Russia Thinks America Is Bluffing
To Deter a Ukraine Invasion, Washington’s Threats Need to Be Tougher
THE ideal of the rule of law in international affairs has a deep attraction for all of us as a way out of our dire situation. The question is: What is its value as a practical recipe for the present crisis between states--as a substitute, in the words of President Eisenhower, for the "absolute rule of force in the affairs of nations?"
Even within our own democratic societies the rule of law ideal is not a simple remedy for the exercise of arbitrary power. England is the cradle of the rule of law; but even there, so far as law enforced by the courts is concerned, the rule of law protects against executive power but not (in the last resort) against the supreme power in the state, the legislative power. For the rest, as Lord Wright once said, "the safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved." And even under a written constitution with a bill of rights, as in the United States, these remain the final arbiters--as the segregation issue reminds us--after the last judgment of the Supreme Court has been handed down.
The essence of the rule of law ideal lies, therefore, not in "law" narrowly defined, but rather in the supremacy of certain ethical convictions, certain rules of decency prevalent in the community, and in the fact that those who are at the apex of power share those convictions and feel bound to conform to them. A duly enacted statute to liquidate the Opposition would violate "the rule of law" not (as it were) because it wasn't "law," but because it wasn't "cricket."
As lawyer's law, the rule of law which Dicey so extolled merely guarantees procedural equality in enforcing such rights as the legal system distributes among members of the society. By and large in democratic societies, we accept our share of "rights" as they are--and accept third party judgment enforcing them--because legislatures, under the check of periodic elections and publicity of its procedures, are constantly overhauling the substantive law to keep it in tune with the demands of the time.
How satisfactory would the rule of law be if we awoke one bright morning to find that there was no longer any parliament to make or change the law? But this is precisely the situation in the international community. If, without changing this, we try to clamp the rule of law on states by requiring disputes to be settled by binding decisions of an international court, this freezes vested rights as they now are, and makes it even more difficult to adjust legal rights to rapidly changing conditions. There is obviously not the slightest hope that states will agree to this. A plan for the rule of law must provide some accepted method of changing the law, and of enforcing it as it changes. The feasibility of this in the international as in a national community turns on whether there exists a modicum of common ethical convictions as to the basic principles of decency between man and man. But are not some of the main war-provoking cleavages of today rooted precisely in bitter divergencies of ethical conviction, deeply entangled with conflicts of interests?
Until the major military powers are willing to bind themselves in advance to arbitrate all disputes without reference to the importance of their interests involved, it should be clear that programs to establish the rule of law among nations can offer little relief to remove fears of war. Can it, then, at least be said that, even if they do no good, they can do no harm? I think not. I fear that such programs can, in fact, do very real disservice to the cause of controlling conflict. For the illusory simplicity of the phrase "rule of law" obscures the present handicaps of international law as a basis for preventing disaster.
Reinhold Niebuhr recently said that men may be dangerous, not only because "they have . . . unlimited yearning for power, but because they are creatures of dreams; and their extravagant dreams turn into nightmares if they seek to realize them in history."[i] Is the dream of escaping from the fear of annihilation by means of a régime of law and order between peoples liable to turn into one of these nightmares? Does it do grave harm, even when we seek to realize it in the name of the greatest good?
The phrase "rule of law" is used by those with this particular dream to imply that a new era of security might begin if only states would submit to third-party settlement based on known and accepted rules of law. But not only is this demand on states without hope of acceptance. It also conceals the truth that such programs could not in any case conduce to peace unless states were willing to accept, first, both binding adjudication and binding legislative power of impartial authorities; and, second, an effective enforcement authority to carry out the decisions. Among the parties in the cold war such agreement obviously will not be forthcoming.
Broadly, it is disputes of an intractable nature dangerous to peace which international lawyers describe as "non-justiciable." We need not follow the lawyers into the technicalities of this concept. In essence it means that a dispute is non-justiciable if in the view of one or both of the disputant states the interests at stake are so important as to override any condition of the law. This is the area popularly covered by the notions of vital interests and domestic jurisdiction. Obviously most serious disputes fall precisely in this category. The refusal by states to accept third-party judgment in that wide range of conflicts which most threaten international peace is a stark fact of life. And no hopes for a rule of law, however eloquently expressed, are likely to make it disappear. Recent trends, not only among states but in the organs of the United Nations, have been to shrink further away from reliance on the judgment of third parties.
It is a platitude that the intransigence of states in insisting on the shibboleth of sovereignty is the main obstacle to the growth of the rule of law between nations. It is only a little less platitudinous to say that in order to overcome this intransigence we must educate public opinion.
But if any of us thinks that these platitudes help us much, he should stop and ponder. An American, when he feels indignant about the Soviet Union's stand on Berlin, should ask himself whether his own country would be willing to submit its position on the Monroe Doctrine to binding third-party decision. An Indian, indignant about apartheid or Western military alliances or Communist Chinese frontier encroachment, should ponder awhile whether his own country would submit the Kashmir dispute or the frontier dispute with Peking China to binding third-party settlement. On critical issues even the organs of the United Nations are known to shun the wisdom and learning of its principal judicial organ.
State sovereignty is not a sacred cow; but neither is it just a piece of abstract or fanatical lunacy produced by human greed or madness. It still corresponds to certain interests on which peoples, rightly or wrongly, continue to insist, even at the cost of life. Other more efficient and rational principles may be building--for instance, through the United Nations--but they have not yet occupied the sphere where life-and-death issues are involved. It is even a little uncertain whether they ever will. Meanwhile, our world still stands precisely where it stands.
Any vital change does, indeed, require education of public opinion. But education about what? Surely not about the fact that living under a world rule of law would be better than living under the terror of destruction. No one really denies that. The education that is needed would be directed rather toward renouncing national concerns which may seem vital but which block the realization of this ideal so long as peoples insist on preserving their own control over them. As soon as we each put the problem to ourselves in this way, we may begin to doubt whether, after all, we would be better off than at present if we handed over control of some of these concerns to an impartial stranger.
With only two minor exceptions, the Soviet Union has adamantly refused to bind itself to accept third-party decision, even of the International Court of Justice. Why? On this, as on so many matters, Soviet political and scholarly statements are tortuous and full of contradictions as the Party line changes, but it is not difficult to understand the Communist position. The interests which Communist states are concerned to advance, as for instance the so-called "liberation of peoples," require that existing rights of other states under international law be overthrown rather than that they be respected. The part of traditional law which has been under sharpest attack, namely the doctrine of sovereignty, is the only part on which the Soviet Union has steadily insisted--as its beneficiary, of course; for whenever one of its eyes fixes on the "liberation of peoples," the other eye is sightless before the sovereignty of the states from which they are to be liberated. The doctrine of sovereignty is admirably suited to the tactics of a state which does not intend to constrain its policies within the fetters of international law, but sees the advantages of cultivating the law-abiding instincts of its opponents.
The position is not much brighter in relation to the other main focus of contemporary international struggle--the relations of Western Europe and North America with Asia and Africa. With significant exceptions which have a special history, notably India and Pakistan, the newer states of these continents have manifested an attitude towards third-party settlement no less negative than that of the Communist states. But the reasons are not quite the same. The new states have generally come into being with their authority or their territory, or both, burdened with debts, concessions and commercial engagements of various kinds. They find themselves under a variety of obligations, either inherited from the colonial régime or resulting from their urgent needs for investment capital.
That these new states desire to maintain the utmost freedom of action in respect to their legal obligations is not only the common reaction of a debtor; it is also an expression of pride in their new-won sovereignty and of felt responsibility for the economic fate and standard of life of their peoples. In theory, of course, refusal to accept third-party decision does not alter their obligations. But it does leave them more room for manœuvre, to resort to a variety of extra-legal pressures on the creditor to surrender his rights. These may range from requests for re-negotiation, repudiation, hostile propaganda and boycott, to outright confiscation and even tacit instigation of popular demonstrations and violence.
Whereas, half a century ago, militarily weak states tended to welcome third-party settlement of their disputes with stronger powers, the position today seems to be quite the reverse. If a big man and a little man are struggling over a disputed valuable, the little one naturally would prefer to take the matter to a third party to settle. How, then, does it happen that today the weaker states do not prefer to go before a judge? The answer, of course, lies in the nature of contemporary international politics, and particularly in the inhibitions which great powers face in using military force for limited objectives.
As Sir Gerald Fitzmaurice (the Legal Adviser to the British Foreign Office) and others have pointed out, the enthusiastic efforts to ban all use of force in relations between states, except in defense of one's own territory against armed attack, have had the ironic effect of weakening international law. Formerly, when the use of force in support of legal rights was regarded as licensed, small powers favored third-party settlement because equality before the law was better than inequality on the battlefield. But when atomic weapons are obviously too formidable to use in vindicating most kinds of legal rights, and when the opposed military bloc threatens nuclear retaliation against pressure exerted even by conventional forces (as the Soviet Union did in the Suez and Cuban crises), then plausibility is given to the notion that force is out of the question even for defense of legal rights. When it begins to appear that small states can violate with impunity the rights of big states, the interest of the small ones in third-party settlement understandably diminishes.
In so far as a blanket prohibition is now assumed to be placed on the use of force by any state, even to enforce its legal rights, the effect is to undermine the modest binding power which international law enjoyed in the old-fashioned days before the League of Nations and the United Nations.
Within our own society, it is self-evident that in barring the use of private force by disputants we strengthen not only the law, but our own security. But this is far from true as yet in relations between states; indeed the very opposite may be the case.
As we aspire to banish force from the hands of individual states, there have arisen deep confusions in the notion of "force" itself. It is easy to talk in general terms about ending the reign of "power politics," but we must be careful not to commit the error of thinking that somehow we can abolish power from that area of human life which we call politics. Power, finally, is man's ability to act. And what we mean when we berate power politics is that power should be controlled so that it is not used merely for its own aggrandizement or other anti-social purposes. But how is power in this sense to be controlled without the use of power itself? The control of power (that is, of men's ability to act), whether by law or morality, is still a function of power, not merely of ethics. The ethical convictions of those who act and those affected by action are no doubt one determinant of power, but they are not an adequate substitute for it.
It remains essential, therefore, in seeking to control the anarchical manifestations of power politics, not to fall into the fallacy of wholly disparaging the nineteenth century system for maintaining the peace. The system was, no doubt, a bête noire of weaker states and of dependent peoples, and had many other sins. That does not, however, justify our identifying problems of power merely with the illegitimate manifestations of it. For such naïveté easily overlooks those elements of statecraft in the nineteenth century system which led Alfred Zimmern to observe, in the days of the League, that the path indicated by history was that by which "the Great Powers" must assume the role of "the Great Responsibles." It overlooks the important fact that it was the series of equilibrations produced by the statecraft of nineteenth century leaders which made possible, without any major war for a century, the emergence of the modern politico-economic and technological structure of the world, and the rise to self-help and self-assertion of the peoples of Asia and Africa.
We should resist the fashion of assuming that the operations of power, for good or ill, can be abolished by drafting the constitution of a world security organization. Philosophically speaking, the concept of power is ethically neutral, and it remains in any kind of society a basic principle of social cohesion. It is neither necessary nor possible, in order to escape from the more evil consequences of "power politics," for our age to plunge into a vacuum of statecraft. The neuroses which produce this kind of escapism, and manifest themselves in the monolithic ideologies of our time, may well have more evil consequences than those from which they would escape. In a deep sense the vain search for a precise, automatically operating definition of aggression is a product of these neuroses, an escape into fantasy from the hard tasks of statecraft.
The question of how and when we may recognize and repress the unwarranted use of power is obviously a tough one. And it becomes more difficult still when we recognize that violence is only one means of exerting power. Other forms, such as the economic, the psychological and even the spiritual, may sometimes achieve similar degrees of compulsiveness, and may inflict even deeper suffering.
It is understandable, therefore, that in the last half-century simpler escapes have been sought in international law and politics. The tendency has been to condemn as wicked that kind of power which manifests itself in the launching of military force across the frontier of another state, and to leave all other kinds of power to work themselves out substantially uncontrolled. According to this view, the Charter of the United Nations itself forbids all resort to violence except in self-defense against armed attack or through collective action authorized by the United Nations itself.
This seems to me a dubious and over-simple interpretation of the Charter. But what is important is not whether the minority of legal authorities are technically correct. The question is rather whether the majority view makes practical sense and whether in critical situations it will help us to ward off the danger of conflagration. For it is not enough to say that, if every state obeys the one simple rule never to exert violence across a frontier, there can never be a major war. The crucial question is whether there is the slightest chance that states will conform to a legal order of which this is virtually the only effective rule. In the absence of collective remedial action by the United Nations, must members submit to all kinds of illegality, injustice and inhumanity as long as these do not take the specific form of an "armed attack" across a frontier? Would U.N. members be under a legal duty to refrain from using force to prevent deliberate extermination of a satellite people merely because the operation did not involve an "armed attack" across a frontier? Would the United States be an aggressor under the Charter if, being warned of an imminent missile attack against its cities, and having taken every precaution to verify the report and to abort the attack by nonviolent means, it struck first? Is a state bound by law to wait for its own destruction? Such questions, we know, raise horrifying spectres of preventive or preemptive war, but the perils are there even if we do not ask the questions. Until such time as we find means of collectively enforcing peace and of adjusting the status quo within tolerable limits of justice, how can resort to force be said to be completely outlawed? I do not believe that such a position makes either moral, political or even legal sense.
Americans may perhaps be learning from the Cuban experience that no foreign policy or organization based on such "innocence" can long survive in the world as it is and is likely to be (we fear) for some considerable time. Such an organization could only become a protective shield for those states whose predatory and imperial interests can be sufficiently realized without the need for "armed attack" across frontiers, and whose plaintive motto when the injured party reacts is: "You are a very wicked animal: when we attack you, you defend yourself."
The other over-simple test for recognizing the "wicked" use of force, canvassed since League days, is also rendered rather absurd by the very dangers which it is supposed to avoid. This is the rule that when there is an outbreak of hostilities, it is the absolute duty of both parties to obey a cease-fire order by some international authority, and that failure of one party to obey the order brands him in all circumstances the aggressor, guilty of the greatest crime against mankind.
Even before modern weapons, this "cease-fire" test would often simply play into the hands of the state morally responsible for the outbreak. That state is usually the one not taken by surprise, and is likely therefore to have gained a superior military position before the cease-fire order is issued. To freeze the line of battle by a cease-fire order is likely, therefore, to suit that state better than the other, since it has already gained part of its objective. Laos, at the present moment, displays these aspects of the cease-fire test in conventional warfare.
But now in the age of nuclear warfare the impracticability of any simple cease-fire rule becomes terrifyingly clear. When hostilities may be opened by a surprise thermonuclear attack, which may itself be decisive, compliance or non-compliance with a subsequent cease-fire order becomes indeed a pathetic basis for collective action aimed to prevent or end hostilities. Even if there were sufficient warning to permit conservatory measures to be taken in advance of hostilities, it would still seem perilous to have to wait for a possible act of defiance which might determine the outcome of the conflict in one awful instant.
So far I have questioned our capacity at the present time to guarantee our future against the danger of war by inventing, or focussing on, any single commandment for states. But may it not still be said that even if the commandment is sure to be disobeyed sooner or later, like the commandment against murder, the existence of it and the threat of punishment for disobedience are in some degree a deterrent?
If we think about penalties after the event as a means of deterring states or their leaders from future nuclear warfare, the situation is entirely different from that of deterring individuals from murder. The whole basis of our modern sense of crisis is that a single outbreak of nuclear warfare might spell the end of civilization. Social life can survive a fair incidence of murders, but scarcely of nuclear wars.
But even apart from this, the idea of punishing those responsible for war, after the war is over, is not convincing, especially if the criminal is a major power. In a world in which most important states are aligned as allies, and the capacity for independent decision of most neutrals is deeply suspect to one side or the other, where will we find a forum capable of reaching objective and resolute decision? When the verdict of arms has given the victory to one side, the most likely forum to emerge is one that is wholly acceptable to the victor. But, by that very token, it would be suspect to survivors among the other half of mankind, as well as to historians.
The likelihood is, moreover, that what national leaders would be deterred from by the threat of condemnation in such a forum is not the waging of a war, but the losing of a war. Certainly if punishment of aggression, after the event, could deter future aggressors, happier results should have followed from the conviction of Nazi leaders at Nuremberg. World attention focussed for many months on this solemn trial and it still remains fresh in world memory after more than a decade. Can it really be said that the aggressive war-making count of the Nuremberg indictment has beneficently changed the course of international politics since 1945? Has not its influence in deterring aggressive policies and propaganda been rather negligible? And it can be no answer to this to say that, after all, nuclear weapons and the rapidity of political change have made the problems of peace more difficult than ever before. This is no doubt so; but it is the problems as they are that we are required to meet.
To meet them and thereby to improve our chances of survival we must rechannel our time, emotion and intellect away from impossible programs toward tasks that may be feasible and even ripe to be done. We can do this only when we really face the fact that, turn or twist as we may, we cannot put a perfect end to our fear of mutual destruction. Without this recognition, frustration and impatience must be our lot; and these are not the moods in which to cultivate wisdom, but rather moods to increase our grounds for fear. Campaigns which raise men's hopes and then leave them stripped of both hope and patience are a disservice to mankind, however sincerely intended. To chant "non possumus" is not an answer to the demand for human survival; but neither is an alternation of whistling and trembling in the dark.
When, on the other hand, we recognize that we cannot end, once and for all, our mortal danger, and learn to live and act in its company, other interests and responses may develop. They will be in the direction of reducing specific conflicts to manageable proportions and of releasing remaining tension through both peaceful competition and coöperation. We must meet danger with steady strength and any necessary sacrifices. We must learn to abate or forbear from pressing demands, and to concede as well as to exact. We must begin to readjust our vision, through appropriate institutions, so that we can again see beyond the merely nationalized versions of truth and justice which have come to dominate in our age of ideologies and mass communication. And we must increase the range of positive tasks for human advancement which inspire a common dedication. Such precepts, and their implications for the daily conduct of affairs, apply to all states--to neutrals ever tempted to seize advantage from the shadows of hovering terror, no less than to the bristling encampments of the nuclear giants and their allies.
[i] "The Structure of Nations and Empires." New York: Scribner, 1959, p. 293.