02 Mar Ukraine, International Law, and the Perfect Compliance Fallacy
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.
As an anonymous internet commenter, I can make inappropriate examples unlike distinguished law professors. Right now, there are two States in the USA openly flouting the federal prohibition on marijuana sales. Whether the federal government chooses to enforce its law with regard to Colorado and Washington, depends on the powers and interests within the federal government and its agencies. Yet Colorado and Washington’s behavior, and the federal government’s tacit acquiescence to it, does not call into question whether federal law exists.
The fact that some powerful actors violate the law is bad reason to say that the law does not exist or it is irrelevant. Let’s make an analogy with domestic law. Imagine that you live under a dictatorship, where the dictator and his cronies can rape and murder with impunity. Now imagine that your neighbor – who is not powerful – rapes and kills your four-year old daughter. You don’t care that the powerful violate the law regularly, you want your neighbor punished anyway. If your neighbor says “well, since the powerful violate the law, there is no law and I do whatever I please”, you would not let him get away with it. So the law should be respected even if only a part of the actors respect it and one should rather find ways to improve the compliance, than throw the law away.
one flagrant violation of international law draws all this attention, but look at all of the other states complying with international law on a daily basis
I agree with the point of all three responses so far that merely because one state violates international law concerning manifest aggression and the illegal use of force does not mean that there is an end to treaty-based or customary international law proscribing aggression and other forms of illegal force. In every social process there are law violators. Under customary international law, there would have to either be general patterns of violations or general patterns of opinion juris that what was customary international law is no longer customary international law.
Htiler’s use of force was recognizably a crime against peace and Saddam’s use of force in Kuwait was recognizably a violation of U.N. art. 2(4) despite the fact that they and others had been law violators.
[…] challenge to international law, but we should not despair. International law still matters. Peter Shapiro, Chris Borgen, and Erik Voeten seem to […]
[…] 1 March 2014 Peter Spiro at Opinio Juris (explaining that just because international law is being breached with impunity it is still […]