Law, Rhetoric, Strategy: Russia and Self-Determination Before and After Crimea

The article considers how and why Russia has used international legal arguments concerning self-determination in relation to its intervention in Ukraine. Of what use is legal rhetoric in the midst of politico-military conflict? The article reviews the laws of self-determination and territorial integrity and considers Russia’s changing arguments concerning these concepts over the cases of Kosovo, South Ossetia, and Ukraine. Inasmuch as international law is the vocabulary and the grammar of modern diplomacy, States may use legal rhetoric with multiple audiences in mind. While the shifts in Russia’s arguments may be due to strategic needs in specific conflicts, the legal interpretations of powerful States can frame the expectations and potential future actions of other States. Consequently, the strategic use of legal rhetoric may (perhaps inadvertently) affect the substance of international law

Whose Public, Whose Order? Imperium, Region, and Normative Friction

Theories of international law and politics are a product of their times. They focus on the issues of the day (or of the immediate past) and their assumptions are often the assumptions of the society in which they were born. Perhaps that it is why so many international relations scholars were surprised by the end of the Cold War: Their theories were so informed by bipolarity that they were unable to see the actual changes that would transform the state system. As international relations scholars are re-assessing their theories in a post-Cold War world, lawyers may do the same concerning international legal jurisprudence. Throughout the Cold War, the New Haven School of policy-oriented jurisprudence attempted to describe how law was actually used in the policymaking process and to suggest how it should be used towards the goals of securing human dignity and the spread of free societies. But with the titanic struggle between competing world orders being replaced by parochial fights and feuds, whither the New Haven School? What insights does it have for today\u27s world? Does the New Haven School\u27s theory need to catch up to the practice of international law? This Article considers the strengths and weaknesses of the New Haven School in light of the competition among multiple conceptions of world public order that exist today. As a test case, I will look at the competition on the grand chessboard of Eurasia. At one time called the world island by geo-strategists, Eurasia today is home to seventy-five percent of the world\u27s population, sixty percent of the global GNP, and contains about seventy-five percent of known energy sources. It is also a geographic space where multiple conceptions of public order, including those of the United States, the European Union, Russia, and Islamic fundamentalists, overlap, interact, and at times compete. This is especially so in the unstable arc of states bordering Russia: from Belarus, Moldova, and Ukraine in the West; down to the Caucasian countries of Georgia, Armenia, and Azerbaijan in the Russian southwest; and ultimately the Central Asian republics of Kazakhstan, Uzbekistan, Turkmenistan, Tajikistan, and Kyrgyzstan to the Russian south. In Part II, I will introduce the idea of diverse systems of public order described in policy-oriented jurisprudence. I will also situate the New Haven School as part of the liberal modernist tradition that attempts to find universal norms and/or techniques to address questions of political or normative conflict. Part III will examine the different public orders in today\u27s multi-polar, multi-normative world. In Part IV, I will propose the concepts of systemic borderlands—states that are the geopolitical crossroads between two or more normative realms—and of normative friction, the process in which competing conceptions of public order interact in these borderland states, as a means of describing the normative interactions in a multi-polar world. Part V will consider examples of systemic borderlands and normative friction in Eurasia. In Part VI, I will propose ways in which the New Haven School can build on some of its own original insights on the existence of diverse systems of public order in light of changes in international politics. As this short Article can only scratch the surface of so many issues, I will also set out questions for further investigation

Resolving Treaty Conflicts

The viability of international law rests largely on the viability of treaties as a source of law. In the second half of the twentieth century, the international state system was supported by the development of treaties. States focused the majority of their regime-building efforts on three sets of concerns: restraining interstate conflict, securing human rights, and managing the economic system. States used treaties as the primary tool in the construction of these international institutions and in the codification of these norms. Moreover, treaties shift issues from the political arena into a juridical, rule-based, forum. The very success of treaties as a policy tool has caused a new dilemma: a surfeit of treaties that often overlap and, with increasing frequency, conflict with one another. For the treaty partners of states that have adopted conflicting treaties, this results in a lack of certainty as to which-if either-treaty would be honored. After the successes of the last fifty years, international law may become increasingly dysfunctional in the first decades of the twenty-first century due to the sheer number of these treaties and the lack of useful, principled, methods to resolve conflicts between them. This Article addresses a particular cause of fragmentation—unresolved conflicts between treaties—and considers how lawyers and policymakers may respond to the challenges posed by treaty proliferation and conflict. I argue that treaty conflicts are a key underlying cause of fragmentation and that the current rules are inadequate to provide clear, systematic solutions to treaty conflicts. This Article proceeds in five parts. Part I describes treaty conflicts in terms of the subject-matter and the structure of the treaties. Part II considers techniques of resolving treaty conflicts as alternatives to application of the Vienna Convention on the Law of Treaties (VCLT). Strategies include the drafting of clauses to avoid potential conflicts and the use of interpretive techniques to analyze texts that have already been written. Part III turns to the codification of conflict resolution rules in the VCLT and considers their strengths and weaknesses. Part IV analogizes from other types of textual conflicts, such as conflicts between contracts or between statutes. Part V draws from the previous sections to suggest options in addressing treaty conflicts, including: (a) ending the same subject-matter rule in assessing whether or not treaties conflict and in the application of conflict resolution rules; (b) increasing the use of purposive interpretation to assess and resolve treaty conflicts; (c) drafting more detailed conflict avoidance clauses in treaties; and (d) increasing the use of a procedure of assurance to determine the intention of a state that has ratified conflicting treaties. While there is no single solution to this complex dilemma, there are ways to minimize some of the unwanted effects of the proliferation of treaties. Part V also broadens the focus from these specific recommendations and considers the implications of the preceding discussion on the status of international law as a coherent legal system

A Tale of Two Networks: Terrorism, Transnational Law, and Network Theory

Talk of networks and network theory has become almost ubiquitous in the field of counterterrorism. Terrorist organizations are networks. Terrorists have been empowered by the Internet, ethnic diasporas, and cell phones—networks all. Many of the putative targets of terrorists—electrical grids, oil pipelines, and transportation systems, to name a few—are themselves networks. And, perhaps less often mentioned, terrorists are increasingly hampered by national and international laws that foster cooperation and coordination among states—a network of laws. From smart mobs to net wars, from narco-trafficking to the Internet, network theory has provided insights into decentralized social organizations and their coordinated action. Both sides in the War on Terror are networked and are themselves networks. This essay is the tale of two networks: what happens when the network of terror and the network of law collide. Part II will briefly introduce the network theory and use it to describe the mechanisms of al Qaeda\u27s terror network. Part III will turn to how network theory has affected counterterrorism strategy, particularly emphasizing intelligence analysis and the use of legal regimes to leverage strengths. Part IV will return to network theory more broadly and ask how the network of law can be adjusted to be more effective in disrupting the terrorists\u27 network. This essay concludes that, despite the hostility of the Bush Administration to international law and that Administrations\u27 efforts to circumvent existing domestic legal regimes, the network of domestic and international laws, including the protection of civil liberties, is a crucial component to a successful counterterrorism strategy

Triptych: Sectarian Disputes, International Law, and Transnational Tribunals in Drinan\u27s Can God and Caesar Coexist?

Can international law be used to address conflicts that arise out of questions of the freedom of religion? Modern international law was born of conflicts of politics and religion. The Treaty of Westphalia, the seed from which grew today\u27s systems of international law and international relations, attempted to set out rules to end decades of religious strife and war across the European continent. The treaty replaced empires and feudal holdings with a system of sovereign states. But this was within a relatively narrow and historically interconnected community: Protestants and Catholics, yes, but Christians all. Europe was Christendom. To what extent can international law be an effective tool for delineating and protecting religious freedom around the world in the 21st century? In “Can God and Caesar Coexist?,” Father Robert Drinan sketches a preliminary answer. While Westphalia largely took religion out of international law, Father Drinan considers how international law may mediate and moderate conflicts over religious freedom. It is an ambitious project. Father Drinan claims no simple solution, but rather offers suggestions on how to proceed. One central concept in his discussion is the establishment of an international tribunal to resolve conflicts over religious rights, much as the ECHR and the Inter-American Court on Human Rights ( IACHR ) do for human rights more generally. A tribunal focusing on the international law of religious rights has never existed. Faith in the work of international institutions, however, is a hallmark of mainstream international legal jurisprudence, particularly from the Victorian era to today, but with roots that delve much deeper into the earth of the profession. In this instance, is such faith misplaced? Part I of this essay will consider Father Drinan\u27s proposal as part of the modernist tradition of international legal jurisprudence. Aspects of Father Drinan\u27s argument are especially similar to conceptions of international law elucidated by Hersch Lauterpacht, perhaps the greatest twentieth-century exponent of legal modernism. Both Lauterpacht and Drinan draw from a worldview defined by the European Enlightenment and the start of what is commonly called the Age of Reason. After situating the proposals of “Can God and Caesar Coexist?” within international law\u27s tradition, Part II will turn to a pair of relatively recent methods of criticizing the traditional view of international law: rational choice theory and so-called critical or new stream perspectives on international law. Although these perspectives have at times been linked with politically conservative (rational choice theory) and liberal (new stream) viewpoints, Part II will argue that they are better understood as atavistic conceptions of law that have earlier manifestations in the theories of the Enlightenment philosophes and of their Romantic critics. As such, legal modernism, new stream theory, and rational choice perspectives are methodological siblings, borne of the Age of Reason and now squabbling over the intellectual inheritance of their parents. They may be better off sharing the wealth and helping each other. With this discussion as a base, Part III will return to Father Drinan\u27s proposal and how it may profit from the perspectives of rational choice and the new stream. While new stream and rational choice theorists are each critical of the perspective of mainstream international law, each can learn from the other in considering how to address the sectarian struggles of today. We must trace the path from Lauterpacht to bin Laden, from the Concert of Europe to the era of Jihad vs. McWorld because, in the end, Father Drinan\u27s project challenges us to consider how the tools of the Enlightenment apply to the Age of Terrorism

The Language of Law and the Practice of Politics: Great Powers, Small States, and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia

If international law is all but irrelevant to international relations why do states spend so much time and effort justifying their actions under international law? The immediate reaction by many is to dismiss this as cheap talk, a rhetorical fig leaf or simple bluster of little consequence. This Article aims to debunk the notion that the rhetoric surrounding international law is of little consequence. Rather than mere cheap talk, the rhetoric of international law is at times used by great powers (and other states) in an attempt to gain tactical, if not strategic, advantages. This Article seeks to elucidate what is acceptable and what is not in modern diplomatic discourse and the relation of this acceptability to state practice. In this sense, international law serves as both a vocabulary and a grammar for diplomacy. International law is a vocabulary in that it defines the words that can or cannot be used in diplomatic discourse, the terminology that is or is not acceptable. Similarly, international law provides a grammar for international relations by setting the rules by which words fit together. By cabining what can be said in international relations, international law defines norms, shapes expectations, sets the boundaries of what can be legitimized and, ultimately, can make it more or less likely that certain state actions will be successful. I will use one topic area—arguments over self-determination—and two cases—Kosovo and South Ossetia—to explore this relationship between the language of law and the practice of politics. This Article begins by briefly setting the background of the Kosovar and South Ossetian conflicts. Section III is a quick primer on the evolution of the concept of self-determination and its sometimes difficult coexistence with the concepts of sovereignty and territorial integrity. Section IV turns to the analysis of how legal argumentation was used by Russia, the US, and the EU in the cases of Kosovo and South Ossetia. Although I note the relative strengths and weaknesses of the arguments, I am less interested in who was right or wrong as opposed to what strategy was used (if any) in deploying the language of international law. I am especially interested in how Russia, in particular, has used the language of international law as a tool of public diplomacy in an attempt to spin the perceptions or control the narratives related to both Kosovo and South Ossetia. Finally, Section V considers how the rhetorical use of international legal argumentation goes beyond managing perceptions and can actually affect the evolution of the substance of international law. Language as a social interaction defines and reinforces norms which, in turn, are fundamental to what becomes effective law. In the case of international law and international relations, the words used by hegemonic, or great, powers are especially influential. Great powers may not only use the language of law to legitimize their actions but also to propose new definitions for existing terms and, in time, change international law itself. For this reason alone, law talk by the great powers is not cheap talk. It is an attempt to change the rules of the game

The Theory and Practice of Regional Organization Intervention in Civil Wars

The United Nations\u27 reach in peacekeeping is fast outdistancing its grasp. Spread across seventeen countries, the U.N.’s over 80,000 civilian and military personnel monitor cease-fires, protect aid convoys, and separate warring parties. As the U.N. extends its arms, financial resources seem to slip through its fingers like grains of sand. In short, the U.N. lacks the resources to continue increasing its peacekeeping responsibilities. In An Agenda for Peace (Agenda), Secretary-General Boutros Boutros-Ghali proposes that part of the solution to the economic problems of the U.N. lies in reconsidering how regional organizations interact with the U.N., a suggestion which revisits a half century debate between advocates of globalism and advocates of regionalism. This Note examines the globalist/regionalist debate as it affects an area of particular importance in the post-Cold War era: the international community\u27s response to the growing number of civil wars. In studying this topic, parts I and II will provide brief summaries of the legal issues relating to civil wars in general and to issues raised by the language of the U.N. Charter itself. By means of a case study of the European Community\u27s reaction to the conflict between Croatia and Serbia, part III will act as a counterpoint to the textual summary of the preceding sections. It will illustrate practical considerations in regional organization intervention. Part IV, by reincorporating the textual and historical approaches, will return to the Charter and re-examine its text in light of the Croatian case and other examples. Part V will consider various political and empirical factors that affect the action of regional organizations and will suggest a series of textual and institutional changes that can be made to invigorate cooperation between the U.N. and regional organizations

Whose Public, Whose Order? Imperium, Region, and Normative Friction

Theories of international law and politics are a product of their times. They focus on the issues of the day (or of the immediate past) and their assumptions are often the assumptions of the society in which they were born. Perhaps that it is why so many international relations scholars were surprised by the end of the Cold War: Their theories were so informed by bipolarity that they were unable to see the actual changes that would transform the state system. As international relations scholars are re-assessing their theories in a post-Cold War world, lawyers may do the same concerning international legal jurisprudence. Throughout the Cold War, the New Haven School of policy-oriented jurisprudence attempted to describe how law was actually used in the policymaking process and to suggest how it should be used towards the goals of securing human dignity and the spread of free societies. But with the titanic struggle between competing world orders being replaced by parochial fights and feuds, whither the New Haven School? What insights does it have for today\u27s world? Does the New Haven School\u27s theory need to catch up to the practice of international law? This Article considers the strengths and weaknesses of the New Haven School in light of the competition among multiple conceptions of world public order that exist today. As a test case, I will look at the competition on the grand chessboard of Eurasia. At one time called the world island by geo-strategists, Eurasia today is home to seventy-five percent of the world\u27s population, sixty percent of the global GNP, and contains about seventy-five percent of known energy sources. It is also a geographic space where multiple conceptions of public order, including those of the United States, the European Union, Russia, and Islamic fundamentalists, overlap, interact, and at times compete. This is especially so in the unstable arc of states bordering Russia: from Belarus, Moldova, and Ukraine in the West; down to the Caucasian countries of Georgia, Armenia, and Azerbaijan in the Russian southwest; and ultimately the Central Asian republics of Kazakhstan, Uzbekistan, Turkmenistan, Tajikistan, and Kyrgyzstan to the Russian south. In Part II, I will introduce the idea of diverse systems of public order described in policy-oriented jurisprudence. I will also situate the New Haven School as part of the liberal modernist tradition that attempts to find universal norms and/or techniques to address questions of political or normative conflict. Part III will examine the different public orders in today\u27s multi-polar, multi-normative world. In Part IV, I will propose the concepts of systemic borderlands—states that are the geopolitical crossroads between two or more normative realms—and of normative friction, the process in which competing conceptions of public order interact in these borderland states, as a means of describing the normative interactions in a multi-polar world. Part V will consider examples of systemic borderlands and normative friction in Eurasia. In Part VI, I will propose ways in which the New Haven School can build on some of its own original insights on the existence of diverse systems of public order in light of changes in international politics. As this short Article can only scratch the surface of so many issues, I will also set out questions for further investigation