{"id":22135,"date":"2024-05-02T08:00:04","date_gmt":"2024-05-02T06:00:04","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=22135"},"modified":"2024-05-04T15:57:28","modified_gmt":"2024-05-04T13:57:28","slug":"in-the-tenth-year-of-the-war","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/in-the-tenth-year-of-the-war\/","title":{"rendered":"In the Tenth Year of the War"},"content":{"rendered":"

In 2014, I was invited to write a post on Ukraine. Everyone understood Ukraine\u2019s crisis mattered, and wouldn\u2019t be short, so I<\/a> wrote<\/a> three<\/a>. Instead of discussing doctrinal unniceties, I made three claims: Our global system is polycentric, not in a good way; its legalism is seriously mismatched with a realist understanding of power; and a stable solution \u2013 that could integrate Ukraine into Western structures \u2013 would include a territorial deal. My larger warning was that our system\u2019s core legal commitments were decaying.<\/p>\n

How do those arguments look ten years on? Russia\u2019s war is still illegal \u2013 continuity so clear that we refer to 2022 as the \u2018full-scale invasion.\u2019 And while we haven\u2019t yet dislodged Russia, widespread condemnation arguably reinforces our shared legal order<\/a> \u2013 as Harold Koh tirelessly<\/a> reminds<\/a> us<\/a>, Russia\u2019s short-term game is force, but our long game is law. But a different reading is possible, as I argued a decade ago: The international order is much less \u2018legal\u2019 than such optimism supposes. The real \u2018long game\u2019 is as old as the Greeks, who knew something about relying on fictions.<\/p>\n

On the Beach at Melos<\/strong><\/p>\n

Ten years into the Peloponnesian War, the contesting powers have signed a treaty. No one believes it \u2013 we\u2019d call it stalemate \u2013 and they never stop fighting, until renewed full-scale conflagration. Decades more, and even then not really ended: After Sparta\u2019s triumph, realignment; Thebes rising, Athen\u2019s Long Walls rebuilt, Leuctra \u2013 a new order. Not for long: over the horizon, Philip marches.<\/p>\n

But there\u2019s a lesson in that unending war:<\/p>\n

You know as well as we do that right, as the world goes, is only in question between equal power, while the strong do what they can and the weak suffer what they must<\/em>.<\/p><\/blockquote>\n

From Thucydides\u2019 Melian Dialogue. The besieged islanders of Melos appeal to justice, providence, anything to lift the hovering sword from their throats. The Athenians do not relent, and when the siege ends \u2013 for the Melians do not listen \u2013 Athens kills or enslaves them all. It is horrible. But what shocks the Athenians is the Melians\u2019 lack of realism: They do not see how the world goes and act accordingly. In that shock \u2013 the Melians\u2019 irrealism, and the blood-soaked clarity of our democratic forebears \u2013 we recognize one of the most powerful ideas ever expressed about order. The line about the strong is much quoted. But look what comes before: right is a question for those with equal power. This is a theory of law and justice. And a universal truth: \u201cYou know as well as we do.\u201d They are speaking to us.<\/p>\n

A Newer Shore<\/strong><\/p>\n

Such thinking has a modern<\/a> pedigree<\/a>: Carr, Kennan, Morgenthau, Kissinger. The Concert of Europe was such a theory: realist, tragic in conception, skeptical of law. Modern internationalists imagine power as a construct; for realists, it constitutes human relations \u2013 not a preference, but an apprehension. Such views are at low ebb in the present war, tarred as Putinverst\u00e4ndnis<\/em>. But unpopular is not irrelevant \u2013 if such theories are right, they will reassert themselves.<\/p>\n

Things are different, we say. We are not ancient Greeks, nor 19th century Europeans. We have institutions, processes, a legal order \u2013 that serves American interests, yes, but law-based and aiming at justice. But that law is premised upon sovereign equality \u2013 the fiction that states have equal rights. \u2018As the world goes,\u2019 they don\u2019t, and whenever the fiction is called upon to do real work, it fails, or apologetically aligns with the logic of power.<\/p>\n

Doing What We Can \u2013 The Order We Actually Have<\/strong><\/p>\n

\u201cYou cannot veto our voices,\u201d the US Ambassador declared<\/a> when the Security Council debated Russia\u2019s invasion: rhetorical cover, since Russia could<\/em> veto the resolution. In the General Assembly, 141 countries voted<\/a> to deplore Russian aggression and call for withdrawal from Ukraine; later resolutions condemned annexation. Dramatic \u2013 and non-binding: UN mechanisms cannot be deployed; not a flaw, a design. Thus the turn to courts, a host of cases demonstrating the impotence of global judicialism: cases brought under CERD<\/a> for lack of better jurisdiction; performative genocide<\/a> cases; child abduction at the ICC<\/a>. None deterring Russia: enforcement will depend on conditions disconnected from abstract legal merit.<\/p>\n

A decade of lawfare has demonstrated the deep shallowness of our system\u2019s Melian view of equality before law. Without shared identity and interests \u2013 and balanced power \u2013 few matters are \u2018justiciable,\u2019 and treating them as juridical fails. Indeed, the more effective a remedy, the less likely it is to be, well, legal: \u00a0Perhaps we\u2019ll get a special aggression tribunal, but for this conflict only: No<\/a> serious<\/a> proposal<\/a> imagines a court of general<\/em> jurisdiction. That\u2019s order, but it\u2019s barely law.<\/p>\n

International law has long made a wise-seeming virtue of institutional thinness and formal equality. We smile at those who still ask, with Austin<\/a>, is it really law? Of course it\u2019s law, which should just direct us to the adjective: \u2018international\u2019 does all the work \u2013 or rather doesn\u2019t. International society\u2019s anarchic polycentrism \u2013 its lack of hierarchical decision-making and enforcement \u2013 has consequences for what its law can do. What, after all, have been the most effective responses to Russia? Munitions and sanctions. International legal institutions \u2013 security mechanisms \u2013 aren\u2019t needed for those. Coordination is, but everything effectively<\/em> countering Russia could be done in a world of 19th century institutional capacity. (Hathaway and Shapiro<\/a> argue that sanctions made little sense in the pre-UN era. Even accepting their argument, it is a normative shift, not institutional architecture, that makes sanctions conceivable. Sanctions don\u2019t require the UN.) In 1979, Henkin wrote<\/a> that \u201cnations observe international law in unimportant matters but not in important ones.\u201d He imagined the important matters \u2013 wars \u2013 becoming rarer. Still, the inevitable conclusion: Law isn\u2019t so important, if you are concerned with global security.<\/p>\n

Questions of Right, as the World Goes<\/strong><\/p>\n

On important matters, we have a system of norms and nothing else. So it\u2019s troubling to observe Russia violating those norms in a context. Interventions by major powers have increased dramatically: Over 80 percent of America\u2019s post-World War II interventions have occurred since 1989<\/a>, many bypassing legal institutions and breaking normative limits, as in Kosovo and Iraq. Russia\u2019s invasion intensifies and accelerates that trend.<\/p>\n

So reaction to Russia is not simply response to violation, but violation by the wrong actor. This is not to excuse, merely describe. After all, what did that General Assembly vote mean, really? 141 means 50 states \u2013 China, India \u2013 not<\/em> upholding the foundational pillars of our global order. Even Russian defeat would not reassert law in abstracto<\/em>, but shore up a particular hegemonic position. In the short run: How long can a renewed order last, if, as in the early post-Cold War, it free-rides on America\u2019s peculiarly legalized hegemony? A multipolar future will make any new American-led rules-based order ever less meaningful. Violence and power are a more compelling guide to what is happening: the decay of norms prohibiting use of force and upholding territorial integrity<\/a>. The question is if and how law will assimilate itself to the logic of power.<\/a><\/p>\n

Scythian Shores \u2013 The Next Phase of the Long Game<\/strong><\/p>\n

Ten years gone: our ships still on the beach, our men on the walls. Athenians, Spartans knew the feeling; those dodging drones in what was once Taurica and Scythia do too. We, they, naturally wonder, what might have been? We can imagine a decade spent rebuilding our ally, getting ready to \u2018de-occupy\u2019 its stolen territory, make our enemies pay, reaffirm the law<\/a>. We haven\u2019t: not enough ships, not enough shells; money that runs low and comes late<\/a>. Nor have we done what I recommended a decade ago and again before the full-scale phase<\/a> \u2013 constitutional and territorial reform so a consolidated Ukraine could join the West. If we had, where would we be now? Well, not here.<\/p>\n

But it\u2019s a long game. Those who believe in Melian principles might take heart knowing the Athenians, in their hubris, were laid low: their walls destroyed, Parthenon occupied. Perhaps they were mistaken about power and justice. But were they? It\u2019s not as if \u2018Melianism\u2019 defeated Athens, but Spartan triremes paid with Persian gold. Their error was not inhumanity, but unwillingness to make their own deal with the Great King and peace with Sparta. Anyway, when nemesis came, the Melians were already dead, their city destroyed in the 16th year of war \u2013 during the truce, as it happened \u2013 so their vindication was presumably muted.<\/p>\n

This post\u2019s title notwithstanding, this is now the 11th year of our Peloponnesian War. I know whom I would prefer to win, though I don\u2019t know what that would mean for today\u2019s Melianists \u2013 and I hesitate to say who\u2019s who. America talks like Melos, but acts like Athens. If that were just hypocrisy, there\u2019d be little to object to. But thinking<\/em> like Melos has consequences \u2013 how we fight, when we compromise, what we expect from law. Consequences too, when our unchallenged, curiously lawful imperium comes to an end.<\/p>\n

I\u2019d be happy to write again, in five years \u2013 the 16th of the war. \u2018Happy\u2019 may not be the right word, but were I to argue the same in that fast-approaching age, unhappily, it might still be true.<\/p>\n

 <\/p>\n

Thanks to Mississippi State University for the invitation to present these ideas in the Lamar Conerly Governance Lecture Series, and to Prof. Brian Shoup and Rachel Guglielmo for comments.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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