Eric Posner Joins Our Merry Band:

I'm delighted to report that Prof. Eric Posner of Chicago Law School is joining us as a coblogger.

Eric's scholarship has covered a wide range of topics, including administrative law, bankruptcy, constitutional law, contract law, foreign relations law, immigration law, international law, law and economics, law and social norms, and national security law. He has written or cowritten four books and ninety articles, and he's one of the twenty most-cited U.S. law professors in any field and of any age cohort, as well as being the second most-cited in law and economics (after Richard Epstein, who is more than twenty years his senior). I'm very much looking forward to Eric's contributions.

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The Bear Is Back!

Thanks to Eugene for inviting me to join this blog. Let me start with a prediction. When historians write about the post-cold war era, which began in 1989, the date of its termination will not be 9/11/2001, as has been frequently claimed, but 8/7/2008, when Georgian forces attacked separatists in South Ossetia and Russia responded with an invasion. August 7 marks the end of American sole-superpowerdom, or hyperpowerness, or hegemony, or whatever you want to call it, an interval somewhat longer than but still very similar to the periods of global preeminence the United States enjoyed for a few years after World War I and World War II.

There are other notable similarities. In all three of these periods, Americans and others believed that an era of the rule of international law had begun, and in all of these periods, the United States was initially lauded for its leadership and then criticized for putting its interests first.

There are some differences, however. In the great powers era that ended with the world wars, national governments derived their authority from unembarrassed chauvinism — their peoples’ instinctive belief in their own ethnic, racial, or national superiority. With the cold war, the conflict was not between competing nationalisms but between competing ideologies — democracy versus socialism, capitalism versus communism. Today, the conflict is shaping up as one between an ideology, on the one hand, and a bunch of different nationalisms, on the other. On one side, we have American/European commitment to democracy and rights. On the other side, we have Russian and Chinese nationalism, and who knows what other countries with similar agendas will emerge over the next few decades.

These differences play out in many ways. Americans believe that every country should have our system or at least a constitutional democracy; Europeans similarly believe that every country should respect human rights. The Chinese and Russians, by contrast, are preoccupied with restoring or promoting national greatness — something that few Europeans and even Americans would say about their own countries. The Americans and the Europeans – well, the west, I guess – are willing, at cost to themselves, to pressure states (like Sudan) that violate western values. Russia’s main concern is protecting – Russians, those who live in neighboring countries. China seeks to do deals with other countries, not to convert them to the Chinese system.

Of course, America’s ideological goals serve its interests; they are just the goals that American governments believe that Americans ultimately support. It will be hard for future historians to see the post-Cold War period as anything other than a series of steps that the United States took to expand its sphere of influence, in Africa, in the Middle East, in Eastern Europe, and in Central Asia, into the vacuum left by the collapse of the Soviet Union. But each step was accompanied by a consistent ideological agenda: we are doing this for your own good! China’s rise has slowed down this agenda in Africa, and Russia’s recovery will almost certainly defeat it in Central Asia. The United States won the battle of ideologies in 1989, but its global power was only a temporary thing, as is becoming clearer every day.

The implication for international law is troubling. The busy international legal activity that occurred during the post-Cold War era – the establishment of international courts, the involvement of the Security Council, the advance of international trade law – will slow down and perhaps even reenter the deep freeze into which it was shunted during the Cold War. The irony is that liberal internationalism could advance only as long as the United States was the sole superpower and in the mood to advance it.

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How Dangerous is the Russian Bear?

I agree with much of what new Conspirator Eric Posner says about Russia in his recent post. Under Putin, Russia has clearly turned against Western liberal values and reasserted an ugly form of traditional Russian nationalism. It is also clear that Putin has no sympathy for either the American project of spreading liberal democracy or the Western European effort to promote international human rights law.

At the same time, the new Russia is less of a threat to American global hegemony than many understandably fear in the aftermath of events in Georgia. Relative to its Soviet predecessor, Putin's Russia is weak in both hard military power and the ideological influence of "soft power." It will also be difficult for Russia to establish a working alliance with either China or the radical Islamists, the two other significant forces with an interest in undermining American dominance.

Let's take the hard power first. The Soviet Union was able to pose a serious military challenge to the US by pouring vast resources into its military - as much as 40 or 50 percent of GDP, according to some estimates. Today Russian military spending is a tiny fraction of America's (about 10%). Even if it wanted to, Putin's regime lacks the power to impose the kinds of draconian sacrifices on its people that it would need in order to rebuild its military power to Soviet-era levels. The poor performance of Russia's military in conflicts with weak adversaries such as Georgia and the Chechen rebels suggests that its forces have deteriorated in quality as well as quantity.

Russia's "soft power" deficit is even more glaring than its relative lack of military power. Unlike Communism, which at its height appealed to intellectuals and others all over the world, the ideology of Russian nationalism has little if any appeal to anyone who isn't Russian. Indeed, most of Russia's neighbors find it offensive and threatening, which is why they are now uniting behind Georgia and drawing closer to the West. States such as the Ukraine, Poland, and the three Baltic countries are no match for Russia individually; but they can certainly hope to counter it collectively - especially given the poor state of the Russian armed forces. The more nationalistic and aggressive Russia becomes, the more its neighbors - most of whom have powerful historical memories of brutal Russian imperialism - are likely to unite against it.

Russia will have great difficulty in cooperating with either China or the radical Islamists, the two other major forces in world politics that seek to challenge American dominance. China and Russia are competing for influence in the oil-rich states of central Asia, and the Russians are well aware that Chinese nationalists have longstanding territorial claims on Russia's far eastern possessions. This doesn't rule out occasional Russo-Chinese cooperation against the West, but it does make a close alliance unlikely. In the case of the Islamists, a Russian nationalist regime would be reluctant to engage in more than very limited cooperation because Russia itself has a large and potentially restive Muslim population (about 10% of its people). Strengthening radical Islamism increases the chance that Russia's own Muslims will start to resist Moscow's rule, and the Russians surely don't want to repeat their painful experience in Chechnya on a larger scale.

Finally, it is far from clear that Russia will continue on the course set by Putin. If oil prices decline and Putin's military adventures meet with setbacks, the political pendulum could swing back in favor of more liberal forces. Similar nationalist regimes have evolved into liberal democracies in many Latin American and East Asian states. The same thing could happen in Russia over the next decade or two. Although I don't have space to argue the point in detail, I don't think that Russian culture is any more intrinsically inimical to liberal values than those of Korea, Taiwan, or various Latin American states - all of which successfully transitioned from authoritarian nationalism to liberal democracy over the last 25 years.

The rise of authoritarian nationalism in Russia is a tragic setback for liberal values, and poses some difficulties for American foreign policy. But we should keep the magnitude of the threat in proper perspective. Putin's Russia is a serious menace to its neighbors, though even they can minimize the threat if they cooperate with each other and with the West. It is only a modest danger to us.

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Which Country Won the Olympics?

Not China; not the United States. The gold medal for interstate warfare was snatched up by Russia, and that one is worth more than all the others combined! Poor China; it spent $100 million on the opening ceremony alone and walked away with just a bunch of medallions; for a lot less, Russia got a chunk of territory and a formidable reputation not to be messed with.

I agree with Ilya that Russia is not a threat to the United States in the way that the Soviet Union was; my interest is in what the conquest of South Ossetia tells us about international law. Here, Ilya’s concern about soft power comes into play. But soft power cuts in multiple ways.

If you’re the dictator or even duly elected president of some small state somewhere, with gas reserves or space for a military base or some such thing, who would you rather deal with? Russia or China, who will make a deal with you and then leave you alone, or the United States or Europe, which will make a deal with you, and then start bleating about your human rights record, or the fairness of your elections, or the integrity of your judges, or your devotion to the rule of law, or your persecution of religious minorities, or your treatment of women – which looks so fine to us, but looks like neocolonialism to them. Inward-looking nationalistic states, with nothing to offer in terms of a universal ideology, have a tactical advantage, it seems to me; and we will see more of this as Russia and China begin to flex their muscles.

Of course, nationalistic regimes have a tendency to self-destruct – “we are better than the rest of the world” can’t be true for more than one state at a time. Russia’s neighbors are terrified of it, and so some like Poland are being driven even more deeply into the arms of the west. But the danger that the United States will find itself being manipulated to advance the local ambitions of those states — which is essentially what Georgia tried to do — is significant, and we should recognize what the Russians did to Georgia in our own Monroe Doctrine (which since 1989 has been extended from the western hemisphere to more or less everywhere). In the long term, the United States and Europe are less of a threat to states that actually give in and adopt western norms than Russia and China are, if the democratic peace literature (which says that democracies do not fight with each other) is to be believed, and that is, I suppose, what our soft power amounts to. But the long term just never seems to arrive, does it?

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The Dilemma of the International Criminal Court

The ICC was created in 1998 to try people who commit international crimes, including war crimes and genocide, when domestic institutions fail to do so. The United States was roundly criticized for wanting to make the Court a tool of the Security Council, to be set up when and only when its members could agree that a judicial approach to a problem of international relations makes sense – such as the civil war in Yugoslavia and the genocide in Rwanda, for which ad hoc tribunals had been set up. The United States, with some prescience back in 1998, feared that the Court would be used against Americans who were accused of committing international crimes. The U.S. view was rejected and the ICC was given independence, including its own prosecutor, and the right to launch investigations against any ICC member and other states that commit crimes on the territory of ICC members. The United States refused to join the court, though 106 other countries have.

Ten years later, the ICC has turned out to be an African Criminal Court, one called in by national governments in Africa that have wanted international help in dealing with insurgents who have committed atrocities (so far, Uganda, the Democratic Republic of Congo, and the Central African Republic). Fine and good; what one might call a pragmatic adjustment to international realities. All of this good feeling ended when the current prosecutor announced that he sought an indictment of Omar Hassan al-Bashir, the president of Sudan. Even human rights advocates have been made uneasy by this blundering into a delicate situation. Now humanitarian workers in Sudan are at risk, negotiations to resolve the conflict in Darfur are in trouble, and China, Sudan’s ally, is deeply annoyed. The prosecutor, you see, was supposed to exercise “political sensitivity,” not stage a judicial coup and overthrow a head of state. But why should a prosecutor do that? Remember Ken Starr and Lawrence Walsh? When prosecutors are given independence, they prosecute, political consequences be damned. The whole point of giving the ICC prosecutor independence in the first place was to avoid making the Court a plaything of the great powers, so he could slay the dragons of international illegality wherever they could be found.

Meanwhile, here is an even more delicate situation. News reports suggest that Russians and Georgians alike have committed atrocities in South Ossetia. The ICC has not launched an investigation; the situation is "under analysis." Why not? For one thing, while Georgia is a member of the ICC, Russia is not. So Georgia was not only crushed by Russia; it now faces the prospect of having citizens, perhaps soldiers, perhaps even leaders, being sent off to the Hague for a trial. To be sure, the ICC is not supposed to intervene if Georgia investigates in good faith, but Georgia will probably not do so. Countries in situations like Georgia’s rarely do.

Now although Russia is not a member of the ICC, in theory the ICC has jurisdiction over Russia, to the extent that it committed international crimes on the territory of a member – namely, Georgia. Suppose then that credible evidence shows that Russians committed atrocities, maybe on the orders of generals or, who knows, Vladimir Putin himself. Then it is the duty of other ICC members – Italy, say – to arrest Vladimir Putin while he’s sunning himself on vacation in Capri and hand him over to the Hague. Good luck, one can only say – and take a Geiger counter along next time you go out for tea! Maybe the prosecutor will rediscover the merits of political sensitivity.

(Russia apparently will help ethnic Russian citizens of Georgia file claims with the ICC. Russia itself has no power to ask the ICC to act, but Georgians do. Sneaky!)

Meanwhile, here’s a question for the weekend. Suppose Georgia had been a member of NATO when Russia invaded its territory earlier this month. Would NATO military forces have honored the treaty obligation and launched a military response even though no one in the west thinks that Georgia is worth World War III? If not, would NATO have been revealed as a meaningless institution? Or should we assume that Russia would not have attacked Georgia in the first place for fear of provoking a military response from NATO?

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Happy Birthday South Ossetia and Abkhazia,

a pair of darling twins, though a bit on the small side (populations 70,000 and 250,000 respectively), and perhaps not with a terribly appealing prognosis. In fact, one might wonder whether they have really been born. Russia has recognized them as independent states; the rest of the world considers them provinces of Georgia. They do have de facto independence. What are we to make of this situation?

For one thing, we can look at their elder sibling, Kosovo. Recognized by western countries but not by Russia or China, it declared independence from Serbia in 2008. Russia has made much of this precedent. “If you can decide that Kosovo is a state over our objections, we can decide that South Ossetia is a state over yours!”

International law has little to say about the creation of states. From time to time, one hears statements that a population can obtain statehood if it controls a territory, can have legal relations with other states, and so forth, but in fact statehood is determined by other states, in a recursive process, and when other states can’t agree, there are serious problems. Suppose, for example, that the United States would like to persuade the people living in South Ossetia to join an anti-moneylaundering effort. Should it ask South Ossetia to join a treaty? But only states can enter treaties! Should it make a treaty with Georgia? But Georgia can’t control the South Ossetians! The United States would like to help Georgia get control over the South Ossetians, but if this doesn’t happen – and it doesn’t seem likely – it will have to eventually bow to reality and recognize South Ossetia as an independent state, or – to the confusion of all – treat it like a state without calling it that.

People should be more worried than they are by the fragmentation of states. Consider that shortly after World War II, there were around 60 states. Today, there are almost 200 (depending on how one counts quasi-states like Kosovo, and weird cases like Taiwan, which everyone has agreed is both a state (because it clearly has independence) and that is not a state (to mollify China), and there are even stranger beasts). A lot of this increase is due to decolonization, but in recent years, the main cause has been, essentially, ethnic separatism. Because ethnic groups are mixed together, ethnic separatism is a recipe for civil war, ethnic cleansing, and worse. And because most ethnic groups are tiny, the resulting nation states can be too small to govern themselves – Kosovo is an example, again. They either become failed states, magnets for terrorists and drug smugglers, or wards of powerful states or what is mischievously called the “international community.”

The more states there are, the harder it will be for them to cooperate -- a worry for those concerned with world-scale problems such as climate change and international terrorism. And because international law rests on the cooperative efforts of states themselves, fragmentation may further weaken international law, to the detriment of all.

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What is the optimal size of a country?

Numerous interesting comments on previous posts expressed every possible theory. The topic is complicated, but here are a few brief responses:

Bigger (in the sense of population size, not land area) is better, because of economies of scale. Imagine that a country builds an expensive asteroid warning system that protects the territory from asteroids. The system has a large fixed cost. The greater the population, the less each person needs to contribute to the protection system. Large countries also can have larger markets, allowing for greater division of labor, and hence greater wealth. In a phrase, enormousness is not an enormity.

However, maybe small countries can obtain these economies of scale by contracting with each other. Countries can, by treaty, share the costs of asteroid warning systems and enter trade treaties that provide for the reduction of tariffs. Still, countries have trouble entering treaties and (especially) ensuring compliance, because no external power can force countries to comply with treaties. Evidence suggests that even when trade barriers are eliminated, trade across borders is more expensive than trade within borders, no doubt because of the difficulty of dealing with two separate legal systems with their often conflicting requirements.

Smaller is better, because of heterogeneity. As countries become bigger, they become more diverse, and diverse people have different preferences for political outcomes – taxes, environmental regulation, social welfare, and so forth. As people’s preferences diverge, political bargains are harder to make; either agreement can’t be reached, or transfers to losers must be arranged, and these transfers are economically costly. One might fear that people lose the ability to monitor leaders as the population increases, and so leaders can pursue self-aggrandizing or redistributive policies with little fear of political sanction. Still, maybe diversity brings benefits – cultural and economic – and it is possible, as Madison thought, that groups have more trouble taking control of the political system in a large polity.

Should we cheer whenever an ethnic minority obtains independence for its small or infinitesimal territory? Maybe if it the majority treated it badly. But note that when a minority breaks off from an otherwise adequately governed state, its gains (in the form of greater control over political outcomes in the territory it occupies) come at the expense of the people left in the rump territory, who lose the economies of scale associated with the larger population. There is no natural stopping point to this process if any group can separate for any reason. In an ideal world, other nation states might be skeptical of attempts to secede for this reason, plus the additional important reason that it is harder to cooperate with two little states than one big state, holding constant the effectiveness of the government.

Readers interested in these questions should consult this book, on which I have (loosely) relied.

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