Russia’s military intervention in Ukraine naturally prompted a lot talk about the limits of international law. Eric Posner noted: “ 1. Russia’s military intervention in Ukraine violates international law. 2. No one is going to do anything about it.” Julian Ku argued: “International law can be, and often is, a very important tool for facilitating international and transnational cooperation. But it is not doing much to resolve to Ukraine crisis, and international lawyers need to admit that.” For Ku, the current crisis supports the claims of Rationalist law-skeptics, international law works when legal requirements align with self-interest. Many others, including a good portion of my students see the failure of international law in Ukraine.
Russia’s intervention is indeed a serious blow to international law. Yet mere breach does not mean international law is epiphenomenal. The international community has condemned Russia’s action. Sanctions from the U.S. are already in effect. G7 suspended preparations for the G8 meeting in Russia. Eurozone countries seem committed to isolating Russia if a diplomatic solution cannot be found promptly even though they-especially Germany- are particularly dependent on Russia for gas and oil. All this indicates that international law is consequential. Eric Posner’s first point is correct. Russia’s intervention violates international law. But his second point seems rash. Many are doing something about it.
We would be remiss if we merely see international law as a constraint on state behavior. Limiting the scope of state action is one of law’s several functions. And in that regard, the law has failed. Yet international law also works through other channels. It shapes social expectations of appropriate behavior, mobilizes domestic and international civil society actors, imposes reputational and material costs on violators, allows for naming and shaming, and creates a discourse centered on legality and legitimacy. Russia’s intervention is a profound challenge to international law, but we should not despair. International law still matters. Peter Spiro, Chris Borgen, and Erik Voeten seem to agree.
The easy realist/rationalist critique about the irrelevance of IL in dealing with the toughest cases should at this point be obviously trite, and on its face, overwrought and wrong. Even leading (i.e. sympathetic) international lawyers acknowledge that IL is a potential constraint on actors’ conduct, but it is one among many, and not a tremendously strong one (it’s certainly no miracle worker!) I think most of us who view IL sympathetically would agree with that. That said, as you point out, IL can work in a whole host of different ways that may, directly or indirectly, pressure Russia and serve to deflate tensions over Ukraine.
Also, to claim that one harsh instance of violation (the invasion of Crimea) by a not-particularly law-abiding actor (Russia) is proof of the weakness of IL suffers from obvious selection bias on the dependent variable and neglects sober theorizing about types of states’ attitudes toward IL and the conditions under which they may or may not respect it. Realists should do better, and sophisticated rationalists have (i.e. Beth Simmons, Jim Morrow, etc.)
What you’re pointing to as evidence of IL mattering can easily be understood as evidence that those states don’t want Russia to do what it’s doing because it hurts their immediate interests. The fact that it happens to violate IL isn’t *entirely* inconsequential, but in the counterfactual world without IL (or with different norms), people wouldn’t be standing idly by any more than they are now. Most people who are outraged by Russian actions in Crimea might have some *vague* notion that it’s “illegal” and “immoral” (mostly because they’re being told it is), but so are many other things that happen day in and day out, including violations of the same norms of sovereignty and non-intervention and abuse of human rights committed by the US and allies on a somewhat regular basis. Just to give an example hot out of the oven: I am willing to wager that you that you won’t see any legal (or otherwise) repercussions to Israel’s seizure of the Iranian ship in international waters earlier today. I’ll concede that IL and norms shape the discourse surrounding the crisis in terms of legality and legitimacy, but it’s not clear that this results in anything other than more cynicism on the part of the states and peoples that witness and suffer from “illegal” and “immoral” behavior but have no hope of seeing their day in the court, so to speak.
I think that the post overestimates the extent of the international reaction to the Russian invasion, but it correctly argues that a major legal violation does not overthrow the value of international law, anymore than a spree of serial killing undermines the value of a country’s criminal code. However, because big powers rarely invade small ones, the international response to the Crimea crisis will set an important legal and political precedent. If current economic trends persist, and the number of countries with highly capable militaries expands over the next several decades, then the potential for inter-state conflict may rise, and the international reaction to events like the Russian invasion of Ukraine may have a significant impact on the decision-making process of leaders who are contemplating aggression (further thoughts here – https://veganworldpolitics.blogspot.com/2014/03/putting-crimea-crisis-in-context.html)..