International Agreements Among States: The Montreux Convention and the Russian Invasion of Ukraine

As someone who teaches both contracts and international law, I have had a hard time focusing on contracts law this week.  Fortunately, treaties are international contracts, and the parties are states, so these thoughts do not seem entirely out of place here.

This seems like a bad week for those who believe in the efficacy of international law.  Russia has audaciously violated  the U.N. Charter’s Article 2(4), which prohibits the use of force by state against state, and the U.N. Security Council is, as it so often is, paralyzed by the ability of any one of its five permanent members (Russia, in this case) to veto any substantive resolution.  It all seems like a reminder that international law is still in what Hans Kelsen called a “primitive” state and that H.L.A. Hart was correct to say that it was not law but “positive morality.”

Over at Just Security, Oona Hathaway (left) and Scott Shapiro (right) point out that Putin cannot destroy the international order all by himself.  They maintain that Putin’s offenses may have the opposite effect by reaffirming the very rules that Putin violated.  I offer a slightly less optimistic take.  Over fifty years ago, my international law mentor Tom Franck (below left) asked, “Who Killed Article 2(4)?”.  His answer, in a nutshell, was that states killed Article 2(4) by favoring the pursuit of short-term national interests over international legal norms.  Over thirty years later, Professor Franck posed his question again in the context of the 2003 U.S. invasion of Iraq.  

But Professor Franck was being intentionally histrionic in order to highlight the self-harm the United States was doing by undermining an international legal order that it helped establish and from which it richly benefits.  Article 2(4) is never killed, nor has it ever been consistently enforced. However, as Professor Franck notes in his essay on the U.S. invasion of Iraq, when powerful states act in violation of international law, they can stress, amend, or replace legal principles.  Putin has the power to create facts on the ground and precedents that other powerful states will cite when they want to test the limits of the international community to stand behind international legal norms.  And this is the middle ground that I would follow somewhere between Professor Franck’s pessimistic pose and Hathaway and Shapiro’s gritty optimism.  Actions like Putin’s hack away at international legal norms.  The norms do not emerge with the same vigor that they had prior to the attack.  And the Trump administration did nothing to bolster faith in the binding power of international norms.

Shapiro and Hathaway point to the failure of the Trump impeachments as a failure to enforce municipal law, but one could spin out infinite variations on the theme of the enforcement gap in domestic law.  In the domestic context, it is not at all unusual for laws on the books to go unenforced. I can’t drive to work without violating traffic laws.  Moreover, when domestic laws are violated, we often do not know the identity of the perpetrator.  By contrast, as I stress to my students, Louis Henkin found that almost all states abide by their international obligations almost all of the time.  Subsequent empirical studies confirm and strengthen Henkin’s relatively rosy. 

I often begin my international law course by asking my students how many of them have been victims of a crime.  Usually 1/2 to 2/3 of the students put up their hands.  Then I ask whether the criminal justice system worked for them in connection with those crimes.  Usually, the unanimous response is that the perpetrator was never caught.  And yet my students do not conclude on that basis that domestic law has no efficacy.  By contrast, even in this era of state-sponsored cybercrime, we almost always know who violated international law. 

International law’s enforcement mechanisms are more decentralized, subtle, and varied than enforcement mechanisms under domestic law.  And, of course, very few domestic actors, when accused of an unlawful act, respond by putting their nuclear forces on alert.  Nevertheless, there are powerful, long-term international responses to violations of international law.  Our assumptions about the efficacy of international law compared to domestic law need to be adjusted, if not reversed.

As Hathaway and Shapiro note, there has been an extraordinarily united international response to Russia’s invasion of Ukraine.  The impact on Russia has been remarkable.  The ruble’s value has plummeted, as has the Russian stock market.  The impact of international economic sanctions on the Russian economy is likely to increase as the full effect of those sanctions kick in, unless China is able to play the role of Russia’s financial deus ex machina.

Image by Interiot, CC BY-SA 2.5 via Wikimedia Commons

But today I want to highlight the Montreux Convention in order to illustrate the idiosyncratic nature of enforcement mechanisms under international law.  The Dardanelles and the Bosporus straits connect the Mediterranean and Black Seas. Turkey controls the straits.  Historically, Russia has had a naval base on the Black Sea.  Without the ability to pass through the straits, the Russian Black Sea fleet would either be bottled up on the Black Sea, or it would be unable to return to its home port.  In 1936, ten states signed on to the Montreux Convention, through which Turkey guaranteed free passage through the straits for civilian vessels in peacetime.  Warships can pass through the straits subject to regulation and notice to the parties to the Convention.

On Sunday, Turkey’s foreign minister announced that Turkey was asserting its authority under the Montreux Convention (the Convention) to limit passage of belligerent vessels between the Black Sea and the Mediterranean.  Although there are exceptions under the Convention that may limit the impact of Turkey’s announcement, this was an example of a state risking real-world political consequences for invoking its legal rights under international law.  Turkey has placed itself first among nations willing to assert their commitment to the rule of law notwithstanding international politics.  Turkey’s invocation of the Montreux Convention provides a helpful example of the independent valence of international legal norms.  While those who regard international law as nothing more than states abiding by voluntary obligations that advance states’ self-interested goals can contrive explanations for Turkey’s conduct, the argument for normative compliance pull seems stronger here.

The invocation of the Montreux Convention may have little effect.  According to US News, at least six Russian warships and a submarine entered the Black Sea in February, and the Convention does not permit Turkey to prevent ships from returning to their home base.  Still, in invoking the Convention, Turkey overcame its hesitancy to offend Russia, which no doubt resents the recognition of its invasion as a “war” that triggers Turkey’s right to limit passage through the straits.  The movements of Russia Black Sea fleet will continue to be limited for however long Turkey considers the war to be on-going.  

85 years ago, ten states bound their wills through a written instrument.  Much has changed int the world since that time, and the Montreux Convention has been amended along the way.  But its basic provisions remain in force.  Even in times of crisis and war, pacta sunt servanda!