From Apology to Bazinga!: International Legal Rhetoric in Obama’s Speech and Putin’s Op-Ed

In From Apology to Utopia, Martti Koskenniemi  mapped how international legal rhetoric can be used to “apologize” for power—to provide a fig leaf over the rude exposure of realpolitik—and how it can be utopian—making rules for a world that does not actually exist.  This week we have had two examples of international law and high politics: President Obama’s speech on Tuesday and Vladimir Putin’s op-ed in today’s New York Times. And while many in the U.S. seem most concerned about Putin’s apparent skepticism toward American exceptionalism, I suggest that more attention should be focused on what his op-ed and President Obama’s speech show about how Russia and the U.S. use international legal rhetoric in pursuit of their goals.

As President Obama’s speech tried to make the case for U.S.-led military action in Syria (if the current diplomatic initiatives fail), Vladimir Putin’s op-ed argued why the U.S. should not intervene. In looking at these two texts—attempts by an American President and a Russian President to speak to the American public, and, at times, to the world—we can compare and contrast how the language of international law is used by both leaders.

Putin’s argument plays on American fears and worries but it is framed in the rhetoric of international law. There are some scare lines, such as: “A strike would increase violence and unleash a new wave of terrorism.” There is a description of a “reeling” Afghanistan where “no one can say what will happen after international forces withdraw.”  And, he adds, don’t forget the divisions in Iraq and Libya.  It is not in “America’s long-term interest” to have U.S. military intervention be “commonplace.” Well, that last part is true enough.

There are also some parts that are a bit hard to swallow, like his implying that his policy is based on a concern over the security of Israel or blaming the ongoing civil war on the West supplying arms to the opposition (while staying silent on Russia’s arming of the murderous Assad regime). I half-expected Putin to follow-up some of his arguments with “Bazinga!”

But all of these various points, be they persuasive or not, are placed in a frame of international legal rhetoric.  Putin’s op-ed is an excellent example of Russia’s strategy of using the language of international law to try to persuade publics around the world of the wisdom of its own foreign policy, while implicitly or explicitly critiquing the policies of other states. Near the beginning of his essay, Putin explains:

No one wants the United Nations to suffer the fate of the League of Nations, which collapsed because it lacked real leverage. This is possible if influential countries bypass the United Nations and take military action without Security Council authorization.

He continues with a warning concerning the stability of the international legal system (mixed with a warning about other Middle East conflicts):

[A military strike] could undermine multilateral efforts to resolve the Iranian nuclear problem and the Israeli-Palestinian conflict and further destabilize the Middle East and North Africa. It could throw the entire system of international law and order out of balance.

Much of the op-ed is actually a repeated one-two punch combination:

1.  If you attack Syria you will bring more violence down on your own heads with this (Read: war and terrorism); and

2.  You are acting illegally (and Russia is defending international law and institutions).

If you think I am overstating the level to which Russia is using the language of law to frame their public diplomacy, consider this excerpt (emphases added):

We are not protecting the Syrian government, but international law. We need to use the United Nations Security Council and believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos. The law is still the law, and we must follow it whether we like it or not. Under current international law, force is permitted only in self-defense or by the decision of the Security Council. Anything else is unacceptable under the United Nations Charter and would constitute an act of aggression.

This has been a consistent part of Russian public diplomacy for a number of years, especially under Foreign Minister Sergei Lavrov.  In the 2008 Diplomatic Yearbook of the Russian Ministry of Foreign Affairs, Lavrov wrote :

We will never agree to legal nihilism in world affairs, with the attitude towards international law as a “draft pole” and as the “fate of the weak” or with any attempts to “cut corners” to the detriment of international legality, which is the embodiment of the moral principle in relations among states. Indeed, international law is our ideology in international affairs. To use Fyodor Tyutchev’s phrase, we want “once and for all to establish the triumph of law, of historical legality over the revolutionary mode of action.”

Notwithstanding Harold Koh’s work as State Department Legal Adviser explaining the international legal grounding of various U.S. positions and actions (see, e.g., 1, 2, 3, and, regarding Syria, 4), over the longer term,  U.S. diplomatic statements are often more circumspect regarding invocations of international law. This is probably out of concern that the U.S. does not want to claim some broad new justification for military action that can later be invoked by others (ahem, Russia and China). See the careful rhetoric about Kosovo’s independence, for example.

President Obama’s speech on Tuesday did not begin with a proclamation of the legality of military action in Syria.  It began by focusing on the Syrian regime’s responsibility for atrocities, not on any “right” to intervene. Atrocities, which, in part, were committed using weapons that 98% of the world had banned:

In World War I, American GIs were among the many thousands killed by deadly gas in the trenches of Europe. In World War II, the Nazis used gas to inflict the horror of the Holocaust. Because these weapons can kill on a mass scale, with no distinction between soldier and infant, the civilized world has spent a century working to ban them. And in 1997, the United States Senate overwhelmingly approved an international agreement prohibiting the use of chemical weapons, now joined by 189 governments that represent 98 percent of humanity.

On August 21st, these basic rules were violated, along with our sense of common humanity.

While Putin kept returning to U.S. military power as a destabilizing element in the modern world, President Obama tied enforcing the ban on chemical weapons to security:

Because what happened to those people — to those children — is not only a violation of international law, it’s also a danger to our security.

Let me explain why. If we fail to act, the Assad regime will see no reason to stop using chemical weapons. As the ban against these weapons erodes, other tyrants will have no reason to think twice about acquiring poison gas, and using them. Over time, our troops would again face the prospect of chemical warfare on the battlefield

President Obama was speaking primarily to a domestic audience here (“our troops”) but I think he was also trying to make a point to persuade our allies.  If we allow one regime to use chemical weapons, the whole norm can slip and thus destabilize the world. This is actually not very different from the logic chain used by the first President Bush in regards to Iraq’s invasion of Kuwait. (If we allow the territorial integrity regime to slip here, then many states may challenge it, and the world is destabilized.)

The law of not allowing territorial changes through the use of force is one of the cornerstones of the international system and was an effective persuasive technique to rally support to push Iraq out (regardless as to whether you think that is the “real” reason why the U.S. intervened).

Here, though, Syria is not a member of the Chemical Weapons Convention, the treaty-based source of the rules to which the President referred.  In any case, the CWC does not give a right to unilateral military action as a means of enforcement. The argument can be made that the ban on chemical weapons has reached the level of customary international law based on the widespread state practice and revulsion over the use of chemical weapons since World War I.  But even if Syria has violated international law (which I think it did), there is still the problem of authorization for the use of force in the face of a Russian Security Council veto.

It all comes down to the issue of unilateral action. What is Russia’s goal?  Strobe Talbot, a former Russia hand, has said that he hoped it was to find peace in Syria. If that is the case, then the Russian proposal for international control over Syria’s chemical weapons may lead to some real good. But it is also possible that Putin’s main objective is just to prevent U.S, intervention no matter what.

Some have argued that Putin finds the breadth of U.S. operations close to Russia’s borders (or within the U.S.S.R.’s old sphere of influence) in places like Afghanistan and Syria as particularly galling.  So his main goal may simply be to stop the U.S. from showing up Russia in its geopolitical backyard. If that is the case, then a peaceful resolution of the conflict is more difficult, as Russia may focus more on obtaining promises of no military action (which the U.S. at the moment is not willing to give) than actually solving the Syrian problem. The possible result in this case is an impasse, which may spur unilateral military action.

Even in such a case, if the domestic political climate undercuts the likelihood of President Obama using the military without Congressional approval, the U.S. may not act. Hence, Putin’s public diplomacy op-ed with the one-two punch.

We have an international legal system that is built on the idea of the peaceful settlement of disputes with the Security Council in almost all cases regulating the use of force. In an argument framed by international law, given that Russia has a veto and can prevent Security Council authorization of military force for whatever reason (good or bad) Obama could be put into the position of trying to explain why a use of force would be legal even without Security Council authorization. By contrast, all that Putin would have to explain is why not using force would be consistent with legal obligations. At best, the U.S. can argue that on moral grounds this would be an action that would be “illegal but legitimate.”

So, under such constraints, how did President Obama explain the legality of U.S. military action under international law? Well, he didn’t, really. As mentioned above, he framed his argument by noting that 98% of the world believes that using chemical weapons is illegal. He then relied on a technique used by many American Presidents: he said that this case is special. For example, regarding support for Kosovo’s independence, the Bush Administration said Kosovo was sui generis and was not precedent regarding the recognition of secessionist groups. As for Syria, President Obama argued that the situation is special because of our position among nations and the horrors of chemical warfare being rained down upon innocent civilians:

What kind of world will we live in if the United States of America sees a dictator brazenly violate international law with poison gas, and we choose to look the other way?

…<snip> Our ideals and principles, as well as our national security, are at stake in Syria, along with our leadership of a world where we seek to ensure that the worst weapons will never be used.

America is not the world’s policeman. Terrible things happen across the globe, and it is beyond our means to right every wrong. But when, with modest effort and risk, we can stop children from being gassed to death, and thereby make our own children safer over the long run, I believe we should act. That’s what makes America different. That’s what makes us exceptional. With humility, but with resolve, let us never lose sight of that essential truth.

The notion of American exceptionalism was being used to support one result Vladimir Putin would not accept: U.S. unilateral military action in Syria. And so: Putin’s closing paragraph disparaging the idea of American exceptionalism.  By the end of Obama’s speech and by the end of Putin’s op-ed, we were well beyond quasi-legal argument: Both presidents were in full rhetorical flourish.

So, why even bother with using international law as a rhetorical frame for public diplomacy? Credible legal arguments are needed if a state wants its political stances to have any type of legitimacy. An interpretation of international law that is legitimate can “pull” other states towards adopting such an interpretation or at least accepting the action of the state in question.  Think of the U.S.-led UN response to Iraq’s invasion of Kuwait.

As Charles King wrote in Foreign Affairs in 2008,

“[i]n the future, the real contest will be over which powers are best able to spin their flaws and speak convincingly to an increasingly savvy world citizenry that is as skeptical about the United States’ messianic democratizing as it is about Russia’s nationalist posturing.”

(Charles King, The Five-Day War: Managing Moscow After the Georgia Crisis, Foreign Aff., Nov./Dec. 2008)

This week, we saw the leaders of the U.S. and Russia use the language of international law to undertake the latest round of persuading, positioning, and sparring. For the moment, at least, Russia’s explicit use of international legal argument in its diplomatic statements has helped it to redefine the debate over Syria.

But we should not forget that the real issue here is not the strategy of the argument, but saving and preserving lives. Assad’s war machine is still chewing up men, women, and children and we need to get past apology, Utopia, and Bazinga! and find a way to address Syria.