Did Ukraine consent to its own invasion?

Sending troops into a foreign country does not violate international law if that country gave its consent. Is this Russia’s legal justification for its incursion on Ukrainian territory?  According to Bloomberg:

Vitaly Churkin, Russia’s ambassador to the United Nations, said today the crisis is creating serious risks to Russian security and to the safety of millions of Russian-speaking compatriots in southeastern Ukraine. Former Ukrainian President Viktor Yanukovych wrote to Russian President Vladimir Putin requesting a military deployment, Churkin said.

 “It’s completely legitimate under Russian law, and given the extraordinary situation in Ukraine, this threat and the threat to our compatriots, Russian citizens and the Black Sea Fleet,” Churkin told a meeting of the UN Security Council in New York, reading out loud the March 1 letter from Yanukovych.

[Update: and here is Putin: “As you may know, we have a direct appeal from the incumbent and, as I said, legitimate President of Ukraine, Mr Yanukovych, asking us to use the Armed Forces to protect the lives, freedom and health of the citizens of Ukraine.”]

It’s a unclear whether Churkin is making a consent argument, a humanitarian intervention argument, a self-defense argument, or all three. But assuming a consent argument is involved, is it valid? After all, Yanukovych was the elected president of Ukraine, and he was never unelected. He was driven out of office after being “impeached” by the Parliament. My understanding is that the impeachment did not follow constitutional procedures. If so, he was removed by a coup. That is, in fact, his view and Russia’s position.

Suppose that is the case. The international law is murky but the rule in these situations is that even when a government is illegally deposed, the successor government inherits its legal authority under international law as long as it controls the territory–the basic idea being that if foreign governments want to trade or otherwise deal with the population, then they must go through whatever entity controls them. There is some doubt about how much the government in Kiev controls the territory, but it certainly exerts greater control over it than Yanukovych does, whose whereabouts are unknown. The new government is also treated as legitimate by many (most?) foreign governments (in contrast to the government that came to power after the controversial coup in Honduras in 2009), and that too contributes to its authority under international law.

Russia disagrees, but even if we therefore conclude that Ukraine currently lacks a legitimate government under international law, it doesn’t follow that Yanukovych, who is now a private citizen, has the authority to invite Russia in. He doesn’t.

And here is Chris Borgen on this topic.

Ukraine and The Limits of International Law

Peter Spiro (and/or someone else operating the Opinio Juris twitter account) accuses me of “gloating” about the military intervention in Ukraine, being a “realist,” committing something called the “perfect compliance fallacy,” and believing that “international law is a chimera.” These accusations are false.

Julian Ku and Erik Voeten have already provided partial rebuttals. For the record, here are my views:

1. I am not a “realist” in the political science sense. I believe that countries cooperate when they can achieve mutual gains; that cooperation can benefit from sophisticated institutional arrangements; but that cooperation must be self-enforcing, meaning that it must be in the individual interest of the relevant countries not to defect from their arrangements (what economists sometimes call the “participation constraint”). Although few (albeit an increasing number) law professors take this approach to international law, many (although certainly not all or even most) political scientists do. Realism, as I understand that term, emphasizes security competition among countries; it has little value for understanding international law.

2. Spiro is right that you can’t infer anything from a single data point if that’s what he means by the “perfect compliance fallacy.” However, I never said that because Russia violated international law in Ukraine, international law is a “chimera.” Nor did I say anything that could be construed in such a way.

My writings about international law have been devoted to explaining it, not denying that it exists like the mythical beast invoked by Spiro. However, I am more skeptical than most international law scholars, who are frequently advocates, cheerleaders, or aspiring diplomats. The arguments I have made in The Limits of International Law, Economic Foundations of International Law, and elsewhere implied that international law is most effective at solving coordination games and managing bilateral cooperation, and not so good at solving collective action problems. So I have expressed skepticism about some types of international law–including collective security and human rights–but not others (trade law, for example). I have also argued that some areas of international law work under certain conditions but fail under other conditions–claims that are resisted by legal scholars but are familiar in political science (for example, James Morrow’s examination of the laws of war).

3. The evidence for the weakness of the use of force rules has been gathered and analyzed by many people, including Michael Glennon. The debate is too complicated to reproduce here. All I will say is that it is sufficient neither to point out that countries sometimes violate the law nor to point out that countries sometimes comply with the law. One needs to imagine the counterfactual world in which the UN system does not exist and ask how states would act differently. In such a world, would Russia have also invaded Armenia? Would the United States have invaded Canada? Countries have reasons other than law not to attack each other.

Ukraine: will “international law matter a lot down the road”?

Erik Voeten writes in The Monkey Cage that “international law and institutions look pretty weak now, but they will matter a lot down the road.” Let’s take a look at some of these institutions.

The Council of Europe and The European Court of Human Rights. If Russia commits human rights violations in Ukraine, the victims can brings claims before the ECHR. Russia has already lost many cases before the ECHR, paid the tiny awards, but has not brought its laws into conformity with the ECHR’s interpretations of the European Convention on Human Rights. Indeed, Russia has steadily deprived its people of their freedoms since it joined the Convention in 1998. The Council of Europe “enforces” the Convention and the Court’s judgments but actually has no coercive power, as Erik notes, and history amply demonstrates.

NATO. NATO is an institution, of course, but not in the sense that law professors mean. It does not have any legal powers. It is simply an alliance of countries. NATO can certainly put pressure on Putin, far more than any legal institution like the ECHR. But Ukraine is not a member of NATO, and NATO’s own charter would thus not compel countries to come to its aid. It seems unlike that NATO will become a vehicle for countering Russia’s move to Ukraine because it’s a military alliance and no one wants to go to war with Russia.

The laws of war. Erik thinks the laws of war will influence the way Russian soldiers prosecute military hostilities if such hostilities occur. Maybe if the Ukrainians put up token resistance, but not otherwise. Russia committed numerous atrocities–the clearest possible violations of the laws of war– during the two Chechen Wars. What reason would they have for acting differently this time around if Ukraine put up stiff rather than token resistance? And don’t say those were internal conflicts and therefore not governed by the Geneva Conventions. Russia (unlike the United States) ratified Protocol II in 1989, thus subjecting itself to the laws of war for “non-international” armed conflicts. If it can disregard this international treaty with impunity, why couldn’t it disregard the rules that would apply to the interstate conflict with Ukraine?

International Criminal Court. Russia is not a member of the ICC; Ukraine seems to be thinking about joining it. But the fact is that the ICC is an extremely weak institution, and if it ever hands down any indictments, this means at most that some Russian soldiers, officers, or politicians will be unable to travel to European countries. If you read David Bosco’s fine book on the ICC, you will see that even the west would not welcome the ICC blundering into this conflict.

The European Union and multilateral sanctions. Erik is right that the EU could imaginably exert meaningful economic sanctions on Russia. I don’t know whether this is plausible; maybe it is. But the main point here is that the EU, like NATO, is not a legal institution but an alliance (or something closer to a confederation) that may be able to aggregate the power of its members so as to counter Russian influence.

Erik is right that foreign countries, acting individually or in cooperation, can make Russia pay a price for violating international law. Whether or not they do so depends on their power and interests. If they are divided, or don’t care much about Ukraine, then Russia will get away with its illegal act. I am skeptical that any free-standing international legal institution with the responsibility for enforcing international law will “matter a lot down the road.” But only time will tell.

Will Russia make a legal argument to justify its intervention in Ukraine?

So far, Russia has not (as far I have been able to find) made an official legal argument to justify its incursion in Ukraine. As I explained in exhaustive detail yesterday, it doesn’t have an argument, at least not a good argument. But that won’t stop it from making the best argument it can; what will it be?

In searching for precedents, the best one I can think of is the Kosovo intervention in 1999. Then, NATO forces led by the United States attacked Serbia in order to rescue Kosovo from “ethnic cleansing” by Serbian troops and paramilitaries. The United States, like Russia now, lacked UN authorization. The United States, like Russia now, refused to provide an international-law justification at the time of the intervention. Later, a quasi-official justification was ginned up: the invasion was “illegal but legitimate” (according to one source) because of its humanitarian purpose. Still later, some efforts (mainly by the UK) were made to create a customary-law exception to the UN use-of-force rules, one that permits humanitarian military interventions despite the absence of UN authorization. These efforts failed to change the law but nonetheless helped reconcile westerners to the idea of unilateral humanitarian interventions, helping George W. Bush to elicit liberal support for his intervention in Iraq in 2003, which also lacked UN authorization. Yet it is also clear that part of the motivation for the intervention was geopolitical: the U.S. and Europe sought to enhance control over the Balkans and in the process diminish Russian influence.

Another semi-precedent was the not-quite intervention in Syria by the United States in 2013. President Obama was prepared to use military force to punish Syria for using chemical weapons against civilians, again based on a mix of legal and interest-based motivations–to strengthen a norm against using chemical weapons, to protect civilians, and to weaken the Syrian government. Putin famously scolded the United States for disregarding international law, and Obama abandoned the plan–most likely because of the absence of domestic and international support, not because of the absence of a legal justification which he knew of in advance.

Putin could thus argue for an implicit or “evolving” exception to the rules against use of force when humanitarian concerns are at issue. To avoid contradicting his position on Syria, he can argue that the distinction is that he is responsible for protecting ethnic Russian inhabitants of Ukraine, and that the mixture of populations in Ukraine could fuel a civil war unless Russia moves quickly and firmly. In Syria, the civil war was already in process, and the United States did not even pretend that its intervention could end it. Punishing the Syrian government to deter other states from violating the chemical weapons taboo in the future was remote from the humanitarian goal of protecting civilians in Syria, and thus provided a weaker justification than was advanced in Kosovo. Moreover, the U.S. has frequently justified interventions in foreign countries to protect Americans. No Americans in Syria needed our military protection; millions of Russians live in Ukraine. And while we mean American citizens while the “Russians” in Ukraine are ethnic Russians who are citizens of Ukraine, this distinction may be lost on those with strong nationalist feelings. There is a long if somewhat disreputable history of countries claiming the right to protect co-ethnics who live as minorities in foreign countries, which draws on powerful nationalist emotions.

All that said, the factual basis for the Russian argument does not exist: as far as we know, no one is ethnically cleansing Russians, and if civil war occurs, it will mostly likely occur because of the Russians not despite them. So Putin may want to hold off on this justification for the time being and, like Bill Clinton, keep his mouth shut until the facts are more amenable to a legal justification. If atrocities against Russians ever take place, he can claim that he anticipated a humanitarian crisis. If they don’t, he can claim to have prevented one.

These thoughts were stimulated by this piece by Chris Borgen.

Getting Incentives Right by Cooter and Porat

This is a very good book, which milks insights out of two dead-ish fields–torts and contracts–and one that has never come to life–restitution. I’m impressed by the creativity of the authors. My favorite of their many ideas is “anti-insurance”–where two contract parties agree that if the promisor breaches, he must pay damages to a third party (who pays for the privilege) rather than to the promisee. This mechanism prevents the promisee from relying excessively on performance while preserving the promisor’s incentive not to breach unless efficient to do so. It’s called anti-insurance because it eliminates the promisee’s right to damages (a kind of insurance) in case of breach.

Originalism class 8: accounting for change

Will argues that the distinction between sense and reference rescues originalism from the charge that it can’t account for change. This strikes me as an interesting but odd argument. Odd because some defenders of originalism tout it precisely because it cannot account for change. If change is necessary, then Article V (or, as Will cheerfully observes, revolution) provides the mechanism.

Moreover, one of the chief normative justifications for originalism is that it binds judges. In making this argument, Scalia cites the “reference” of the cruel and unusual punishment clause–the practice of capital punishment at the time shows that the ratifiers could not have been thinking about (“referring to”) the death penalty when they wrote down that clause. Thus, we know that the death penalty is not cruel and unusual. I don’t think Scalia made a philosophical mistake: the reference is obviously relevant when we are trying to figure out sense (or the “test,” as Will puts it) even if it does not exhaust the meaning. If following Will, we agree that reference should be discounted or ignored, then originalism loses some of its determinateness. Indeed, I don’t see the founding-era “sense” of “cruel and unusual” as being any different from what non-originalists think it should mean.

Well maybe this doesn’t matter, and if it doesn’t, the dispute between originalists and non-originalists reduces almost to a question of what rhetorical flourishes we should ask supreme court justices to attach to their opinions. I say “almost” because some modern constitutional rights (for example, abortion rights) are impossible to reconcile with the sense of any provision in the Constitution. Or take the commerce clause. So, in the end, I don’t think the sense/reference argument–which is really just an argument that we give less weight to founding-era understandings than we might otherwise–saves originalism from its inability to account for change. I think Will’s argument is rather simply that originalism requires interpreters to interpret reasonably rather than unreasonably, and at least on that issue we find common ground. But I remain puzzled why, if Will believes that constitutional change can occur through revolution, it can’t occur through “mini-revolutions,” like Ackerman’s moments or even ordinary political evolution that results in new constitutional norms but does not repudiate the existing system altogether.

 

The bitcoin paradox

The implosion of Mt. Gox exposes a paradox about bitcoin, which I have been groping for in some writings. Assume that the bitcoin software works perfectly (though there is some question about this) or can be made to work perfectly (as advocates argue). Bitcoin still has a problem with the “joints”–the gap between the network itself and the ordinary (non-expert) users without which it could never be more than a marginal phenomenon. Ordinary people will need to rely on institutions–exchanges like Mt. Gox and other services–and they will not rely on them unless they can trust them. But, unlike bitcoin itself, these institutions are run by human beings who can make mistakes or engage in fraud. Hence the need for regulation. Thus, bitcoin will prosper only if it is integrated into the regulatory infrastructure, but that means that it cannot operate as a decentralized currency outside of government control. Yet it is that feature that makes bitcoin so attractive to its most ardent supporters. I expect that legitimate investors and merchants who may benefit from it will push the government to normalize bitcoin by regulating the intermediary bitcoin institutions, at which point it will no longer be an autonomous currency but just a useful piece of software.

N.B.: journalists reflexively describe bitcoin as a means of transferring value without using an intermediary, but for ordinary consumers that is the case only in the sense that it is true for currency as well. You could put a bunch of dollars into a wheelbarrow and wheel them to the store. Banks exist because this is impractical, and in the same way bitcoin intermediaries like Mt. Gox exist because it is impractical for most people to wheel around bitcoins on their own.

Ted Eisenberg

Some revolutions take place with a bang. The empirical revolution in legal studies–and by this I mean rigorous data analysis–was hardly perceptible at first but now empirical work is everywhere. Much of the most interesting work being done right now in the legal academy–in such diverse fields as civil procedure, bankruptcy, international law, and constitutional law– reflects the rigorous statistical methods that Ted championed. At least 5 members of my faculty are trained in statistical methods, and several others do statistical work via collaborations. Twenty years ago hardly anyone did. Ted provided important institutional support for empirical legal scholarship but, most important, served as a model for those who followed him. I’m not sure he received sufficient recognition for his important methodological contributions to legal scholarship in his lifetime. Our paths crossed only a few times but each time it was terrifically rewarding for me. He will be sorely missed.

The Empty Call for Benefit-Cost Analysis in Financial Regulation by Jeffrey Gordon

Jeffrey Gordon has posted a paper arguing that applying cost-benefit analysis to financial regulation is a “serious category mistake.” He makes the arresting claim that CBA works best for the real economy, which is governed by the laws of chemistry and physics, but not for the financial economy, which is a “constructed system.” The bulk of the paper is devoted to showing the law of unintended consequences in action. Rules developed in the 1970s to permit money market mutual funds ended up harming S&Ls, which could not compete for funds, with the result that they were deregulated, whereupon they self-destructed. Etc.

Gordon is strongest in showing the sheer unpredictability of financial regulation. But is this problem worse than in other areas of regulation? Perhaps. Possibly connected to the idea that the financial economy is a “constructed system,” arbitrage seems to be a great deal easier in the financial world–limited only by imagination and computer power–than in the real world, where it can be hard to retool factories and move power plants. Still, I remain optimistic. Gordon’s is a nice companion piece to Coates’ paper, which I discussed here.

Law professor mentions in the New York Times

law prof mentionsAt The Monkey Cage, James Fearon checked to see whether political science has become increasingly relevant to public debate, as measured by the number of mentions in the New York Times. It has. The trend for law professors (I searched for “law professor” or “professor of law”, but the trend is similar for “law professor”-only searches as well) is even stronger. You can read his post for the various caveats–he’s the social scientist, not me.

What Courses Should Law Students* Take?

harvard pollThis image is from a paper by Fried, Coates, and Spier. They surveyed employers of Harvard Law School alumni, and found that employers believe law students should take accounting and corporate finance above all (5 is extremely useful for an associate to have taken; 1 is not at all useful)–even students who go into litigation. This chimes with my experience. I tell students that they should take as many finance-related courses as possible, including advanced courses in the business school. Math-anxious law students normally shy away from classes like these, only to find that they are expected to understand what a collateralized debt obligation or credit default swap is on the first day of practice. And, unlike the case of, say, antitrust, a good understanding of finance is not something one can pick up from practice. One might learn to fake it, but one needs a deep understanding. Every other big case these days seems to have a large finance component, and lawyers who are comfortable with finance can contribute more than those who aren’t.

*As several people rightly pointed out, law students who plan to practice in a large law firm in New York, Chicago, or other big city.

 

Originalism class 7: the evolving constitution

We read papers by Bruce Ackerman, David Strauss, and Jeremy Waldron. I was familiar with this work, but rereading these articles after the originalism pieces, it was easier to appreciate Ackerman’s argument that common-law constitutionalism doesn’t come to terms with the role of popular sovereignty in American political culture. Who ever talks about the common law anymore? Or of great common-law judges? But then Ackerman’s “originalism,” according to which public deliberation takes the place of the Article V process, founders on ambiguity as to what counts as an amendment. I tend to think that the justices implement their ideological preferences subject to some real but hard-to-specify institutional constraints about which they are (sometimes) willing to hear argument, above all precedent. If that is common-law constitutionalism, I suppose I’m on board.

But I prefer Waldron’s view that judicial review should be junked altogether, a view that has the happy consequence of making it unnecessary to take an interpretive stance toward the text. Some students thought that under such an approach, rights would no longer be protected, but it is plain that Congress and state legislatures do far more to protect rights than the Court does. Alas, Waldron’s position is as remote from American reality as Mars. For we could add to the four empirical premises of his argument (1–democracy, 2–responsible judiciary, 3–people care about rights, 4–people have good faith disagreements about rights), a fifth: 5–people think courts should resolve those disagreements.

Offsetting Benefits

Ariel Porat and I have posted a new paper to SSRN, which discusses how courts should determine damages when a wrongful act that harms someone also creates a benefit. Consider two examples:

  • A driver causes an accident that injures a pedestrian who then writes a bestseller that details her recovery.  Should damages equal medical  expenses and the like, or should the court offset the royalties, which, after all, would not have been generated but for the accident?
  • A driver causes an accident in the course of swerving to avoid another pedestrian or while rushing an injured person to the hospital. Should the gains to the third party be offset from the damages the driver owes to the victim?

These are not easy questions, and courts give inconsistent answers. We argue that if one focuses on the social costs of the behavior in question, it will often be appropriate to net out the benefits. However, complex problems of causation, measurement, and related issues often suggest that the general bias against offsetting benefits in the law is justified.

Voting Squared: Quadratic Voting in Democratic Politics

squareGlen Weyl and I have posted a revised draft of Voting Squared on SSRN. We argue that quadratic voting can and should play a role in democratic decisionmaking.

Quadratic voting is a voting procedure where people are allowed to buy votes for or against a proposal (or candidate) by paying the square of the number of votes they cast (e.g., 3 votes cost $9). The votes are totaled up and the majority prevails. Quadratic voting enables people with strong interests in an outcome to exert influence in proportion to the strength of their interest, so a passionate numerical minority of voters may be able to outvote an indifferent majority. Weyl shows  in another paper that with a sufficiently large population (say, a few dozen), a proposal will win a quadratic vote if and only if the aggregate gains to the winners exceed the aggregate losses to the losers in willingness-to-pay terms.

The main point of our joint paper is that conventional voting rules (for example, one-person-one-vote with majority rule) do a very bad job because they provide people with no way to exert influence on outcomes in proportion to the intensity of the effect of those outcomes on their well-being. This leads to the familiar tyranny-of-the-majority problem. We then discuss all the ways that have been developed to address this problem–judicial review, cost-benefit analysis, supermajority rule, and so on–and show that they do worse than quadratic voting would if it were implemented.

Finally, we address the objections to quadratic voting for democratic politics, including:

  • It would favor the rich.
  • It would violate a taboo against vote-buying.
  • It would lead to political instability.

We show that these objections are mistaken.

Does Regulation Kill Jobs?

This book, edited by Cary Coglianese, Adam Finkel, and Christopher Carrigan, is out. My copy arrived and I have been paging through it. I became interested in this topic several years ago, and wrote a paper with Jonathan Masur arguing that regulators should monetize the expected costs from job loss caused by proposed regulations when they conduct cost-benefit analyses. Agencies have never done this, perhaps because in standard economic models, a job loss is not actually a social cost–the unemployed worker just gets another job, or capital shifts to a less regulated sector of the economy where new people are hired. But recent empirical work suggested that the social costs of a job loss could be high–in the neighborhood of $100,000–because human capital is destroyed, among other effects.

So we wrote this paper and were subsequently invited to participate in this conference, where a very strong group of people delivered papers collected in this book. Many papers dealt with the important but age-old question of whether regulation itself destroys jobs (maybe). I was more interested in whether people thought it would make sense for regulators to treat job loss as a cost in cost-benefit analysis . It looks like a maybe-to-yes with a great deal of cautious skepticism. One worry, which is a real one, is that agencies just can’t handle it. Agencies aren’t very rigorous in their existing cost-benefit methodology, and requiring them to look at job-loss effects may be too much. Still, I hope to see some experimentation in government. OIRA asked for comments on this topic a while back; I don’t know if anything came of it. There will be resistance from people who fear that our approach would reduce the amount of regulation.

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