Charges abound that Russia is violating international law, yet this does not seem to matter. Others retort that the U.S. violated international law in the past, as if this means that American governments have forever lost their right to criticize anyone else. And President Putin is throwing back some of the same arguments used in the past to justify Western intervention, such as the need to protect nationals and to save democracy. If all of this is true, than what, if anything, is the point of international law?
First, let's get the legal facts straight. It is a very clear violation of the United Nations charter to “threat[en] or use of force against the territorial integrity or political independence of any state.” So yes, Russia is violating international law. The so-called "local defense forces" are too organized and well-armed to truly be local defense forces, and in any event such forces have no right to fight or replace local police forces.
Although intervention and extraction efforts to remove nationals from threat are generally tolerated, there is no norm of intervention to protect citizens of another country that speak your language or have cultural ties to your country. The principle of "responsibility to protect," known as R2P, justifies intervention to avoid mass atrocities. But it does not justify intervention because perhaps at some point in the future there may be lawlessness in the streets. Russian agreements with Ukraine to station troops do not mean that these troops can leave the base, be reinforced without permission, mobilize and threaten to enter the fight or aid local insurgents.
Violations of international law abound. When we respond with a shrug, we contribute to the deterioration of the rule of law, a path that only leads to chaos and predation.
International law is surely too weak to stop a superpower from doing what it wants. But this does not mean that we abandon our principles or our determination to build respect for international law. What, then, is the point of international law?
There is nothing morally sacrosanct about international law. But 99 times out of 100, following international law is the prudent approach for avoiding provocation and triggering retaliation, further violence and international instability. Russia could have accomplished its most vital objectives, and been better off, if it had followed international law. International law embodies principled ideas about best practices that have been signed off by governments thinking rationally and outside of the heat of the moment.
International law creates procedures for countries to peacefully work out their differences. Proper procedure would have Russia or Ukraine’s deposed government raising concerns about instability in the United Nations Security Council. If the concerns were deemed serious, the U.N. could have authorized a multinational force of peacekeepers to ensure that nothing got out of hand. Russia could have made it clear that it expected safety and ongoing access rights for its Black Sea fleet and associated forces. Given Ukraine’s dependence on Russian energy, surely Russia could have worked out an arrangement.
If there was really a threat to ethnic Russians, Russia could have opened its borders to ethnically Russian Crimeans who wanted to emigrate. Putin could also have been part of a brokered constitutional arrangement to allow, at some point in the future, a vote on secession.
If Russia had heeded the rules of international law, any vote would be have been more credible. There would have been no international efforts to sanction Russia, which would have meant that investors in Russia would not need to worry that their assets might be seized at Putin’s whim. And the world would not think that Russia was returning to the Cold War days of intervening at will in the affairs of its neighbors. The threat of a broader war would not exist.
It really is not a surprise that the law failed to stop an extremely powerful actor from doing as he pleased. This happens all the time. Mafia bosses and drug lords regularly break the law for personal gain and to build a reputation of fear. They also use their own militias and lavish rewards on those who praise them or sit by in silence. I have seen some tweets that suggest we are better off for Russia's brutishness. At least the world now sees Putin for who he is.
Violations of law exist. But the solution is not to say, “There is no point to the law.” The right answer is that we expect more of ourselves and others.
During the Cold War, we accepted that Russia and the U.S. used force within their spheres of influence. In 1968, Russian forces invaded Prague, supposedly at the request of local politicians and supposedly to instill peace in a context of counter-revolution. The intervention is remembered for what it was, and was thrown off when local actors later could reject Russian influence. It seems absurd to say that we are better off for that violation of international law.
Times have changed. Our expectations for law-abiding behavior have only increased. This is because the alternative is really unappealing. Do we decide to go back to a time when might equals right? Do we prefer a norm that great powers can move against any country where people revolt? Do we want to justify invasion by other great powers with the claim, “Well, Russia went into the Ukraine?”
International law still defines the way forward. Legitimate governments must demand more from Russia, using non-military sanctions and multilateral institutions to pressure Russia to hew to the legal rules guiding international relations. International law is the best and really the only means for a less turbulent world. There is no alternative to demanding Russia follow the best practices defined by governments, and ratified by legislatures around the world.
This is neither a dream nor a hope. It is the only realistic way