International law and institutions look pretty weak now, but they will matter a lot down the road

March 2, 2014

 Ukraine’s U.N. Ambassador Yuriy Sergeyev. (John Minchillo/Associated Press)

The U.N. Security Council held a brief public meeting yesterday in which the main players could air their grievances, but no action was even contemplated. Indeed, how could we expect anything else given that Russia holds the right to veto any proposal? University of Chicago law professor Eric Posner offers a succinct summary of the international law implications of Russia’s military intervention in the Ukraine:

1. Russia’s military intervention in Ukraine violates international law.

2. No one is going to do anything about it.

The international law blog Opinio Juris tweeted an immediate response with an argument often used by defenders of the notion that international legal norms effectively define the circumstances under which force can be used:

This is not terribly persuasive. Surely we would question a domestic legal system in which a select set of powerful actors can confidently and predictably ignore legal rules while insisting that these nonetheless apply to everyone else.

What about other international organizations? Ukraine and Russia are both members of the Council of Europe, which has a parliamentary assembly and a very active human rights court but no serious capabilities or leverage to prevent military adventurism by its member states. The European Union is trying its hardest to confirm stereotypes by calling for “urgent talks,” but not until after the weekend.

The web of international legal rules and institutions to enforce international law is simply not strong enough to prevent Russia from intervening militarily in Ukraine. Yet, it would be a mistake to dismiss the role of international institutions in how the crisis will develop. Indeed, international institutions may well play a crucial role in containing the conflict and bringing about an eventual peace agreement.

The obvious starting point is NATO. NATO is built around a promise that its member states defend each other from military threats. Ukraine is not a member but the Baltic states and Poland are. Given Russia’s extremely broad assertions that it has a right to defend Russian speakers (and the Baltic states have many that are not always treated so well) the current actions constitute a threat for these states. NATO has both military and institutional resources that can reinforce its commitment to defend the Baltic states and Poland. It is likely to use those. This is, of course, one way in which a smaller conflict could erupt into a bigger one. Yet, despite all the protestations that we wrongly see Putin through Western eyes, I remain confident that a military conflict with NATO is not something he wishes to risk.

Another way in which institutions can matter is by helping to negotiate and enforce peace agreements. As Henry Farrel notes, international organizations have played a role in resolving similar conflicts and provide models for how this conflict can be managed. Leaders are already appealing to such models, which can be focal points in negotiations. Moreover, conflicts like this erode trust. International institutions can help verify the implementation of agreements, monitor elections and so on. International organizations also play a vital role in (de)legitimizing any border changes that may ensue from this conflict.

There are many other ways in which international organizations can exert influence. The laws of war, especially the Geneva conventions, are likely to at least constrain how potential prisoners of war are treated and how civilians are targeted. Institutions will matter too in post-conflict justice, with the European Court of Human Rights much more likely to play an active role than the International Criminal Court. Dan Drezner has shown that multilateral sanctions are much more likely to be effective when they are implemented by international organizations, such as the E.U.  I can’t possibly do justice in a short blog post to the myriad ways in which international institutions can affect outcomes (or are limited in doing so).

People in the international affairs business have a tendency to buy into sweeping world views that lead them to believe that just because international institutions are (not) useful for something, they must also (not) be useful for something else. That would be a mistake. It is entirely correct to dismiss international law and institutions as too weak to prevent powerful states from using force when these states believe that their interests demand it. Yet, it would be incorrect to dismiss these institutions altogether. They will shape in important ways how the conflict is likely to evolve and how a settlement can  be achieved and enforced.

Erik Voeten is the Peter F. Krogh Associate Professor of Geopolitics and Justice in World Affairs at Georgetown University's Edmund A. Walsh School of Foreign Service and the Department of Government.
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