Posted: August 12, 2014
Crimea and International Law
The thrust of Jeremy Rabkin’s “A More Dangerous World” (Spring 2014) is clear. 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 his 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 seizure of Crimea, and America’s acquiescence, happened despite a weasel-worded U.S. guarantee that it would not, Rabkin concludes: “If we don’t want to guarantee all borders everywhere…we have to decide what guarantees we do mean to keep and make that clear…. Instead, we send signals of doubt and hesitation.”
The essay’s overall relevance to his conclusion is less clear. At one point, Rabkin gives the impression that the states that joined to reverse Saddam Hussein’s conquest of Kuwait in 1990 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 United States rather than for the United Nations. 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.” Nevertheless, consensus about existing borders has been remarkable indeed.
Rabkin is unclear whether he thinks the U.N. Charter’s guarantee of its members’ territorial integrity has any meaning. Although he notes that this guarantee follows a similar one made by the League of Nations, which turned out to be a mockery, he then seems to suggest that Western acquiescence in Russia’s annexation of Crimea in violation of the Charter is due in part to Vladimir Putin being less fearsome 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.
Next, Rabkin mixes two facts that do not seem to be 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, because “pacta sunt servanda” (keep your promises) is the one solid basis of international order. Without statesmen who feel honor-bound to uphold 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.”
Rabkin implies that America’s unseriousness in promising to support Ukraine’s territorial integrity is a violation of the natural law of international affairs. The world’s map is full of arbitrary borders. Because 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 doesn’t suggest that the U.S. guarantee borders or limit other major powers’ spheres of influence, and he’s certain that no other nation or combination of nations will even try.
Rabkin laments America’s “21st-century response [to international aggression]: saying that the situation is unacceptable, while tacitly accepting it and hoping for the best.” These are false hopes. A century ago, Theodore Roosevelt recommended we “speak softly and carry a big stick.” Today, in the Ukraine and around the world, the U.S. talks big and then either slinks away or, worse, engages and gets beat—guaranteeing endless war.
Angelo M. Codevilla
Jeremy Rabkin’s “A More Dangerous World” stands back from current developments involving instability in Ukraine and redirects our thinking to some broader principles. His essay is a salutary reminder that international law is much more than just background mood music as realist statesmen compete in international politics. His general point, 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. Rabkin’s more specific point is that somehow the world should have done something more to stand up to Russia when it annexed Crimea.
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. Defending 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. Rabkin recognizes this tension by devoting a section of his article to it, 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’s 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. 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—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 from self-interest. It is the “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 not just with a description of current self-interested behavior but with 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 Exhibits A and B.
Though Rabkin dismisses the many U.N. resolutions pertaining to the Israeli occupation of Palestinian territory (not only East Jerusalem), on grounds that the State of Palestine “never exercised sovereignty there,” 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.’s 1947 partition plan, 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? Geographic and historical happenstance, not different degrees of observance of international norms, explains why it wouldn’t 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 earlier this year.
Rabkin ultimately chooses to see Crimea as representative of a larger class, suggesting that its 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 and Nikita Khrushchev’s transfer of the territory’s administration from one subordinate unit of the USSR to another, 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 risks and costs of using military force to chop off other pieces of the Ukraine or of 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. 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.” Russia has much stronger interests in and around Ukraine than the West has, not to mention more immediate ways of pursuing those interests. Maybe “severe economic sanctions” would lead Putin to reconsider 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—and whatever dangers they present to the rest of the world—are to be resolved.
Paul R. Pillar
Jeremy Rabkin replies:
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 that restraint was just a matter of good luck: “The world is full of arbitrary borders…. [N]o 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. Not only don’t I think that is true, I don’t even think it is plausible. I am sure it wouldn’t persuade the American people—nor other parts of the world—to put lives at risk to fight for arbitrary assertions, even if they are our arbitrary assertions!
Paul Pillar is somewhat more nuanced, writing that “[r]espect for territorial integrity and international boundaries is indeed an important ingredient in determining whether the world will be less rather than more dangerous.” In other words, although there’s no law here, 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 too much complacency. He’s right that Russian occupation of 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: 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, too, with South Ossetia. Even if Kosovo attains international recognition, it may not be attentive to NATO promptings over time; nor South Ossetia to Russia. Independent states often go their own way.
Annexation is the imposition of final terms—it means, this territory is simply ours, fully, openly, and irrevocably. Until this year, no nation had the brazenness to cross that bright line, separating disputable intervention from outright self-aggrandizement. 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 express regret and sigh at the imperfection of international institutions. But why expect that annexations will stop there? What’s happened in the past few months to suggest that Putin has a small 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.
For more discussion of Crimea and international law with Angelo Codevilla, Paul Pillar, and Jeremy Rabkin, visit our online feature Upon Further Review at www.claremont.org/ufr.