1 00:00:00,030 --> 00:00:05,740 Just for a couple hours. So thank you for having me and thank you for being here. 2 00:00:05,740 --> 00:00:11,970 So perhaps like a lot of you, I've been thinking a lot over the past few years about my commitment to international law, 3 00:00:11,970 --> 00:00:17,010 what I value in it and why, because we seem to be at a transition point. 4 00:00:17,010 --> 00:00:22,530 International law is like all law, a product of the social and political conditions in which it operates. 5 00:00:22,530 --> 00:00:28,950 And these conditions seem to me to be changing some of this over the past few years has had to do with Donald Trump. 6 00:00:28,950 --> 00:00:33,090 But there have also been many other factors in play, especially in the United States. 7 00:00:33,090 --> 00:00:39,890 So the American public right now is seriously questioning America's outsized role in constructing the global order. 8 00:00:39,890 --> 00:00:45,210 And even if we weren't, our geopolitical position, especially relative to China, is changing. 9 00:00:45,210 --> 00:00:48,060 Nationalist movements have sprouted up in different parts of the world. 10 00:00:48,060 --> 00:00:53,100 The humanitarian impulses that were for many years ascendant in international law now seem in decline, 11 00:00:53,100 --> 00:00:56,700 as is evident in the parent listlessness of the International Criminal Court. 12 00:00:56,700 --> 00:01:05,200 Europe's migration crisis and the complete failure to address gross and systemic human rights abuses of the sort committed in Syria and Myanmar. 13 00:01:05,200 --> 00:01:10,620 So now seems like a good time to take a step back and ask what do we want international law to look like? 14 00:01:10,620 --> 00:01:17,900 What vision for it should we aspire to achieve? Needless to say, each of us might prioritise different policy goals for international law. 15 00:01:17,900 --> 00:01:22,620 So we might want to grow or redistribute the global economic pie. Mitigate climate change. 16 00:01:22,620 --> 00:01:30,600 Reduce threats to human security and so on. Today, I want to put aside questions of policy and focus instead on the question of legal form. 17 00:01:30,600 --> 00:01:35,730 Whatever policies might be pursued, why should we want them to be pursued through international law? 18 00:01:35,730 --> 00:01:41,250 What does international law bring to the table that makes it preferable to other forms of social ordering? 19 00:01:41,250 --> 00:01:48,840 That's, of course, a really big question. But we can start with the basic point that international law is a kind of law and an expansive philosophy. 20 00:01:48,840 --> 00:01:54,960 Philosophical literature explores what makes law as an enterprise worthwhile. 21 00:01:54,960 --> 00:02:02,280 This literature uses the umbrella concept of the rule of law to try to capture the attributes of law that are in general valuable. 22 00:02:02,280 --> 00:02:10,500 So today I'm going to draw on this literature to offer two visions or ideals for the international rule of law. 23 00:02:10,500 --> 00:02:15,240 I'll argue that each of these visions visions captures something important about international law. 24 00:02:15,240 --> 00:02:21,630 But while the first vision already informs much of the thinking in the field, I think the second, which has largely been overlooked, 25 00:02:21,630 --> 00:02:26,910 might more often provide a suitable framework for evaluating when and why international law is worthwhile. 26 00:02:26,910 --> 00:02:34,730 So let's start with the first more familiar vision. This vision of the rule of law prioritises obedience to law as a way of constraining straight 27 00:02:34,730 --> 00:02:40,500 to state discretion and thereby ensuring that states do not exercise power arbitrarily. 28 00:02:40,500 --> 00:02:49,890 So here the rule of law and by extension the international rule of law requires establishing conduct rules that satisfy three basic criteria. 29 00:02:49,890 --> 00:02:57,390 First, the rules must be relatively precise and content. Second, they must be stable as inconsistently and impartially applied. 30 00:02:57,390 --> 00:03:03,480 And third, they must work to constrain the discretion of the people who have power to make particular governance decisions. 31 00:03:03,480 --> 00:03:10,710 These three criteria for the rule of law depict an ideal in which the law directs people on what they are supposed to do and then they do it. 32 00:03:10,710 --> 00:03:17,490 The criteria are context independent, so they are meant to define what the rule of law requires across issue areas, 33 00:03:17,490 --> 00:03:22,800 and they define it more or less as an alternative to the arbitrary exercise of power. 34 00:03:22,800 --> 00:03:26,640 So, as I said, this vision of the rule of law should sound familiar to international lawyers. 35 00:03:26,640 --> 00:03:33,910 It drives how many of us evaluate the enterprise and informs the kinds of arrangements that we tend to prise or seek to implement. 36 00:03:33,910 --> 00:03:38,260 Just think of all the efforts to clarify the normative content of international law. 37 00:03:38,260 --> 00:03:40,300 We must establish precise conduct rules. 38 00:03:40,300 --> 00:03:48,220 People say because and I'm quoting here, excepting only vague general principles weakens the laws power to impose meaningful constraints. 39 00:03:48,220 --> 00:03:53,290 In other words, imprecision in the content of international law reduces its constraining effect. 40 00:03:53,290 --> 00:04:00,940 And that is thought to be a problem. The worry is that certain areas of international law are insignia are insufficiently clear or precise. 41 00:04:00,940 --> 00:04:06,220 And so they don't direct states on what to do or therefore constrain state behaviour. 42 00:04:06,220 --> 00:04:10,650 This worry drives the many efforts to make international law more precise. 43 00:04:10,650 --> 00:04:16,420 Or think of the claim, which is variously expressed that internationalise too easily infected by power politics, 44 00:04:16,420 --> 00:04:23,110 not consistently and impartially applied. Again, the instability and the application of international law is thought to be a problem because 45 00:04:23,110 --> 00:04:27,760 it means that states and especially powerful states might not adequately be constrained. 46 00:04:27,760 --> 00:04:33,340 This is why international lawyers favour third party adjudicative institutions. International courts and tribunals serve. 47 00:04:33,340 --> 00:04:38,170 And Karen Altar's words to, quote, subordinate powerful actors to the rule of law. 48 00:04:38,170 --> 00:04:44,650 They have again quoting alter, quote, the authority to say what international law means to apply the law in concrete 49 00:04:44,650 --> 00:04:49,660 cases and thus to indicate what compliance with international law entails. 50 00:04:49,660 --> 00:04:56,170 Geared to bear on the Louise Cheney and John Young voters say something similar adjudicative institutions contribute to the rule of law. 51 00:04:56,170 --> 00:05:01,660 They say that providing for the law is, quote, consistent and impartial enforcement and thereby, 52 00:05:01,660 --> 00:05:06,370 quote, ensuring that legal rules prevail over power in the settlement of disputes. 53 00:05:06,370 --> 00:05:11,830 Again, if the rule of law is about constraining state discretion for the first vision that international 54 00:05:11,830 --> 00:05:15,790 UN needs to be impartially and consistently applied so that it constrains all states, 55 00:05:15,790 --> 00:05:23,400 including the most powerful ones. And then there is the whole cottage industry devoted to state compliance with international law. 56 00:05:23,400 --> 00:05:30,090 This work asks when and why states would comply with international law even if they would prefer to do something else. 57 00:05:30,090 --> 00:05:37,080 The normative assumption is that if states comply with international on these situations, then it must be doing what it is supposed to do. 58 00:05:37,080 --> 00:05:39,480 It must be constraining their discretion. 59 00:05:39,480 --> 00:05:47,630 Some go so far as to say that the only reason to have international law, the only way in which it matters, is if it generates compliance. 60 00:05:47,630 --> 00:05:51,720 The quote, whole point of international law yet and says is, quote, 61 00:05:51,720 --> 00:05:56,430 to create a structure whereby the costs of shifting strategy away from compliance 62 00:05:56,430 --> 00:06:00,510 becomes higher than it would be without legal regulation in that particular area. 63 00:06:00,510 --> 00:06:07,580 If states don't comply with international law and it therefore doesn't control their conduct, then it's not worth the paper it's written on. 64 00:06:07,580 --> 00:06:15,620 Or so the first vision of the rule of law suggests and the obsession with obedience and rule following that it generates. 65 00:06:15,620 --> 00:06:19,800 The idea of the rule of law is a constraint is, of course, appealing in certain contexts. 66 00:06:19,800 --> 00:06:25,240 So take the use of Bellen, which is an area of law in which I do a lot of my research, 67 00:06:25,240 --> 00:06:30,300 that that area of law should, in my view, constrain how states use force across national borders. 68 00:06:30,300 --> 00:06:33,090 But remember, this vision is content independent. 69 00:06:33,090 --> 00:06:39,000 It's supposed to provide a model not just for certain areas of international law, but for all of international law. 70 00:06:39,000 --> 00:06:46,200 And in my view, this across the board ideal for international law has very real and very underappreciated flaws. 71 00:06:46,200 --> 00:06:53,270 In particular, I think just grafting the vision of the rule of law is constrained from the domestic context for which it was first developed. 72 00:06:53,270 --> 00:07:00,120 And sort of flopping it onto international law loses something significant in translation as applied to international law. 73 00:07:00,120 --> 00:07:04,880 It seems to me that the reasons for constraining state discretion are less compelling, 74 00:07:04,880 --> 00:07:09,930 and the reasons for allowing state flexibility in the exercise of their discretion are more compelling. 75 00:07:09,930 --> 00:07:12,640 So let me unpack what I mean here. 76 00:07:12,640 --> 00:07:17,930 In the domestic context, the central concern for the rule of law is the relationship between a state and its people. 77 00:07:17,930 --> 00:07:23,450 Rule of law theorists focus on limiting how states exercise power in order to protect people 78 00:07:23,450 --> 00:07:28,280 who are subjects of the state from the centralisation of power in the hands of the state. 79 00:07:28,280 --> 00:07:33,650 We want to be sure that a state cannot arbitrarily decide, for example, whose properties expropriated, 80 00:07:33,650 --> 00:07:38,180 who must live near an environmental hazard and whose food is contaminated. Put differently, 81 00:07:38,180 --> 00:07:42,080 we want the state to be constrained in the everyday administration of government 82 00:07:42,080 --> 00:07:46,010 so that its subjects know what to expect and can organise their lives around it, 83 00:07:46,010 --> 00:07:52,370 not be subject to the whims or biases of the people who happen to be making decisions that will significantly impact their lives. 84 00:07:52,370 --> 00:07:57,710 Having precise and stable conduct rules that constrain governmental discretion is a good way of doing that. 85 00:07:57,710 --> 00:08:04,280 Note that some rule of law theorists have argued that these are the criteria that I mentioned earlier are still insufficient. 86 00:08:04,280 --> 00:08:08,750 So if the goal is to constrain how states exercise power over people, 87 00:08:08,750 --> 00:08:14,330 the argument goes it's not enough just to establish precise conduct rules that are consistently applied. 88 00:08:14,330 --> 00:08:21,290 The rules must have particular content. They must incorporate basic human rights values that protect people from governmental abuse. 89 00:08:21,290 --> 00:08:26,790 I don't want to right now adjudicate this debate between the thin conception of the rule of law 90 00:08:26,790 --> 00:08:32,120 that is completely content independent and the thicker one that has a human rights overlay. 91 00:08:32,120 --> 00:08:34,190 I just want to flag that this debate exists. 92 00:08:34,190 --> 00:08:41,680 And note that even under the thicker conception, the three criteria that I mentioned earlier, I thought to be critical to constraining state power. 93 00:08:41,680 --> 00:08:47,800 They are thought to be necessary, even if not sufficient, for the vision, but for the first vision of the rule of law. 94 00:08:47,800 --> 00:08:54,610 So when we shift from the domestic to the international context, those reasons for constraining state discretion become less salient. 95 00:08:54,610 --> 00:09:00,880 Although some areas of international law directly touch individual lives as when international courts criminally prosecute people. 96 00:09:00,880 --> 00:09:05,320 Most of international law is mediated through domestic, legal and political systems. 97 00:09:05,320 --> 00:09:13,750 National actors must take steps to implement it. These actors must retain the power to make international law relevant or not in people's lives. 98 00:09:13,750 --> 00:09:18,730 So while individuals still need robust protections from governmental decisions at the national level, 99 00:09:18,730 --> 00:09:26,740 including perhaps decisions relating to international law, they are for structural reasons more shielded from what happens on the international plane. 100 00:09:26,740 --> 00:09:33,670 Now, some analogised the position of individuals and national law to that of states and international law. 101 00:09:33,670 --> 00:09:39,130 They posit that weak states need comparable protections from arbitrariness and abuse. 102 00:09:39,130 --> 00:09:46,360 The analogy, in my view, doesn't quite work because the relationship between states is not at all like that between a state and its own people. 103 00:09:46,360 --> 00:09:51,100 The international legal system is highly decentralised so that even states that are relatively weak by 104 00:09:51,100 --> 00:09:57,520 conventional standards still retain considerable control over how international law affects them or their people. 105 00:09:57,520 --> 00:10:01,240 The bottom line is that the coercion that a state experiences in the ordinary course of its 106 00:10:01,240 --> 00:10:07,420 international relations is not at all comparable to that which it routinely imposes on its own people. 107 00:10:07,420 --> 00:10:15,250 The state is less often, though, again, not never. Less often, though not never needs law to protect it from arbitrariness and abuse. 108 00:10:15,250 --> 00:10:21,010 Of course, we must still prioritise clarity, stability and obedience to law for other reasons that are independent of its content, 109 00:10:21,010 --> 00:10:24,970 for example, to foster predictability or coordination in international affairs. 110 00:10:24,970 --> 00:10:28,780 But these reasons are ultimately not about protecting individuals from state power. 111 00:10:28,780 --> 00:10:35,180 And so they are, in my view, less compelling than the reasons for insisting that states constrain themselves through domestic law. 112 00:10:35,180 --> 00:10:41,320 They more readily budge in the face of competing considerations. I just want to pause and be clear here. 113 00:10:41,320 --> 00:10:44,710 I'm not arguing that states should aimlessly disregard international law. 114 00:10:44,710 --> 00:10:50,830 I'm arguing that the normative case for establishing stable conduct rules that all states always obey, 115 00:10:50,830 --> 00:10:54,370 no matter their content, is weaker than many assume. 116 00:10:54,370 --> 00:11:00,040 At the same time, the reasons for not establishing such rules are more compelling in the international context. 117 00:11:00,040 --> 00:11:03,790 States vary enormously in their needs, interests, values and capacities, 118 00:11:03,790 --> 00:11:10,020 insisting that they all consistently obey the same conduct rules consistently and impartially applied will. 119 00:11:10,020 --> 00:11:15,970 In many, though again, not all settings be counterproductive or itself a source of oppression. 120 00:11:15,970 --> 00:11:23,470 Any one rule is likely to be inconsistent with what the people in some states need or want, with what their governments can realistically provide. 121 00:11:23,470 --> 00:11:27,430 Positive international law already to some extent recognises this point. 122 00:11:27,430 --> 00:11:33,160 Many international legal instruments define state obligations in terms that are highly, contextually variable. 123 00:11:33,160 --> 00:11:39,030 That affords states significant discretion to decide what measures they will take to satisfy their own obligations, 124 00:11:39,030 --> 00:11:44,050 or that allows states to limit the scope or effect of particular obligations as applied to them. 125 00:11:44,050 --> 00:11:47,540 Take the principal obligation in the Paris Agreement on Climate Change. 126 00:11:47,540 --> 00:11:55,710 It requires each party simply to, quote, prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. 127 00:11:55,710 --> 00:12:00,300 Likewise, the core obligation of the International Covenant on Economic, Social and Cultural Rights. 128 00:12:00,300 --> 00:12:04,260 The icy ESR provides that each state must, quote, 129 00:12:04,260 --> 00:12:11,920 take steps to the maximum of its available resources with a view of achieving progressively the full realisation of the relevant rights. 130 00:12:11,920 --> 00:12:14,920 If one adopts the vision of the rule of law is constrained, 131 00:12:14,920 --> 00:12:20,140 these sorts of provisions are problems, evidence of a deficiency that ought to be corrected. 132 00:12:20,140 --> 00:12:27,430 They are imprecise and cannot consistently be applied because they give each state too much discretion to decide on its own what it will do. 133 00:12:27,430 --> 00:12:32,230 But it's not at all clear, at least not to me, that that's the right way to evaluate them. 134 00:12:32,230 --> 00:12:35,620 Such provisions accommodate real differences amongst states. 135 00:12:35,620 --> 00:12:41,590 States demand and to some extent need the flexibility to adapt international law to their own circumstances. 136 00:12:41,590 --> 00:12:48,610 Indeed, given the world's diversity push, pushing them all to obey the very same conduct rules will often be oppressive. 137 00:12:48,610 --> 00:12:53,550 It will mean locking them into arrangements that they accepted before the full implications where a parent 138 00:12:53,550 --> 00:12:58,480 or pushing them to go along with majoritarian preferences in the interest of international cooperation. 139 00:12:58,480 --> 00:13:06,130 There's little reason to believe that those results would systematically advance basic rule of law values like justice, fairness and human freedom. 140 00:13:06,130 --> 00:13:09,820 To the contrary, scholars who write from the whale tradition, 141 00:13:09,820 --> 00:13:16,960 those who emphasise third world approaches international law have long argued that international rules too often prioritise the interests, 142 00:13:16,960 --> 00:13:22,720 values and perspectives of the powerful and operate to the detriment of those that have historically been marginalised. 143 00:13:22,720 --> 00:13:27,550 In other words, establishing precise conduct rules that are consistently applied might constrain all states, 144 00:13:27,550 --> 00:13:32,470 but it might do so with disparate effects and in ways that further diminish the positions of the less powerful. 145 00:13:32,470 --> 00:13:37,120 It will at times be a source not of human freedom and emancipation, but of oppression. 146 00:13:37,120 --> 00:13:42,580 The WTO trips agreement is a good example. Almost immediately after the agreement was signed, 147 00:13:42,580 --> 00:13:49,630 many developing countries started complaining that its intellectual property protections were too onerous or even harmful as applied to them. 148 00:13:49,630 --> 00:13:54,880 Insisting on rule following in this context begins to look like something that we might want to avoid. 149 00:13:54,880 --> 00:14:02,020 It looks like the rule by law instead of the rule of law. So on balance, the first vision of the rule of law, 150 00:14:02,020 --> 00:14:06,670 the rule of law is constraint is less compelling for international law that it is for domestic law. 151 00:14:06,670 --> 00:14:13,000 The reasons for constraining state discretion are less salient, and the reasons for allowing more flexibility are more salient. 152 00:14:13,000 --> 00:14:17,710 Again, I'm not saying that the vision is problematic in every single setting in which it is invoked. 153 00:14:17,710 --> 00:14:20,860 Just that we should not assume that it is across the board desirable. 154 00:14:20,860 --> 00:14:25,900 We should not assume that precision, consistency and constraint are always for the good. 155 00:14:25,900 --> 00:14:31,720 So those who want to push international law in those directions and again, many people instinctively do, 156 00:14:31,720 --> 00:14:35,650 should make a case for that push in the specific settings in which it is made. 157 00:14:35,650 --> 00:14:39,620 And in light of the countervailing considerations, for example, while the rule of law, 158 00:14:39,620 --> 00:14:44,800 while the first vision of the rule of law might define the ideal for the use of Balam, 159 00:14:44,800 --> 00:14:51,430 it's not as compelling for intellectual property rights or for the full realisation of economic, social and cultural rights under the CSIR. 160 00:14:51,430 --> 00:15:00,690 We should be more mindful of its limits as a normative ideal. So what's the alternative? 161 00:15:00,690 --> 00:15:07,570 What might the rule of law entail, if not rule following, if not directing people on what to do and then having them do it? 162 00:15:07,570 --> 00:15:16,120 The second vision for the international rule of law is less about using international as a constraint on state power and more about using it, 163 00:15:16,120 --> 00:15:22,270 in Jeremy Waldron's words, to, quote, commit to a certain method of arguing about the exercise of public power. 164 00:15:22,270 --> 00:15:26,920 The idea here is that the rule of law is advanced through legal argumentation and debate. 165 00:15:26,920 --> 00:15:33,880 Again, think of the obligations in the Paris Agreement and in the ICSE are their content is highly imprecise and contextually variable. 166 00:15:33,880 --> 00:15:37,510 So they fall short of the first vision of the rule of law because they give 167 00:15:37,510 --> 00:15:42,460 considerable discretion to states in the implementation of their own economic, 168 00:15:42,460 --> 00:15:49,120 social and cultural rights, or the right of economic, social, cultural rights of the people in their territories. 169 00:15:49,120 --> 00:15:56,290 But insofar as they help structure an iterative process of legal argumentation debate, I want to argue they might will satisfy the second vision. 170 00:15:56,290 --> 00:16:00,070 I mean, to tell you why, I think international laws, argumentative practise, promotes the rule of law. 171 00:16:00,070 --> 00:16:03,610 But before I do, I should probably explain what I mean by it. 172 00:16:03,610 --> 00:16:08,350 So is all lawyers know legal arguments have a particular structure and style. 173 00:16:08,350 --> 00:16:15,460 Most fundamentally, they focus on questions relating to public authority. They address not or not only whether particular conduct is feasible, 174 00:16:15,460 --> 00:16:20,410 but also whether it is appropriate, whether it is consonant with the precepts of the regulated group. 175 00:16:20,410 --> 00:16:25,090 Legal arguments offer reasons for positions that purport to reflect the interests and values of the group. 176 00:16:25,090 --> 00:16:30,010 They tie the reasons to the facts. They rely on particular text norms and methods of analysis. 177 00:16:30,010 --> 00:16:33,370 They are subject to external scrutiny and debate and so forth. 178 00:16:33,370 --> 00:16:39,670 Arguments can be more or less legalised depending on the extent to which they display these attributes. 179 00:16:39,670 --> 00:16:43,810 But and this is a point worth underscoring and argument need not use a derivation 180 00:16:43,810 --> 00:16:48,730 of the word law or invoke any particular text or norm to be legal in kind. 181 00:16:48,730 --> 00:16:54,160 What makes it legal and kind is its structure and style and its particular focus on issues of public authority. 182 00:16:54,160 --> 00:16:59,770 So let me give you a concrete example from the use of Belem. You might remember that in 2017, 183 00:16:59,770 --> 00:17:07,090 the United States attacked a Syrian airfield after evidence surfaced that the Syrian regime had again used chemical weapons against its people. 184 00:17:07,090 --> 00:17:11,710 The United States didn't explain how its action was consistent with the black letter doctrine on the use of that one. 185 00:17:11,710 --> 00:17:19,340 It didn't claim to be acting pursuant to the Security Council's authorisation in self-defence or with the Syrian government's consent. 186 00:17:19,340 --> 00:17:24,620 Many international lawyers have taken this to mean that it therefore did not present a legal argument to justify the strike. 187 00:17:24,620 --> 00:17:31,610 I think that's wrong. The United States did, in fact, try to justify its exercise of military power by reference to international law, 188 00:17:31,610 --> 00:17:36,470 in its words, by reference to Syria's, quote, widespread violations of international law. 189 00:17:36,470 --> 00:17:41,720 It invoked several international legal texts to argue that it was upholding not just its own principles, 190 00:17:41,720 --> 00:17:44,750 but interests and values of the international community as a whole. 191 00:17:44,750 --> 00:17:50,060 It alluded to background legal norms when it asserted that it use force only as a last resort only after the, 192 00:17:50,060 --> 00:17:54,410 quote, exhaustion of all reasonably available peace for remedies and only as, 193 00:17:54,410 --> 00:18:00,290 quote, necessary and proportionate to the aim of deterring and preventing the future use of chemical weapons by the Syrian government. 194 00:18:00,290 --> 00:18:03,500 It also appeared before the Security Council, the international institution, 195 00:18:03,500 --> 00:18:08,720 with legal primacy in this area to explain its conduct and subjective reasoning to external scrutiny. 196 00:18:08,720 --> 00:18:12,650 In short, the United States conceded that it was not entitled to attack Syria just because it could. 197 00:18:12,650 --> 00:18:18,680 It recognised that any authority for its operation would have to come from other states, and it made a pitch to them to earn this authority. 198 00:18:18,680 --> 00:18:24,650 These are the ingredients of a legal argument, and we can contrast that approach with the one that the United States took in January 199 00:18:24,650 --> 00:18:29,600 20 20 when it conducted a targeted airstrike against Iranian general custom Sulimani, 200 00:18:29,600 --> 00:18:37,790 who was at the time on business in Iraq. In the days following that strike, the United States mostly just thumbed its nose at international law. 201 00:18:37,790 --> 00:18:44,260 President Trump and other administration officials vacillated incoherently about their justification for using military force. 202 00:18:44,260 --> 00:18:48,650 They variously suggested that the action was justifiable to deter imminent attacks at Sulimani, 203 00:18:48,650 --> 00:18:55,370 was plotting, that it was retribution for earlier attacks. And that was just part of a broader geopolitical contest with Iran. 204 00:18:55,370 --> 00:19:02,540 U.S. officials did not provide the details to substantiate any of these justifications. And at times, they trafficked in conspiracy theories and lies. 205 00:19:02,540 --> 00:19:09,920 So these two examples. Syria in twenty seventeen and Sulimani in 2020 put in stark relief the second vision of the rule of law, 206 00:19:09,920 --> 00:19:16,410 the one that centres on laws, argumentative practise. In each example, international law did not constrain U.S. power. 207 00:19:16,410 --> 00:19:21,930 The United States, by most accounts, violated international law so did not satisfy the first vision for the rule of law, 208 00:19:21,930 --> 00:19:26,910 the one that focuses on constraining power through law. Moreover, and now I'm just repeating myself. 209 00:19:26,910 --> 00:19:33,540 This is a context in which we might actually prise obedience and constraint. The first vision might actually be the ideal. 210 00:19:33,540 --> 00:19:36,030 But even if that first vision is the ideal, 211 00:19:36,030 --> 00:19:42,420 we should have a normative framework that can help us understand why the US approach in this Sulimani incident was so troubling. 212 00:19:42,420 --> 00:19:44,490 Beyond the fact of the violation, 213 00:19:44,490 --> 00:19:51,240 and if we think that the only way international law can matter is if states comply with it or if it constrains their power, 214 00:19:51,240 --> 00:19:54,420 then we will come up short. The second vision of the international rule of law. 215 00:19:54,420 --> 00:19:59,820 By contrast, the one that focuses on its argumentative practise gives us more traction here. 216 00:19:59,820 --> 00:20:07,000 So I want to suggest that international laws, argumentative practise promotes four key values that are commonly associated with the rule of law. 217 00:20:07,000 --> 00:20:13,880 And it does so even when it doesn't serve the constraining function that the first vision of the rule of law prioritises. 218 00:20:13,880 --> 00:20:22,250 First, at the most basic level, legal argumentation signals that material power is not a sufficient basis for making governance decisions. 219 00:20:22,250 --> 00:20:27,500 Those who have the power to make particular decisions must show not only that they can implement a decision, 220 00:20:27,500 --> 00:20:31,190 but that they may that they have authority to do what they want to do. 221 00:20:31,190 --> 00:20:36,050 In international law, the relevant authority, of course, rest beyond the jurisdiction of any one state. 222 00:20:36,050 --> 00:20:41,540 So those who want it have to earn it from other global actors when they argue about whether they have it. 223 00:20:41,540 --> 00:20:48,320 They indicate, even if only implicitly, that it exists and that it matters, matters enough for them to fight over it. 224 00:20:48,320 --> 00:20:52,820 Arguments about international law does reinforce and preserve the expectation that governance 225 00:20:52,820 --> 00:20:58,010 decisions must be rooted in some authority that resides at the international level. 226 00:20:58,010 --> 00:21:05,360 When the United States struck Syria in 2017, at least recognise that its decision had to be justified by reference to international law. 227 00:21:05,360 --> 00:21:12,370 It accepted the general proposition that use of force issues are properly addressed by the group of states and are not entirely up to any one of them. 228 00:21:12,370 --> 00:21:15,110 The U.S. must message in the Sulimani and said it was different. 229 00:21:15,110 --> 00:21:20,870 It was that the United States would do as it pleased and the rest of the world would suffer the consequences in not presenting a legal argument. 230 00:21:20,870 --> 00:21:26,010 The United States treated the authority of international law as irrelevant. Second, 231 00:21:26,010 --> 00:21:29,220 legal argumentation serves to hold those who make decisions accountable for their 232 00:21:29,220 --> 00:21:33,300 actions because international legal authority rests with the collective and say so, 233 00:21:33,300 --> 00:21:34,050 wanted on their side, 234 00:21:34,050 --> 00:21:40,830 must earn it from other actors arguing with them about whether they have is a way of holding them accountable for their decisions. 235 00:21:40,830 --> 00:21:46,500 When a state seeks to establish that it has authority, when it makes a legal argument to support what it has done, 236 00:21:46,500 --> 00:21:52,320 it effectively empowers other actors either to confer authority on or to deny authority to it. 237 00:21:52,320 --> 00:21:59,340 The argument becomes a tool for legitimising or delegitimizing its behaviour in law in some circumstances. 238 00:21:59,340 --> 00:22:03,360 Legal argumentation might work to shape whether or how a state exercises its power. 239 00:22:03,360 --> 00:22:07,800 A state that can't reasonably justify a decision but choose to do something else. 240 00:22:07,800 --> 00:22:14,610 But note that legal argumentation doesn't necessarily constrain power through stable conduct rules that are consistently applied. 241 00:22:14,610 --> 00:22:19,890 It constrains power by cultivating the expectation that governance decisions that lack authority are in some 242 00:22:19,890 --> 00:22:26,670 sense illegitimate and by giving external actors a central role in making that legitimacy determination. 243 00:22:26,670 --> 00:22:33,240 What's more, even if a legal argument doesn't affect a state's operational behaviour, it still has a way of holding the state's feet to the fire. 244 00:22:33,240 --> 00:22:40,160 The argument pushes the state to explain and try to justify the decision to the various external constituencies that are paying attention. 245 00:22:40,160 --> 00:22:47,430 The Solomonov strike is again instructive, although Iran and Iraq each complained to the Security Council that the United States had acted unlawfully. 246 00:22:47,430 --> 00:22:50,820 The United States communicated through its evident disregard for the enterprise that 247 00:22:50,820 --> 00:22:54,780 it was not particularly invested in justifying its conducted international law, 248 00:22:54,780 --> 00:22:57,990 and the vast majority of other states didn't press it to do so. 249 00:22:57,990 --> 00:23:03,960 The result was that the use of Bellen seemed not only materially but also normatively irrelevant. 250 00:23:03,960 --> 00:23:10,980 It did not constrain the decision to use force, but neither did it legitimise or delegitimize that decision by not having the argument. 251 00:23:10,980 --> 00:23:14,670 States did not hold the United States accountable for the strike. 252 00:23:14,670 --> 00:23:21,180 Third, legal argumentation is a way of showing respect to people who care about or are affected by particular decisions. 253 00:23:21,180 --> 00:23:25,680 The argument treats people like they are not just pawns in some geopolitical game of chess, 254 00:23:25,680 --> 00:23:32,660 but individuals who deserve a recent account of what is happening and why and who might themselves have views worth sharing on the subject. 255 00:23:32,660 --> 00:23:39,300 Quote, even if compliance is not the issue. Frederic Schauer has explained giving reasons for governance decisions is still a way of showing 256 00:23:39,300 --> 00:23:44,220 respect for the subject and a way of opening a conversation rather than forestalling one. 257 00:23:44,220 --> 00:23:50,880 Mark Tushnet has made a similar point, arguing in law, he says, quote, expresses respect for people is reasoning and reasonable beings, 258 00:23:50,880 --> 00:23:57,960 which, quote, does seem an unqualified human good in trying to justify the Styria operation under international law. 259 00:23:57,960 --> 00:24:02,160 The United States recognised that it owed various audiences an explanation for its conduct. 260 00:24:02,160 --> 00:24:06,840 It conceded that it was not entitled to attack Syria just because it had the military power to do so. 261 00:24:06,840 --> 00:24:12,060 It explained that its action was based on general principles that, though contested, reflected a considered view of the public good. 262 00:24:12,060 --> 00:24:16,740 Now, for example, the president's own personal vendetta and address competing normative positions. 263 00:24:16,740 --> 00:24:20,520 Of course, many people would have preferred for it not to have conducted the attack. 264 00:24:20,520 --> 00:24:28,530 But given that it did, its legal arguments at least informed others of what it was doing and why, and invited them to think about its logic. 265 00:24:28,530 --> 00:24:36,270 Voice objections and demand a reasoned response, including in the institution that is specifically charged with addressing such situations. 266 00:24:36,270 --> 00:24:40,290 The U.N. Security Council, the Solomonov case is again different. 267 00:24:40,290 --> 00:24:44,820 The Trump administration is changing and untether justifications express not respect, 268 00:24:44,820 --> 00:24:51,210 but contempt for those who expected a reasoned account of what it did. And if you don't think this matters, other people do. 269 00:24:51,210 --> 00:24:55,230 U.S. Republican Senator Mike Lee called the administration's briefing to Congress, quote, 270 00:24:55,230 --> 00:25:01,460 insulting and demeaning for the way it tried to stifle rather than engage seriously in a recent discussion. 271 00:25:01,460 --> 00:25:06,450 And to be clear. Lee's complaint was not about the legal or policy merits of the Sulimani strike. 272 00:25:06,450 --> 00:25:13,620 He emphasised that he supported the Trump administration and admired what he saw as its overall restraint in dealing with Iran. 273 00:25:13,620 --> 00:25:19,140 His complaint was that the administration was not serious about publicly justifying its action in law. 274 00:25:19,140 --> 00:25:27,180 The administration's message, in Lee's words, were, was that we, quote, need to be good little boys and girls and not debate this in public. 275 00:25:27,180 --> 00:25:31,600 For Lee, that message was, and I'm quoting here, absolutely insane. 276 00:25:31,600 --> 00:25:38,410 Wrong and again, insulting. Not trying to justify the action in law was a show of disrespect. 277 00:25:38,410 --> 00:25:46,750 Finally, international argumentative practise helps can constitute a decent global politics about the contentious things that states do in the world. 278 00:25:46,750 --> 00:25:50,230 It enables people in different parts of the world to engage together on the 279 00:25:50,230 --> 00:25:53,980 issues that they all care about while structuring and relatively positive ways, 280 00:25:53,980 --> 00:25:58,210 how they gauge, again, legal arguments of a particular structure and style. 281 00:25:58,210 --> 00:26:01,390 The participants use the laws, various resources, its text norms, 282 00:26:01,390 --> 00:26:07,180 methods and institutions to explain how their positions are consonance with the interests and values of the group. 283 00:26:07,180 --> 00:26:10,600 The argument thus pushes them to grapple with the politics of the group. 284 00:26:10,600 --> 00:26:15,160 Those who engage in these arguments plainly disagree about which policies best promote the public good 285 00:26:15,160 --> 00:26:20,700 through disagreements at times run so deep that they cannot definitively or authoritatively be resolved, 286 00:26:20,700 --> 00:26:24,880 and their legal positions are almost certainly informed by their own interests or passions. 287 00:26:24,880 --> 00:26:30,640 Still, there is value to putting them in conversation with one another and pushing them, as Shantell Move has said, 288 00:26:30,640 --> 00:26:36,730 to, quote, see themselves as belonging to the same political association and sharing a common symbolic space. 289 00:26:36,730 --> 00:26:40,570 My colleague Don Herzog explains that, quote, Debate over principle, 290 00:26:40,570 --> 00:26:44,770 over the common good and justice is a distinctive and invaluable moment of political life. 291 00:26:44,770 --> 00:26:52,300 It requires a depth and seriousness of purpose, he says, not because it is detached from or just a cloak for the participants on preferences, 292 00:26:52,300 --> 00:26:59,230 but because it involves the dissonant intertwining of principle and interest in trying to define their own priorities in relation to the group. 293 00:26:59,230 --> 00:27:02,770 The participants must in some way contend with the politics of the group. 294 00:27:02,770 --> 00:27:09,700 They must confront what is at stake in concrete decisions not just for themselves, but also for others who care about the decisions. 295 00:27:09,700 --> 00:27:12,460 Take another example from the use of Bellum. 296 00:27:12,460 --> 00:27:18,220 About a dozen militarily powerful states now claim that they may use force in self-defence against non-state actors. 297 00:27:18,220 --> 00:27:23,380 If the state from which these actors commit an attack is unable or unwilling to address their threat. 298 00:27:23,380 --> 00:27:28,000 This claim has formed nearly two decades of debate amongst a broad range of actors. 299 00:27:28,000 --> 00:27:33,130 Although the participants have plainly been motivated by their own interests and values, they have also argued about principle. 300 00:27:33,130 --> 00:27:37,900 They have pushed for their priorities to be reflected in the use of Belen's normative resources. 301 00:27:37,900 --> 00:27:43,150 I know the proponents of the unable or unwilling position have not much changed their position as a result of the debate. 302 00:27:43,150 --> 00:27:50,560 Their critics evidently still want to argue with them about and focus the world's attention on it rather than just passively accept it as inevitable. 303 00:27:50,560 --> 00:27:56,680 The critics want these states to contend with and to take into account and address their opposing views. 304 00:27:56,680 --> 00:28:00,910 So to sum up, the second vision of the international rule of law highlights that international law is 305 00:28:00,910 --> 00:28:04,870 much more is about much more than just establishing and following a bunch of rules. 306 00:28:04,870 --> 00:28:13,390 It's also, and perhaps more critically, about how we explain, justify, argue about and bolster particular governance decisions. 307 00:28:13,390 --> 00:28:20,230 Laws, argument and practise is important because first it fosters the expectation that share power is not a sufficient basis for making decisions. 308 00:28:20,230 --> 00:28:26,140 Second, it helps uphold the people. It helps to hold the people in power accountable for their decisions. 309 00:28:26,140 --> 00:28:32,740 Third, it shows respect for those who care about the decisions by providing a reasoned account of what is happening and why and flop forth. 310 00:28:32,740 --> 00:28:38,320 It fosters are relatively healthy politics about the many contentious things that states do in the world. 311 00:28:38,320 --> 00:28:45,860 So, OK, I've offered two distinct visions of the international rule of law in one international law should ideally constrain state power. 312 00:28:45,860 --> 00:28:50,260 In the other, it should give states and other actors face to argue about the exercise of state power. 313 00:28:50,260 --> 00:28:55,840 We might, in the abstract one, advance both of these visions of the international rule of law simultaneously. 314 00:28:55,840 --> 00:29:02,980 So we might want to establish stable conduct rules that limit state discretion while also fostering legal argumentation and debate. 315 00:29:02,980 --> 00:29:04,360 But as a practical matter, 316 00:29:04,360 --> 00:29:11,710 these two visions of the rule of law routinely push in different directions and require making trade-offs prioritising laws. 317 00:29:11,710 --> 00:29:18,490 Argumentative practise often means tolerating greater levels of discretion, unpredictability and inconsistency in the laws application, 318 00:29:18,490 --> 00:29:25,930 because law best fosters argumentation by staying elastic and contestable so that people can use it to advance different positions, 319 00:29:25,930 --> 00:29:29,710 not by establishing clear rules that are mechanically applied. For example, 320 00:29:29,710 --> 00:29:33,280 the use of Belen's conduct rules invite a lot of argumentation about how they 321 00:29:33,280 --> 00:29:38,680 apply in concrete cases because they are and have always been so open textured. 322 00:29:38,680 --> 00:29:42,220 The same is not true of the highly technical and specific conduct rules that govern, 323 00:29:42,220 --> 00:29:48,520 for example, international civil aviation under the Chicago convention. Argumentation benefits from opiate openness. 324 00:29:48,520 --> 00:29:54,170 But the more open a given area of law is, the less likely it will control the people who act under it. 325 00:29:54,170 --> 00:30:00,950 That Trade-Off, between creating room for legal argumentation and creating and constraining state discretion is not always worth making. 326 00:30:00,950 --> 00:30:07,640 Again, the critical point, though, is that the question of whether the Trade-Off is worth making and therefore which 327 00:30:07,640 --> 00:30:11,960 vision of the rule of law we should prioritise cannot be made in the abstract. 328 00:30:11,960 --> 00:30:15,230 It depends on the specific interests and values that are at stake. 329 00:30:15,230 --> 00:30:22,730 And on the political economy in which the law operates in some circumstances and against international civil aviation might be a good example. 330 00:30:22,730 --> 00:30:27,200 Constraining state discretion through settled contract rules is both possible and important. 331 00:30:27,200 --> 00:30:33,440 But that vision for international law can also often be infeasible because of the horizontal structure of international law. 332 00:30:33,440 --> 00:30:38,330 Constraining states through precise conduct rules that are consistently applied is often not an option. 333 00:30:38,330 --> 00:30:43,820 States, in large part decide for themselves what they are willing to do. See again, the Paris Agreement. 334 00:30:43,820 --> 00:30:49,250 And even when that first option is that first vision is an option, it will sometimes be repressive. 335 00:30:49,250 --> 00:30:53,840 The extraordinary diversity and disparities in the world mean that always trying to constrain 336 00:30:53,840 --> 00:30:58,460 states through the clear and consistently applied conduct rules is not always desirable. 337 00:30:58,460 --> 00:31:06,590 Remember the WTO trips agreement? So in these latter circumstances, the instinct to try to harden international law is, in my view, misguided, 338 00:31:06,590 --> 00:31:13,670 at times even pernicious rather than instinctively and always push toward precision, stability and constraint. 339 00:31:13,670 --> 00:31:19,940 In other words, rather than always strive for the first vision of the rule of law, we should in many contexts pursue the second. 340 00:31:19,940 --> 00:31:23,540 We should look to foster opportunities for legal argumentation and debate. 341 00:31:23,540 --> 00:31:31,640 For example, we should see real value in the review processes that been that have been on stablish under the Paris Agreement and the ICSE are. 342 00:31:31,640 --> 00:31:36,950 These review processes prod states to engage in the argumentative practise that is distinct to law, 343 00:31:36,950 --> 00:31:43,250 to explain and defend their conduct and law to the many people who care about and are paying attention to what they are doing. 344 00:31:43,250 --> 00:31:48,230 Perhaps we should try to create similar processes in other areas of international law that have not been amenable to precision, 345 00:31:48,230 --> 00:31:50,180 stability and constraint. For example, 346 00:31:50,180 --> 00:31:56,090 perhaps the U.N. General Assembly should conduct a periodic review of situations involving the use of force in order 347 00:31:56,090 --> 00:32:01,730 to push states to articulate and defend their positions on the use of Ellem as applied in concrete fact patterns. 348 00:32:01,730 --> 00:32:05,900 That kind of review might not lead to more precision, stability or constraint. 349 00:32:05,900 --> 00:32:09,890 But it would provide an important venue for legal argumentation and debate. 350 00:32:09,890 --> 00:32:15,180 The second vision of the international rule of law helps us see why that might be valuable. 351 00:32:15,180 --> 00:32:19,850 And the upshot then is that it's wrong to think that international law is inherently deficient 352 00:32:19,850 --> 00:32:23,510 or worthless if it does not satisfy the first vision of the international rule of law. 353 00:32:23,510 --> 00:32:29,960 If it does not establish precise rules, it can states consistently obey. In fact, we should sometimes prefer for it not to do that. 354 00:32:29,960 --> 00:32:36,080 And we should push for it to satisfy the second vision. But one is that is about fostering its argumentative practise. 355 00:32:36,080 --> 00:32:39,860 This second vision is admittedly not a model for efficiency, 356 00:32:39,860 --> 00:32:45,020 but it might make international law fairer and more legitimate to the many people who are affected by it. 357 00:32:45,020 --> 00:32:49,760 And it might, in the long term, be more effective at achieving particular regulatory goals. 358 00:32:49,760 --> 00:32:52,190 To accept as much, we need not be Pollyanna. 359 00:32:52,190 --> 00:32:58,100 We simply need to recognise that putting states in straitjackets is not always the best or only way to get them to do things. 360 00:32:58,100 --> 00:33:04,970 They might more readily and more legitimately move toward a given policy goal if they have a good deal of discretion in deciding how to get there 361 00:33:04,970 --> 00:33:12,200 so they can accommodate their many other commitments and then are constantly prodded to explain and justify their decisions to various audiences, 362 00:33:12,200 --> 00:33:18,500 both internal and external, who care enough to push them to improve and they muddle in the right direction. 363 00:33:18,500 --> 00:33:23,900 The second vision of the rule of law, this puts in view a model for international law that has too often been derided 364 00:33:23,900 --> 00:33:35,347 or neglected and that I think we ought to harness to advance international law.