By John Yoo
Russia’s annexation of the Crimean peninsula and its continuing military pressure on Ukraine demonstrates that the United Nations-centered system of international law has failed. The pressing question is not whether Russia has violated norms against aggression — it has — but how the United States and its allies should respond in a way that will strengthen the international system.
It should be clear that Russia has violated the UN Charter’s restrictions on the use of force. It has resorted to “the use of force against the territorial integrity” and “political independence” of Ukraine in violation of Article 2(4) of the Charter’s founding principles. Russia has trampled on the fundamental norm that the United States and its allies have built since the end of World War II: that nations cannot use force to change borders unilaterally.
Like the League of Nations in the interwar period, the current system of collective security has failed to maintain international peace and security in the face of great power politics. According to widely-shared understandings of the UN Charter, nations can use force only in their self-defense or when authorized by the Security Council. Great powers with permanent vetoes on the Security Council (the United States, United Kingdom, France, Russia, and China) can always block formal efforts to respond to their own uses of force. Hence, the United Nations remains as powerless now as when Vladimir Putin ordered the 2008 invasion of Georgia.
The United Nations and its rules have not reduced the level of conflict between the great powers. That doesn’t mean there has not been a steep drop in conflict, despite Russia’s invasion of Ukraine. From 1945 to the present, deaths due to great power wars have fallen to a level never seen under the modern nation-state system. Collective security, however, is not the agent of this “Long Peace,” as diplomatic historian John Lewis Gaddis has called it. Rather, the deterrent of nuclear weapons and stable superpower competition reduced conflict during the Cold War. Since the fall of the Soviet Union, the United States has continued to supply the global public goods of security and free trade on its own. Democratic nations’ commitment to maintaining that liberal international order, not the collective security of the UN Charter, has kept peace among the great powers.
As someone who worked in the Bush administration during the 2003 Iraq War, I am struck by today’s absence of criticism for Russia’s violations of international law and its effective neutering of the United Nations. About a decade ago, criticism of the United States reached unprecedented heights for its failure to win a second Security Council resolution authorizing the use of force. The United States and its allies claimed that it already had authority from Iraq’s refusals to obey its obligations at the end of the 1991 Gulf War and its continuing threat to regional peace. Some of the United States’ closest European allies, such as France and Germany, violently disagreed — although these nations seem to urge compromise today with Russia. Even though the United States went to war without Security Council authorization, it sought to build a legal case in support.
UN rules only constrain democracies that value the rule of law, while autocracies seem little troubled by legal niceties. Paralysis continues to afflict the democratic response to the invasion of Ukraine. The United States responded to the invasion of Ukraine and annexation of Crimea with the symbolic measures of sanctioning a few members of Vladimir Putin’s inner circle, kicking Moscow out of the G-8, and halting NATO-US military cooperation. Russian officials mocked the United States and raised the price of natural gas sold to Ukraine, an implicit warning to other European nations that depend on Russian natural gas. The Russian and US stock markets sighed with relief that no serious economic disruptions would follow.
Now Russian intelligence agencies are apparently fomenting unrest in eastern Ukraine and Russian troops have massed on the border. It should be clear that Putin sees Russia’s relationship with the Western democracies as one of competition, not cooperation. Putin has used the goal of restoring Russia’s great power status to win popularity at home. He has never ridden so high in domestic opinion polls as now. One response, in keeping with international law, should be to remove Russia from a position of superpower equality, which would only recognize Russia’s steep decline in military capability, its shrinking population, and its crumbling economy (which now relies on commodity prices for growth).
The United States could take the first step by terminating treaties with Russia that treat the former superpower as a current one. It can send a clear signal by withdrawing from the New START treaty, which placed both the United States and Russian nuclear arsenals under the same limits. There is no reason to impose the same ceiling of 1,550 nuclear warheads on Russia, which can no longer afford to project power beyond its region, and the United States, which has a world-wide network of alliances and broader responsibilities to ensure international stability.
Next, the United States could restore the anti-ballistic missile defense systems in Eastern Europe. Concerned about Iran’s push for ballistic missiles and nuclear weapons, the Bush administration had begun the process for deploying advanced ABM systems in Poland and the Czech Republic. As part of its effort to reset relations with Russia, the Obama administration canceled the program without any reciprocal benefits from Moscow or Iran. Re-deploying the missile defense systems would provide an important signal of American support for its NATO allies, especially those on the front lines with Russia, and raise the costs on Russia if it seeks to keep pace.
Another point where the White House should downgrade Russia’s status is in Syria. After threatening to bomb the Assad regime for using chemical weapons on the rebels, the United States leapt for a Russian to jointly oversee the destruction of Syria’s chemical arsenal. Bashar Assad has taken advantage of the withdrawal of American threats to seize the momentum in the civil war, backed up by Russian and Iranian support. The United States should not consider Russia an equal and joint partner on any matter, but certainly not on whether to allow the Assad regime and Iran to continue to destabilize the Middle East.
President Obama might even undertake a longer-lasting and more effective blow against Russia’s claims to great power status: ejecting Russia from the United Nations Security Council. Along with China, Russia has used its veto to act as the defense attorney for oppressive regimes throughout the world. Of course, the United States cannot amend the UN Charter to remove Russia from the Security Council. But it can develop an alternative to the Security Council, which has become an obstacle to the prevention of harms to international security and global human welfare. The United States could establish a new Concert of Democracies to take up the responsibility for international peace, which would pointedly exclude autocracies like Russia and China. Approval by such a Concert, made up of the world’s democracies, would convey greater legitimacy for military force and would signal that nation’s that resort to aggression to seize territory and keep their populations oppressed will not have a voice in the world’s councils.
John Yoo is Emanuel Heller Professor of Law at the University of California, Berkeley and a Visiting Scholar at the American Enterprise Institute. He is the author of Point of Attack: Preventive War, International Law, and Global Welfare (Oxford University Press, 2014), and co-author (with Julian Ku) of Taming Globalization: International Law, the U.S. Constitution, and the New World Order (Oxford University Press, 2012).
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.