By Isaac Binkovitz
The anti-American fringes of the right and left, in the United States and elsewhere in the West, raise their voices in a common retort to the outcry surrounding Russia’s intervention in and apparent de facto partition of Crimea from the rest of Ukraine: “well, the US invaded Iraq! No one cared then.”
Yes, the US invaded Iraq, and that was bad. It is helpful to keep in mind that Russia is not unique as a great power violator of international legal norms. But the argument doesn’t reasonably go much further. First, because the world freaked out at the Iraq war. Second, American actions don’t act as a one-way downward ratchet on international norms. And third, invasion and even a decade of occupation are distinct from forcibly partitioning a sovereign state, as Russia has done in multiple former Soviet states since the collapse of the USSR. This is all the more remarkable because forced partitions globally are so rare.
I. The world was not silent on Iraq
Most observers in international law circles did not see justification for the invasion of Iraq. Many western nations, including France, Germany, and Canada opposed the war and declined to participate in it. European capitals were filled with massive protests against the war. People around the world voiced strong opposition to the war. Presciently, some liberal voices surely predicted that this would undermine international legal norms and weaken the American position to invoke those norms.
No one was silent then. No one need be silent now.
II. American actions are not a one-way downward ratchet on international norms
What the fringes would have you think is that international norms constrain the West, and specifically, the US and Israel, but not others. International norms, for them, confer only rights on others without any of the pesky obligations. Where the US goes to great lengths to observe international norms, the expectations on others generally are not raised. But when the US even arguably violates a norm of international law, it will then forevermore be cited as precedent authorizing non-Western states to violate the norm as well. Even where that state vocally opposed the US action in the first place, and continues to invoke international norms on a regular basis to condemn American actions.
It simply doesn’t make sense that the US invasion of Iraq could deprive Germany, for example, of the right to condemn future violations of the norm. It doesn’t even make sense that US action would deprive the US of that right. In this case, mind you, the norm is invoked by a subsequent administration headed by a President who opposed the Iraq war when doing so was not yet popular in the US. Thinking within this downward ratchet framework is lazy, and unduly America-centric thinking. Canada, Sweden, France, and Germany, among many others retain the same moral high ground to condemn violations of a state’s sovereignty. Even in the US where it may be better for us to approach the issue with some humility due to our recent past, we retain the right to invoke international legal norms. If these norms were dissolved upon the first unpunished violation, few of them would exist anymore at all.
But the one-way ratchet is not just the result lazy thinking. It’s lawfare, strategic propaganda by America’s rivals and enemies to constrain it’s ability to act while leaving others free to do as they will to hit the US and its allies. In order to prevent international legal norms from becoming nothing more than a one-way propaganda vocabulary, we must assert our right to hold states equally responsible under these norms. International norms are not the property or invention of the US, and do not depend on what the US does or does not do. Of course, those of us who believe that international norms are valuable and should be strengthened should continue to argue for the US to comply with them more consistently (that might, incidentally, prevent us from rushing headlong into another Iraq war). But the norms do not depend on US action alone.
III. Intervention is not equivalent to the forced partition of a state
The norms surrounding intervention are one thing. Even if the US invasion of Iraq were to somehow waive our (and every other state’s?) ability to assert them against Russia, I would argue that at the very least that such waiver be selective, only applying to those norms, not all other norms on vaguely related topics. If post-Iraq invasion of sovereign states truly is something no one cares about anymore –something I doubt very much– we can all rest assured that the norms on partition stand.
I have blogged previously here about the norms surrounding the forced partition of a state without its consent. But the short version of it is that, as a general rule it is not done. Turning from doctrine to practice, the norms against partition are actually pretty well observed. There are relatively few non-consensual partitions of sovereign states. When such partitions do occur, they typically lead to breakaway republic recognized by only a handful of countries.
Thus, we generally stand by Turkey as it opposes Kurdish separatism, Spain and France as they oppose Basque activists, and Canada in any confrontation with Quebec over secession. There is no right to secede. The only exceptions we have carved out relate to the case of a(n) (often collapsing) state that no longer represents an oppressed regional minority that is carrying out a campaign of ethnic violence against a group seeking to secede (or otherwise systematically oppressing the group). I’m reasonably satisfied that this is a sensible safety valve to prevent sovereignty from chaining oppressed peoples to their oppressors while also containing the demon of unbridled secessionism around the world.
Absent the ethnic oppression exception (arguably, in most of these cases), where have sovereign states been forced to accept the secession of a part of their territory without consent from the central state? Turkish Northern Cyprus, Transnistria, Abkhazia/South Ossetia, and Taiwan come to mind. None of these have led to widely recognized countries. And they’re all a little odd, and most implicate ethnic conflict even if it never quite rose to sustained and systematic oppression sufficient to justify secession. I’m sure there are a few others. Feel free to mention them in the comments below.
Let me explain each case below, and why none of them support the view that the norm against the forced partition of a state is widely rejected.
Turkey claims that it had a right to intervene in Cyprus as a treaty guarantor of Cypriot constitutional rule, which had been upset by a Greek nationalist takeover promoting unity with Greece. Turkey’s reading of the treaty is a bit suspect, and it certainly is not sufficient to justify the creation of a decades-old breakaway republic and the settling of large numbers of Turkish citizens in the area to solidify Turkish demographics. Turkey is the only state that recognizes Northern Cyprus. Regular Cyprus is recognized globally, and is a member of the EU, which states that it’s territory properly includes the entire the island.
Transnistria is the breakaway republic Russia created in the early 1990’s in Moldova as Moldovan (Romanian) nationalists rose and started to bully Russians and others in the country, making a plausible case for lawful secession. I’m not even sure if Russia recognizes it as a sovereign state. One could mention Nagorno-Karabakh, another largely unrecognized breakaway republic in the former Soviet space that arose out of ethnic warfare.
South Ossetia and Abkhazia are republics Russia split from Georgia in a 2006 war. There had been earlier wars and ethnic tensions pitting the Georgians against the Ossetians and Abkhazians. In that light it might be possible to make a sympathetic case for lawful secession. Only Russia recognizes either.
Taiwan arose in 1949 in the Chinese Civil War. It is recognized by about 20 countries, the most diplomatically significant of which is probably the Vatican. Most states do not formally recognize it, even though some once did, and many would prefer to be able to, feeling closer to it than to the mainland PRC. They recognize PRC instead out of respect for the principle of the territorial integrity of sovereign states. But most states trade with Taiwan, and practically deal with it. Even as the most favored of unlawful secessionist regions, Taiwan can’t get full recognition because states believe that other states cannot be divided against their will.
It remains unclear what Russia will do in Crimea. But as the referendum on independence approaches, and Russian troops continue to blockade Ukrainian soldiers in their bases demanding that they defect, the world is right to watch in an effort to prevent the unlawful partition of Ukraine. If Russia decides to do this, there may be little anyone can do. Ukraine will be fine without Crimea. But if the above pattern is any guide, the world will not accept the new breakaway republic. Russia might not care.
So please don’t buy the “what about Iraq?” argument.