{"id":3372,"date":"2014-06-06T00:00:00","date_gmt":"2014-06-05T22:00:00","guid":{"rendered":"https:\/\/staging.voelkerrechtsblog.org\/articles\/international-laws-rule-of-five-russia-ukraine-and-the-dark-side-of-polycentrism\/"},"modified":"2020-12-11T12:27:52","modified_gmt":"2020-12-11T11:27:52","slug":"international-laws-rule-of-five-russia-ukraine-and-the-dark-side-of-polycentrism","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/international-laws-rule-of-five-russia-ukraine-and-the-dark-side-of-polycentrism\/","title":{"rendered":"International law\u2019s rule of five"},"content":{"rendered":"

In my previous post<\/a>, I looked at the obvious illegality of Russia\u2019s actions in Ukraine \u2013 and the problems with that obviousness in the pluralistic cacophony of international law. In this post, I look at who\u2019s to blame, and what\u2019s to be done: more work for diplomats, less for lawyers.<\/em><\/p>\n

Bush\u2019s Breakfast: Sow and Reap<\/strong><\/p>\n

In domestic law, we have mechanisms for final decision. The storied US Supreme Court Justice William Brennan used to ask his clerks what the most important rule in constitutional law was; then he\u2019d hold up five fingers. On a nine-justice court, five votes make anything possible; without them, nothing can be done. International law has its own Rule of Five: If you wield a Security Council veto, whatever you do is almost never illegal.<\/p>\n

<\/p>\n

There is, in other words, a certain slack latitude in international law, even in our non-aggression norm \u2013 an inclarity that is, in part, a consequence of other states\u2019 actions. For it is a rule that other powers, most especially America, have taken advantage of, in ways that only reconfirmed the non-aggression norm\u2019s shaky character. Consider Secretary of State John Kerry\u2019s recent comment on the Ukrainian crisis, uttered without irony: “You just don’t in the 21st century behave in 19th century fashion by invading another country on a completely trumped up pretext\u201d<\/a>. But there\u2019s no need to go back two centuries, or even one: Kerry, you\u2019ll recall, voted for the Iraq war before he voted against it.<\/p>\n

And as for that last century, it had its share of self-defined interventions, conducted with aplomb in the face of general outrage: The invasion of Grenada, for example: The UN General Assembly condemned that, 108 to 9; President Reagan said it \u201cdidn\u2019t upset my breakfast at all.\u201d<\/a> Bush\u2019s breakfast \u2013 and determination \u2013 were not disturbed by claims of illegality in Iraq either. Nor has it only been Republicans: In 1999, President Clinton and much of Europe bombed Serbia without UN authorization. And just last fall, President Obama boasted, accurately enough, that America got Syria to abandon chemical weapons by threatening force \u2013 something that, under the UN Charter, is equivalent to actually using force<\/a>. (That time, of course, Russia helped broker the deal.)<\/p>\n

Since the ink on the UN Charter started drying, the norm of non-aggression has been under serious conceptual and practical strain, which has only gotten worse, or at least more obvious, in recent decades. So while doctrinally there are good reasons to think the Kosovo intervention\u2019s legitimate illegality was no precedent for Crimea, as a matter of socio-politics it\u2019s obvious that recent actions by the West have widened the conceptual chasm in the global intervention norm.<\/p>\n

Western complaints aren\u2019t double-standards: they are a failure to recognize that we have been resetting the standard: The doctrinal claims of R2P, the interventions in Kosovo and especially Iraq \u2013 done without Security Council approval \u2013 have made it more plausible to take unilateral aggressive action and make implausible claims with a straight face. It\u2019s the dark side of polycentrism and law-as-conversation. The Russians have noticed that it\u2019s a Rule of Five, not One, as they proved by vetoing a Security Council resolution that would have declared the Crimean referendum illegal<\/a>. (Some will recall that, during the Kosovo crisis, a Russian-sponsored resolution to condemn NATO\u2019s action was defeated in the Council \u2013 which was seen by some as indirect authorization; I\u2019ve not heard anyone making that argument about the failed resolution on Ukraine.) Indeed, great-power interventions \u2013 whether pretextual or simply on one\u2019s own authority \u2013 happen quite often, and the most realistic legal response is: Yes they do.<\/p>\n

Five Can Play That Game. . .<\/strong><\/p>\n

Given law\u2019s indeterminacy, what\u2019s a lawyer like Obama to do? Quite understandably, the US and its European allies have recognized the liberating possibilities for policy: They\u2019ve got seats on the Security Council too, and the same structures of international law\u2019s anarchic polycentrism prevent Russia from controlling the legal discourse \u2013 no decision means, equally, no decision about Western countermoves either. So there\u2019s little Russia can do to prevent what it has condemned as Cold War tactics of a \u201cbygone era\u201d<\/a>: denunciations, moves towards diplomatic isolation, and lashings of sanctions.<\/p>\n

Little Russia could do, that is, even if those sanctions were themselves illegal. I don\u2019t think that\u2019s the case here, though that \u2013 much like Russia\u2019s invasions \u2013 is a contingent fact which shouldn\u2019t distract us from the fundamentally, irreducibly discretionary nature of the decision to apply sanctions. There are other cases \u2013 such as, say, the sanctions regime against Iran \u2013 whose legality is much more dubious, but that is no obstacle to their implementation. (In that case, their formal pedigree via the Security Council is impeccable, but the rationale is almost Crimean in its willfulness.)<\/p>\n

All to say that Russia\u2019s implausible deniability is no obstacle to a robust Western response \u2013 but that is, and should be, little solace to those who want to see a legal regime to regulate the use of force or the more existential questions of international life. What we have is polycentric, anarchic politics, claims and counter-claims \u2013 diplomacy and conversation. If you like, you can call it law.<\/p>\n

 <\/p>\n

In my next post<\/a>, I\u2019ll look at the problems with the Western legal and political response to the Crimean referendum and the question of eastern Ukraine\u2019s contested future: legal lessons for diplomats.<\/em><\/p>\n

 <\/p>\n

The author, a professor of law at <\/em>Indiana University<\/em><\/a>, Associate Director of its <\/em>Center for Constitutional Democracy<\/em><\/a>, and member of its <\/em>Russian and East European Institute<\/em><\/a>, was a 2012-13 <\/em>Alexander von Humboldt<\/em><\/a> Experienced Research Fellow in residence at the <\/em>Max Planck Institute for Comparative Public Law and International Law<\/em><\/a>. He is most recently editor of <\/em>The Milo\u0161evi\u0107 Trial \u2013 An Autopsy (Oxford University Press 2013)<\/em><\/a>, and is writing a book on secession and self-determination.<\/em><\/p>\n

 <\/p>\n

Cite as: Timothy William Waters, \u201cInternational Law\u2019s Rule of Five: Russia, Ukraine, and the Dark Side of Polycentrism<\/span>\u201d, V\u00f6lkerrechtsblog<\/em>, 6 June 2014.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

In my previous post, I looked at the obvious illegality of Russia\u2019s actions in Ukraine \u2013 and the problems with that obviousness in the pluralistic cacophony of international law. In this post, I look at who\u2019s to blame, and what\u2019s to be done: more work for diplomats, less for lawyers. Bush\u2019s Breakfast: Sow and Reap […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[3600],"article-categories":[6000],"doi":[],"class_list":["post-3372","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-timothy-william-waters","article-categories-article"],"acf":{"subline":"Russia, Ukraine, and the dark side of polycentrism"},"meta_box":{"doi":""},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/3372","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=3372"}],"version-history":[{"count":1,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/3372\/revisions"}],"predecessor-version":[{"id":11341,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/3372\/revisions\/11341"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=3372"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=3372"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=3372"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=3372"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=3372"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=3372"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}