I am looking forward to the contributions to our “insta-symposium” on Ukraine and international law. I don’t have a tremendous amount to add at this point, except to point out that President Obama has been aggressive about accusing Russia of violating international law and about the importance of international law generally.  This has gone beyond merely charging Russia with violation of the prohibitions on aggression and the use of force contained in the U.N. Charter.  In his statement today, he took aim at the proposed referendum in Crimea on joining Russia:

He also said that a proposed referendum in Ukraine’s Crimea region — one that, as proposed by proposed by pro-Russian Crimean lawmakers, would ask residents whether Crimea should be part of Ukraine or Russia — would “violate the Ukrainian constitution and violate international law.”

Any discussion about a referendum must include Ukraine’s legitimate government, Obama said. Washington considers Ukraine’s legitimate government to be the one installed by Parliament after last month’s ouster of President Viktor Yanukovych following months of protests.

Putting aside the Ukrainian law question, it is interesting that the U.S. government is specifically condemning the proposed referendum as a violation of international law.  Why exactly would the mere referendum (as opposed to the act of secession) violate international law?

I look forward to the views of our contributors and my fellow co-bloggers on this point, but on my first reading, the claim that the referendum would violate international law is undercut by the ICJ’s Advisory Opinion on Kosovo’s Declaration of Independence.  In that opinion, the ICJ found (among other things) that general international law does not prohibit unilateral declarations of independence. I don’t see how the proposed referendum is really any different from a unilateral declaration of independence, at least from the perspective of international law.  The authors of the “unilateral” declaration of independence did not consult Serbian authorities (much less get its consent). Like the declaration of independence, the referendum does not by itself “secede” Crimea from Ukraine under international law.  And unlike the declaration of independence, the referendum could find support (if other conditions are met) in the law of self-determination.

I am personally sympathetic to the Ukrainian government here. But I am not sure President Obama is right about this legal point, and even if he is, I am not sure the U.S. ought to be committing itself to the position that this referendum is illegal.   If there is a deal to be made here (as Henry Kissinger recommends here), this statement seems to make it harder to get to that deal.

I have one final thought on why this statement might make sense. There is one country who is probably more opposed to a referendum on secession than the U.S: that would be Russia, which can’t exactly be ready to endorse this possibility for Chechnya or other restive Russian regions. Nor are the Chinese going to be excited by this referendum (think what a referendum in Tibet or Xinjiang would look like).  The President may be counting on the Russians to put a stop to the referendum, and maybe this statement would help them do that.  I hope that is the strategy, anyway.

[Dr. Aurel Sari is a Lecturer in Law at the University of Exeter.]

Over the last few days, a growing number of commentators and international actors have denounced the deployment of Russian troops in Crimea not simply as a violation of the sovereignty and territorial integrity of the Ukraine, but as an act of aggression. At its extraordinary meeting held on 3 March 2014, the Council of the European Union condemned “the clear violation of Ukraine’s sovereignty and territorial integrity by acts of aggression by the Russian armed forces”. On 4 March 2014, United States Secretary of State John Kerry followed suit at a press briefing held at the US Embassy in Kiev.

A prima facie case of aggression

Assuming for the sake of argument that the activities of Russian armed forces in Crimea do not benefit from the valid consent of the Ukraine (the question is at least arguable: see here and here), a good case can indeed be made that their presence and conduct fits the archetypical example of aggression, namely the ‘invasion or attack by the armed forces of a State of the territory of another State’ as defined in Article 3(a) of United Nations General Assembly Resolution 3314 (XXIX) on the Definition of Aggression of 1974.

In so far as aggression is said to constitute ‘the most serious and dangerous form of the illegal use of force’ (Preamble, Definition of Aggression), the situation in Crimea must reach a certain threshold of gravity in order to qualify as an act of aggression. Neither the exact level of this threshold nor the facts on the ground are established beyond all reasonable doubt. However, it is safe to assume that the deployment of Russian forces to maintain public order in Crimea and to blockade and occupy Ukrainian military premises and assets in such a continuous and robust manner as we have seen in the last few days rises above the level of a ‘mere frontier incident’ or ‘less grave forms of the use of force’ (Nicaragua, paras 191 and 195). As such, these acts may reasonably be characterized as aggression on account of their scale and effects.

Article 3(e) of the Definition of Aggression

As reported earlier, the Ukrainian Association of International Law has come to the same conclusion in its recent appeal regarding the events in Crimea. Amongst other things, the Association suggests that the Russian Federation has committed an act of aggression as a result of being in material breach of the Agreement between Russia and Ukraine on the Status and Conditions of the Presence of the Russian Black Sea Fleet on the Territory of Ukraine of 8 of August 1997 (the Black Sea Fleet SOFA; see here in Russian). This argument raises an interesting question about the application of Article 3(e) of the Definition of Aggression. Pursuant to Article 3(e), the following acts shall constitute an act of aggression:

The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.

Compared to some of the other acts listed in Article 3, the incidents envisaged under Article 3(e) of the Definition may appear relatively benign or even banal. Whereas an armed invasion, attack or bombardment will amount to an act of aggression only if it entails the use of force at a relatively high level of intensity, it seems that even a minor breach of a status of forces agreement could qualify as an act of aggression under Article 3(e) even if it causes no damage or destruction in the host State. Some commentators have therefore questioned whether Article 3(e) should have been included in the Definition at all.

The importance of contextual interpretation

State practice offers a number of examples where foreign armed forces are present abroad without the consent of the territorial State or another valid legal basis, yet their presence does not come within the Definition of Aggression. A case in point is the accidental ‘invasion’ of Liechtenstein by 170 Swiss troops who got lost in a military exercise in 2007. No one, it seems, has suggested that Switzerland has committed an act of aggression against Liechtenstein, despite the fact that this was not the first such intrusion. Despite the strict terms of Article 3(e), it seems that context is everything.

This point was certainly not lost on the drafters of the Definition of Aggression. The Six Power draft submitted on 25 March 1969 by the Australia, Canada, Italy, Japan, the United States and the United Kingdom defined aggression with reference to a prohibited purpose, thus giving rise to protracted debates as to whether the presence of an ‘animus aggressionis’ was a necessary element of aggression (see UN Doc A/7620). Eventually, any express references to aggressive intent were removed from the Definition. However, an implicit reference to intent was retained in Article 2 of the Definition, which declares that the Security Council may conclude that determining the prima facie existence of an act of aggression would not be justified ‘in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.’ Although Article 2 is specifically addressed to the Security Council, Article 3 declares that it must be applied ‘subject to and in accordance with the provisions of article 2’. This point is further underlined by Article 8 of the Definition, which provides that ‘[i]n their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions.’ (more…)

President Obama issued an executive order this morning imposing entry bans on those responsible for actions that “undermine democratic processes or institutions in Ukraine,” “threaten the peace, security, stability, sovereignty, or territorial integrity of Ukraine,” or involve “misappropriation of state assets of Ukraine or of an economically significant entity in Ukraine.”

Sec. 2. I hereby find that the unrestricted immigrant and nonimmigrant entry into the United States of aliens determined to meet one or more of the criteria in subsection 1(a) of this order would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants or nonimmigrants, of such persons. Such persons shall be treated as persons covered by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions).

The power to specify covered individuals is delegated to the Secretary of State.

Obama is acting under section 212(f) of the Immigration and Nationality Act, which gives the President a blank check when it comes to imposing entry restrictions:

 Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Obama has used this power at least twice, both in the summer of 2011. He used the authority to ban the entry of serious human rights abusers with this proclamation. In the proclamation referenced in today’s executive order, he banned the entry of individuals subject to UN sanctions regimes. The latter is particularly interesting insofar as it appears to delegate immigration policy to an international organization, directly incorporating UN decisions into US law. In any case, the use of the 212(f) power is consistent with Obama’s orientation to maximally exploit delegated powers.

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the crisis in Ukraine, with particular emphasis on Russian intervention in Crimea. As we have done in the past with other symposiums, we also welcome young academics to submit guests posts for possible publication. We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new voices. So if you want to write a guest post for Opinio Juris about Ukraine of approximately 500 to 1500 words, please do so in the next couple days and send it to Jessica Dorsey and An Hertogen (their emails are linked to the right). Our editorial team will review the posts and publish those selected.

I’m a bit pressed for time, but wanted to offer a brief post calling readers’ attention to a US Supreme Court case that came down today – Lozano v. Montoya Alvarez.  In it, a unanimous Court interprets the Hague Convention on the Civil Aspects of International Child Abduction to not allow equitable tolling of the requirement that a child be automatically returned to the country from which s/he was abducted in the one year period after the child is taken.  The case involved two Colombian nationals living in England in 2008 when the mother leaves with her child for France and then New York (via a shelter for victims of domestic violence).  The father was unaware where his child had been abducted to, and thus could not file for the return remedy provided for by Article 12 of the treaty.  After much searching, he located her in the United States in November 2010.  At that point, however, the near automatic-right of return for one year provided via Article 12 no longer applied and the Convention imposes a different standard – wherein courts must order the return of the child ‘unless it is demonstrated that the child is now settled in its new environment’ (emphasis added).  Lower courts found that the child had become settled and thus she remained in the United States pending the outcome of this litigation.

In its opinion, the Court interpreted Article 12 not to contain any equitable tolling possibility with respect to the one year period for the automatic right of return.  In doing so, it declined to apply the equitable tolling doctrine available for federal statutes to treaties, offering in the process some general statements on its approach to treaty interpretation:

For treaties, which are primarily “‘compact[s] between independent nations,’” Medellín v. Texas,  552 U. S. 491, 505 (2008), our “duty [i]s to ascertain the intent of the parties” by looking to the document’s text and context, United States v. Choctaw Nation, 179 U. S. 494, 535 (1900); see also BG Group plc v. Republic of Argentina, post, at 10. We conclude that the parties to the Hague Convention did not intend equitable tolling to apply to the 1-year period in Article 12.

It is our “responsibility to read the treaty in a manner ‘consistent with the shared expectations of the contracting parties.’” Olympic Airways v. Husain, 540 U. S. 644, 650 (2004) (quoting Air France v. Saks, 470 U. S. 392, 399 (1985); emphasis added). Even if a background principle is relevant to the interpretation of federal statutes, it has no proper role in the interpretation of treaties unless that principle is shared by the parties to “an agreement among sovereign powers,” Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996). Lozano has not identified a background principle of equitable tolling that is shared by the signatories to the Hague Convention. To the contrary, Lozano concedes that in the context of the Convention, “foreign courts have failed to adopt equitable tolling . . . because they lac[k] the presumption that we [have].” Tr. of Oral Arg. 19–20. While no signatory state’s court of last resort has resolved the question, intermediate courts of appeals in several states have rejected equitable tolling….

I don’t see anything too dramatically different in this reasoning than the Court’s earlier pronouncements.  More interesting, perhaps, is the Court’s unwillingness to let the existence of implementing legislation via federal statute impact its interpretative analysis:

It does not matter to this conclusion that Congress enacted a statute to implement the Hague Convention. See ICARA, 42 U. S. C. §§11601–11610. ICARA does not address the availability of equitable tolling. Nor does it purport to alter the Convention. See §11601(b)(2) (“The provisions of [ICARA] are in addition to and not in lieu of the provisions of the Convention”). In fact, Congress explicitly recognized “the need for uniform international interpretation of the Convention.” §11601(b)(3)(B). Congress’ mere enactment of implementing legislation did not somehow import background principles of American law into the treaty interpretation process, thereby altering our understanding of the treaty itself.

There’s more later in the opinion offering views on the negotiators’ intent as well as the object and purpose of the Hague Convention itself.  But, I’ll leave that for readers to comment on if anyone is inclined to do so.

[Charles Blanchard served as General Counsel of the U.S. Air Force from 2009-2013, and General Counsel of the Army from1999-2001, is currently a partner at Arnold & Porter LLP.  He was a panelist at a Chatham House conference on autonomous weapons.]

In the past year, proposals for an autonomous weapons ban have gone from a fringe notion to an agenda item for the Convention on Conventional Weapons this year.  Last week, I joined a diverse group at a Chatham House conference to discuss the issue.  The participants included advocates of a ban, technologists on both sides of the issue, government officials, and Law of War experts.  The conference was surprisingly useful in illuminating lots of common ground, and more importantly it illuminated the different philosophical differences between proponents and skeptics of a ban.

The degree of agreement was actually surprising, but also very helpful:

• There was broad agreement that except in very unique battle spaces (where the likelihood of civilians was nonexistent), deployment of autonomous weapon systems today would not be consistent with the requirements of International Humanitarian Law (IHL).  One panel concluded that the current technological limits, when combined with IHL, has effectively created a temporary moratorium on completely autonomous weapon system deployment.

• Even the proponents of a ban would not oppose completely autonomous weapon systems that targeted other machines—such as might be the case with missile defense systems in the future—assuming that the technology develops sufficiently to meet IHL requirements. To be clear, however, the proponents of a ban would oppose even a purely defensive system that targeted tanks, airplanes or other platforms with human beings on board.

• While the proponents of a ban advocate for a ban on development, they seem to agree that a very narrow definition of “development” is appropriate.  They would not attempt to limit research and development of even dual us civilian uses of autonomy, and would not even oppose development of semiautonomous weapons technology as long as a human remains in the loop.  The development ban would be imposed on the creation of completely autonomous systems.

So what was the disagreement?  It centered on the following question:  if technology ever developed to the point that machines were more capable than humans in complying with IHL than humans, should autonomous weapons be banned?  The skeptics of a ban, such as me, argued that it would be troubling to accept more civilian casualties that would then result from a ban.  The proponents, on the other hand, argued that it would violate notions of human dignity to let a machine to decide who to kill.

While one advocate calls the aversion to allowing machines to kill the “yuck” factor, a panel of ethicists and philosophers illuminated what this difference is really about:  the skeptics (like myself) are advocating a utilitarian ethical scheme (the greatest good for the greatest number), while the proponents are applying Kant’s categorical imperative that no human being should be used as an instrument.  While a utilitarian would be focused on whether civilian (and military) casualties would be less if autonomous weapons were used, a Kantian would object to the removal of humans from the lethal decisionmaking altogether.  One panelist noted that Germany’s highest court had rejected a purely utilitarian view in overturning a law that allowed hijacked planes to be shot down.  Even though the passengers on the plane would likely die anyway, and shooting down the plane would save other lives, the German court concluded that the statue violated human dignity.

So what are we to make of this philosophical dispute?  To a great degree, warfare and the laws of war have arisen out of utilitarian philosophical frameworks.  Indeed, one could argue that the very use of military force against other human beings (even for a righteous cause) violates Kant’s categorical imperative.  And the IHL concept of proportionality—that attack on a military target is permissible even if there will be civilian casualties as long as the civilian casualties are “proportional” to the military value of the target—is expressly utilitarian and inconsistent with Kant.

Nonetheless, the development of IHL is itself a history of a battle of humanitarian concepts (Kant) against utilitarianism. Arguably, the Geneva Gas Protocol in 1925 was a victory of humanitarian concepts over pure utilitarianism. And the more recent bans on land mines and cluster munitions are also clearly motivated by nonutilitarian concepts.

Now obviously there is much more at stake here than this narrow philosophical dispute.  Purely utilitarian concerns about strategic stability—based on the fear that purely autonomous systems will make it more likely that countries will go to war—can also lead to concerns about these weapons.  But at their root, the debate here is whether the principle that only humans should decide to kill other humans is sufficiently important that we are willing to accept more death as a result.

[Expanding and moving this up from the comments section of my previous post.]

In a comment to the previous post, reader “Non liquet” noted that:

The UN Security Council Meeting was interesting in this regard today. Reportedly, the Russian Ambassador to the UN stated he received a letter from the former President of Ukraine dated 1 March requesting intervention of the Russian army in Ukraine.
It seems that the Russians believe they need to frame their own arguments regarding intervention with at least a fig leaf of international law.

“Non liquet” also linked to this Yahoo News article, which reported that:

“The country has plunged into chaos and anarchy,” Russian Ambassador Vitaly Churkin read from an unofficial translation of the letter while speaking to reporters after an emergency meeting of the U.N. Security Council. “The country is in the grip of outright terror and violence driven by the West.”

“People are persecuted on political and language grounds,” he read. “In this context, I appeal to the President of Russia Vladimir V. Putin to use the armed forces of the Russian Federation to re-establish the rule of law, peace, order, stability and to protect the people of Ukraine.”

“Non liquet” makes a good point that this is an attempt at a legal fig leaf: arguing that any Russian intervention is not an invasion, but rather a lawful response to a request for assistance by a  government.

But this is predicated on the idea that Yanukovich was empowered to ask for Russian assistance and military intervention. And thus we have the question of where is the actual government of Ukraine and the related legal issue of the recognition of governments.

In a U.S. State Department press conference this past Friday, the spokesperson said:

We are in the same place we have been in, which is that we don’t – we believe that Yanukovych has lost his legitimacy as he abdicated his responsibilities. As you know, he left Ukraine – or left Kyiv, and he has left a vacuum of leadership. So we continue to believe that he’s lost legitimacy and our focus remains on the path forward.

I take that as an indication that the the U.S. government would not take any further statements or actions by Yanukovich as being actions of the government of Ukraine, in part because the Yanukovich regime has fled and no longer has effective control of the country.

Russia, clearly, disagrees… (Continue reading)

[I ended my previous post stating that I would next consider the options available to Russia, Ukraine, the EU, and the U.S. But then this conversation started… I’ll come back to the “next steps” question in a following post.]

Julian, Eric Posner, and others look to Russia’s intervention in Ukraine and its takeover of Crimea and see the limits of international law.  But, even in this case, international law and legal rhetoric play a broader, and perhaps more subtle, role in foreign policy than being a brick wall blocking invading armies. (And nowadays brick walls don’t work too well, either.)

Yes, there are the ongoing difficulties of enforcement in a pluralist international community (and, as Peter notes, there are also significant enforcement and compliance problems in domestic societies). But international law and legal discourse also frame expectations and viable policy options in such a way that can have greater long-term constraints on state practice than may be appreciated by international legal skeptics. However, even for this constraint to work, there still needs to be political will to enforce legal rules. And here I think we are all in agreement.

As I mentioned in my previous post, and in various other posts, Russia (and states, in general) cloaks its actions in “law talk” to foster a reputations of being a lawful actor, even-or perhaps especially-when it is not. (Andrew Guzman has written extensively on the role of reputation as a prod towards compliance to international rules. See Andrew T. Guzman, ‘Reputation and International Law,’ 34 Ga J Intl & Comp L 379 (2006).)  How states and other actors use language—what are the bounds of “self-defense,” when may a state legally intervene, what is “self-determination,” and so on—plays an essential role in defining expectations of how states and others will act.  How they use these terms inform other actors as to which arguments may or may not be made legitimately.

This is especially powerful in international law. Regardless as to whether Russia (or any other state) uses legal rhetoric, but especially when it does, it becomes bound-up by the expectation of legal compliance in general.  Invoke the law, get bound by the law.

Yet, just as the lack of a single sovereign means that enforcement is difficult, the pluralist nature of international law means that in most cases there is no final interpreter of what law is. Moreso than the ICJ, the most important interpreters of international law are the states themselves. Their interpretations are in part based on their short-term interests, but also on their long term concerns. These interpretations, in turn, affect international relations. Politics affects international law, which then affects politics, and so on.

International law has thus become a consensual vocabulary and grammar for how states talk about international relations. In short, how we talk about terms like “self-defense” can affect legal substance of what “self-defense” is. Legal rhetoric can frame policy options.

While Eric and Julian focused on the inability of international law to stop Russia from sending troops into Crimea, it is important to keep in mind that the use of force issue is embedded in a much bigger dialogue about the future of Ukraine… (Continue Reading)

While Russia was stealing all the attention over the weekend, a small group of assailants wielding knives killed at least 33 people and injured over a hundred in the main railway station of Kunming, China.  China’s government has called these “terrorist attacks,” and has hinted it is linked with Uighur separatists in China’s northwestern Xinjiang province.  But the failure of the U.S. State Department to use the term “terrorist” has drawn outrage in Chinese social media.

I understand the U.S. government’s reluctance to endorse the Chinese government’s description of these attacks, but I still think the term “terrorist” is perfectly appropriate for this situation.  The attackers indiscriminately killed and injured civilians in a train station, and there seems plenty of evidence that it is motivated by politics and ideology.  To be sure, the international definition of terrorism remains contested, but the US law definition seems applicable.

the term “international terrorism” means activities that—

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping;

I agree with Peter that the mere breach of the international law governing the use of force does not mean that all international law is useless and meaningless. But I don’t think Eric Posner’s pithy challenge to the international law academy on Ukraine can be so easily dismissed. International lawyers need, especially in this area, to provide a meaningful theory as to why international law affects state behavior, and why (as in this case) it seems to be having very little impact on Russia’s decision to use armed force in Ukraine.  Contra Peter, the fact that sometimes constitutional or corporate law rules are ignored or violated doesn’t really answer the question here.  When those norms are widely ignored (as with constitutional law rules in countries like China), then it is rational for actors in China to ignore those rules in most circumstances and most legal theorists would not call it “law” in any meaningful sense.

Which brings me to the Ukraine crisis.  I agree with Erik Voeten that international law and institutions will be helpful in other ways.  And I think Chris provides very helpful analysis of how international law can shape official state rhetoric.  But the fact remains that the international law restraining the use of armed force has utterly and completely failed to constrain Russia’s actions in  Ukraine.  This is more than simply adhering to the legislative veto. This is a body blow to a foundational piece of the international legal system.

In academic terms, the failure of the Charter  is evidence for both realists (who think international law never matters), but also for rational choice theorists like Posner, as to how international law really works.  Rational choice folks think that international law works best (in fact, works at all only) when states have a rational self-interest to cooperate around certain legal norms and institutions.  But where states no longer have such a rational self interest, states will depart from those legal norms.  Compliance with international law for the sake of complying with international law is naive and unrealistic.

The Russia-Ukraine crisis also impacts real-world policymaking. If international law, or at least the Charter’s rule on the use of force, is very weak or non-existent as a tool for restraining state action, then policymakers should not rely on the Charter rule as meaningful protection against aggression.
A strong military or a network of alliances would probably have been a better idea.  States must not overestimate the impact or force of this species of international law (as Ukraine’s new government seemed to do) when making decisions.  And states like the United States should be careful incorporating this rule into its domestic legal processes, or over-privileging its role in its own domestic public debate.

I may be biased as an American, but the U.S. has about the right balance on this. It does not ignore the Charter, but it does not treat the Charter as having too much independent significance except to the extent it affects the actions of other states (especially its allies).  The key thing to focus on in this crisis are the interests of the different states (and leading groups within states).  State interests are driving actions here, and the Charter violation seems to be doing almost now work.

The fact that the Charter is plainly being violated will not necessarily mean that Charter proponents like France and Germany will get tough with Russia (in fact, both are going the other way by opposing sanctions or any NATO consultations).  The fact that the Charter is plainly being violated will not mean China (another big Charter proponent) will do anything other than closely watch developments and urging “all sides to comply with international law” without naming any country.

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.

Eric Posner on international law and Ukraine (“exhaustively”, in his own description):

The international law commentariat has been pretty quiet about the most important geopolitical event so far this year. Hello? Anyone want to offer an opinion? Let me fill in the silence:

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

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

International law is chimera, QED. (FWIW, the international law commentariat is starting to pipe up. In addition to Chris’ post below, see this primer from Ashley Deeks on Lawfare.) The move — a standard one among the anti-internationalists — implicitly idealizes other forms of law accepted as such. No system of law achieves perfect compliance; why should international law be any different?

Writing at the Monkey Cage, Eric Voeten finds the a tweeted version of the Perfect Compliance Fallacy

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.

While pleading the 140-character defense, I take the point, at least as applied to common criminals who get away with it. But there are better analogies. I’m not in the corporate law world, but I’m willing to bet that there are some laws that big players get away with ignoring on a predictable basis. In the context of constitutional law, there are many contexts in which law isn’t enforceable against institutional players. One example: notwithstanding the Chadha decision, which declared the legislative veto unconstitutional, Congress and the President blithely persist with the practice. This 2009 Harvard Law Review article by Jack Goldsmith and Daryl Levinson does a good job exploding the argument that international law is somehow distinctive in facing an enforcement deficit.

Of course corporate and constitutional actors will never say they’re violating the law. They interpret it to achieve the appearance (plausible or not) of conformity with a set of norms that is accepted as law. Same with Putin, whose MFA will at some point offer a fuller-dress international law justification for its Ukraine moves. (Posner himself offers up some protips to the Russians here.) So it’s not like jaywalking. Russia will face penalties as a result of its illegal action here, penalties that themselves will be framed in law terms.