The following is a summary of “Winning at the Strategic Seams,” a Vanderbilt Law Research Paper authored by Michael Newton, Professor of the Practice of Law and Director of the International Legal Studies Program at Vanderbilt Law School.
International law exists to preserve order and predictability among states and international institutions. It should not become a wedge that widens teleological cracks in the foundation of the shared system. At the same time, liberal democracies must address what the International Law Commission has described as “an increasingly specialized legal environment, (where) few institutions are left to speak the language of general international law, with the aim of regulating, at a universal level, relationships that cannot be reduced to the realization of special interests and that go further than technical coordination.”
Western nations must remain committed to persistent defense of human dignity, self-determination, and personal freedoms. Grey zone conflicts represent an existential threat to this model.
To adapt the common military parlance, the first principles of order that bind liberal democracies should serve as the rally points around which States unite without hesitation in defense of those values. We must revert to first principles as the signposts for the way forward even as the uncertainties of the modern milieu multiply. States must be vigilant to ensure that international norms serve as bulwarks against forms of grey zone warfare that undermine human dignity, comity between States, sustainable peace accompanied by commerce that lifts lives, and fundamental freedoms that permit people to enjoy those fruits.
The concept of ‘grey zone warfare’ describes a persistent and growing threat to the survival of the rule-based international order. The demonstrable gap between internationally accepted articulations of international norms and their perceived utility need not be inevitable.
The shared premise that drives grey zone warfare is that Western interests and institutions are no longer suited to the modern world. As only one example, Vladimir Putin discussed the poisoning of Sergei Skripal by noting that “the liberal idea” has “outlived its purpose.” Putin has postulated that liberal democracies are “obsolete” because they “come into conflict with the interests of the overwhelming majority of the population.” This is an Alice in Wonderland narrative whereby tyrants cause genocide, aggression, and grievous suffering based on the façade that they seek to eradicate those evils.
Leadership, courage, and larger vision provide the elements needed to counter insidious grey zone threats to Western interests and institutions.
Section 2 of this paper explains the strategic seams currently exploited by adaptive adversaries. Liberal democracies must accept the truism that legal norms are in contestation and constant ferment.
Section 3 then describes the necessity for legal integration as a tangible defence against grey zone disorder. Logically, then, Western States must avoid efforts to equate a dualist narrative between the rule of law and the onset of conflict. They must embrace the competition from malignant actors to sustain the vigour of shared norms and institutions.
Section 4 addresses an oft-repeated misunderstanding of the relationship between the rule of law and the onset of competition between States. States cannot permit Cicero’s context of specific argument as an advocate during a famous trial (‘silent enim leges inter arma’) to become a warped pretext for conducting grey zone conflicts. Grey zone warfare is not binary because classic conceptions of peacetime versus conflict are inapplicable.
Section 5 postulates the utility of classic Principles of War. They are time-tested tenets to guide decision-making in the face of instabilities and provocations. Because peace is the proper object of kinetic warfare, the Principles of War provide a ready-made template for unified action in the face of persistent grey zone tactics.
Finally, section 6 suggests that the reinvigorating the Clean Hands doctrine in international law would help Western nations and those that support the liberal international order triumph in the face of instabilities.
The goals of international law are complicated and often controversial. Treaty provisions often represent suboptimal compromises that embed ambiguities designed to placate domestic constituencies. At the same time, no aspect of the integrated legal system is static. We cannot allow the prevailing narratives to be overtaken by those who would seek to undermine our alliances and undermine our common values—those that seek to divide us and corrode the foundations of human freedom the world over.
Despite its fragmented nature, and often divided discourse, the goal of international law should be to reinforce human dignity, global stability, and societal welfare. Any state or action that threatens this overarching purpose must be met with the condemnation and consensus opposition of free nations. Resisting grey zone efforts to erode human dignity and institutional integrity requires adaptive techniques and legal interpretations, firm resolve, and resilient defence.
The full article is available on SSRN.