Sachs argues that there is a crisis in international law, based not only on Russia’s actions in Crimea but on the general disregard of use of forces rules by the United States and other western countries:
As frightening as the Ukraine crisis is, the more general disregard of international law in recent years must not be overlooked. Without diminishing the seriousness of Russia’s recent actions, we should note that they come in the context of repeated violations of international law by the US, the EU, and NATO. Every such violation undermines the fragile edifice of international law, and risks throwing the world into a lawless war of all against all.
Sachs’ argument raises a number of questions:
(1) Is there a crisis in international law? And if so, did it start with Russia’s intervention in Crimea (as some people might argue), or earlier with U.S. and European actions going back 10-15 years?
(2) Sachs traces the crisis back to the 1999 Kosovo intervention. But the sorts of illegal uses of forces he describe go back very far, for example, the 1989 intervention in Panama, or the 1983 intervention in Grenada, or the 1979 Soviet invasion of Afghanistan. There is a sense in which the use of force rules have been in crisis since their (modern inception) in the UN charter in 1945. Why draw the line at 1999?
(3) Sachs implies that western illegality paved the path to Russia’s violation of international law. Is it true that if (for example) NATO had not illegally intervened in Kosovo or Iraq, then Russia would not have illegally intervened in Crimea? Is international law a “fragile edifice” that can be undermined by violations, or do the violations just tell us that existing rules are not well tailored to states’ interests? What of the argument that the Kosovo intervention, while illegal, stopped an even worse form of illegality, the ethnic cleansing of thousands of civilians?
(4) What does it mean for international law to be “in crisis”? That it is ignored? A better definition might be that states hold onto the law, they refuse to declare it defunct and try to rationalize their actions as legal, but they frequently violate it. A crisis exists not just because the rules are violated but because states can’t agree on a set of rules to replace them, generating uncertainty and misaligned expectations that could lead to war.
Sachs concludes that the United States should turn to the Security Council to address the Crimea crisis. But note the paradox: Because Russia enjoys the veto, it can immunize itself from Security Council action, and thus continue to violate international law without facing a (formal) legal sanction. The route to peace might circumvent the Security Council. It may be that you can have law or peace, but not both.