant action. I do think the prominent placement of the rule in the U.N. Charter helped to entrench it in international opinion. Contrary to what Codevilla asserts, international law is not just a network of treaties. It has always had a large element of custom and moral consensus, regarding what is permissible and not permissible for civilized states. (See Grotius, Vattel, Kent, Wheaton, and other classic treatise writers.) On Codevilla’s view of international law—as limited to positive instruments, which every signatory interprets as it pleases—there seems no explanation for the absence of annexations among U.N. member states for so many decades. He does not offer any explanation of his own.

My view—that international opinion played an important role—reminds Codevilla of a speech by Elihu Root. I don’t see why it is discreditable to be associated with Theodore Roosevelt’s secretary of war. Just a few years after Root gave that Peace Prize speech, he began urging American “preparedness” for joining the war against German aggression. I would say—as I think Root meant to say—that basic standards of international conduct reflect public opinion in democratic nations, at least so far as those nations are prepared to insist that other nations respect those standards. Even during the Cold War, the Soviet Union dominated its neighbors but did not annex them. So I still think it is a very dangerous precedent to allow today’s Russia to defy the norm against annexation.

Paul Pillar prefers to talk about the Middle East. Or rather, about one particular country in that strife-torn region. Arab ambassadors used to claim that nothing could be done about any problem in the Middle East until Israel returned all occupied territories. Pillar does them one better by suggesting we can’t even think about Eastern Europe until we deal with Israel. The comparison would have more point if Ukraine had refused to have diplomatic relations with Russia for decades before the current crisis; if Ukraine had aligned itself with other powers avowing their determination to drive Russians out of Europe; if Ukraine harbored terrorists who regularly launched attacks against Russia.

But let us stipulate that the conflicts surrounding Israel and its neighbors are complicated and deep-rooted. There was no peace between Israel and its neighbors even before 1967. There was no agreement on the proper borders of the Jewish state because there was no agreement that Israel had any claim to exist at all.

Surely the dispute between Russia and Ukraine is much simpler. Russia agreed to Ukraine’s existence as a sovereign state in 1991. Russia did not dispute the established boundary with Ukraine. It did not dispute that Crimea was a part of Ukraine. Crimea changed hands only when Russia sent special forces to seize strategic installations in Crimea earlier this year, then organized an unlawful and rigged referendum, then ratified the result with a unilateral annexation.

Pillar offers the reassuring thought that Putin has behaved well since then. Pillar seems to have amended the international norm from “no annexation” to “no more than one annexation.” That version seems much more open to the Codevilla Corollary: no annexation—unless the annexing power thinks it consistent with its own unique view of international law.

In fact, Russian nationalists remain in control of the largest cities in eastern Ukraine. That could not have happened without tacit encouragement and material assistance from Moscow. Why is it we think there won’t be a second annexation?

Meanwhile, China’s neighbors don’t seem at all reassured by our response to the Russian seizure of Crimea. And China doesn’t seem at all sobered. There really are consequences when we shrug off the most basic international norms.


Codevilla: Jeremy Rabkin pretends I “think borders have no claim to respect unless they are ‘inherently right.’” But I neither said nor implied any such thing. On the contrary, I had written: “The world is full of arbitrary borders. No law guarantees them.” He, not I, wrote that the American people (and the rest of the world) thinks that borders are something other than “different priorities” or “arbitrary assertions.”

Rabkin pretends that Israel’s annexation of the Golan for all practical purposes is negated by its openness perhaps to trading it for something more valuable. Strange. But it is not as strange as his pretense that the annexation of South Vietnam by North Vietnam and of Goa by India, though somehow more annexation-like than Israel’s, show that the Crimean annexation is unique. Syria eliminated Lebanon’s independence and territorial integrity a long time ago, in all but words. In all these cases, plus South Ossetia and Abkhazia, the power of the dispossessor was greater than that of the dispossessed, all of which matters more than any verbiage which anyone chooses to attach to the event.

Rabkin pretends that “the prominent placement of the rule [regarding the territorial integrity of member states] in the U.N. Charter helped to entrench it in international opinion” and that something like international opinion exists and has power aside from the decisions of individual states. He offers zero evidence of any instance in which “international opinion” has ever acted.

Properly, Rabkin agrees with my observation that his views on international public opinion follow those that Elihu Root expressed so prototypically in 1912. He cites Root’s service as Theodore Roosevelt’s secretary of war as an argument for the soundness of those views. He might have mentioned that Root served also as T.R.’s secretary of state, and that he was the mentor of Henry L Stimson, who also served T.R. as secretary of war, was Herbert Hoover’s secretary of state, and later Franklin Roosevelt’s secretary of war. Stimson, in turn, mentored McGeorge Bundy, who was John F. Kennedy’s national security adviser and who, in turn, mentored Anthony Lake, who served Bill Clinton in the same capacity and who helped to tutor Barack Obama in international affairs. Indeed, the notion of a powerful international public opinion is a century-old feature of the American foreign policy establishment. Nonetheless, it is pure pretense.

Rabkin notes, correctly, that international law “has always had a large element of custom and moral consensus, regarding what is permissible and not permissible for civilized states. (See Grotius, Vattel, Kent, Wheaton, and other classic treatise writers.)” He might have added Mably and Pufendorf. But those admirable authors’ notion of civilization’s moral consensus had nothing to do with contemporary notions of international law. For them, international order was based on sovereignty and honor. The partitions of Poland fit within their moral order. As did slavery. Dissimulation, however, did not. They would have scoffed at the United Nations as an immoral pretense. As all of us should.

Back to Russia and Ukraine. It seems that Barack Obama expressed the moral consensus of the world’s leaders when, in response to Russia’s involvement in the destruction of the MH 17 airliner flying over Ukraine in accordance with International Air Transport Association rules (IATA is under the U.N.) he stated: “It looks like it may be a terrible tragedy.” And. “This certainly will be a wake-up call for Europe and the world that there are consequences to an escalating conflict in eastern Ukraine.” Would anyone take bets on how the moral consensus of the world embodied in the United Nations will deal with these consequences?


Pillar: We could debate about the substance of conflicts in the Middle East, but that probably would not advance this discussion. Old complaints about who doesn't want to have diplomatic relations with whom or who allegedly wanted to drive someone else off the continent are out of date, to put it gently, in a world in which the entire Arab League has been on record for more than a decade in accepting full relations with, and full peace with, Israel if the Palestinian problem is resolved, and the Palestinians themselves got to that position earlier than that.

My reference to the Israeli military conquests was intended to illustrate the point that legal labels or forms, or propagandistic claims or terminology, that conquerors sometimes apply to conquered territory do not always conform to empirical reality. Professor Rabkin has not explicitly addressed that point, although he implicitly does with regard to my, and Angelo Codevilla's, example of the Golan Heights. The conquest of that territory occurred 47 years ago. Israel applies its domestic law to the territory. The Druze who still live there are a small fraction of the pre-conquest residents of the Golan. The rest of those residents were driven out or fled during the 1967 war, after which Israel destroyed what remained of their villages. The Druze who stayed (they have been offered Israeli citizenship) are now matched or exceeded in number by Israeli settlers. The current Israeli prime minister, referring to one of the largest of the settlements, has spoken admiringly of it as “a thriving city in the Land of Israel.” The current Israeli foreign minister has said that “the Golan is part and parcel with Israel” and that Syria must “recognize that just as it relinquished its dream of a greater Syria that controls Lebanon...it will have to relinquish its ultimate demand regarding the Golan Heights.” How many more years will have to go by before we call a spade a spade, and we call an annexation an annexation?

What supposedly has been, except for Crimea, a universally observed no-annexation norm turns out to be more limited and circumscribed, and perhaps has become more limited in the course of this discussion. In his most recent comment Rabkin says he is referring only to annexation of “contiguous territory of a U.N. member state”—but as the Golan example illustrates, even by that more limited standard the norm had been breached. More generally, we perhaps are expected to overlook other breaches in certain regions where conflicts “are complicated and deep-rooted.”

By contrast, according to Rabkin, the Crimea case is “much simpler.” That case involves the extraordinary circumstance of one large state suddenly fracturing into 15 new states, with previous internal line-drawing—which involved Stalin's whims as well as Khrushchev's later “gift” to his birthplace—unexpectedly becoming the basis for international boundaries. It involves Russia's prior longstanding—one should say “deep-rooted”—ties to Crimea. It involves that 1994 security assurance memorandum, which was negotiated when Russia itself was still beset by the economic and political disarray of the post-breakup Yeltsin years and probably could not have been expected to foresee whatever might become the basis for future claims or complaints. It involves nuclear weapons; getting Ukraine (and Belarus and Kazakhstan) to give up the Soviet nuclear weapons that had come into their possession when the USSR broke up was probably the most important consideration for U.S. policymakers at the time in negotiating such memoranda. (Given later events, we probably should be grateful that the statesmen of two decades ago focused on that issue and successfully resolved it.) And the case involves all the features of the larger Ukrainian crisis over the past year, including a breakdown of order in the capital, a street uprising overthrowing a duly elected president, and an unelected interim government taking measures that many Russian-speaking citizens of Ukraine unsurprisingly found threatening. If that's simple, I wonder what complicated looks like.

Norms of international behavior that are in the interest of peace and stability, including ones enshrined in international law, are indeed very important. We ought to be concerned when such norms are not observed. We are not entitled, however, to define norms by drawing lines in such a manner that certain cases we may prefer to view one way are included and certain other cases we prefer to view differently are not.


Rabkin: Professors have a way of wandering from the main point. So let me resist the temptation to dispute the subtleties of Pufendorfian doctrine with Angelo Codevillo or the basic facts in the Israel-Arab conflicts with Paul Pillar. I want to focus on what I consider the two main issues in these exchanges.

The first is whether there really is a general rule against unilateral annexation. The overall pattern is very clear: states annexed neighboring territories very commonly before 1945 but have done so very rarely since then. I don’t think it is important whether language in the U.N. Charter did or didn’t help to reinforce this pattern. I don’t think it is important whether we agree that particular exceptions to the general pattern were or were not, in each case, justifiable. I certainly don’t think the fact that the international community has accommodated a few exceptions means there is no rule.

In domestic law, reasonable people (including reasonable judges and jurors) disagree about when pleas of self-defense should be accepted and when pleas of temporary insanity should be accepted. But dispute about the exceptions doesn’t negate general consensus on the general rule. Preserving that consensus on the general rule remains very important to social stability, because police can’t be everywhere.

In international affairs, there is no counterpart to domestic police and courts. In my view, that doesn’t make moral agreement less important but more so.

I think most states have been reluctant to engage in annexations in recent decades because they feared the international reaction. So I think it is dangerous when the international community fails to react to a unilateral annexation—and most dangerous when there are no plausible justifications on offer for that ultimate act of aggression.

That brings me to the second main point. We need to care about preserving this rule not so much because it serves some fundamental principle of justice as because it protects a basic structure of order in world affairs. It matters whether Russia did or did not have any plausible basis for annexing Crimea because that helps us gauge whether that action will or won’t likely be repeated. Whatever the merits of past annexations (India in Goa, North Vietnam against South Vietnam, even—if my interlocutors here insist—Israel in the Golan), they were one-off episodes. The annexing powers in these cases did not follow up with further annexations.

But Putin’s government has not been prepared to pocket Crimea and then live in peace with the rest of Ukraine. Instead, Moscow has continued to supply weapons and military advisors to rebels in eastern Ukraine. Last week, the Obama Administration imposed additional sanctions on Russian companies, acknowledging that Russia has continued to stir up trouble in eastern Ukraine. That was before the shooting down of the Malaysian jetliner reminded the world that Russia has been supplying advanced weaponry (and technical advisors) to “rebels” in eastern Ukraine.

All three of us agree (I take it) that what Russia is doing is deplorable. If we have a fundamental difference it is about whether we should react to such deplorable behaviors on a case-by-case basis or whether we should draw some basic lines that help the world stigmatize particular kinds of international misconduct as altogether unacceptable. Subsequent events, it seems to me, confirm that we should have made more of a fuss about the annexation of Crimea back in March. We should now be making more of a fuss about Russia’s continuing assault on the political independence and territorial integrity of Ukraine.

To excuse Russia’s conduct—or relativize it, by comparing it with other, more complex cases—is to buy into the fundamental premise of Putin’s policy: that anything which was once part of the USSR is fair game for domination by today’s Russia. It’s a doctrine that is completely incompatible with any plausible version of international law. I think it is worth trying to preserve some agreement on a plausible vision of international law, precisely to repudiate such eruptions of lawless aggression in today’s world.