1 00:00:00,270 --> 00:00:07,910 Also to the other Kurt convenors of the guy discussion group and discussion group. 2 00:00:07,910 --> 00:00:13,590 And in addition to Professor Knock on there and Professor Katherine Ventrell, 3 00:00:13,590 --> 00:00:20,700 who I think have also being part of extending this invitation to us, it's really a pleasure to be here. 4 00:00:20,700 --> 00:00:30,240 We are going to proceed as follows. I think Rebecca will take the floor first to outline some of the key dimensions of the paper. 5 00:00:30,240 --> 00:00:34,980 And I will follow up with some points that she doesn't address. 6 00:00:34,980 --> 00:00:42,330 We hope to be able to speak for thirty, forty five minutes and then tax much time as possible for questions. 7 00:00:42,330 --> 00:00:48,550 So I'll hand over directly to Rebecca. Thanks a lot, Annie Hall. 8 00:00:48,550 --> 00:00:57,430 And I join myself to your thanks. We are delighted to be here and to see also some familiar faces in the audience. 9 00:00:57,430 --> 00:01:01,960 Thanks, everyone, for for joining. So the context. 10 00:01:01,960 --> 00:01:08,390 Oh, I cannot share my screen in the end. If you are. 11 00:01:08,390 --> 00:01:13,220 I guess if I'm Kahootz, then this solves the issue. 12 00:01:13,220 --> 00:01:18,190 Yes, I think. Thank you so much. OK, great. 13 00:01:18,190 --> 00:01:34,450 So the context of them, of the paper is that of counter-terrorism since 9/11 and the practise of targeted killings of suspected terrorists. 14 00:01:34,450 --> 00:01:43,280 As you know, the development of the U.S. targeted killing practise and the drone programme is a process that has 15 00:01:43,280 --> 00:01:50,940 consolidated over time and that has been stabilised through the creation of bureaucratic infrastructures, 16 00:01:50,940 --> 00:02:04,390 but also through highly legalistic mode of justification that has influenced also allies to adopt similar practises and similar legal narratives. 17 00:02:04,390 --> 00:02:09,160 The U.K. and France on on some aspects of it. So today, 18 00:02:09,160 --> 00:02:17,560 what has what was initially a tactic has arguably become thoroughly normalised as 19 00:02:17,560 --> 00:02:25,860 the means to pursue extended military strategy against certain Islamist groups. 20 00:02:25,860 --> 00:02:34,890 So we take a look at the basis of this paper, which is part of a collected volume, collected volume in honour of Philip Alston. 21 00:02:34,890 --> 00:02:45,510 We we start with his intuition in 2010 and his report, 22 was U.N. special rapporteur on targeted killings. 22 00:02:45,510 --> 00:02:57,480 That there is a displacement of clear legal standards with a vaguely defined licence to kill and the creation of a major accountability vacuum. 23 00:02:57,480 --> 00:03:02,730 So for for this normalisation to happen that I was mentioning for for starters, 24 00:03:02,730 --> 00:03:09,870 a handful of states have navigated disavow mantic frame of certain legal concepts. 25 00:03:09,870 --> 00:03:14,010 And here in this paper, we focus on the right of self-defence. 26 00:03:14,010 --> 00:03:21,000 So the US, Australia, the UK and France interpretation of the right of self-defence, what we call in the paper, 27 00:03:21,000 --> 00:03:31,320 the revisionists framework leads to a troubling situation where the norm is reconfigured and where it hardly regulates conduct. 28 00:03:31,320 --> 00:03:35,850 If we follow this revisionist framework in the paper, 29 00:03:35,850 --> 00:03:46,560 we distinguish ourselves from the view that the revisionist framework departs from the old days where the law was allegedly certain. 30 00:03:46,560 --> 00:03:55,470 That is when the law required a high threshold of effective control, for instance, by the territorial states over the non-state armed group. 31 00:03:55,470 --> 00:04:06,810 And instead. And this will be developed by Professor, what we build on Robert Brenden's Hegelian account of the determinant ness of legal concepts to 32 00:04:06,810 --> 00:04:17,400 identify the revisionist framework as a concept of self-defence that is historically embedded. 33 00:04:17,400 --> 00:04:26,280 So in this chapter, we show that these conceptual revisions bring with them a reconfiguration of the structure of legal 34 00:04:26,280 --> 00:04:35,940 relationships presupposed by the use of Belgium's concept of proportionality and the new determinists, 35 00:04:35,940 --> 00:04:40,770 which renders the concept more permissive than constraining. 36 00:04:40,770 --> 00:04:48,730 So before delving into this conceptual analysis of the evolution of how the norms content is determined with me, 37 00:04:48,730 --> 00:04:53,160 how I wanted to share with you them re collective stories of the right of 38 00:04:53,160 --> 00:04:58,440 self-defence that we trace in the paper before reaching the way it is framed today. 39 00:04:58,440 --> 00:05:07,740 What we call the provision is framework, which is a chain we show are of interconnected prepositions. 40 00:05:07,740 --> 00:05:15,480 And of course, a disclaimer for starters, we do not claim that the revisionist framework is the law as it stands, it's not at all. 41 00:05:15,480 --> 00:05:26,700 The goal of the paper. But we we claim that it is fair to say that it participates in the blurring and expansion of the 42 00:05:26,700 --> 00:05:34,350 boundaries and application of the legal framework that it has supported a normalised drone wars. 43 00:05:34,350 --> 00:05:39,840 And it's fair to say, at least in some aspects and on some parts of the revisionist framework, 44 00:05:39,840 --> 00:05:49,920 that it is supported by some scholarly work, but also by other states like the U.K., Australia and France. 45 00:05:49,920 --> 00:05:57,510 And we show that this chain of prepositions is a chain of interconnected and interdependent 46 00:05:57,510 --> 00:06:04,260 prepositions that affect one another as a cascade effect through a cascade effect. 47 00:06:04,260 --> 00:06:10,910 So to to guide you through this chain of prepositions, for starters, we have a Russian, 48 00:06:10,910 --> 00:06:16,890 a person, a limitation in this revisionist framework that includes armed attack, 49 00:06:16,890 --> 00:06:23,400 armed attacks perpetrated by non-state actors with the loose link of attribution that the 50 00:06:23,400 --> 00:06:31,110 whole state is unwilling or unable to address the threat posed by these non-state actors. 51 00:06:31,110 --> 00:06:41,460 This, we show, has it a direct incidence on the Russian name Matari limitation of self-defence as this first move towards 52 00:06:41,460 --> 00:06:49,800 and winning enable invites us to include the modes of action of these specific non-state actor groups, 53 00:06:49,800 --> 00:06:57,950 one which is said to be dispersed and difficult to victory lies and anticipate at least which we. 54 00:06:57,950 --> 00:07:06,510 We consider that this led states to articulate an extensive version of the accumulation doctrine, 55 00:07:06,510 --> 00:07:13,230 one that goes beyond the accumulation doctrine defined according to which a series of 56 00:07:13,230 --> 00:07:21,090 minor incidents taken together can be said to reached the threshold of an armed attack. 57 00:07:21,090 --> 00:07:29,100 The revision is framework proposes that we can infer from a series of past events that 58 00:07:29,100 --> 00:07:37,870 the threatening group carries or has the capacity and intention to carry future attacks. 59 00:07:37,870 --> 00:07:40,320 The second step. 60 00:07:40,320 --> 00:07:53,220 Also has an impact on the rational temporaries limitation of self-defence and brings us to move towards not éminence in the restrictive sense that, 61 00:07:53,220 --> 00:07:57,690 as you know, the threat is instant, overwhelming, 62 00:07:57,690 --> 00:08:08,280 leaving no choice of means and no moment of deliberation, but towards a permanent imminence of the threat derived from, 63 00:08:08,280 --> 00:08:18,770 again, this series of past events that tell the tells us that members of a group pose a continuing imminent threat. 64 00:08:18,770 --> 00:08:30,200 This, of course, in the last instance also has a direct effect on the rationing can conditioner's limitations of self-defence, 65 00:08:30,200 --> 00:08:44,060 necessity and proportionality. In fact, the cascade effect we consider culminates into a metamorphosis of those limitations of self-defence. 66 00:08:44,060 --> 00:08:52,790 So the temporal and material changes that we describe of self-defence automatically transform what is meant by necessity and proportionality. 67 00:08:52,790 --> 00:09:02,210 So in other words, if there is no identified armed attack in relation to which a material test of proportionality can be conducted, 68 00:09:02,210 --> 00:09:07,160 then the test is de facto impossible to conduct. 69 00:09:07,160 --> 00:09:18,530 So a change from a material use of self-defence to halt and repel an identified attack to an individualised self-defence, 70 00:09:18,530 --> 00:09:24,500 one that aims to eliminate an individual opposing a continuing imminent threat means 71 00:09:24,500 --> 00:09:30,340 that the requirements of necessity and proportionality are not just affected in scope. 72 00:09:30,340 --> 00:09:36,110 Like the other steps that we went through together, the three first ones, but in nature. 73 00:09:36,110 --> 00:09:39,140 So the principle of proportionality, 74 00:09:39,140 --> 00:09:53,930 rather than being a test of whether the threatened state had no other means to halt the attacks other than the recourse to this scale of armed force. 75 00:09:53,930 --> 00:09:58,370 Is it a test where this scale of armed force was, let's say, 76 00:09:58,370 --> 00:10:13,350 the only means to weaken the group or diminish or halt the threat more generally posed by the group or the individual as part of this group? 77 00:10:13,350 --> 00:10:21,750 So when navigating through recent literature on the right of self-defence as a Christian Time Times recently noted, 78 00:10:21,750 --> 00:10:31,110 actually we get the wrong impression that there used to be a clear and certain interpretation of 79 00:10:31,110 --> 00:10:39,150 the Leavens Concepts application in the past and that this revision is framework departs from it. 80 00:10:39,150 --> 00:10:43,140 So this allegedly certain interpretation is, as I said, 81 00:10:43,140 --> 00:10:49,320 one where a high threshold of effective control by the territorial state over the non-state armed group used to be 82 00:10:49,320 --> 00:10:58,090 necessary to give rise to a right to use force against non-state armed group on the territorial states third degree. 83 00:10:58,090 --> 00:11:03,480 Here we distinguish ourselves from this assumption of of truth or uncertainty. 84 00:11:03,480 --> 00:11:10,110 And we argue that certain stories about the content of self-defence are, 85 00:11:10,110 --> 00:11:17,400 if not certain, in a transcendental manner, at least stable at certain points in time. 86 00:11:17,400 --> 00:11:23,520 So we call it revisionist, not because it's deconstruct the correct unique version of self-defence, 87 00:11:23,520 --> 00:11:27,030 but because it's the product of a historical change, 88 00:11:27,030 --> 00:11:33,420 a departure from the right of self-defence as framed by Brown knew when he writes in 1960, story three. 89 00:11:33,420 --> 00:11:41,940 So when when is writing in nineteen sixty three in the aftermath of the Suez crisis, 90 00:11:41,940 --> 00:11:48,780 he aims with his limitation is to view to articulate a version of the right of self-defence that comes 91 00:11:48,780 --> 00:11:56,610 as an alternative preposition to the right of self-defence as fulfilling projects of self-preservation. 92 00:11:56,610 --> 00:12:01,200 So even if Brownlee's clearly open for argument and this week we describe in 93 00:12:01,200 --> 00:12:06,330 the paper whether certain elements of self-preservation still can continue. 94 00:12:06,330 --> 00:12:16,750 It is fair to say, in our view, that his interpretation crystallises as a stable one in the politics of decolonisation. 95 00:12:16,750 --> 00:12:26,410 So in that context, Brownlee articulates the different limitations of self-defence and puts particular emphasis on the principle of 96 00:12:26,410 --> 00:12:34,990 proportionality as he frames it in a way that allows him to differentiate precisely the use of self-defence, 97 00:12:34,990 --> 00:12:40,780 the use of force in self-defence from the use of force in self preservation. 98 00:12:40,780 --> 00:12:50,890 I think how we'll say more about this, but I can mention briefly at this stage that his argument there rests on an intuition 99 00:12:50,890 --> 00:12:59,960 that proportionality essentially rests on the symmetry of state to state interactions. 100 00:12:59,960 --> 00:13:07,190 So as such, another limitation he uses to constrain the right of self-defence is the higher threshold of connexion, 101 00:13:07,190 --> 00:13:11,330 as I mentioned before, between the non-state armed group and the territory. 102 00:13:11,330 --> 00:13:20,270 And this highest threshold, we continue their what we call the recollected story is what Brownlie pushes for as a council in Nicaragua. 103 00:13:20,270 --> 00:13:23,660 So this does not mean that his version of the right of self-defence, 104 00:13:23,660 --> 00:13:30,590 whether it's the only one available, we recoil in that regard, Barratt's conflicting version of it. 105 00:13:30,590 --> 00:13:34,910 But it is the one that became prominent at this specific point in time, 106 00:13:34,910 --> 00:13:42,740 reflected in the efforts over two decades to promote sovereign equality and to remove the 107 00:13:42,740 --> 00:13:49,700 colonialism and imperialist culture from norms of H.O. efforts that culminated in Nicaragua. 108 00:13:49,700 --> 00:13:58,880 In the Nicaragua decision rendered in 1996 and Pozniak Caraco decision Brownlee's limitation as view accepted by the ICJ, 109 00:13:58,880 --> 00:14:05,120 faced alternative currents that we also go through in our generation of these collective 110 00:14:05,120 --> 00:14:12,020 stories until we finally reached the point where we describe the revisionist framework. 111 00:14:12,020 --> 00:14:18,440 So to talk about collective stories is a way, in a sense, 112 00:14:18,440 --> 00:14:26,000 to reframe the discussion on these evolutions and the different interpretations of the norm available. 113 00:14:26,000 --> 00:14:35,930 So once you start to assemble these stories, we see that new circumstances leads to new determinations which create new possibilities. 114 00:14:35,930 --> 00:14:46,610 And this is where we will conceptually explore now by focussing with me how on Romney's intuition within the Brandon frame. 115 00:14:46,610 --> 00:14:49,940 Now the floor is yours. Thank you. 116 00:14:49,940 --> 00:14:54,440 So thank you very much, Rebecca. So let me, I suppose, 117 00:14:54,440 --> 00:15:08,030 try to step back a little bit from the very sort of helpful layout of the argument that Rebecca has undertaken and 118 00:15:08,030 --> 00:15:20,090 try to maybe put our finger on what we're trying to do in this paper by using these particular theoretical ideas. 119 00:15:20,090 --> 00:15:21,590 So as Rebecca has said, 120 00:15:21,590 --> 00:15:32,720 we we tried to set up a basic comparison distinction between something called the revisionist framework and what came before it. 121 00:15:32,720 --> 00:15:37,010 And the revisionist framework is it is a label. 122 00:15:37,010 --> 00:15:40,430 It's not something that we think is a state of law. 123 00:15:40,430 --> 00:15:51,830 It's a label we give to a constellation or a network of arguments, which when you put them all together, first of all, 124 00:15:51,830 --> 00:16:05,230 seek to rework the legal content of some concepts that are already with us on the tack, attribution, etc. 125 00:16:05,230 --> 00:16:11,550 Self-Defence Éminence. And in addition to that, they seem in an interesting way. 126 00:16:11,550 --> 00:16:14,720 If you look at them as they work as a set of arguments in an interesting way, 127 00:16:14,720 --> 00:16:27,950 they seem to generate new possibilities as to what can be subsumed under concepts like Éminence or attribution. 128 00:16:27,950 --> 00:16:34,990 So in laying that out, what we're trying to get at here is, first of all, 129 00:16:34,990 --> 00:16:41,840 the the relationship between these concepts and that kinds of reasons that 130 00:16:41,840 --> 00:16:49,210 we can use when we argue about whether the concept applies or doesn't apply. 131 00:16:49,210 --> 00:16:58,060 That's what they used that we tried to make of the work of Robert Brandon so that the theoretical point in this paper, 132 00:16:58,060 --> 00:17:08,260 we sort of had a broad brushed historical claim about how to think about the emergence of what we might call now the certainty of old. 133 00:17:08,260 --> 00:17:14,830 And we we showed that to be essentially a historical process whereby a range of possibilities 134 00:17:14,830 --> 00:17:20,770 that were by no means eliminated by the charter in 1945 in terms of the concept of the content, 135 00:17:20,770 --> 00:17:31,330 of the content of concept of self-defence, remained available to states in framing their reasons for the use of force. 136 00:17:31,330 --> 00:17:35,770 But that in the period between 1960 and 1975, 137 00:17:35,770 --> 00:17:46,690 there was a process by which some of these available reasons were narrowed or eliminated from the content of the concepts. 138 00:17:46,690 --> 00:17:50,020 And Brownlie was not singularly responsible for this, 139 00:17:50,020 --> 00:18:02,560 but rather an interesting example of someone whose arguments were very much in sync with what was a sort of epoch making redefinition, 140 00:18:02,560 --> 00:18:09,250 legal redefinition and reshaping of the framework governing the use of force, 141 00:18:09,250 --> 00:18:20,170 essentially through the political process of the General Assembly and the activism of the nascent federal block between 1960 and 1975. 142 00:18:20,170 --> 00:18:29,110 And we traced that through the paper. So our point our basic point here is if you're trying to we should try to understand 143 00:18:29,110 --> 00:18:39,280 something of the origins of the Nicaragua style test for attribution and effective control. 144 00:18:39,280 --> 00:18:47,340 The notion that non-state actor only provides a casus belli in the event that it's attributable to a state 145 00:18:47,340 --> 00:18:56,920 that one needs to retrace the process by which alternative arguments were evacuated from the concept. 146 00:18:56,920 --> 00:19:00,820 And this didn't happen all at once. As we know, it's not clearly there. 147 00:19:00,820 --> 00:19:07,810 As a matter of treaty law, but rather it reflects transformed politics of international relations, 148 00:19:07,810 --> 00:19:12,510 the politics of the membership in particular of the United Nations, 149 00:19:12,510 --> 00:19:20,620 and a legal politics in which these terms were subjected to fairly lengthy and sometimes quite onerous 150 00:19:20,620 --> 00:19:30,280 processes of discussion and negotiation in in and re definition in ultimately non-binding documents. 151 00:19:30,280 --> 00:19:36,010 But documents that carried quite a bit of normative force and became in some ways, 152 00:19:36,010 --> 00:19:44,110 touchstones for the articulation of notions such as aggression and armed attack. 153 00:19:44,110 --> 00:19:57,000 So. What are the broad strokes of what we're trying to point out is once that is in some sense evacuated from some of these concepts? 154 00:19:57,000 --> 00:20:06,280 As a matter of usage in the period nineteen to nineteen seventy five and reaching a kind of crystallisation with Nicaragua in 1986, 155 00:20:06,280 --> 00:20:14,320 I'm not thereby banished for all time. They remain available to states, but they are highly marginal. 156 00:20:14,320 --> 00:20:17,440 And those of us who seem familiar with this, I mean, 157 00:20:17,440 --> 00:20:24,430 I just know the stories of states that have attempted to invoke the right of self-defence directly against non-state actors, 158 00:20:24,430 --> 00:20:33,850 invoking the unwilling and unable test. That is something that does happen between 1965 and 1990. 159 00:20:33,850 --> 00:20:41,960 It's just that overwhelmingly it's met with rejection by other states as being incompatible with the content of the concept. 160 00:20:41,960 --> 00:20:54,610 And the sort of emblematic instance of this is the states reactions to Israel's attack on the PLO in Tunisia in 1986. 161 00:20:54,610 --> 00:21:06,780 However, the story we're telling is it suggests that what happens after 1989 is a rehabilitation, a re-emergence of these threads, 162 00:21:06,780 --> 00:21:16,660 available contents of these concepts which which starts to develop incrementally in ways that think well documented, 163 00:21:16,660 --> 00:21:23,060 for example, by Christian Times and and then accelerate in after 2001. 164 00:21:23,060 --> 00:21:28,040 And the Texas 10 11 and in 2001 moving forward. 165 00:21:28,040 --> 00:21:38,770 In fact, what you see is not just sort of the resurfacing of various arguments about the conditions under 166 00:21:38,770 --> 00:21:44,890 which one might strike a non-state actor in the absence of attribute ability to another state. 167 00:21:44,890 --> 00:21:58,000 But what we see is in some sense, their radicalisation into what we call highly extensive and permissive concepts under, 168 00:21:58,000 --> 00:22:06,550 under, under the revisionist idea. So that's the broad sort of landscape of the argument we're trying to make. 169 00:22:06,550 --> 00:22:16,330 And I just wanted to to we have sort of seven or eight pages rather dense in the frame in the in the paper about Robert Brandon. 170 00:22:16,330 --> 00:22:18,820 And I suppose what I wanted to address in my remarks about this is, 171 00:22:18,820 --> 00:22:25,780 is really just to sort of situate the utility of this as a set of constant sort of theories that help us understand perhaps what we're seeing. 172 00:22:25,780 --> 00:22:31,570 And that's the spirit in which we use Bradham first and foremost. 173 00:22:31,570 --> 00:22:37,150 The basic intuition of of of random and his work is a pragmatic one, 174 00:22:37,150 --> 00:22:47,740 that the determinants of a concept that is that the way in which we know what is within the application of concept and what is outside 175 00:22:47,740 --> 00:22:57,700 the application of the concept is a function of its use in history to know concepts are inherently determinate and clear ex ante. 176 00:22:57,700 --> 00:23:04,030 And that's true in the natural sciences as it is in the social sciences or in law. 177 00:23:04,030 --> 00:23:13,020 The fact that the that the. 178 00:23:13,020 --> 00:23:19,860 The concepts are that are given their boundaries. 179 00:23:19,860 --> 00:23:20,370 In other words, 180 00:23:20,370 --> 00:23:31,420 the conditions under which we can know whether they ever legitimately apply or properly apply to a factual situation or not through the use it. 181 00:23:31,420 --> 00:23:37,440 The range of uses that is available to the person who is applying them. 182 00:23:37,440 --> 00:23:46,530 That's our determinant ness. The boundaries of the concept are a function of its use in history. 183 00:23:46,530 --> 00:23:50,700 But at the same time, it's not reducible to its U.S. history. 184 00:23:50,700 --> 00:23:55,800 I think it's an important distinction for those. We could follow these fairly arcane debates. 185 00:23:55,800 --> 00:24:10,680 In fact, in this theory of language, you know, one of the questions about the relativity of meaning to historical use is, well, 186 00:24:10,680 --> 00:24:19,740 does that mean that the concept applies to the values of the concept or simply given whenever the historical practise changes? 187 00:24:19,740 --> 00:24:23,810 So it's always relative to history, in which case, you know, 188 00:24:23,810 --> 00:24:31,470 an extreme version of this is as soon as a community uses, you see changes in the meaning of the concept changes. 189 00:24:31,470 --> 00:24:36,050 And in some sense, the meaning is fundamentally indeterminate. 190 00:24:36,050 --> 00:24:50,850 The value, I think, for our argument in Branden's framework is that it creates something of a something of a distance between history and meaning. 191 00:24:50,850 --> 00:25:00,120 It says in the first instance, the space of reasons that's available to us in the use of a concept is ultimately given by usage, 192 00:25:00,120 --> 00:25:04,000 by history, by the historical circumstances in which we find ourselves. 193 00:25:04,000 --> 00:25:08,910 Not no meaning is given ex ante and transcendentally. 194 00:25:08,910 --> 00:25:16,970 But at the same time, once we start to use a concept and we start to use a concept, 195 00:25:16,970 --> 00:25:23,010 we we necessarily have to start applying it in terms of what is included in what is excluded. 196 00:25:23,010 --> 00:25:26,610 What is an extension of the concept? As a matter of inference. 197 00:25:26,610 --> 00:25:34,740 And what is incompatible with the concept as a matter of inference and this logical 198 00:25:34,740 --> 00:25:42,610 relationship which is connected to the semantics of the concept is in some sense, 199 00:25:42,610 --> 00:25:51,600 if not completely reducible to its any given historical use. 200 00:25:51,600 --> 00:25:55,470 So for our purposes, Branom is interesting. 201 00:25:55,470 --> 00:26:05,670 Essentially for to underline two points that if you wish to understand the space of reasons that is available to you when you are using a concept, 202 00:26:05,670 --> 00:26:11,130 it's not really very useful to go to pure logical relationships. 203 00:26:11,130 --> 00:26:15,840 Spaces of spaces, of concepts are spaces of reasons. 204 00:26:15,840 --> 00:26:20,850 And that's in doubt to us by history, by the moment we are in time. 205 00:26:20,850 --> 00:26:28,740 At the same time, as we act in a moment to apply a concept, it's not an infinite variety of historical possibility. 206 00:26:28,740 --> 00:26:34,350 It's not whatever we choose to do with the concept at that moment, 207 00:26:34,350 --> 00:26:41,990 but rather the boundaries of the concept are in some sense shaped also by the logical possibilities of the concept. 208 00:26:41,990 --> 00:26:51,780 And those logical possibilities rest on concrete relationships that are given to us by the circumstances in which we use the concept. 209 00:26:51,780 --> 00:26:57,750 So all of this is to say that the value in our estimation, the utility, the usefulness. 210 00:26:57,750 --> 00:27:05,670 We're not we're not sort of interested in being, you might say, analysing Brandon for his own sake as a what? 211 00:27:05,670 --> 00:27:17,100 I think it is a very profound theory of both language and knowledge, but rather he does seem to us to have some particular utility. 212 00:27:17,100 --> 00:27:20,980 And helping us to clarify a little bit the dynamic that we've observed, 213 00:27:20,980 --> 00:27:30,180 intellectual development in the conceptual development of some key concepts in the use of force over the last 50 years or so. 214 00:27:30,180 --> 00:27:40,530 And it perhaps helps us figure out or understand better the consequences of the shift that we are that we are seeing. 215 00:27:40,530 --> 00:27:49,390 Of course, one way of talking about this shift, which which many have made, is to say, well, of course, Nicaragua was always somewhat arbitrary. 216 00:27:49,390 --> 00:27:57,450 There's no necessity that that used to the use of force should be restricted only against a state actor or non-state actor attributable to a state. 217 00:27:57,450 --> 00:28:02,520 And this was a kind of mistake that Nicaragua engaged in at some point. 218 00:28:02,520 --> 00:28:07,530 The alternative position is well known. 219 00:28:07,530 --> 00:28:13,380 Nicaragua reflects the true intentions of what the use of force framework was meant to 220 00:28:13,380 --> 00:28:19,410 achieve and therefore must be defended against this revisionist change in our view. 221 00:28:19,410 --> 00:28:26,130 Both of these are just different ways of giving a recollected story about the concept and about its content. 222 00:28:26,130 --> 00:28:29,250 But what they both miss, in a way, 223 00:28:29,250 --> 00:28:36,360 is the conditions under which one version of the concept seemed to become determinant and then the conditions under which it's lost. 224 00:28:36,360 --> 00:28:37,800 It's determined to see it that time. 225 00:28:37,800 --> 00:28:46,800 And used is achieving a new determined see, which is the that which is seems a variable through the revisionist framework. 226 00:28:46,800 --> 00:28:48,430 And one of the things we highlight, 227 00:28:48,430 --> 00:28:54,960 we have we highlight many aspects about the revisionist framework and the ways in which it turns Éminence into a permanent state. 228 00:28:54,960 --> 00:29:04,600 The ways in which it focuses on the sort of subjective characteristics of individuals as the foundation of whether they are a threat, 229 00:29:04,600 --> 00:29:08,160 whether they amount to an imminent threat of an armed attack. 230 00:29:08,160 --> 00:29:16,350 And we we showed that this was resulting in quite a few changes in how we think about the application of these concepts 231 00:29:16,350 --> 00:29:27,460 and even indeed their their accessibility to us as a as as as something that can be scrutinised in light of evidence. 232 00:29:27,460 --> 00:29:37,870 But one of the things we point to in particular is the ways in which this concept that the implications of the original concept is in relation to you, 233 00:29:37,870 --> 00:29:48,840 said Balam, proportionality. So we might say that what we're tracing is a shift from a symmetrical use of Belgium to an asymmetrical cerebellum. 234 00:29:48,840 --> 00:29:52,060 And the implication of the asymmetrical, said Belgium. 235 00:29:52,060 --> 00:30:08,230 It seems to us to be important and significant in that the the the presuppositions of the application of proportionality have changed. 236 00:30:08,230 --> 00:30:23,980 Now, Rebecca's pointed out that in 1963 work, Brownlie is quite puzzled by by the application of proportionality to attacks against non-state actors. 237 00:30:23,980 --> 00:30:29,880 And he doesn't really explain why he's puzzled, but he seems to think that. 238 00:30:29,880 --> 00:30:41,450 And he said he certainly says in the text that attacking a non-state actor where that actor is not attributable to a state. 239 00:30:41,450 --> 00:30:44,810 Cannot be proportionate. 240 00:30:44,810 --> 00:30:51,920 Not because at one level, this is not to make any sense of I mean, if one thinks that proportionality is just the balance between means and ends, 241 00:30:51,920 --> 00:30:57,080 between how you wish to prevent and how you wish to do harm, you need to inflict. 242 00:30:57,080 --> 00:31:03,650 There's no reason, it seems to me, why it cannot be proportionate. 243 00:31:03,650 --> 00:31:08,300 But that's I don't think Brownlee's Point Brownlee's intuition seems to be that 244 00:31:08,300 --> 00:31:14,030 proportionality is not purely about the balancing of harms in material damage. 245 00:31:14,030 --> 00:31:21,050 It's also about the balancing of rights, the right of a territorial sovereignty against another. 246 00:31:21,050 --> 00:31:28,130 That's part of the calculus about whether the infringement on the territory of the other state as an equal sovereign, 247 00:31:28,130 --> 00:31:37,160 as an equal legal person is justified. And I think the perplexity of a logical problem he seems to have is that a non-state actor, 248 00:31:37,160 --> 00:31:42,070 which is not some sense attributable to the personality of a sovereign equal state. 249 00:31:42,070 --> 00:31:46,220 Has no rights, actually. They have no rights as a corpus. 250 00:31:46,220 --> 00:31:55,760 They have no rights as a legal person. That individuals might have rights as criminals or as as as as they might have human rights. 251 00:31:55,760 --> 00:32:01,880 But these are not on the same order of the rights of sovereigns, which can be balanced against each other. 252 00:32:01,880 --> 00:32:04,280 So that our. 253 00:32:04,280 --> 00:32:13,880 I mean, this and this and us and this is our reading of Brownlie is that he's he's he's discussion of proportionality reflects this this puzzle. 254 00:32:13,880 --> 00:32:22,040 And he ultimately concludes that while there could be circumstances in which a non-state actor, you know, 255 00:32:22,040 --> 00:32:25,810 it could be legitimate use force against a non-state actor, he finds it very difficult to understand. 256 00:32:25,810 --> 00:32:33,830 You can see the conditions on which that would be proportionate, except with the non-state actor is attributable to a state. 257 00:32:33,830 --> 00:32:48,410 So if we move forward to the present, to the. The revisionist fretwork, what strikes us about the framework is in a sense, 258 00:32:48,410 --> 00:32:56,300 precisely because it has effectively dispensed with the strong requirement of attribution. 259 00:32:56,300 --> 00:33:06,620 It gives rise to what's sometimes known as the innocent state problem. In a way that the innocent state problem is a reflection of a deeper issue, 260 00:33:06,620 --> 00:33:18,830 which is what is it concretely that sets boundaries to the extent of the use of force against the threat? 261 00:33:18,830 --> 00:33:20,270 What limits out there? 262 00:33:20,270 --> 00:33:31,910 We know that proportionality is a limiting concept, but contains within it no clear boundaries as to if it's a highly flexible concept of limitation. 263 00:33:31,910 --> 00:33:37,000 When we apply the concept of proportionality to an interstate conflict, 264 00:33:37,000 --> 00:33:44,780 there's some sense actually in which we know how to reason our way through all the way in which we reason our way through is dependent 265 00:33:44,780 --> 00:33:53,700 and boys closely connected to the fact that we are speaking of two equal sovereigns with equal rights under international law. 266 00:33:53,700 --> 00:33:58,250 And the implication of that is interesting. If you think it through. Under what conditions? 267 00:33:58,250 --> 00:34:04,160 Is it proportionate to pursue a conflict against a state in self-defence? 268 00:34:04,160 --> 00:34:11,000 To the extent that it requires the complete overthrow of that state's government and 269 00:34:11,000 --> 00:34:15,530 the destruction of its military capacity so it can no longer pose a threat to you. 270 00:34:15,530 --> 00:34:18,860 Now, this is not ruled out by proportionality in international law. 271 00:34:18,860 --> 00:34:27,050 We know that. However, it's interesting to observe the conditions we attach to these to the circumstances in which that would be proportionate. 272 00:34:27,050 --> 00:34:34,830 If it involves. A kind of limit case where a government is so anemically hostile. 273 00:34:34,830 --> 00:34:40,470 Not just an ideological stance, but in a sense of constantly threatening you and seeking to destroy you under those conditions. 274 00:34:40,470 --> 00:34:47,240 It's conceivable that a proportionate response would be invasion, regime change. 275 00:34:47,240 --> 00:34:54,060 But it's the outer limits of what would be considered proportional in an interstate conflict. 276 00:34:54,060 --> 00:34:59,190 And we often know that and we know from observance that proportionality is often used to say, 277 00:34:59,190 --> 00:35:04,920 well, it was if it was acceptable to go this far into the territory into to respond in this way. 278 00:35:04,920 --> 00:35:13,110 But it was not acceptable to go another 60 miles in order to seise control over a greater portion of the territory, 279 00:35:13,110 --> 00:35:18,660 because there was it was not obvious that the threat would would would justify that. 280 00:35:18,660 --> 00:35:21,750 And so in some sense, it gives us parameters, territorial parameters. 281 00:35:21,750 --> 00:35:30,900 And these territorial parameters or parameters about the extent of damage reflect not a mere weighing of material harms, 282 00:35:30,900 --> 00:35:38,340 but some sense in which to what extent are you allowed to breach or to intrude upon the equal rights, 283 00:35:38,340 --> 00:35:41,040 the sovereign equal rights of territory, of political sovereignty, 284 00:35:41,040 --> 00:35:48,630 of independence of that other state in order to in order to defend yourself against the threat that they pose. 285 00:35:48,630 --> 00:35:56,700 What's interesting, I think in the way in which we talk about proportionality under the what let's call it the asymmetrical, you said Bellow, 286 00:35:56,700 --> 00:36:07,590 is that the concrete sense in which there are limitations seems to be much harder to determine if they are determinable at all. 287 00:36:07,590 --> 00:36:13,380 I mean, the paper we cite some examples both from French practise but also from the Americans, 288 00:36:13,380 --> 00:36:19,650 which which points to the fact that the at the complete destruction of the military 289 00:36:19,650 --> 00:36:26,790 capacity of the non-state armed group is considered to be and maybe it is a proportionate 290 00:36:26,790 --> 00:36:31,680 and which can be pursued because it's it's considered it's considered to be necessary 291 00:36:31,680 --> 00:36:37,740 to contain the harm that is posed or the risk of harm that is posed by those groups. 292 00:36:37,740 --> 00:36:42,000 Strikingly, as I said, that's a limit case in the interstate conflict. 293 00:36:42,000 --> 00:36:46,320 But it seems to be the central case or the normal case in the way in which we're 294 00:36:46,320 --> 00:36:55,290 starting to think about the concept of proportionality in this asymmetrical. 295 00:36:55,290 --> 00:37:01,080 You've said Belgium now first. So I guess one what about points about this is that's interesting. 296 00:37:01,080 --> 00:37:05,850 And we should think about it. Right. To what extent is proportionality no longer a limiting device, 297 00:37:05,850 --> 00:37:14,610 but a massive device which greatly extends the scope of continuous intensive violence in the territory of another 298 00:37:14,610 --> 00:37:22,730 state in the name of debilitating or permanently disabling non-state armed group operating from that state? 299 00:37:22,730 --> 00:37:28,410 And the sense is that is the limits of that proportionality really simply the destruction of that capacity? 300 00:37:28,410 --> 00:37:37,110 Well, that's not to us does seem like the recipe for a forever war, because ultimately non-state armed groups can never be completely destroyed, 301 00:37:37,110 --> 00:37:47,090 particularly if they they probably derive their their viability through various kinds of political support. 302 00:37:47,090 --> 00:37:54,300 So ultimately, that point, you need a political strategy, not a military one. The second element of that, though, which is interesting to think about, 303 00:37:54,300 --> 00:37:59,800 I think, is if that's plausible, if that's sort of something that seems right, 304 00:37:59,800 --> 00:38:06,590 that there is this differentiation between what proportionality might mean in relation to a non-state group and what it might mean to a state. 305 00:38:06,590 --> 00:38:12,680 Does that tell us something interesting about the presuppositions of the concepts that we 306 00:38:12,680 --> 00:38:23,360 have inherited in relation to the use of force there into a public nature that that any way? 307 00:38:23,360 --> 00:38:23,660 Again, 308 00:38:23,660 --> 00:38:32,430 the claim is not to say one is necessary in some transcendental sense that we must always be into public war that is privileged by the UN Charter. 309 00:38:32,430 --> 00:38:38,300 But I think it helps us examine better the stakes of the debate rather than have what I think are really ultimately fairly 310 00:38:38,300 --> 00:38:47,510 fruitless debates about what's the true the true meaning of the charter or what has always been in the case of the law. 311 00:38:47,510 --> 00:38:56,240 I think what we need to be having, rather, is a relatively clear discussion about what's at stake in moving, 312 00:38:56,240 --> 00:39:04,000 sort of stumbling from a symmetrical you said Balam framework to one that endorses asymmetrical, 313 00:39:04,000 --> 00:39:10,970 often asymmetrical yourself bellum as a sort of permanent feature of the legal landscape. 314 00:39:10,970 --> 00:39:17,890 Rebecca, if you want to add anything to this before we close off. 315 00:39:17,890 --> 00:39:29,149 No, that's great. I'm looking forward to two questions and four to the discussion as well.