HOW PUTIN WINS IN UKRAINE – AND HOW WE ALL LOSE
J.D. Vance appeared on the Shawn Ryan Show which was posted on September 11. Ryan is supposedly a former Navy Seal and CIA contractor and presents as a tough guy to whom everyday Americans – blue collar, working types — are supposed to hearken. In the hour long plus interview Vance and Ryan discussed, among other things, ending the Russia-Ukraine War. Ryan asked Vance about Trump’s plan to end the war. Vance replied saying that would include having Trump ask the Europeans, Ukrainians and Russians to agree on a peaceful settlement, establish a line of demarcation probably along the current front line, guarantee the neutrality of an “independent sovereign” Ukraine, and having Germany fund the reconstruction of Ukraine. He concluded this presentation with “I think.”
Vance spread moral ambiguity as he said Russia should not have invaded, but Ukraine has corruption and people are getting rich off of the war. In addition, Vance said that to look at this conflict as one between good and evil is to enter into a “fairy tale mindset.” This sort of rhetoric is not one likely to inspire anyone to do anything except for material gain, and that in itself is demoralizing. In this day and age, this kind of amoral worldview is dangerous to the United States and the world at large.
Vladimir Putin believes that Ukraine is part of Russia and so he does not want it to be truly sovereign. Without sovereignty, it can be absorbed into Russia. Sovereignty is lost if a country is denied all the rights of being a country. Control over one’s internationally recognized territory is one such right, and the ability to enter into alliances and treaties with other countries for the safety and security of the country is yet another. Putin’s actions consisting of the invasion and occupation of parts of four regions in southeast Ukraine deprives Ukraine of its territory and weakens its sovereignty. An important next step is to deprive Ukraine of its ability to make alliances for its own protection, and right now Russia has proven itself to be the country from which Ukraine needs protection. To accomplish this next step, Ukraine must be made neutral or incapable of making alliances which means not joining NATO.
Vance’s peace plan strips Ukraine of sovereignty making it easier to be absorbed into Russia despite the claim that it remains independent. Ukraine may remain independent under Vance’s plan, for a while, but without Western help it will become part of Russia. All of this weakens an international order begun long ago, and one that the Biden Administration feebly explained as worthy of defense. In a press release from June 16, 2024 the White House set forth just what was at stake in the war with Russia:
“More than that though, what this Summit has done is define what the core character — the core foundation — of what a just peace looks like, and that is the principles of the United Nations Charter, the principles of international law, the notion of sovereignty and territorial integrity, and the basic proposition that no nation should be allowed to conquer another nation by force. Period.”
A History Lesson
The Peace of Westphalia was signed in October, 1648. It ended thirty years of some of the bloodiest, most brutal, and savage fighting the world has seen. According to some estimates, nationalism and religious fervor were responsible for the deaths of up to fifty percent of the population of Europe[1] as vast stretches of land were laid to waste as were villages, towns, and cities. After the peace was signed, Pope Innocent X condemned it because it removed the Church from overseeing the international community. Judging by the desolation wrought in God’s name especially by Christian princes during all of those years of warfare, it was understandable that the monarchs of assembled Europe no longer saw the relevancy of the Pope and his Church as some sort of supra national entity responsible for bringing, or at least insuring, peace. The West, and the World, was forever changed by the Thirty Year’s War, and religion has yet to recover.
The independent political entities that emerged from the Thirty Years’ War still had to deal with each other, and they needed rules by which to make those relationships sensible. They turned to Hugo Grotius (1583-1645) a highly regarded Dutch lawyer and jurist who authored On the Law of War and Peace. Published in 1625, Grotius’ work helped the European states negotiate the emerging international scene. That treatise by one of Holland’s, and one of Europe’s, greatest jurists, consisted of the articulation of a number of rules and principles governing conduct between States. These came from a study of the literature of antiquity, the Bible, and past practices of princes. The underlying philosophy was that states had rights and duties much like individuals did especially in terms of contracts. Holding that these rights and duties came from the natural law, Grotius put forth the goal of it all as being the welfare of the peoples of the various states.
While Grotius is considered the father of international law, the reality is that the School of Salamanca from Spain was the originator of modern international law as we know it. The Dominicans relied heavily on St Thomas Aquinas and his ius gentium in the Summa Theologicae. These ideas were resurrected in the 1930s by John Eppstein working with the Catholic Association for International Peace with his book, The Catholic Tradition Of the Law of Nations. In it he set forth the Catholic view of ius gentium for a modern audience, and later he set out a code of ethics for international relations. The Law of Nations, as it came to be understood, relied heavily on the Natural Law while being open to serving the Divine Positive Law. All of this affected what we consider today to be international law and it is considered to be the roots of today’s international law.
Grotius saw states as having legal agency, meaning they held rights and duties.[2] That conception persists to this day, though the number of entities with rights and duties has expanded beyond states to include non-governmental entities and more.[3] The primary actors in international law today, as in Grotius’ time, are states or countries. It is therefore important that we understand some of the aspects or characteristics of states if we are to understand current events.
Characteristics of States
States are the primary actors in the international community, and they are the primary subjects of international law[4]. The purpose of international law is to insure peace between states.[5] All is oriented to achieve that goal, or to serve that principle. Therefore, the concept of legal personality[6] arises by which states possess certain characteristics to effect objectives that are meant to bring peace within states and between states so as to allow for a peaceful international community.
Certain criteria must be met or characteristics found before states can be said to exist. Legal scholar James Crawford writes that these include a certain population, defined territory, a government, independence from other political entities or states, a degree of permanence, functions as a state and sovereignty which means primarily independence.[7] To Crawford the concept of sovereignty is a broad one that refers to “the collection of rights held by a state, first in its capacity as the entity entitled to exercise control over its territory, and secondly, in its capacity to act on the international plane, representing that territory and its people.”[8] Another preeminent legal scholar, Malcolm Shaw, holds that states have three fundamental rights given them by the international order: independence (or sovereignty), equality, and peaceful co-existence.[9] The concept of independence or sovereignty includes a number of rights and duties: “for example, the right of a state to exercise jurisdiction over its territory and permanent population, or the right to engage upon an act of self-defence in certain situations.”[10]
Legal scholars before the modern day were explicitly in what states, as sovereigns, could do and had to do. Emmerich de Vattel, (1714-1767), a Swiss jurist whose book The Law of Nations was widely read and understood by the American colonists and the Founders, set forth the duties of a sovereign or the government of a country. He set forth three main duties with those being to provide for the necessities of the nations,[11] to procure the true happiness of a nation,[12] and finally to fortify itself against external attacks.[13]
The Catholic Church has long held a concept of international law, much of which formed the basis of the current international order. Part of that recognizes the characteristics of a state which consists of duties and rights. Duties to other states rested on the concepts of charity and justice. John Eppstein, working with the International Union of Social Studies set out in the early 1950s a series of specific rights: the right to existence, the right to self-preservation and defense, the right to independence, the right of sovereignty (meaning internal control over people, territory and immigration as well as emigration), the right to equality, and the right to promote national interests.[14]
Each state has an obligation to the welfare of its own people. That welfare requires, or at least allows, a state to take steps to protect these people. Sovereignty gives the state the power and ability, if not also the right and the duty, to enter into treaties to advance the protection of its territory and people and to better insure their well-being. Included in the idea of entering into treaties is the idea of entering into alliances.
The Idea of Spheres of Influence and NATO
In 1991, Ukraine gained its independence and in 1996 it promulgated a constitution. In neither of these documents did it dedicate itself to neutrality. Ukraine’s next constitution was promulgated in 2014 and again not only did it not commit itself to neutrality, but it also did not commit itself to NATO or any other alliance for that matter.
There has been a lot of discussion about NATO expanding in contravention of the wishes of the Soviet Union and later the Russian Federation. Promises made by US leadership beginning in February, 1990 are often claimed while at the same time the Belgrade Memorandum from December, 1994, which committed Russia to guaranteeing the sovereignty of Ukraine, are ignored. This dynamic is mentioned on a website known as Marxist Leninism Today. This has formed a narrative accepted by many in the West.[15]
What many miss, and what is being proposed in this narrative, is a repudiation of a country’s right – to include the rights of the United States — to secure itself from foreign threats, and one of the biggest foreign threats to countries of Europe came from, and still comes from, the Russian Federation. “Spheres of influence” is a concept being advanced nowadays that hearkens back to at least the 1890s when the powers of Europe, consisting of empires and kingdoms, were intent on spreading their influence around the globe. That sort of competition resulted in World War I and later World War II. The intensity of these competitions for spheres of influence by nationalist societies and nationalist political entities fueled these conflicts. The growing realization of terrible wars and related calamities was likely an influence upon Tsar Nicholas II as he called for a way to resolve disputes amicably. The results were the Hague Conventions which convened in 1899 and 1907.
The North Atlantic Treaty Organization came about on April 4, 1949. The twelve founding members were Belgium, Canada, Denmark, France, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, the United Kingdom and the United States of America. In 1952, Greece and Turkey joined. West Germany joined in 1955 (with East Germany joining upon reunification of Germany in 1990), and Spain joined in 1982. NATO is overseen by civilians, not military officers pursuant to the Ottawa Agreement executed in 1951.[16]
In 1999, the Czech Republic, Hungary and Poland joined. In 2004, Slovakia, Slovenia, Bulgaria, Estonia, Latvia, Lithuania, Romania were admitted into the organization. In 2009, Albania and Croatia came into the alliance. Montenegro joined in 2017 and North Macedonia was admitted in March, 2020. Finland came into NATO in 2023 and Sweden in March, 2024.
NATO does not conquer countries and force them to join. There is a process for inviting countries to join. The North Atlantic Treaty dated April 4, 1949 establishing NATA is also known as the Washington Treaty and it sets out that process for accession in Article 10:
“The Parties may, by unanimous agreement, invite any other European State in a position to further the principles of this Treaty and to contribute to the security of the North Atlantic area to accede to this Treaty. Any State so invited may become a Party to the Treaty by depositing its instrument of accession with the Government of the United States of America. The Government of the United States of America will inform each of the Parties of the deposit of each such instrument of accession.”[17]
The treaty sets out certain core principles to insure peace. The Preamble states
“The Parties to this Treaty reaffirm their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments.
They are determined to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law. They seek to promote stability and well-being in the North Atlantic area.
They are resolved to unite their efforts for collective defence and for the preservation of peace and security. They therefore agree to this North Atlantic Treaty…”[18]
With self-help and mutual aid, the various parties maintain individual and collective security to discourage and repel armed attack.[19] An attack on one is an attack on all[20] and the parties may consult and act when “the territorial integrity, political independence or security of any of the Parties is threatened.”[21]
At the same time, economics plays a role in the treaty. Article 2 emphasizes economic development while removing the reasons for conflict based on economic reasons: “They will seek to eliminate conflict in their international economic policies and will encourage economic collaboration between any or all of them.”
Membership in NATO is not perpetual. Countries may leave the alliance after giving notice and the passage of one year.[22] In sum, countries may join if they wish, and leave when they will. NATO is an alliance that provides for protection of its member states – both from external aggressors and internal subversion. These are worthwhile goals for any alliance and something of value to any country which has sovereignty as we discussed above because governments are responsible for the peace, safety and prosperity of their peoples.
The idea that NATO is somehow an entity existing separate and distinct from its allied governments is questionable given an examination of the Washington Treaty. NATO is an alliance that helped bring peace and prosperity to the countries that joined the alliance. No one is talking about leaving it and no one is talking about joining an alliance with Russia. Putin’s demand that Russia have a sphere of influence that include Ukraine subverts the sovereignty of countries and leads to the very same situation that faced Europe on the eve of World War I. This is the recipe for bloody wars. This is devolution.
Conclusion
Countries or states have an obligation to secure their people and territory while also providing for their material welfare. Forming alliances with those with whom they wish is a component of sovereignty, and if wisely done achieves the objective of security. Denying sovereign states this right to form alliances is an infringement, or even repudiation of, a country’s right of sovereignty.
To maintain the current world order that has been in place for more than three and a half centuries, and to deny Putin victory, the sovereignty of Ukraine must be guaranteed. The peace plan that Vance thinks is Trump’s plan weakens that order and rewards the Russian invasion which is itself a violation of the United Nations Charter. Peace at any price is a dangerous thing as we have seen in the past.
[1] See, Geoffrey Parker (1997) The Thirty Years’ War.
[2] James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 2019, 9th Edition), 105; See, Hugo Grotius, On The Law of War and Peace (Kings Books, Whithorn, UK 2019), 3-7.
[3] Crawford, 105-116.
[4] Antonio Cassese, International Law (2nd Edition, Oxford University Press, 2005), 71.
[5] See, Malcolm Shaw, International Law (9th Ed., Cambridge University Press, 2021), 879; John Eppstein, The Catholic Tradition of the Law of Nations (The Lawbook Exchange Ltd., Clark, New Jersey 2012), 223, 259.
[6] Crawford, 106.
[7] Ibid., 117-126.
[8] Ibid., 432.
[9] Malcolm Shaw, International Law (9th Ed., Cambridge University Press, 2021), 192-197.
[10] Ibid., 194.
[11] Emmerich de Vattel, The Law of Nations (The Lawbook Exchange Ltd., Clark, NJ, 2020) see Book I, Chapter VI.
[12] Ibid., Book I, Chapter X.
[13] Ibid., Book I, Chapter XIV.
[14] John Eppstein, Code of International Ethics (Sands and Company, Glasgow, UK, 1952), 56-87.
[15] While there has been much discussion about something called the Perestroika Deception, I am not yet ready to endorse it. There is evidence that suggests certain interests may benefit from such a narrative or may be able to utilize the instruments of power inherent in such a thesis. This bears further research and analysis. “U.S. Secretary of State James Baker’s famous `not one inch eastward’ assurance about NATO expansion in his meeting with Soviet leader Mikhail Gorbachev on February 9, 1990, was part of a cascade of assurances about Soviet security given by Western leaders to Gorbachev and other Soviet officials throughout the process of German unification in 1990and on into 1991, according to declassified U.S., Soviet, German, British and French documents posted today by the National Security Archive at George Washington University….“The documents reinforce former CIA Director Robert Gates’s criticism of `pressing ahead with expansion of NATO eastward [in the 1990s], when Gorbachev and others were led to believe that wouldn’t happen.’[1]The key phrase, buttressed by the documents, is `led to believe.’….“The first concrete assurances by Western leaders on NATO began on January 31, 1990, when West German Foreign Minister Hans-Dietrich Genscher opened the bidding with a major public speech at Tutzing, in Bavaria, on German unification. The U.S. Embassy in Bonn (see Document 1) informed Washington that Genscher made clear `that the changes in Eastern Europe and the German unification process must not lead to an ‘impairment of Soviet security interests.’ Therefore, NATO should rule out an ‘expansion of its territory towards the east, i.e. moving it closer to the Soviet borders.’” See, “New Documents: US Promised Not to Expand Eastward,” Marxism Leninism Today, December 21, 2017 accessed February 26, 2022.
[16] “03. Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff, done at Ottawa September 20, 1951,” United States Department of States as found at https://www.state.gov/north-atlantic-treaty-ottawa-agreement and accessed August 21, 2024.
[17] “The North Atlantic Treaty,” North Atlantic Treaty Organization, found at https://www.nato.int/cps/en/natolive/official_texts_17120.htm and accessed August 21, 2024.
[18] Ibid.
[19] Ibid., Article 3
[20] Ibid., Article 5
[21] Ibid., Article 4.
[22] Ibid., Article 13.