Putin isn't dragging the world back to the 19th century. Obama just needs to stop pretending it's 1991.
- By Eric A. Posner<p> Eric A. Posner is the Kirkland & Ellis distinguished service professor of law at the University of Chicago. He has written four books on international law, including The Twilight of Human Rights Law, which is forthcoming this year. </p>
Russia is dragging the world back into the 19th century, at least according to Barack Obama’s administration. "You just don’t in the 21st century behave in 19th-century fashion by invading another country on completely trumped-up pretext," said Secretary of State John Kerry, following Moscow’s annexation of Crimea. "What we see here are distinctly 19th- and 20th-century decisions made by President [Vladimir] Putin to address problems," added another senior administration official. "Sending in troops and, because you’re bigger and stronger, taking a piece of the country — that is not how international law and international norms are observed in the 21st century," President Obama declared a few weeks later.
As Moscow continues to threaten a broader invasion — most recently demanding that Kiev withdraw its troops from eastern Ukraine — America’s indignant response reveals a great deal about how its leaders think about international norms. Unfortunately, it is the Americans, not the Russians, who are trapped in a time warp. They believe that the legal norms promoted by the United States during its brief period of global hegemony — which started in 1991 and has eroded over the last decade — are still in force. They aren’t.
In the 1990s, it was possible to believe that a new international order had replaced the bipolar system of the Cold War. Memorably dubbed the "new world order" by President George H.W. Bush, it was characterized by the peaceful settlement of disputes through international courts, universal human rights, international criminal justice, and free trade and investment. Above all, the new liberal order emphasized international rule of law — the idea that international law and legal institutions would be the major source of global organization.
It was not a coincidence that this order emerged after the Soviet Union collapsed, leaving the United States the sole superpower — and American politicians, commentators, and intellectuals supremely enthusiastic about it. Today, this order is breaking down, the result of the decline of U.S. power and hence America’s ability to enforce its values and interests abroad. While many American intellectuals believed that the order reflected the consent of foreign elites to a self-evidently superior system of international organization, it in fact represented their acquiescence in the face of superior power. Now that this superior power is gone, so are the norms that it promoted.
The first pillar of the post-Cold War liberal order was the international court. The idea that countries should use international tribunals rather than war to settle their disputes actually dates back to the 19th century, when the United States and Britain successfully used arbitration to resolve their differences. But after World War I, and then again after World War II, the victors established permanent international courts with jurisdiction over all disputes that could arise under international law. The most prominent such court has been the International Court of Justice (ICJ), a U.N. organ established in 1945. In the 1990s, more than 100 countries established a World Trade Organization (WTO) dispute settlement mechanism aimed at resolving disagreements over trade barriers. The International Tribunal for the Law of the Sea, which was given jurisdiction over maritime disputes, began operations in the same decade.
But though such forums have helped resolve trade disputes, it is clear now that the broader ambition of international tribunals — to provide a peaceful avenue for resolving quarrels that might otherwise lead to war — has failed. The ICJ has successfully handled some minor border disputes, but when the interests of powerful countries are at stake, it has been evaded at every turn. When the court ruled against the United States in a dispute with Nicaragua in 1986, for example, the United States simply disregarded the judgment and withdrew from the ICJ’s jurisdiction. Today, the two most dangerous sources of conflict are Russia’s and China’s relations with their neighbors. Neither country has been willing to submit those conflicts to international courts. The reason is simple: International law favors the status quo allocation of territory and the sovereignty of states, while Russia and China seek to enhance their power by exerting influence over foreign countries or areas. Because the United States and other countries are not strong enough to compel Russia and China to embrace international tribunals — and these countries have no independent interest in doing so — the forums gather dust.
The second pillar of the post-Cold War order was recognition of human rights. Under international human rights law, all governments must respect the rights of their citizens. While the number, nature, and scope of those rights are contested — and while many countries that signed onto human rights treaties argued that rights must be interpreted in light of their own religious, traditional, or practical commitments — the new liberal order envisioned a world that abided by the basic terms of liberal democracy. The Soviet Union’s collapse seemed to provide spectacular vindication for this view and to portend its universal acceptance.
Yet the human rights regime has failed as well. It has become increasingly clear that many countries simply disregard their human rights commitments. Russia, for example, has moved toward authoritarianism despite its ratification of universal human rights treaties and its accession to the relatively robust European Convention on Human Rights, which empowers people to bring cases against their governments. China has certainly not liberalized. Most developing countries lack the capacity to implement their human rights commitments, even when their governments and publics support them. Even Western countries violated the spirit of these treaties by taking harsh measures against al Qaeda in the wake of the 9/11 terrorist attacks.
The failure of the human rights regime has put the West in a difficult position. When violations become too obvious to ignore — as was the case in the Balkans and Rwanda in the 1990s and in Iraq, Libya, Sudan, and Syria in the 2000s — the West faces a choice between ignoring them and thus violating its commitment to human rights, and launching a military intervention that violates its commitment to peaceful resolution of disputes. The only escape from this dilemma is the U.N. Security Council, which alone possesses the legal authority to launch wars against countries that do not comply with their human rights obligations.
But the United Nations functioned effectively only during the early 1990s, when other members of the Security Council feared U.S. might. It was in 1991 that the Security Council authorized a military intervention in Iraq, following Saddam Hussein’s invasion of Kuwait. But today the Security Council is as frozen as it was during the Cold War, and declining U.S. power has made it difficult for the West to defy Russia, China, and world opinion as NATO did in 1999, when it intervened in Kosovo, and as the United States and its allies did in 2003 by invading Iraq. A small bright spot was the Security Council’s 2011 authoriza
tion of military force in Libya, a resolution from which Russia and China abstained. But that brief period of cooperation quickly descended into acrimony as Moscow and Beijing accused Western countries of exceeding their authority to protect the civilian population and instead using military force to overthrow the Libyan government. Now both adamantly oppose intervention in Syria.
The third pillar of the liberal order was international justice: the idea that people, especially national leaders, who commit or order atrocities such as torture or genocide, or who launch illegal wars, should be tried and punished before an international criminal tribunal. The Nuremberg and Tokyo trials after World War II were the first to embody these ideas, but they were not expanded upon or replicated until after the Cold War. In the 1990s, the United Nations set up two ad hoc tribunals to try people accused of committing atrocities during the Balkan wars and the Rwanda genocide. In 2002, an international treaty signed by 139 countries entered into force to create a permanent International Criminal Court (ICC).
But international criminal justice has also ground to a halt. The tribunals for the former Yugoslavia and Rwanda are being wound down. Although the ICC has launched a number of investigations and held a few trials, it is increasingly clear that it will never be more than a marginal institution. Only weak African countries seem to have anything to fear from it, and their leaders resent the court’s nearly exclusive focus on them. Inevitably, the ICC has come to be seen as a tool of imperialists. It will never try Russians, Chinese, or Americans, because their governments never ratified the treaty. Moreover, the ICC depends on powerful countries to support it, to send it business through U.N. referrals, and to arrest suspects. It cannot risk offending them.
The fourth pillar was free trade and investment. After World War II, Western countries entered a legal regime, then known as the General Agreement on Tariffs and Trade, that required them to gradually lower tariffs. This regime was strengthened in the 1990s, when the WTO was established. Efforts were also made to bring international investment under legal control — encouraging rich countries to invest in poor countries by preventing poor countries from expropriating those investments. In recent decades, hundreds of bilateral investment treaties have been signed, both protecting investments and providing for arbitration in case of dispute.
Trade is the one bright spot in the current international environment. No one is reverting to protectionism, as countries did prior to World War II. The WTO dispute settlement mechanism continues to function. But efforts to improve on past successes have nonetheless foundered. Investment law has also faced problems, as countries have begun to disregard adverse judgments from arbitration panels.
Back in the 1990s, at the height of optimism about international law, academics believed that they had to answer a puzzle. The four pillars of the new international legal system self-evidently embodied a liberal worldview that countries like China and Russia did not subscribe to and that indeed most countries outside the West had traditionally rejected. So what would compel these countries to obey international law? An enormous number of theories were produced, with their accompanying buzzwords: Countries complied with international law because their leaders had internalized the law. Or because they were bound by cooperative networks of judges and bureaucrats from different countries. Or because domestic and international NGOs put pressure on violators. Or because countries had become interdependent. Or simply because it was fair. At the heart of all these theories was the assumption that all countries complied with international law more or less equally.
The most obvious explanation for legal compliance was all but ignored. Countries obeyed international law in the post-Cold War period because the United States and, to a lesser extent, Europe forced them to do so. Part of the explanation, of course, was that with the Soviet Union’s collapse, the liberal order gained significant prestige. But much of the explanation lies in the fact that countries feared that if they did not play by the rules set by the West, they would be deprived of aid, investment, technical cooperation, and opportunities to trade — and, in extreme cases, might be threatened with sanctions and military force.
If this explanation wasn’t clear in the 1990s, it is clear now. As the United States loses power, it has become obvious that no one else will guarantee the peaceful settlement of disputes, enforce human rights, or ensure that international criminals are tried and convicted. Indeed, the one exception among the collapsing pillars of the liberal order — international trade — proves the rule. The United States, Europe, Japan, and China are the four great trading blocs, and they cooperate with each other because they know that if anyone reverts to protectionism, others will retaliate. The system functions because it never depended solely on enforcement by the United States. The United States is just one of several countries that enforce the rules through the threat of mutual retaliation.
Put another way, the liberal order that was born with the Soviet Union’s collapse rested on a fiction: that all nations were equal and submitted to the same rules because they reflected universal human values. In reality, of course, the rules were Western rules, and they were enforced largely by the United States, which was no one’s equal. Today, the fiction has been exposed, and the world order looks increasingly like the one that reigned during the 19th century. In this order, a small group of "great powers" sets the rules for their relations with each other and interacts under conditions of rough equality. Smaller countries survive by establishing client relationships with the great powers. The great powers compete with each other over these client relationships, but otherwise try to maintain conditions of stability that allow for trade and other forms of cooperation. The major challenge for the great powers is to ensure that competition for clients does not erupt into full-scale war. In the late 19th century, the great powers were Russia, Britain, France, Italy, Japan, and the United States. Today, they are the United States, China, Russia, and Europe.
The implications of this new-old order are significant. The great powers will settle their disputes through diplomacy (one hopes) or war, not with courts. Human rights and international justice will prevail only in the Western sphere of influence, at least until people in China and Russia decide that these ideals are attractive to them. But we can expect trade and investment to continue to flourish, as they did at the end of the 19th century up until World War I.
From this standpoint, many of today’s conflicts, which seem inexplicable from the perspective of the post-Cold War order, are not hard to understand. In its disputes with Japan, South Korea, the Philippines, and other neighbors over various islands in the Pacific, China refuses to submit to a tribunal because its goal is
not to vindicate international law, but to extend its power over its neighborhood. The same is true for Russia with respect to Georgia and Ukraine. Syria used chemical weapons against its own citizens because its government saw an advantage in doing so. President Bashar al-Assad does not fear the International Criminal Court because he enjoys the protection of Russia. North Korea provokes South Korea and the West in order to gain concessions in diplomatic negotiations; it does not fear the U.N. Security Council or the International Court of Justice because it can rely on China’s support. Governments throughout the Middle East — Egypt, Turkey, Libya, Iraq — are cracking down on dissent because they are more worried about local disorder than about their obligations under human rights treaties. And Western powers share the fear of disorder and so will not pressure them to improve human rights.
These are the facts — it’s time for theory to catch up.