Obama, the realist

Stephen Walt, the distinguished Harvard proponent of “realism” in international relations argues that the Crimea debacle confirms the value of realism by showing how Obama’s liberal internationalist instincts led him astray:

To be sure, ousted president Viktor Yanukovych was corrupt and incompetent and the United States and the European Union didn’t create the protests that rose up against him. But instead of encouraging the protesters to stand down and wait for unhappy Ukrainians to vote Yanukovych out of office, the European Union and the United States decided to speed up the timetable and tacitly support the anti-Yanukovych forces. When the U.S. assistant secretary of state for European and Eurasian Affairs is on the streets of Kiev handing out pastries to anti-government protesters, it’s a sign that Washington is not exactly neutral. Unfortunately, enthusiastic supporters of “Western” values never stopped to ask themselves what they would do if Russia objected.

Walt makes a number of astute points–the chief one being that Russia has strong security interests in Ukraine while the United States does not–but his conclusion is exactly backwards. The West in fact did virtually nothing to encourage democratic forces in Ukraine. The United States offered virtually no aid–$1 billion in loan guarantees, which is pocket change. And the reason was that the United States did not care what happened in Ukraine, for all the reasons Walt gives. The West could not have “encourag[ed] the protesters to stand down”–that would have been politically impossible–and even if it had, and they had, Putin would still have seized Crimea. To believe otherwise, you would have to take seriously Putin’s claim that he objected to the illegality of the removal of Yanukovych, when in fact what he really cared about was losing Ukraine to the West.  If handing out pastries to protesters was our way of showing support for democracy, then I rest my case.

And while it is hard to call the annexation of Crimea a foreign policy “success,” the do-nothing response of the United States is exactly the correct response from Walt’s realist perspective. If we have little interest in Ukraine, we have literally zero interest in Crimea, a poor, out-of-the-way place. In fact, as Walt hints, it is most likely that Russia has violated realist tenets, not the United States, with Putin reacting to domestic political pressures or perhaps acting recklessly by risking war for a peninsula that Russia already effectively controlled. And so our major goal should be to ensure that we respond rationally rather than emotionally to the annexation by not letting it interfere with areas of potential cooperation with Russia. By imposing meaningless sanctions on Russia, that is what Obama, a Waltian realist, is doing.

Vladimir Putin, international lawyer

From his speech to the Duma (with my annotations in brackets):

However, what do we hear from our colleagues in Western Europe and North America? They say we are violating norms of international law.  Firstly, it’s a good thing that they at least remember that there exists such a thing as international law – better late than never. [So there!]

Secondly, and most importantly – what exactly are we violating? True, the President of the Russian Federation received permission from the Upper House of Parliament to use the Armed Forces in Ukraine.  However, strictly speaking, nobody has acted on this permission yet.  Russia’s Armed Forces never entered Crimea; they were there already in line with an international agreement.  True, we did enhance our forces there [without entering?]; however – this is something I would like everyone to hear and know – we did not exceed the personnel limit of our Armed Forces in Crimea, which is set at 25,000, because there was no need to do so. [But Russian forces appear to have roamed about Crimea in violation of this agreement as well as the UN Charter.]

Next. As it declared independence and decided to hold a referendum, the Supreme Council of Crimea referred to the United Nations Charter, which speaks of the right of nations to self-determination [true]. Incidentally, I would like to remind you that when Ukraine seceded from the USSR it did exactly the same thing, almost word for word. Ukraine used this right, yet the residents of Crimea are denied it. Why is that? [Why indeed?]

Moreover, the Crimean authorities referred to the well-known Kosovo precedent – a precedent our western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate and did not require any permission from the country’s central authorities. Pursuant to Article 2, Chapter 1 of the United Nations Charter, the UN International Court agreed with this approach and made the following comment in its ruling of July 22, 2010, and I quote: “No general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence,” and “General international law contains no prohibition on declarations of independence.” Crystal clear, as they say. [I’m afraid so.]

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” [Right.] End of quote.  They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

We keep hearing from the United States and Western Europe that Kosovo is some special case. What makes it so special in the eyes of our colleagues? It turns out that it is the fact that the conflict in Kosovo resulted in so many human casualties.  Is this a legal argument? The ruling of the International Court says nothing about this. [True; it is legally irrelevant.] This is not even double standards; this is amazing, primitive, blunt cynicism. One should not try so crudely to make everything suit their interests, calling the same thing white today and black tomorrow. According to this logic, we have to make sure every conflict leads to human losses. [The U.S. position is that forcing Kosovo’s population to remain a part of a country whose government tried to massacre it would be wrong, and numerous efforts were made to broker a compromise before secession took place. Putin argues that it would be ridiculous to make Crimea wait for its population to be massacred before seceding.]

I will state clearly – if the Crimean local self-defence units had not taken the situation under control, there could have been casualties as well. [This is doubtful, as there were no massacres anywhere else in Russian-speaking Ukraine that did not benefit from “local self-defense units”.] Fortunately this did not happen. There was not a single armed confrontation in Crimea and no casualties. Why do you think this was so? The answer is simple: because it is very difficult, practically impossible to fight against the will of the people. Here I would like to thank the Ukrainian military – and this is 22,000 fully armed servicemen. I would like to thank those Ukrainian service members who refrained from bloodshed and did not smear their uniforms in blood.

Other thoughts come to mind in this connection. They keep talking of some Russian intervention in Crimea, some sort of aggression. This is strange to hear. I cannot recall a single case in history of an intervention without a single shot being fired and with no human casualties. [But because the military force was overwhelming.]

Colleagues,

Like a mirror, the situation in Ukraine reflects what is going on and what has been happening in the world over the past several decades. After the dissolution of bipolarity on the planet, we no longer have stability. Key international institutions are not getting any stronger; on the contrary, in many cases, they are sadly degrading. [True] Our western partners, led by the United States of America, prefer not to be guided by international law in their practical policies, but by the rule of the gun. [Hmm] They have come to believe in their exclusivity and exceptionalism [ahem], that they can decide the destinies of the world, that only they can ever be right. They act as they please: here and there, they use force against sovereign states, building coalitions based on the principle “If you are not with us, you are against us.” To make this aggression look legitimate, they force the necessary resolutions from international organisations, and if for some reason this does not work, they simply ignore the UN Security Council and the UN overall. [Hmm]

In other words, we did not act illegally but if we did, you did first. The subtext, I think, is that the United States claims for itself as a great power a license to disregard international law that binds everyone else, and Russia will do the same in its sphere of influence where the United States cannot compete with it.

The toothless sanctions on Russia

The U.S. and EU imposed asset freezes and travel bans on a handful of Russian and Ukrainian officials connected to the Crimean secession. Most of them are mid-level people; a few are Putin aides. They did not impose asset freezes and travel bans on Putin or other big shots, nor did they impose sanctions on Russia itself.

Why not? You can easily imagine that if Putin had been sanctioned, he would not be able to back down or make concessions–because then it would look as if he betrayed Russia for personal financial reasons. But the same logic applies to the mid-level people, who now must redouble the aggressiveness of their stance on Ukraine. And because the sanctions were imposed on a handful of people rather than all of Russia, the Russian government can easily compensate the sanctioned individuals for any losses that they have sustained. Indeed, probably their public standing has increased as the sanctions will make them look important to the Russian public who are probably learning the identities of some of them for the first time.

So the sanctions aren’t even toothless: they reward rather than punish the wrongdoers. They are best seen as a signal, the weakest possible signal, one that indicates that we will accept Crimea if you go no farther. I suspect that it would have been more sensible to send this signal by imposing a weak sanction on all of Russia than to single out these people who  will be perceived as heroes who have made sacrifices for the motherland.

Easterly’s The Tyranny of Experts

William Easterly argues that efforts to help poor countries achieve economic growth have gone astray because western experts impose top-down recipes for growth (a kind of Stalinist approach that mixes hubris and incompetence):

The conventional approach to economic development … is based on a technocratic illusion: that the belief that poverty is a purely technical problem amenable to such technical solutions as fertilizers, antibiotics, or nutritional supplements.

The problem, as Easterly shows in this book and in his previous books (including the terrific White Man’s Burden), is that these technical solutions fail because western experts rarely understand the intricacies of the local environment, and, more important, the politics and institutions in the countries they seek to help. Often, technically flawless development projects fail because of corruption and abuse in the country that is being helped. The gleaming power plant operates for a few years and then falls into disrepair because the absence of an effective legal system that enforces property and contract rights makes it impossible to collect bills or protect against squatters.

The solution? It turns out to be human rights:

What you can do [about global poverty] is advocate that the poor should have the same rights as the rich…. This assertion of the rights of the poor is needed now more than ever…. This books argues [that] an incremental positive change in freedom will yield a positive change in well-being for the world’s poor.

Easterly does not explain what any of this means. Which rights should we advocate? How should we insist that they be implemented? What should we do to governments that refuse to take our advice? I suspect that if he gave these questions some thought, he would realize that any serious effort to compel or bribe poor countries to recognize rights would look like the development activities that he criticizes. Indeed, his bête noir, the World Bank, famously tried to implement “rule of law” projects that were supposed to enhance rights. These projects failed for all the reasons that all the other development projects failed.

Easterly provides no evidence that if we advanced human rights in poor countries, well-being in those countries, or even respect for rights, would improve. In fact, there isn’t any.

Fragile by Design, by Calomiris & Haber

Fragile by Design, by Charles Calomiris and Stephen Haber, is a great book. The authors argue that the stability and efficiency of financial systems in different countries depend on political bargains that set the rules of the game. Authoritarian countries produce inefficient state-owned banking systems because governments cannot commit not to expropriate. But democracies produce a wide range of outcomes, depending on the configuration of constituencies and interest groups. The United States is cursed with a highly unstable banking system because local interests have been able to ensure a huge number of local unit banks that were insufficiently diversified. This system finally broke down thanks to the inflation of the 1970s, but our further misfortune was a political bargain between activist groups and large banks in the 1990s that resulted in a system where banks were encouraged to reduce underwriting standards so as to extend credit to low-income people. Meanwhile, countries like Canada were lucky enough that the initial political bargain at a national level led to a small number of stable and efficient banks that weathered the financial crisis of 2008.

There are a huge number of moving parts and epicycles (why was our unstable system so stable from 1936-1980?, and what explains the success of activists like ACORN?), but the book is nonetheless enormously illuminating, and contains the most powerful and concise account of the causes of the 2008 crisis that I have seen.

Goodbye, Crimea

It doesn’t matter that the referendum did not allow voters to express a preference for the status quo, that many of the 90+ percent who favor annexation by Russia (according to (possibly questionable) exit polls) may have been trucked in, that international election monitors were not used, that ballot boxes may have been stuffed, that Tatar groups refused to participate, that the public debate was drowned out by pro-Russian propaganda, and that Russian soldiers and/or pro-Russia militias roamed the streets. It is sufficient that there wasn’t violence, that western journalists were free to move about and interviewed plenty of ordinary people who strongly favored annexation, that there were enthusiastic public demonstrations in favor of annexation and celebrations after the result was announced, and that the outcome is consistent with demographic realities and what seems plausibly (to us ill-informed westerners) the preference of most Crimeans. Unless large groups of Tatars and ethnic Ukrainians take to the streets to protest the referendum and are clubbed by riot police, any western effort at this point to try to rescue Crimea from the invaders it embraces will be not only pointless but ludicrous. The West is now in the impossible position of being pro-democracy and arguing that Crimea should be returned to Ukraine against the will of the people. Even if the referendum was all theater, it was effective theater.

The image above, from Wikipedia, shows the demographic composition of Ukraine as of 2001. Blue means an area where the majority speaks Ukrainian; red means an area where the majority speaks Russian. Doesn’t this suggest a forgone conclusion once Putin made his move?

The Crimean secession vote

In an earlier piece, I said

If a fair vote is held, and Crimeans vote overwhelmingly to join Russia, then any Western effort to stop them will be seen as an attempt to thwart the will of the people, a violation of their right to self-determination, which is enshrined in the U.N. charter and multiple human rights treaties.

I didn’t actually think it likely that a fair vote would be held; I was instead trying to avoid discussing the more complicated case where a a fair vote is not held. (Some might call this qualification lawyerly; others, weaselly.) In any event, it is becoming increasingly clear that a fair vote will not be held, as discussed in this NYT article and this National Interest piece by former ambassador to Ukraine, John Herbst. I also received this illuminating email from a Ukrainian-American student in the United States (who continues to visit and do work in Ukraine):

If you follow the Russian and Ukrainian language press as well as Crimean groups on social-networking sites (such as SOS_Krym), you already realize that large scale attempts at voter fraud are under way. Several of my friends in Crimea (this has been verified by reports throughout the peninsula) have been visited by unidentified individuals who either make off with their passports or damage them. This just so happens to coincide with an announcement by Sevastopol city authorities that any form of photo ID will be accepted during the referendum, given what has been happening to passports. This is a clear invitation to “Russian tourists”, many of whom have already created problems in Donetsk and Kharkov.

Interestingly, this is voter fraud on TOP of voter fraud since the ballot itself, absurdly, presents residents of Crimea with two options – join Crimea or seek independence – without any space for a “no” vote on either of those options. All under the watchful eye of Russian special forces and “local self-defense militias.” Does that sound like a legitimate referendum to you? How can this referendum be legitimate if it doesn’t accurately reflect the will of the people, and how can it accurately reflect the will of the people when it is being carried out under these types of circumstances?

MOREOVER, the government which is calling for this referendum was installed by those very same Russian spetsnaz and approved by Yanukovych (at that point no longer in charge of anyone or anything). Aksyonov, the current head of the Crimean administration, leads a party called “Russian Unity” and received 4% of the vote in the last elections. He is a fringe figure and I can assure you (as someone who worked in the region) that before all of this started, Aksyonov and his ilk were regarded as nothing more than a joke by domestic and international observers alike. Is a referendum planned by an illegitimate government with no support…legitimate?

Finally, I would urge you to rethink the implication of the following: “Crimea’s ties with Russia go back centuries. It was transferred from Russia to Ukraine only in 1954 while both countries were regions of the Soviet Union. This transfer reflected a top-down administrative judgment, not the sentiments of the Ukrainian or Crimean peoples.” Your implication leads to a slippery slope because, as you well know, Crimea belonged to the Crimean Khanate (present day Crimean Tatars) long before the Russian Empire controlled the region. If we’re going all the way back to the 1950s, why use 1783 as our historical reference point? If historical precedent is what we’re really looking at, perhaps we should transfer the land to the descendants of the Scythians? Or the descendants of the Romans – the Italian state? Crimea has passed hands so many times that attempting to find a legitimate government somewhere in the folds of time is a futile endeavor, at best.

… One more thing – I’m not sure if the Western press has published anything about this, but the leader of the Crimean Tatar Mejlis (the Mejlis is described by Crimean Tatars as a “body of local self-government” in Crimea – the Mejlis has offices in nearly every corner of the Crimea and lays claim to representing the interests of Crimean Tatars) called on Crimean Tatars to boycott the referendum. Refat Chubarov (leader of the Mejlis) voiced many of the same concerns I did about Russian tourists coming to Crimea and voting in the referendum. He also deemed this referendum illegitimate due to ballot design and the fact that 400,000 more ballots have been printed than there are residents in Crimea. This is all in addition to the fact that the government of Crimea is not legitimate and that the referendum is taking place under the watchful eye of Russian special forces, but that goes without saying. So, in effect, anywhere from 12-15% of Crimea’s population will most likely be boycotting this referendum.

So the political and international-law implications of an unfair referendum cannot be avoided. I hope to address them after the referendum has been held, and the extent of the unfairness can be gauged.

Goldman on Bitcoin

Business Insider exaggerated when it announced that Goldman completely obliterates Bitcoin in a new report. The report includes interviews with Bitcoin supporters. And while the Goldman analysts are skeptical that Bitcoin could serve as a currency—the view of nearly everyone nowadays—they do not rule out a role in the payments system. Currently, merchants pay 2-3 percent of purchase price to accept electronic payments. Bitcoin service providers charge 1 percent. But as the Goldman analyst notes, much of the cost of the current payment system is attributable to security and legal requirements that Bitcoin providers will eventually need to confront. Merchants who use bitcoin pay an additional 1 percent to exchanges in order to avoid exchange rate risk. Traditional payments system will also reduce costs in response to competition from Bitcoin. However this all works out, the long-term effect of Bitcoin will not be anarchist utopia but slightly lower prices—you may end up paying $100 rather than $101 for an item you buy over the web.

Other thoughts:

Bitcoin miners with 51 percent of the computer power over the Bitcoin network control the supply: they can decide to increase it. Question: don’t they have strong incentives to undersupply bitcoins—that is, to vote against increasing the supply to the social optimum while hording bitcoins—in order to maximize their profits, like De Beers?

Bitcoin’s legal problems are just beginning. An interview with a pair of lawyers reveals a potentially huge regulatory web that legitimate bitcoin institutions will need to navigate. Once bitcoin futures come into existence in sufficient volume, the CFTC will step in. We already know about money laundering laws, which require bitcoin services to keep tabs on customers and report suspicious transactions. The SEC has gotten into the act because of efforts to combine Bitcoin and securities. State regulatory agencies may require Bitcoin-related companies to obtain licenses akin to those that money transmitters like banks must obtain, which are costly. It also seems likely that Bitcoin services will, like existing money transmitters, be required to keep funds on hand to compensate customers if their bitcoins are lost—a further cost. Not discussed, but also worth considering, is the possibility that people will try to manipulate the bitcoin market—as I suggested above—necessitating another layer of regulatory scrutiny.

Kahan & Rock on Symbolic Corporate Governance Politics

Marcel Kahan and Edward Rock have posted a paper on SSRN that asks why “the rhetoric around a variety of high profile corporate governance controversies … cannot be justified by the material interests at stake,” while at the same time “shareholder activists are oddly reluctant to pursue issues that may have a more material impact.” The answer was anticipated by the legal realist Thurmond Arnold, who argued that a great deal of law is supposed to reflect certain myths and taboos believed by the public but that couldn’t practicably be enforced:

We celebrate our ideals of chastity by constantly engaging in wars on vice. We permit prostitution to flourish by treating it as a somewhat minor crime and never taking the militant measures which would actually stamp it out. The result is a sub rosa institution which organizes the prostitutes after a fashion, at least to the extent that there never seems to be any shortage in our large cities. …

Thus in those days anyone who attacked the “Trusts” could achieve the same public worship as a minister of the gospel who had the energy to attack vice. It was this that made Theodore Roosevelt a great man. Historians now point out that Theodore Roosevelt never accomplished anything with his trust busting. Of course he didn’t. The crusade was not a practical one. It was part of a moral conflict and no preacher ever succeeded in abolishing any form of sin.

Kahan and Rock add:

Arnold seems to have saved his most savage (and sincere) condemnation for those poor well-meaning fools who would endeavor to make us live up to our articulated principles because doing so would destroy necessary institutions and cause serious social harm.

They conclude that the myth of corporate governance is that shareholders control firms when in fact they cannot, which means that we must trust managers with billions of dollars and hope for the best. Any attempt to constrain managers would render the corporate form unworkable because shareholders cannot, practically, manager the corporation. Activists maintain their pay and prestige by keeping corporate governance battles in the public eye but in fact no one should hope that they succeed, and perhaps they don’t wish to succeed themselves.

As Kahan and Rock presented their enjoyable paper at a corporate governance conference last week, I couldn’t help thinking: isn’t this the story of originalism?

The rise and rise of human rights scholarship in law reviews

hr articlesEveryone complains that law professors write too much about constitutional law, and not enough about areas of law that actually matter–antitrust, securities regulation, and criminal law. A similar complaint can be directed against international law scholars. On the evidence of the Westlaw database, international law scholars think that human rights deserve vastly more attention than (say) trade law or even the United Nations. In truth, human rights law is of limited practical importance in international relations, and virtually all of this literature–which nearly uniformly argues in favor of more human rights and stronger human rights institutions–will be ignored. If you want evidence that much of what academics do doesn’t matter, and that there is no mechanism for self-correction, see the graph above.

Mitu Gulati: Ukraine’s odious debts

Mitu Gulati, the world’s expert on the odious debt doctrine, writes in:

It is a treat to guest post here at ericposner.com.  It is an even bigger treat to be invited to disagree with Eric on the pages of his own blog! Eric has been blogging about the Ukraine situation, but has yet to engage the question of what is to become of the Ukraine’s debt, a large portion of which is likely owed to Russian entities. Of particular interest are the debts owed by Ukraine directly to the Russian state.  This includes Ukraine’s most recent Eurobond issue (December 2014) for roughly $ 3 billion that was purchased entirely by the Russian state as part of its subsidization of the prior Ukrainian regime.

However, Ukraine may have an argument for escaping liability on that last $ 3 billion (and likely more).  That argument comes from an antiquated doctrine of international law, the doctrine of Odious Debts, that briefly got resuscitated about a decade ago in the context of Iraq’s post-Saddam era debt restructuring. The relevant bit of international law here is the doctrine of state succession.  Under this doctrine, democratic governments that succeed dictators are not allowed to disclaim the debts of the prior regime, no matter how odious it may have been.  There may be a narrow exception, however, for what one might call Corrupt Debts.

That is where the lender knew or should have known that the money it was lending was going to line the personal coffers of a state leader.  There, the lender can fairly be said to have made the loan to the personal account of the corrupt leader, rather than to the state.  In the case of Ukraine, the current regime has vociferously accused Mr. Yanukovych and members of his regime of stealing the proceeds of prior state borrowings.

Assuming that is true, it should not be difficult to argue that the Russian lenders knew or should have known of the kleptomaniacal tendencies of Mr. Yanukovych’s government.  In that case, Uncle Vlad would no longer be able to collect from the Ukraine; instead, he would have to look directly to his friend, Mr. Yanukovych, for recovery of the $3 billion.

The case law is sparse. But there is a famous case on point, involving a 1923 arbitration between Great Britain and Costa Rica.  Cribbing now from an article with the godfather of sovereign debt, Lee Buchheit, “The Dilemma of Odious Debts”:

In 1917, the government of Costa Rica was overthrown by Frederico Tinoco. Tinoco’s government lasted two years.  Before he left the country, Tinoco borrowed some money from the Royal Bank of Canada. That money also left the country . . . in the company of Mr. Tinoco.

In a subsequent arbitration, Great Britain claimed that the successor government of Costa Rica was bound to honor the loans. US Supreme Court Justice (and former President) William Howard Taft refused to order Costa Rica to repay the Tinoco loans. These were, Taft said, not transactions “in regular course of business” but were “full of irregularities.” Taft explained that “[the] bank knew that this money was to be used by the retiring president, F. Tinoco, for his personal support after he had taken refuge in a foreign country. It could not hold his own government for the money paid to him for this purpose.”

Sounds an awful lot like Uncle Vlad’s purchase of Ukrainian Eurobonds a couple of months ago. The question may eventually come down to this — will the new administration in the Ukraine feel itself obliged, as a matter of law or morality, to repay a loan extended to a prior regime that they have already branded as kleptomaniacal by a lender (Russia) that they have already accused of lopping off a large part of Ukrainian territory (the Crimea) in violation of international law?

Eric, what do you think? You’ve been skeptical of the doctrine of odious debts in the past.  Would you consider the scenario above to be an exception?  One where that doctrine should apply to excuse the Ukrainians?

[Since you asked: Without knowing more facts, it is hard to know what will happen, but my guess is that Yanukovych skimmed off only a part of the proceeds, most of which ended up in the Ukrainian treasury—if so, the bill must be paid, while Ukraine would have a (no doubt unenforceable) claim against Yanukovych personally. – EP.]

Would Russia’s annexation of Crimea violate international law?

No. The U.S. government claims that annexation would violate international law and the Ukrainian constitution because Ukraine has not given its consent to the referendum. But Russia is not bound by the Ukrainian constitution. Nor does any international law prohibit two countries from merging together.

The real question is then whether Crimea’s secession–which you might think of as a legally separate act that (conceptually) precedes the annexation–violates international law. As I explained before, there is no law against one territory seceding from another. In fact, the right to self-determination is enshrined in the UN charter and several human rights treaties. Ukraine could certainly try to stop its territory from seceding–just as the United States fought to prevent the South from seceding–but if it fails, it can’t complain that the secession violates international law. Ukraine’s best argument is that the secession was driven by Russian meddling–Russia’s invasion of Crimea did violate international law, and the occupation violates Ukraine’s sovereignty. But if the referendum is free and fair, that argument will lose much of its force. Perhaps, Ukraine is owed some remedy by Russia (good luck), but that remedy could not be an injunction on Crimean secession, which would injure the Crimeans themselves.

U.S. officials note that Scotland’s secession vote was approved by the UK government. But the more pertinent analogy is Kosovo. Kosovo’s declaration of independence was not approved by the Serbian government. Kosovo’s secession was abetted quite significantly by the United States through military and diplomatic means.

Originalism class 9: between phony and naive

In our last class, we discussed Jack Balkin’s paper, Why Are Americans Originalist?, which I interpret as a sly debunking exercise. Balkin’s most interesting argument is that the turn to originalism in the 1980s was akin to Martin Luther’s repudiation of the Catholic Church’s monopoly over Biblical interpretation, with the Supreme Court playing the role of the Church. (You might think of the habit among libertarians of carrying around a pocket-sized constitution as the modern version of biblical translation into the common language.) Originalism is a political strategy that became attractive because the founding-era meaning of the text coincided (very roughly) with the political goals of conservatives while at the same time appealing more broadly because of the patriotic, anti-elitist message that the Constitution contains the wisdom of the founders and we can all read the Constitution for ourselves. The students were pretty skeptical.

But I do sympathize with conservatives of the 1970s and 1980s who saw the Warren Court as an ideological apparatus, and were contemptuous of the law professors at the time who sought to rationalize its liberal holdings with phony constitutional theories. The problem was that the alternative they came up with rests on a mythical self-image, or at least encourages people to treat mythology as fact, with all kinds of weird consequences for constitutional law. It’s as if the Germans repudiated their Basic Law and decided to derive constitutional norms from the myths of the Nibelungen. Or–to be fairer–from whatever archaeological research might reveal about the customs of Germanic tribes at the time of Tacitus.

We polled students again–they polarized, which makes sense since they are more informed about what originalism means now than they were at the start of the course. But it bodes ill for the project of originalism itself since originalism can prevail only if that is what the people want.

Can Crimea secede from Ukraine?

Flag of Crimea.svgThe Crimean parliament has scheduled a referendum for March 16 asking whether Crimea should secede from Ukraine and join Russia. From the standpoint of international law (Ukrainian law may be different), it is not illegal for a territory of a country to attempt to break away and form a new state. But there is a great deal of controversy over when a breakaway territory should be considered a state, which entitles it to enter treaties, join the UN, and so on. One view is that Crimea becomes a state just when other countries regard it as a state. So even if Crimea achieves de facto independence and has a government that controls it, the United States and other countries could block it from being a state just by refusing to recognize it as a state.

On another view, a breakaway territory is lawfully a state based on objective facts–basically, whether it has a government that controls the people who live on it, and is not itself subject to a superior government, as in a federalist system. In practice, these two views tend to converge. Sooner or later, foreign countries will recognize a de facto state as a de jure state because if they want to deal with the people who live in the territory (for example, trade with them), it must go through their government. That’s what happened with East Germany, for example. The west refused to recognize it as a state for many years because they considered its creation illegal but eventually gave in.

In the Crimea case, there are a number of relevant considerations. Favoring secession, one can point to the fact that the Crimea has long enjoyed a great deal of autonomy from Ukraine; that Crimea has long been part of Russia (or the Soviet Union) and was handed over to Ukraine only in 1954; and that, if the referendum succeeds, then the Crimean people themselves wish to secede.

Going the other direction, Crimea is currently occupied by Russian troops, and the question of secession was (as far as I know) put on the agenda only because of Russia’s illegal intervention. Unlike places like Quebec, the Basque Country, and Scotland, the question of secession is entirely new; there was never a live secession movement that sought reunification with Russia. Ukraine itself does not appear to favor secession of Crimea. The world ought to be skeptical about the Crimean Parliament’s intentions, but if a fair referendum is held, and there is overwhelming sentiment in favor of unification with Russia, then a major geopolitical victory will be within Russia’ grasp.

Update–maybe for this reason, President Obama has declared that the referendum would violate international law. On what basis? Perhaps that it would violate Ukrainian sovereignty, especially if the Russians are behind the scenes. But it wouldn’t be a violation of international law for Illinois to hold a referendum on whether to secede from the Union, and so I don’t see how it could be a violation of international law for Crimea to vote to secede.

Ukraine: Odds and Ends

1. Douglas Cox discusses the Panama analogy.

Consent was a central U.S. justification for intervention in Panama that was just as, if not more, thin than the paper on which Yanukovych’s invitation to Putin is written. The U.S. position was that it had never recognized the Noriega regime as the legitimate government in Panama and, just before Operation Just Cause began, the U.S. government purported to swear into office — on a U.S. military base — Guillermo Endara as the President of Panama, who then invited U.S. forces into his country. As the U.S. Army’s Law of War Manual later described “concurrent with the invasion, Mr. Endara was sworn in as President of Panama in the U.S. Southern Command Headquarters one hour before the invasion occurred; forces were already airborne en route” (see p.82).

 2. Ryan Goodman argues that Ukraine should join the ICC because that will deter Russian troops from committing war crimes on Ukrainian soil, assure the Russians that the Ukrainian government will not massacre ethnic Russian civilians who live in Ukraine, and provide a forum in case the legitimacy of the Ukrainian government is ever questions. But ICC involvement so far has made governments pretty unhappy–countries that have invited it in and western governments who dislike its interference. The institution is too new, too unpredictable, too hard to control–and it eliminates the valuable option of amnesty. An ICC prosecution of, say, a Russian soldier who was captured in Ukraine and sent to the Hague would create a completely unnecessary global crisis.

3. Ashley Deeks publishes a reader’s legal defense of the Russian intervention. This is the most carefully argued defense I have seen; however,  I disagree with it for reasons I give here.

The 1997 Black Sea Fleet Agreement Between Russia and Ukraine

Russia’s UN ambassador, Vitaly Churkin, apparently cited a 1997 treaty between Russia and Ukraine as a source of authority for Russian troop movements in the Crimea:

We have an agreement with Ukraine on the presence of the Russian Black Sea fleet with a base in Sevastopol, and we are acting within the framework of that agreement.

The treaty, called Agreement Between the Russian Federation and Ukraine on the Status and Conditions of the Russian Federation Black Sea Fleet’s Stay on Ukrainian Territory, was extended in 2010. Through the heroic efforts of the University of Chicago law librarian, Lyonette Louis-Jacques, I have gotten my hands on an English translation of that treaty. (The Russian version is available on the web, and you can use Google translate on it if you dare.)

As has already been reported, the treaty unsurprisingly does not give Russia the authority to conquer the Crimea. Nor does it give Russia the discretionary authority to move troops around the Crimea. It gives Russia the authority to locate troops on its bases in the Crimea, and to move them between those bases and Russian territory. But the troops must follow Ukrainian law and respect Ukrainian sovereignty. I paste some of the relevant articles below.

russia ukraine agreement

 

Taken from J.L. Black, ed., Russia & Eurasia Documents Annual 1997: The Russian Federation, vol. 1, p. 129 (Academic International Press, 1998).

Is there a rule that government actors don’t change the Constitution?

Will Baude says there is:

At an empirical level, I think it is certainly possible for constitutional change to occur through mini-revolutions or political evolution. But there remains the question of one, whether those changes are valid under our current legal rules, and two, whether they really occurred. I would say our current legal rules honor an important relevant principle in the text: government agents are not authorized to make constitutional change. They take an oath, and it is an oath to apply “this Constitution” that we have, and that reflects an important limit on the power that we the people have delegated to them. The people may well have a right to ignore the Constitution, but the government officials who happen to be their agents do not.

I can’t make sense of this passage. How can constitutional change through a mini-revolution or political evolution occur and not be “valid under our current legal rules”? Doesn’t constitutional change of this sort just mean that the rules aren’t valid or are incomplete? Isn’t that what happened in 1789? No one cares that the 1789 text is invalid under the Articles of Confederation.

Will then goes on to make a distinction between the “people” ignoring the Constitution and government officials. But this brings us back to 1789. Should government officials have declined to obey the 1789 text because they are “officials” rather than “the people”?

It may be that Will is focused on government officials acting without the people’s blessing. But what if they in “good faith” (quoting Will again, as he suggests in another passage that justices act in good faith) believe that the people have chosen to change the Constitution? Aren’t they then obligated to defer to the will of the people? And note on this view limited government prevails: government officials can change the Constitution (or, I would say, recognize a change in the Constitution) only if they believe in good faith that the people have changed the Constitution. The oath clause argument is circular: the question is whether it refers to an unchanging text or evolving norms.

Will’s first sentence is a large concession that is hard to square with originalism. Even if he thinks that no such evolution has occurred, he seems constrained to acknowledge that if it can occur, justices and other government agents should be on the lookout for changes in the people’s constitutional understandings, and should act accordingly if such changes occur.

Have the use of force rules reduced the frequency of war?

wars

Source: Kristian Skrede Gleditsch & Steve Pickering, Wars Are Becoming Less Frequent (2013).

Burcu Bayram at Duck of Minerva echoes Peter Spiro’s skepticism about my skepticism:

Yet mere breach does not mean international law is epiphenomenal. The international community has condemned Russia’s action. Sanctions from the U.S. are already in effect. G7 suspended preparations for the G8 meeting in Russia. Eurozone countries seem committed to isolating Russia if a diplomatic solution cannot be found promptly even though they-especially Germany- are particularly dependent on Russia for gas and oil. All this indicates that international law is consequential.

As I explained earlier, I have never claimed that international law is inconsequential. For example, trade law seems to matter. But it is always an empirical question whether a specific rule affects state behavior or not, and in a meaningful rather than trivial way. Anecdotal evidence gets one only so far.

To address this problem, scholars use statistical methods–basically, event study methodology, to test whether state behavior changes in the predicted fashion after the state ratifies a treaty. This approach has been productively used in the area of trade (yes) and human rights (generally, no). It helps in these areas that different states ratify the treaties at different times. Unfortunately, the use of force rules came into effect all at once for everyone in 1945, so there is not enough variation to do a real test. (Many countries joined the UN system later, but usually when they came into existence, or for other unusual reasons that cannot be controlled for.)

Still, I thought it would be interesting to take a look at the incidence of interstate war, and I found the graph I reproduce above in Kristian Skrede Gleditsch & Steve Pickering, Wars Are Becoming Less Frequent (2013), which seems like a carefully written paper. The bars show the number of interstate wars (excluding civil wars) with at least 1,000 battle deaths in a given year. Note that the 2011 Libya war is excluded because the data set ends in 2010, and the 2008 Russo-Georgian war is excluded, presumably because of insufficient battle deaths.

One can certainly detect a decline in the frequency of interstate wars (as shown by the various trendlines). But it would be very hard to attribute any causal influence to the 1945 UN charter. If you trust the linear time trend, 1945 just falls in the middle of a long-term decline. If you take one of the nonlinear time trends, it falls before an increase in the number of wars. If one is looking for causes, the end of the cold war with the onset of U.S. hegemony seems like the most plausible–the infrequent warfare over the last 20 years pulls down all the time trends. However, all in all it is hard to find any causal pattern at all.

If you want to, you can find reasons for giving causal effect to  the 1945 law. You can say that it took a while for the a new norm to work itself through the system, or that the cold war or decolonization was an anomaly that interrupted what would otherwise have been a smooth pattern of causal influence. Maybe. But it seems to me that if one makes such claims, one needs to acknowledge a low level of confidence.

Kirkland and Ellis Distinguished Service Professor, University of Chicago Law School