What Does it Mean for International Law to be Real? Some Reflections on ‘Putin Can’t Destroy the International Order by Himself’
By James Janison, Senior Notes Editor, N.Y.U. Journal of International Law & Politics
In “Putin Can’t Destroy the International Order by Himself,” Oona Hathaway & Scott Shapiro convincingly argue that the resilience of the world’s response to Russia’s war against Ukraine could strengthen the international legal order. Their claim is a perhaps counterintuitive rebuttal to laments elsewhere in the media portraying Russia’s war as evidence that the international order–legal or otherwise–is non-existent. The latter perception gels with an intuition shared among some law students and lawyers that international law is not ‘actual’ law, because it lacks enforceability (at least, among some to whom I have spoken).
Toward the enforceability issue, Hathaway & Shapiro want us to keep an eye on the continued international response to Putin’s actions: “If the response [to Russia] is broad, robust, and sustained, then the modern legal order will not weaken. It will strengthen.” In other words, Hathaway & Shapiro argue that if sanctions, denunciations, and other actions succeed in turning Russia into a pariah state, then its flagrant violations of international law will embody the exception to the international order, rather than the rule. Hathaway & Shapiro are persuasive in their argument that it is too early to announce the demise of the international order. Their conclusion gives us hope in an especially dark moment.
Here, however, I want to address the following question raised by Hathaway & Shapiro: whether the international order, if resurrected from the present crisis, would constitute ‘actual’ law? The answer is complicated, and I assess its implications in the context of political realism in international relations (“IR Realism,” not to be confused with legal realism). Insights from IR Realism–which ranks interstate power dynamics a first-order issue in shaping international political outcomes–lead me to quibble with Hathaway & Shapiro characterizing international law as ‘actual’ law in the same manner that domestic law may be characterized as such. International relations may not be entirely anarchical, but even after the establishment of post-WWII institutions like the United Nations (“UN”), it is still more anarchical than domestic politics. Any international order resurrected from the present crisis will require some degree of might to make right, because enforcement tools like sanctions can only prove effective depending on the response of powerful actors like China, the structure of domestic politics within Russia, and other geopolitical factors.
This observation on the current crisis is unremarkable on its own, but it illustrates how the salience of international law derives from the dynamics of great power contests, and crucially, not the other way around. This brief foray into IR Realism tells us that the international legal order is more properly representative of a system for channeling interstate politics–which most great powers currently opt into–rather than the independent source of authority we might expect on the domestic level.
Domestic Law versus International Law
Hathaway & Shapiro compare international law to domestic law to underscore their point that the international legal order is real. Their comparison articulates that, when a person is punished for murder, we do not say that domestic criminal law is non-existent because it failed to prevent the murder in question. Instead, they conclude, when we do punish, we do so for a range of aims, such as deterrence and retribution. Non-compliance, therefore, does not on its own undermine the actual existence of the law. Applied to the present war, as long as Putin and his Siloviki (Russia’s military industrial complex) face consequences of some magnitude, we can say that international law is binding on them.
Hathaway & Shapiro’s point stands broadly, but the parallels between international and domestic law are limited. Domestic law may not be able to resurrect murder victims, and may have imperfect deterrence effects, yet is certainly still ‘real’, they point out. But their argument overlooks a key difference: domestic law enforcement can still interrupt attempted murders or other crimes-in-progress and prevent further loss of life under the right circumstances. For instance, if a terroristic gunman menaces Times Square, we can expect police to interrupt the crime by shooting or detaining the gunman. But this scenario appears differently in international law. Were domestic law to be enforced the way international law is, the police would arrive on the scene, issue a public denunciation of the gunman’s acts of terrorism, ensure that his credit rating plummets, and block any assets he may have in Cyprus. The international law approach relies on the gunman–a supposedly rational actor–to come to his senses, realize that costs have mounted up beyond his initial comprehension, and stop shooting people. But until and unless the bad actor comes to his senses, the international law approach leaves it is up to the people being shot at to save their own lives.
Of course, military intervention–the equivalent of the police shooting or detaining the gunman to prevent further misconduct–is legal under the UN Charter, in the right circumstances. Namely, the UN Security Council can authorize the use of force when it thinks lesser counter-measures are inadequate to stop an ongoing violation. But the obvious problem–revealed by Russia’s current war–is that the UN’s structure will never allow such military intervention against the five permanent members of the UN Security Council. Why? Because those members can veto any such authorization. In other words, as long as Russia, China, France, the United Kingdom, or the United States is the active shooter, there will never be law enforcement with the power to intervene.
Are Western Responses Enough to Overcome the Enforceability Problem?
Barring the use of force, then, international law is enforceable against Russia vis-à-vis sanctions, embargoes, and other economic tools. Hathaway & Shapiro accept that, for these measures to strengthen the international order, they must be widely accepted and sufficiently severe. And this is where the salience of international law turns into a question of politics, at least in terms of great power dynamics, military capabilities, and domestic Russian considerations. If sanctions and related measures are ineffective in political terms, then they cannot be considered genuine punishment. Though Hathaway & Shapiro do not prognosticate as to the effectiveness of the West’s response, they do imply that sanctions imposed by the West have so far been genuinely punitive, by highlighting the effects already felt on both Russia’s stock market and its economy more broadly.
This overlooks a crucial element: the efficacy of sanctions as a punishment is questionable at best. Political scientists who study sanctions believe that sanctions often fail to deter entrenched authoritarian regimes like Russia because such regimes simply pass the costs of sanctions onto their populations. Because authoritarian regimes do not need to win legitimate elections, they do not need to worry about their people’s economic troubles, so long as society is otherwise stable.
And Putin’s presidency certainly appears to be stable. Some question this view due to outcry from Russian oligarchs against the war. But at time of writing, no evidence has emerged that the oligarchs possess the power to depose Putin. Indeed, other observers have assessed the Putin-oligarch relationship by pointing to Putin’s asset strip and imprisonment of oligarchs like Mikhail Khodorkovsky, the former owner of the large oil company Yukos, who vocally criticized Putin in 2003. While perhaps overly simplistic, the safest bet is that Putin is unlikely to yield under pressure from oligarchs alone.
Even if the Kremlin needed support from the Russian public more broadly, Putin has enjoyed consistently high approval ratings over the past two decades. It is also highly possible that the Kremlin will use its control over Russian media to steer public opinion against the West for any economic turmoil. In short, because of domestic political factors within Russia, it is possible that economic measures like broad-based sanctions may in the end, be more punitive against the Russian people, than against Putin.
One could argue that sanctions will have a long-term effect on Russia’s economy that will eventually hurt Putin and the Russian state, surely serving as some sort of punishment. This outcome is certainly possible, but some analysts have identified Russia’s prospects with China–currently sanctions-neutral–as a key factor in assessing whether the West’s response will have long-term deterrence value. For one, the same analysts have pointed out ongoing discussion for years among Brazil, Russia, India, and China, about developing an alternative international payment mechanism to replace the dollar-dependent Society for Worldwide Interbank Financial Telecommunications (“SWIFT”) system. If successful, such a development would blunt the impact of Russian banks’ expulsion from SWIFT and allow participants to evade Western sanctions. China has also signaled its interest in further deepening economic ties with Russia by developing oil & gas pipelines, which Russia might try to use to offset losses from any potential EU-imposed boycott on Russian energy in Europe. China might, moreover, use its sovereign wealth fund to bail Russia’s economy out of trouble, with the ultimate goal of using its investments as political leverage (though of course, this option is not risk-free for Russia). On the other hand, China might opt to side with the West and join in the sanctions, or alternatively, deem it altogether unwise to pick sides.
The above is not to say that China will necessarily follow through with any of the above; it is all but impossible to predict. However, to the degree that efficacy of sanctions and other punitive measures depends on China’s actions, the resilience of any international order that emerges out of this crisis will have geopolitical factors to thank, not international law.
This broader point still holds even if we consider sanctions as a way to stop Putin’s ‘war machine’. The anti-war machine perspective says that economic measures against Russia should be taken to erode its tax revenue base, which will eventually constrain its military spending over a long-enough time horizon. Even if effective, this approach is only punitive against Russia to the degree it helps Ukraine fight back. Thwarting Russia’s war under this approach relies upon a Ukrainian army capable of holding out in military terms, while concurrent economic measures slowly perform the supportive work corroding Russia’s military capacity. The salience of this approach, thus, still depends upon the realities of interstate power between Ukraine and Russia.
Let us come back to the ‘active shooter in Times Square’ hypothetical. Reconsidered in light of the above discussion, we should imagine a local police force, bound by the realities of interstate politics, needing approval from authorities in New Jersey to drive to the crime scene, while those authorities in New Jersey have a vested commercial connection to the shooter. Moreover, those New Jersey authorities might not want to intervene, because the active shooter is a past business partner with whom they may want to preserve a relationship. And although the police in Manhattan could airdrop weapons to the people in danger, no one could predict whether they would get the weapons before it is too late.
Surely, even these measures in the above hypothetical collectively “guide conduct,” a defining feature of law that Hathaway & Shapiro borrow from H.L.A. Hart. But the police only stand a chance of actually guiding the shooter’s conduct when doing so benefits a critical mass of people with power. In the international sphere, this may be the best we can hope for, but few would doubt that such a legal regime is inapposite at the domestic level.
We should not abandon our aspiration toward a rules-based international order, one in which even powerful countries hold themselves to a basic standard of justice and mutual respect for sovereignty. Hathaway & Shapiro rightly remind us that such a hopeful vision for the future is within the realm of possibility. We can and should commend President Biden’s provision of aid to Ukraine and imposition of sanctions against cronies of the Russian government, if for no other reason than to support the victims of an unprovoked war, and to express moral opprobrium to the invaders.
Moral commitments on the part of the United States, however, will not be enough to restore the international order. Buy-in–or at least, non-opposition–from great powers like China, will be necessary if economic warfare is to have a lasting punitive effect against Russia. To thwart Russia’s ‘war machine’, the Ukrainian military must be strong enough to keep fighting. The paradox of international law is that it relies upon international politics for enforcement, yet nonetheless, we try to make it work as a constraint on international politics. In this key respect, international law differs from domestic law, and we should not downplay the unique challenges posed by its enforceability problem. Perhaps, the first step toward building a rules-based international order is to accept that international law is only as ‘real’ as IR Realism allows.