International law only applies when it suits the strong

Brahma Chellaney, The National

PointThe looming cold war triggered by the US-supported putsch in Kiev that deposed Ukraine’s constitutional order and by Russia’s muscular riposte, including annexing Crimea, underscores the major powers’ unilateralist approach to international law.

A just, rules-based global order has long been touted by powerful states as essential for international peace and security. Yet there is a long history of world powers flouting international law while using it against other states.

Russian president Vladimir Putin’s action in annexing Crimea violated Ukraine’s territorial integrity, even though it followed a referendum in that historically Russian region, where the majority of residents indisputably lean toward Russia. The annexation represents a flagrant breach of international law.

This, however, cannot obscure the fact that the US and Nato have repeatedly shown contempt for international law. There’s a long list just for the past 15 years – the bombing of Serbia, the separation of Kosovo from Serbia, the invasions of Afghanistan and Iraq without UN Security Council mandates, the overthrow of Muammar Qaddafi’s regime through aerial bombardment, the aiding of a still-raging bloody insurrection in Syria, and renditions and torture of terror suspects. The US has refused to join a host of critical international treaties – ranging from the 1982 UN Convention on the Law of the Sea to the 1998 International Criminal Court Statute. Even its National Security Agency’s Orwellian surveillance policy mocks international law.

In this light, is it any surprise that the US’s moral authority and international standing have eroded?

Washington openly backed the violent street protesters who in February toppled Ukraine’s democratically elected president, Viktor Yanukovich. This has set a dangerous precedent. No democracy can be safe if armed men are allowed to spearhead street protests against the constitutional authority.

The Ukraine case illustrates the international law of convenience. Mr Putin has cynically justified his action in the name of his “responsibility to protect”, the very moral (not legal) principle US president Barack Obama invoked to rationalise Qaddafi’s overthrow.

To be sure, the Ukraine crisis is rooted in Nato expansion and US-led moves to take Ukraine out of the Russian sphere of influence. After Nato’s 1949 birth, its first secretary general, Lord Ismay, admitted the organisation’s purpose was to keep “the Russians out, the Americans in, and the Germans down”. Now Nato’s sole aim is to stay relevant in spite of the Cold War’s end, even if that means playing up the Russian threat.

The new developments are actually a geopolitical windfall for another power that serves as a prime example of a unilateralist approach to international relations – China, which still hews to Mao Zedong’s belief that “power grows out of the barrel of a gun”.

China’s growing geopolitical heft has emboldened its muscle-flexing and territorial nibbling in Asia. China rejects some of the same treaties the US has declined to join, including the Convention on the Law of the Non-Navigational Uses of International Watercourses, which lays down rules on the shared resources of transnational rivers, lakes and aquifers.

China has established a hydro-supremacy unparalleled in the world by annexing the starting places of Asia’s major international rivers – the Tibetan plateau and Xinjiang – and working to reengineer their cross-border flows. Yet China – the source of transboundary river flows to more countries than any other hydro-hegemon – rejects the concept of water sharing and refuses to enter into any treaties.

China remains territorially a revolutionary power bent on upending the status quo in Asia. Yet, with both Mr Obama and Mr Putin actively seeking to woo China, the likely big winner from the turn of events is the country that has been expanding its borders ever since it came under Communist rule in 1949. That China continues to press steadily outward was illustrated by its recent establishment of an air-defence zone extending to islands controlled by Japan and South Korea.

China’s geopolitical gains will solidify if the US jettisons – as appears likely – its post-Cold War policy of seeking to influence Russia’s conduct through engagement and integration. The US is closing the door to Russian accession to the OECD and effectively ousting Russia from the G8 by making it the G7 again – an action that can only accelerate that institution’s crawling irrelevance in international relations.

Punishing Moscow risks creating a self-fulfilling prophecy that promotes the re-emergence of a czarist Russia and segregates states along a new bipolar axis.

Given the innately self-calculating and self-aggrandising human nature, strong nations have always sought to gain dominance over the weak. New technologies and reduced transport costs have made the world increasingly interdependent and generated many new treaties and rules. Yet the more the world has changed, the more it has remained the same in one aspect – the strong still dominate the weak.

While the weak remain meek, power respects strength. Had Crimea been seized by a smaller power, the US by now would have assembled a “coalition of the willing” to launch a military attack on the occupier. But because the occupier in this case is a country armed with nuclear weapons, Mr Obama has ruled out any US military involvement.

The major powers assert one set of rules for themselves and a different set for other states, as if international law were only for the weak.

Brahma Chellaney is a geostrategist and author

(c) The National, 2014.