Friday, November 28, 2014

Ukraine and the Crisis of International Law

NEW YORK – Russia’s actions in Ukraine constitute a serious and dangerous violation of international law. In 1994, Ukraine agreed to give up the nuclear weapons it had inherited from the Soviet Union, in return for a solemn commitment by the United States, the United Kingdom, and Russia to protect Ukraine’s territorial integrity and sovereignty. Russia has now violated that pledge, not only harming Ukraine but also undermining the international legal framework for preventing nuclear proliferation.

Unless Russia changes course – which seems unlikely anytime soon – the global consequences are apt to be grave. The US and the European Union will impose sanctions, weakening Russia’s economy and the world economy – and stoking even more tension and nationalism. Mistakes on one side or the other could lead to violent disaster. We need only to recall the spiral of hubris and miscalculation that led to the outbreak of World War I, a century ago this year.

As frightening as the Ukraine crisis is, the more general disregard of international law in recent years must not be overlooked. Without diminishing the seriousness of Russia’s recent actions, we should note that they come in the context of repeated violations of international law by the US, the EU, and NATO. Every such violation undermines the fragile edifice of international law, and risks throwing the world into a lawless war of all against all.

The US and its allies have also launched a series of military interventions in recent years in contravention of the United Nations Charter and without the support of the UN Security Council. The US-led NATO bombing of Serbia in 1999 lacked the sanction of international law, and occurred despite the strong objections of Russia, a Serbian ally. Kosovo’s subsequent declaration of independence from Serbia, recognized by the US and most EU members, is a precedent that Russia eagerly cites for its actions in Crimea. The ironies are obvious.

The Kosovo War was followed by the US-led wars in Afghanistan and Iraq, both of which occurred without the support of the Security Council, and in the case of Iraq, despite vigorous objections within it. The results for both Afghanistan and Iraq have been utterly devastating.

NATO’s actions in Libya in 2011 to topple Muammar el-Qaddafi constituted another such violation of international law. After the Security Council approved a resolution to institute a no-fly zone and take other actions ostensibly to protect Libyan civilians, NATO used the resolution as a pretext to overthrow Qaddafi’s regime through aerial bombardment. Russia and China strenuously objected, stating then and now that NATO seriously exceeded its mandate. Libya remains unstable and violent, without an effective national government, to this day.

As Russia itself has repeatedly pointed out, US actions in Syria have been similarly illegal. When the Arab Spring protests began in early 2011, peaceful demonstrators in Syria demanded reforms. President Bashar al-Assad’s regime cracked down violently on the protesters, leading some military units to revolt. At that point, in the summer of 2011, the US began to back the military insurrection, with President Barack Obama declaring that Assad must “step aside.”

Since then, the US, Saudi Arabia, Turkey, and others have provided logistical, financial, and military support to the insurrection, in violation of Syria’s sovereignty and international law. There is no doubt that Assad has behaved cruelly, but there is also no doubt that the US-led support of the insurrection is a violation of Syria’s sovereignty, one that has contributed to an upward spiral of violence that by now has claimed more than 130,000 Syrian lives and destroyed much of the country’s cultural heritage and infrastructure.

One can add many other US actions, including drone strikes on the territory of sovereign states without their governments’ permission; covert military operations; renditions and torture of terror suspects; and massive spying by the US National Security Agency. When challenged by other countries or UN organizations, the US has brushed aside their objections.

International law itself is at a crossroads. The US, Russia, the EU, and NATO cite it when it is to their advantage and disregard it when they deem it a nuisance. Again, this is not to justify Russia’s unacceptable actions; rather, it is to add them to the sequence of actions contrary to international law.

The same problems may soon spill over into Asia. Until recently, China, Japan, and others in Asia have staunchly defended the requirement that the Security Council approve any outside military intervention in sovereign states. Recently, however, several countries in East Asia have become locked in a spiral of claims and counterclaims regarding borders, shipping lanes, and territorial rights. So far, these disputes have remained basically peaceful, but tensions are rising. We must hope that the countries of the region continue to see the great value of international law as a bulwark of sovereignty, and act accordingly.

There have long been skeptics of international law – those who believe that it can never prevail over the national interests of major powers, and that maintaining a balance of power among competitors is all that really can be done to keep the peace. From this perspective, Russia’s actions in the Crimea are simply the actions of a great power asserting its prerogatives.

Yet such a world is profoundly and unnecessarily dangerous. We have learned time and again that there is no such thing as a true “balance of power.” There are always imbalances and destabilizing power shifts. Without some scaffolding of law, open conflict is all too likely.

This is especially true today, as countries jostle for oil and other vital resources. It is no coincidence that most of the deadly wars of recent years have taken place in regions rich in valuable and contested natural resources.

As we look back in this centennial year toward the outbreak of WWI, we see again and again that the only possible route to safety is international law, upheld by the United Nations and respected on all sides. Yes, it sounds naive, but no one has to look back to see the naiveté of the belief that great-power politics will preserve peace and ensure humanity’s survival.

In the Ukraine crisis, the Security Council should help to find a negotiated solution that preserves Ukraine’s sovereignty and territorial integrity. That will not happen soon, but the UN should persevere, looking for a breakthrough at a later date. And, just as the US turns to the Security Council in this case, so it should hold itself accountable to international law as well, helping to build a bulwark against dangerous global instability.

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    1. CommentedRenata Davidson

      I fully agree with Carl Buzawa comment. "The UN's security Council is stymied by the Permanent member's veto power". International Law is not working. I hope, we don't need another world war to fix it.

    2. CommentedCarl Buzawa

      Professor Sachs-The problem you do point out , is that ultimately no major power follows international law when it believes its core national interests are at stake. This obviously hurts respect for international law

      The problem you don't point out is that international institutions are , at best a mixed bag. The World Court by and large works as it is supposed to and its decisions tend to be followed. The UN's security Council is stymied by the Permanent member's veto power-whether in regard to the US vetoing any meaningful sanctions on Israel or Russia's efforts on behalf of Syria etc etc. . Meantime the General Assembly gives an equal vote to countries like Togo as they do to the US, China or Russia--and it is an open secret that many of the smaller countries vote on issues based on foreign aid or "gifts" to leaders. Even such institutions like UNESCO, whose aims are pure, give leadership positions to vicious dictatorships like Syria or Iran just because they represent voting blocs. Under those circumstances it is impossible to see a serious national world leader with a needed military give any real regard to international law in the field of security. Instead bi lateral treaties or mutual defense pacts are the only things that seem to matter.
      Hence International law is vital for commerce but almost irrelevant for the practice of security.
      That's unfortunate, but reality nonetheless.

      I say this with regret as a lawyer with a lot of international experience--

    3. CommentedMD MORTAZA

      An excellent and timely realization from Jeffrey Sachs. I remember my debate on the necessity of the UN Security Council with a Chinese friend back in 2005, when he mentioned that, just like a country needs police force to ensure security, the world needs similar policing system, and the UN Security Council acts like that. I strongly protested his argument by saying that on what basis these countries were chosen for policing. He couldn't give a justified answer. Now i think, my friend should read this article and review his (bad) arguments. The world doesn't need a policing system which is based on their nuclear power, and itself cannot respect the international law. The world needs more responsible power to ensure its safety, and, as Jeffrey Sachs said, it should be upheld by the United Nations, not by few powerful nations.

    4. CommentedTimothy Williamson

      Jeffrey, great article. I agree. What can we do to ensure that the US seeks accoutability for itself and the rest of the world at the UN and the ICC.? These bodies need to have more authority to universally enforce accountability. How do we do it? Would it help to have an elected parlimentary assembly at the UN?

    5. CommentedDean Mitchener

      The thing here is that most normal people could read the writing on the wall....When were we going to cross the bridge of challenging the status quo? We in the west have curtailed the question for so long using all manner of smoke and mirrors. the problem is the world is now made of smoke and mirrors and folks just want answers to questions they don't understand. Global instability is a product of a lack of truthful explanation of the right to agree to disagree. Such is it with gay marriage, homosexuality, drug addiction and the various degradation of base morals and principals. There is only one road from here and its not pretty. A new base of totalitarian solutionists will rise from the ashes of near annihilation and take us closer to the abyss than we have ever been.

    6. CommentedDean Mitchener

      This is of course the basis of all normal peoples disagreement with the wests duality principal. We all want to believe we are the good guys, only....its not compatible with democracy, because democracy is not compatible with the truth of that fundamental law of might is right. to the victor go the spoils and most importantly the base of all those mentioned before.......fortune favours the bold or simply put, fortune favours those who are not lazy and that is the ultimate trick of survival. This is just nature working against nurture.

    7. CommentedEdward Ponderer

      Professor Sachs use of the term "crossroads" concerning the nature of this crisis in internal law is quite insightful, and I think should be expanded in how to see the entirety of the crises that we are presently suffering in everything from economics and water resources, down to the stability of community, family and education.

      For indeed, the Greek root of crisis is literally "opportunity" -- represented by an x-like character in the Greek alphabet, it literally is a crossroads.

      There is a very interesting film, already winning some awards just from its online presence, on just this very perspective. It had a theater premier in Los Angeles, I believe, just a few days ago, but is still available in full here:

      I would highly recommend it, because the crisis--the crossroads--in international law is just a part of the whole issue, and can never be solved except as a whole. Treating symptoms without treating the underlying disease, not only does not rid the underlying disease, but gives it a chance to further fester and make itself know through ever-new aspects of malady.

    8. CommentedGerry Hofman

      Thank you very much Jeffrey for spelling all this out so clearly and so concise, especially since so many of the articles here seem to be aimed at belittling or denying many of the points you have made. And he is right, had we taken International Law more seriously a great deal of suffering could already have been avoided, and some current practices would have to be abandoned. The voices of those who want to have things their own way seem to be aimed mostly at vilifying their opponents and using force and persuasion to make the international community ignore their International law. The vilifying process is already underway on both sides with Hillary Clinton comparing Putin to Hitler, and the Russians comparing the Kiev revolutionaries to fascists. To prevent unilateral action by Russia Europe could go and match it's army with a similar size on the other side, but in doing so might find out that they are not at all welcome in eastern Ukraine, who would much rather go over to the Russian side. Perhaps Europe needs to conduct an independent investigation there before Russia gives them another referendum, to find out what the real sentiment on the ground is.

        CommentedVidvuds Beldavs

        Dr. Hofman, what is the difference between President Putin sending Russian troops to Crimea to "protect" Russians and Fuhrer Hitler sending German troops to the Sudetenland in 1938 to "protect" Germans? In what way is Hillary Clinton's comparison wrong?

    9. CommentedZsolt Hermann

      I think the most important part of the article is this one:
      "...International law itself is at a crossroads. The US, Russia, the EU, and NATO cite it when it is to their advantage and disregard it when they deem it a nuisance..."
      We are indeed at crossroads.
      We usually look at a "crisis" as a negative event, although if analyzed properly they could provide a stepping stone for a next, better level on our evolution.
      We could have done the same with the economical, financial crisis which is still ongoing, but so far we wasted the chances as we are not willing to make the required fundamental changes.
      Now again, although the recent events surrounding the Ukraine open up very dangerous possibilities, they provide the space for scrutiny, where we as a global, human community could decide how we want to progress.
      The situation is unprecedented, we simply have no experience we can call upon.
      Our world has never been globally interconnected and so interdependent that with every move, action or even thought we immediately influence the whole system. The Ukrainian crisis shows how much the neighboring or even further located countries depend on each other, how the bitter US- Russia relationships could spill over to the Middle East, Far East and so on. The world economy is also completely interlinked and any country "going down" would pull many or most others with them.
      Whatever revision we make for a new "International Law" has to take into consideration the natural of the integral system we evolved into.
      In an integral system there are only cogwheels, cells, organs working mutually, closely together. There cannot be a "leader", "policeman", or a "broker".
      Every decision has to be taken in an equal and mutual manner, around well moderated and organized round table discussion where each and every directly and indirectly involved parties have to be invited.
      We never truly tried this before, we never tried to rise above personal or even national opinions, personal or national interests, trying to find a common, mutual point we can build on.
      But before we did not have the motivation for it.
      Today we still hate each other, we still would like to grab what the others have and even kill them. But at the same time we completely, utterly depend on those we want to kill or exploit.
      We are chained together with unbreakable ties on multiple levels.
      If we want to avoid a global explosion from this unprecedented, paradoxical situation, we have no other choice but we have to learn, mutually together, how to cooperate, negotiate, make decisions in a global, integral system.

    10. CommentedJay Tkachuk

      I agree with many of the authors points, and disagree with some. One thing is clear, however - international law is the only mechanism preventing another outbreak of violence on a global scale. As such, this mechanism must be maintained and updated when necessary. For instance, the UN Security Council has become clearly dysfunctional, since a lot of the actions it is supposed to mitigate are caused by the members of the council. I would propose a mechanism that would temporarily exclude any voting by initiators of conflict. It's a limited measure, as it would not address vested interests such as those of Russia in Syria and Iran, or of the US in Middle East, Israel, etc., but in cases of clear aggression it would allow the council to operate, instead of simply stalling.

    11. CommentedVidvuds Beldavs

      While I agree with much of Sachs’s article there are multiple points where I do not agree with him. There is a major distinction between the disaster that was the invasion and occupation of Iraq and the conflict in Afghanistan. The US initially had support for action in the latter even from Iran. Subsequently both China and Russia supported US action there and now both are pursuing economic objectives in Afghanistan. I read Strobe Talbott’s take on Putin, which primarily dealt with Kosovo. I believe Talbott is correct. It is not merely that there were many killed in Kosovo, the genocide against the Kosovars was a reality. While not a black and white situation in international law, the Clinton administration was severely criticized for its inaction in the face of the killing. US and NATO action was supported by the EU. I was extremely opposed to the handling of the Libyan conflict. Russia had agreed to a no fly zone and Russia was profoundly snubbed by the foreign policy leadership of Clinton. Obama was leading from behind on that one, while Clinton led the charge. I believe there are indications that Putin has a profound personal animosity towards Clinton and would do his best to affect the US election in 2016 to prevent her being elected. I see the foreign policy successes of Kerry as part of this process. Syria appears to be a clear example of Russian meddling more than US meddling. Assad appeared willing to negotiate with the reasonable demonstrators early in the game, before the civil war. As in Kiev so in Syria provocateurs sabotaged the process. Whether they are FSB, GRU or some unknown branch of Russian intelligence does not matter. The finger prints seem discernable much as the apartment bombings in Russia that were blamed on Chechens.

      I believe that Russia has been genuine in contributing to the strengthening of the international system. After all, its current wealth derives from this system. However, Iraq and Libya both showed the US acting against the interests of the international community. Perhaps the US leadership was sincere in its attempts to rid the world of despots, but particularly in the case of Libya, American action resulted in a disaster. The country with the highest literacy rate, best health care, relatively stable society was destabilized affecting the development of the entire continent. I believe one part of the calculations regarding Ukraine was that another disaster was on its way. If Russia stops with Crimea, and stops the provocation of the situation in Eastern Ukraine, there will be a chance. It is encouraging that Ivanov met with the foreign minister of Ukraine in Kiev. The US left a failed state in Afghanistan when the Soviet Union fell and American support for Afghanistan precipitously stopped. The US has now paid its dues, which I believe is acknowledged by countries in the region, and there is a chance for Afghanistan to emerge. The Chinese, Russians and Iranians will move in, but will not further destabilize the government. So the Obama policy will have contributed to a long term success.

    12. CommentedEdward Campbell

      Any Anglophone defenders of American hypocrisy ever hear of the Treaty of Guadalupe-Hidalgo? It codified US expropriation of Texas, California, New Mexico, Arizona, Nevada, Utah, and parts of Wyoming and Colorado - at the end of the Mexican War in 1848.

      All Hispanic families know the history here in a region that still often approaches a population that is 50% Spanish-speaking. Organizations still exist albeit minimal dedicated to restoring that theft to Hispanic Americans if not to Mexico.

      Please, save the hypocrisy for church - like every other American.

    13. CommentedPaul Daley

      Everything in this article is right except the remedy. It will be very difficult to construct a system of international law so long as the United States is such an out-sized player and its national security policy is so easily influenced by ethic lobbies. It might help if we could ask our representatives to recuse themselves from issues on which their judgment has been compromised, or at least ask them to identify potential conflicts of interest before they vote or act on individual issues. But ethics laws on those lines in the public sphere are probably more than we can hope for

    14. Commentedhari naidu

      In the long term, Crimea is more than a name attributed to a region; it is all about Vladimir Putin's diplomatic policy, Russia's international profile, and its internal image.
      The Crimean peninsula has always been a political hot potato, and a regular centre of historical disputes. Russian President Vladimir Putin's speech in the Kremlin on March 18 added a new chapter to Crimea's history. Putin's speech was not so much a statement of his position, as a political declaration on how Russia will revive under his rule.
      In addition to its general strategic importance, the Crimean peninsula is the military port for the Black Sea Fleet, and therefore the key pivot by which Russia controls the Black Sea and access to the Mediterranean Sea. Crimea is a touchstone of the relationship between Russia and Ukraine, which itself forms a significant part of Russian history. During the period when Russia had a warm relationship with Ukraine, Russia’s garrison in Crimea was considered as a link between the two countries. But in this dispute Russia cannot respect the wishes and interests of both Ukraine and Crimea. Therefore, in the face of huge pressure from the West, Putin has made his choice of sides. The result of the Crimean referendum has placed the U.S and Europe in a difficult position.
      It is clear that Russia's revival will not proceed without difficulties and challenges. Putin's swift response to the Ukrainian political handover shows how close the Ukrainian issue comes to the core of Russia’s vital interests. Crimea's new union with Russia can be considered as an important declaration that Russia will act to defend what it perceives to be its interests and its security.
      It seems that in Putin's eyes, Russia's revival must be ready to take on any challenge to its security interests from its neighbors, and especially from Europe. In cases such as Georgia and Ukraine, Russia's 21st century renaissance has already faced challenges from countries of the former Soviet Union. The West recognizes Putin as a powerful politician, but neither the U.S. nor the Western European countries can know exactly what strategies and measures he has in mind. Crimea's new union with Russia marks the beginning of a new game between Russia, the U.S. and Europe.
      In the short term, no party wants to take any action that might trigger armed conflict; in the long term Crimea may prove to be much more than a territorial annexation by Russia - it is also a manifestation of Putin's diplomatic strategy and a symbol of the country's political dignity and successful image.
      The article is edited and translated from 《克里米亚入俄:一份俄罗斯复兴宣言?》, source: The Beijing News, author: Shang Han

    15. CommentedJorge Simao

      This article is silly and naive.
      The rules of the law (international or otherwise), are only applicable until the entity responsible to preserve it in a particular jurisdiction comply with it. Once the enforcer of the law actively and repeatedly violates the framework that is set to protected and impose in the first of place, the rules change - from the rule of law to the rules of war. Failing to have this is mind is denying people the right to fight for there lives - which nobody tolerates. War exists my friend - because the framework of law becomes broken.

    16. CommentedConfuciusmaster lee


    17. CommentedBert Kerkhof

      International law conforms to great minds and actors who lead the world in development from poverty to prosperity. Above all : if development is without victims, it is sheer luck.

    18. CommentedBert Kerkhof

      Exploitation of mineral resources also generate rapid imbalances and stressed growth especially if populations benefits from the yield are poor in the area where richness make fossil winnings.

    19. CommentedBert Kerkhof

      Study of aviation disaster such as the MH370 and detailed news of the various problems that led to it, provides the necessary insights for an extensive area. Accurate diagnosis gives concise, summary discussion material for various security experts in many fields. Precise figure out the causes of the disaster prevents the need for privacy-sensitive research on Malaysia Indonesia Vietnam Iran grounds and irritating drones. Thus safe business and relations improve.

    20. CommentedBert Kerkhof

      Prickly hits are felt in long-distance battle where people are strangers against each other. Around the Brussels Days this weekend it is heard that one want to promote peace in Syria by giving some autonomy to local boards. Talk about demarcation lines is premature, if one has a daily local business scope instead of hateful mission between regions, rests on the street is achieved.

    21. CommentedBert Kerkhof

      Military visibility of Nato in eastern Ukraine : in the spirit and letter of the Charter of the United Nations, freedom of modern people in Ukraine and free trade between Ukraine and the world deserves a chance. In the international community a role for Russia is discussed in maintaining peace in Syria and the rest of the Middle East. This justifies some Russian defense for the Black Sea. It is wrong that the Russian military looks to Ukraine in the north. Establishment of a no-fly zone for Russian planes above Ukraine by United Nations HQ is desired.

    22. CommentedBert Kerkhof

      The human development of Ukraine is at a high level and the billion dollar credit that John Kerry brings to Maidan square, speaks American confidence. The confidence that Europe has with Ukraine is even greater. Europe has 15 times more trade with Russia than the U.S. has. Trade sanctions of U.S. havoks against Russia, however european sentiment will prevail. Germany supports the liberal change in Ukraine and Dutch diplomacy can help to restore confidence.

    23. CommentedBert Kerkhof

      Between 1961 and 1992 were nuclear warheads at the Havelterberg in Drenthe. First for the "honest-john' rocket, later on the" lance' rocket that could carry the W70-warhead (neutron). On Christmas day there were peace actions. Tonight dutch regional television shows pictures of how 'great-power politics' was part of everyday life for people in Drenthe. The Nuclear warheads were removed 1992. But as Ukraine, Drenthe never got solemn commitment to protect its territorial sovereignty. In fact, as in Ukraine, control NATO affairs by drenth people is low considering how the issue is alive among the people.

    24. Commentedhari naidu

      Jeffery (and Solana) are reflecting on crisis of international law and its implication to de jure national sovereignty under UN Charter. (WTO) Globalization has more or less obliterated the hitherto relevance of de jure international case law as it applies to sovereign national boarders and frontiers. Example: Daily FX money market exchange - in access of $T5.0 or more - across all sovereign national frontiers.

      First, however we’ve a constitutional lawyer sitting in the WH formulating unilateral economic sanctions and drone strikes – without impunity – i.e. not sanctioned by UNSC. EU applies US trade/financial sanctions against Iran - now Russia - to support its US ally. But they’re unilateral and subject to court action, if so desired, at Hague International Court. China and India, for example, don’t support it. Putin also acknowledged their national support when speaking on Crimea to the joint session of Russian Duma in the Kremlin.

      Second, reading the tea leaves emanating from Putin’s telcalll with Rouhani (after Crimean crisis) it appears Russia is strategically planning to decouple US sanctions against Iran, in case P5+1 (NPT) nuclear negotiations don’t (finally) succeed, and built a second Basher nuclear plant…and more.

      So what is the value of unilateral sanctions? They are ultimately an expression of American Exceptionalism – power of the global hegemon - which may’ve already lost its initial value – Crimea notwithstanding.

      It’s amazing to what extent Obama is replicating GWB policies in terms of total disregard to international sovereign law (i.e. unilateralism) and undermining the UN Charter.

    25. CommentedPeter Smirniotopoulos

      Finally! Someone with the experience and common sense recognizes the 1994 treaty between the Ukraine, U.S., U.K., and Russia. Since day two of Putin's incursion into Crimea I have been screaming into the T.V. (which I do not recommend, inasmuch as it is completely unproductive), asking why not one politician, foreign policy expert or pundit has mentioned the fact that the U.S. and the U.K. are obligated by this treaty to defend the territorial boundaries of Ukraine. Other than a brief mention of the 1994 treaty by former Carter National Security Adviser Zbigniew Brzezinski (who, at the time could not recall the exact date of the treaty), I have heard no mentions whatsoever about this obligation. Thank you, Dr. Sachs, for once again bringing rationality and the facts to a very real and pressing crisis facing the world.

      Now if we could just get the COM (corporate-owned media) to pay attention to the fact that the U.S. has specific obligations it has to meet under the 1994 treaty. Otherwise, what sane foreign country will ever again trust the U.S. in treaty negations. And you can forget any chance of multilateral nuclear disarmament if the U.S. abandons its obligations to Ukraine under this treaty.

    26. CommentedSimon Matthew

      It's unclear to me that the arming of Syrian rebels is necessarily against international law. Is it any more than Russia's arming of Assad as he tortures his citizens. Calling him "cruel" is a bit of an understatement.