Tonight's talk is going to be given by, as I said, to Professor Brad Roth, he holds a joint appointment with the law school and politics faculty.
And I've got that right.
And he has published a very, very broadly and widely on a number of issues and international politics and international comparative law.
And I will just highlight his work, 1999 from Oxford University, Oxford University Press and Governmental Illegitimacy and an International Law.
And his topic today will be sovereign equality and moral disagreements.
Thank you very much, David.
And I want to thank everyone here at Oxford for hosting a has been a great opportunity to come here and to to David as well as Jennifer and Dapo,
who unfortunately probably won't be able to make it here.
But thank you all very much.
The topic of this talk is, in fact, a forthcoming book that will come out from Oxford University Press in either August or September of this title,
Sovereign Equality and Moral Disagreement Premises of a Pluralist International Legal Order.
And I've stolen some of my thunder by giving a handout here that lays out some
of the more complex concepts that I'm trying to deal with in the talk today.
And I will focus on some of this material and perhaps leave over for our
discussion some of the more practical applications of some of this this material.
The book itself is organised in some sense in two parts,
with the first part having to do with more conceptual issues about the project of
international legality and the relationship between international and state authority.
And the latter part then goes to applications and questions having to do with issues of humanitarian intervention,
international responses to secessions and coups and international criminal justice,
and particularly international criminal justice carried out by domestic legal orders.
And so we can get to to many issues that I'm sure are burning questions for people on those latter topics.
And I'll do here in the time that I have to, to give a presentation in chief is to try to lay out for you the general sense of,
of my approach to international legal order and on some of the more distinctive concepts that I'm seeking to draw on in laying
out the work that I do generally is application of political theory to problems in international and comparative public law.
And so a great deal of my work is in fact on the relationship between international and domestic authority.
My first book on governmental illegitimacy was this question of when is a government not a government for purposes of international law?
And ever since then, I have been dealing with a whole range of questions involving the use of force,
involving international criminal justice, human rights and the law of war,
and dealing with a range of questions that have led me to try to systematise an approach to not only international law as such on these questions,
but the relationship between international law and international political morality.
And it is in some ways my my dissatisfaction with the way that the rhetoric has presented that relationship,
that has driven what I've attempted to general in this book.
The book itself is rather strident on behalf of what our I think ultimately some rather moderate propositions.
The point of the book is, in some sense to vindicate on moral ground some of the essence of the existing international legal order.
It is, one might say, a conservative book, not in the sense of being from the right side of the political spectrum,
but in the sense of seeking to vindicate and provide moral justification for what are established and existing principles of international law,
and to try to demonstrate that international law, even in respect of its most unpopular doctrines,
doctrines associated with the prerogatives of the sovereign state, nonetheless has very significant moral value.
And the thesis broadly is set out for you at the start here in these two sentences at the top of the outline,
the sovereign equality based international legal order serves as a constraint on self-help,
denying the strong license to pursue justice as they perceive it, redefining sovereignty as responsibility and disallowing impunity.
The widely viewed as progressive aims represent potential threats to constraint on untrusted and untrustworthy implementers of universal justice.
So that seeks to cram a whole bunch of controversial statements into two pithy sentences.
But I'll try to lay out for you a little bit what I'm trying to get at with all of this and.
What sort of vision of international order I'm seeking to replicate the well perhaps
driving inside of of the project here is something I've borrowed from Jeremy Waldron,
who borrowed it from Immanuel Kant.
And so you have this quote at the top of the sheet here by card that even if we imagine men to be ever so good natured and righteous before a public,
lawful state of society is established, individual men,
nations and states can never be certain that they are secure against violence from one
another because each will have his own right to do what seems just and good to him,
entirely independent of the opinion of others. And so this is the fundamental problem of moral disagreement.
We often think about the international legal order as a reconciliation of a clash of interests internationally.
And it is relatively rarely that we focus on the extent to which principled disagreement drives conflict in the international order.
The famous words of James Madison A ring in the United States about how, if men were angels, there would be no need for government.
Can't insight goes beyond that to say that even perhaps if men were angels,
the problem would be that their pursuit of justice and righteousness would lead them to
conflict with other people who had different understandings of the content of justice,
of righteousness, and that we would need some kind of order to reconcile not only competing interests, but competing conceptions of the right.
And and for Waldron, if anyone is read a law in this agreement or the dignity of legislation, two works that Jeremy Waldron produced in the mid 1990s,
you see an interesting effort on Waldron's part in ways you to harmonise with halves in this regard or perhaps somewhat
counterintuitively to demonstrate the ways in which positive law actually performs this important moral function.
And that being serious about the rule of law means adherence to positive law under
circumstances where one's personal moral view not only about the nature of the good,
but about the nature of the right one leave one to a different conclusion.
So this is a kind of grounding point of the project here on international legality.
And the fundamental difficulty is that not only do we have a plurality of conceptions
of just and legitimate internal public order in the international system,
but we also have invocations of universal values by empowered actors who are both untrusted and untrustworthy.
And the fact that they're untrusted is gives rise to one set of problems.
The fact that they're untrustworthy give rise to another from the standpoint from different standpoints within the international order.
The fact that they are untrusted means that they need to concede something to weaker parts of the
international order in order to legitimate the exercise of power within the international system,
the disproportionate authority of rich, powerful, liberal, democratic states in the international system,
which perhaps from the standpoint of those of us who live within rich,
powerful, liberal, democratic countries, seems like the most natural thing is, in fact,
something viewed with justifiable suspicion and concern by those who are less empowered
in the international order and less comfortable with the notion that those in wealthy,
liberal, democratic countries either have their best interests at heart or know what their best interests are.
And so from the standpoint even of rich and powerful nations,
it is important to establish legitimacy through an international legal order that
respects something along the lines of what I'll describe as sovereign equality.
Whereas from the standpoint of disempowered elements of the international order,
the question is not so much the untrusted ness, but the untrustworthiness of those who exercise power.
That indeed memory is quite long in many parts of the world about how it is that in the name of civilisation,
great powers both in Western Europe and in North America have exerted authority in other
parts of the world in ways that perhaps had a remarkably dubious result and therefore.
The international order needs to be understood as a kind of compact.
One might say a kind of principle deal among different forces in the international system.
One of the sources of frustration for me in looking at the way in which people speak about international political morality,
is the tendency to try to generate an ethos of international order from the
very idea that we can sort of find hypothetical agreement with hypothesise,
reasonable others when in fact these hypothesise reasonable others in works that people like John
Rawls end up becoming the kinds of people who would be altogether too easy to get along with,
because the nature of our disagreement with them doesn't in fact drive us to any very strong sense of outrage or emotion.
And and the reality is that if we are going to have a working international order,
we are going to have to deal not just with people whom we can respect in the ways and the
sort of deep ways that that a John Rawls would hope to in the in the Law of Peoples,
but rather that we are going to have to deal with people very much as they are,
at least insofar as there are people who we cannot in a reasonable human cost, overcome by force, coercion and so on.
We we need to have an international order that is effectively capable of establishing legitimacy across a broad range of not only interests,
but also ideological proclivities. Now, it seems strange to be saying that in 2011,
given the fact that the Cold War is long behind us and that many developments can can be invoked
for the notion that ideological diversity has greatly narrowed in the international order.
And certainly there's been a substantial diminution in the self-confidence of
those who would challenge liberal democratic norms in the international order.
And nothing that I say here is an effort to disparage those developments.
I think that they are, in many important respects, real, and that they provide important opportunities for international order to do more to,
in fact, have a much greater reach than in any previous era.
The problem is that the reach still exceeds the grasp in important ways.
And I think that there there continues to be some failure of imagination in how a seeming consensus on a set of abstract norms can deteriorate very
quickly into a remarkably fractious and indeed violent dissonances on how those norms are applied in real life situations in internal conflict.
The book is very much focuses on the concept of sovereignty or in terms of orienting the relationship between international and domestic public order.
And therefore, it's going to be important to describe exactly what is meant by sovereignty, and also,
I think, to give some justification for why it is that this arcane concept is worth keeping around.
The word sovereignty has been used in so many different ways that perhaps it means nothing at all.
Particularly, it has been invoked for many propositions that seem, in the final analysis, not to what to work out in practice,
and therefore it becomes quite plausible for many people to think that whatever it is
you want to say about this relationship between international and domestic authority,
the word sovereignty only works to confuse the matter. And I'm sympathetic to that critique,
but I nonetheless want to resist it because I think that there is a peculiarity of the concept of sovereignty that is actually crucial
in understanding the nature of the relationship between international and domestic legal authority in the international system,
as we've known it. But first, it's important to think about sovereignty not simply as a range of different conceptions,
but actually as a number of distinctly different concepts that actually apply to very different kinds of conversations,
which in some ways overlap, but which have to be understood as completely distinct.
Well, the first sense of sovereignty, which I lay out in the outline here,
is as an empirical capacity to exercise unilateral control over a field of activity or to set policies unilaterally in a particular field of activity.
And so this is an empirical conception of sovereignty.
And people can look at to what extent the states have been sovereign over time as measured by certain empirical criteria.
And the significance of this in the current period is to say that there has been this diminution of sovereignty understood in this way,
and therefore that we need to stop or reduce talking about about sovereignty.
There is also the argument, of course, that sovereignty never really was this in the first place,
that people like Stephen Krasner have pointed out that much of what has been asserted for sovereignty is is historically unjustified.
The big problem here, though, is that this is a particular kind of conversation about sovereignty,
which has an effect on the normative conversation, ultimately, because if if the independence of states were really so far diminished,
that this was no longer a meaningful way to talk about international behaviour,
there wouldn't necessarily be an effect on the normative framework that that connects to all.
But the tendency is to greatly exaggerated, it seems to me, the diminution of the significance of the sovereign state.
It is it's easy to see the the nature of changes in the international order and certainly all of
the incentives from a standpoint of scholarship and a focus on how much things have changed,
rather at the expense of how many mundane things have stayed the same.
And most crucially, I would say the fundamental concerns are that the ground discussions of sovereignty have
to do with the importance of territorial order to the organisation of anyone's life.
There are very few people in the world, no matter how globally oriented they may be,
whose lives would not be devastated by the collapse of territorial public order from where they are based.
And and so the idea of of sovereignty as somehow an issue that's sort of withering away,
I think, is not not particularly pertinent to to my enterprise here.
Another sense in which the word sovereignty is used as as a kind of policy imperative,
an imperative of maintaining or reasserting unilateral control over a particular field of activity.
And this is a use of the term sovereignty that one sees a great deal in the United States and particularly on the political right.
And it now has in the last few years this new colouration with the term American exceptionalism,
which has been sort of dug out and and transformed into some new and more idiosyncratic concept here.
But, of course, when people are speaking about sovereignty in the sense, first of all,
they're not speaking at all in terms of sovereignty under international law.
They're not speaking of sovereign equality of states with one another.
They're speaking particularly on the American right of the sovereignty,
the external sovereignty of the United States, to pursue policies abroad as as the United States sees fit alone,
as well as to to operate internally without regard for the international legal obligations or without regard for the international public opinion.
This is, again, pertinent to two questions about sovereignty in international law, but it is essentially a political assertion.
It is one that, you know, in some contexts has some, I think, significance.
If it were not if the arguments were not coming from some of the most empowered actors in the world,
one might take more seriously the concerns about the way in which international order may deprive existing political communities
of their ability to set their own course and make decisions that are fundamental to social life within their territories.
When it comes from certain sectors in the United States, frankly, there is some difficulty in taking it seriously, except that one has to concede,
as someone very much on the left side of the political spectrum in the United States,
I can I can concede that, you know, we don't win a lot of elections in the United States and.
We don't necessarily get a lot of favourable court decisions on the basis of domestic law and there is a natural
tendency for people on the left side of the political spectrum in the United States to be drawn to forum shopping,
to be drawn to moving the discussion to a different level of decision making, where frankly,
cosmopolitan elites with whom we perhaps feel more affinity than with voting blocs in the United States are going to side with us.
And in the name of some sort of naturalistic truth, weigh in on our side in domestic political controversies.
This one may think about this, however one might, but it's important to be sort of sensitive to this,
in part because of the way that it relates to much more consequential considerations
that affect much less less powerful actors in the international order and
those who see their ways of life being in some way threatened by the encroachment
of of external influences that are able to penetrate their societies at will.
The third concept of sovereignty, which also is slightly different from the issue that I'm seeking to deal with here,
is what I call the domestic juridical conception of of sovereignty.
And this has to do with the ultimate source of authority within any particular domestic legal regime.
And the classical idea about sovereignty is that we are looking for the UN commanded commander,
that sovereign that the sovereign is engaged in a kind of project that that is a symbol to of a the
notion of a of a command backed by a threat in the traditional conceptions about positive law.
And if, according to people like Boden and Hobbes, you look far enough into any legal order,
you find that there's someone who can give commands without having to take them,
and indeed that this is absolutely foundational to any working of political order.
The the Hobson conception is not very popular any more among jurisprudence and for very good reason.
The project of domestic legality is effectively a project to recast sovereignty as something that is constituted by legal norms.
And so that in some sense the project is to extinguish this idea of unaccountable,
potentially arbitrary decision making and to reduce all of that to the making decisions within established competencies of,
of, of norm bounded institutions.
And that is the project of public law.
There is, however, a problem with this. And the problem was noticed, most notoriously by Karl Schmitt in a book called Political Theology in 1922.
And and Schmitt, I think, successfully demonstrates the continued significance of Bowden and Hobbs that the
project of extinguishing sovereignty internally is beset by this difficulty,
that the legal order can find itself in crisis where it needs to have recourse to extralegal means to protect itself from its enemies.
And this is a problem that long predates Schmitt's discussion,
long predates Article 48 of the Weimar Constitution, which was Schmitt's subject matter.
It was was operative in the early stages of the Civil War in the United States,
when Abraham Lincoln unilaterally suspended habeas corpus and made similar kinds of of arguments.
It goes back in in the literature to places like Machiavelli's Discourses,
in which he argues in favour of of of the institution of what was then called dictatorship,
precisely because of the need to avoid corrupting the ordinary laws in times of emergency and not be able to effectively defend the political order.
The the significance of this discussion to the overall concept of sovereignty is perhaps a little bit difficult to grasp.
But the fundamental point it comes from Schmitt's interpretation of Beaudin.
On the relationship between the monarch and the in the estates and the status of covenants that are made by the monarch with the estates.
And from Schmidt's standpoint, Beaudin is saying that the covenants are indeed binding in some sense,
and yet the sovereign may determine unilaterally that abiding by the covenants in any given instance does not serve the purposes of justice.
And there isn't anyone who can then impose any judgement, any adverse judgement on the sovereign decision to suspend compliance with the covenants.
And that, I think, says something very fundamental about what the nature of sovereignty is.
And I think whatever else one might think of Schmidt And there are many negative things to say about Schmidt.
The they're this fundamental. Schmidt and insight which is boiled down to his famous expression sovereign is he who
decides on the exception is that sovereignty is the authority to suspend valid law.
That sovereignty and obligation are not mutually exclusive.
That there is residual sovereignty that withstands the existence of legal obligation.
And and therefore that acts which are in breach of obligation, are not necessarily null and void.
And that is, I think, a very accurate understanding of the nature of sovereignty and its relationship with international legal obligation,
which which comes next.
The the fourth aspect of sovereignty here is this international and juridical conception of sovereignty, which is the focus of the book.
And it has to do with the terms of mutual, reciprocal recognition among states in a horizontal order.
And what sovereignty means from the standpoint of international law, it seems to me, are effectively three things three presumptions,
all of which can be, in certain circumstances, overcome and indeed are overcome in certain circumstances,
but all of which are quite strong presumptions.
Actually, the first presumption has to do with how international law is made, how norms are recognised in the international order,
and that is the presumption that states are bound only by the terms of their own consent.
What that means turns out to be much more nuanced than any straightforward interpretation of consent would admit.
And there is a whole overlay of of international legal methodology and, of course,
disputation within an international legal methodology about what can count effectively as an act attributable to the will of the state itself.
And and certainly the there are many ways in which states end up being bound without in any way expressly consenting to the international order.
But a fundamental principle having to do with consent is the flip side of of the negative of consent,
the idea of persistent objection that where customary international law arises and a state insists that it will not be bound by this particular norm,
regardless of how the norm operates for the rest of the international system in principle,
under the kinds of methods that are have been generally accepted historically in the international legal order.
The state is free of those norms. The state cannot be bound where it persistently object.
And this is only overcome in some limited set of cases having to do with what are called peremptory norms of the international system or use kogan's.
And what counts as use kogan's ends up being extraordinarily fraught as a matter in the international order.
But the important thing to know about invocations of use kogan's is that they have really relatively limited kinds of legal effects.
There's a tremendous amount of ink spilled over the question of use.
KOGAN And very little real payoff because there's almost never a controversy that actually turns on this question of of
whether something counts as use kogan's where significant states continue to remain outside of of an international consensus.
The fact is that one cannot prevail against them on on this kind of theory.
And and there are really very few circumstances where where use kogan's.
Actually, it can be productively invoked in a legal controversy.
The second presumption is that states obligations don't binding on the state as a corporate entity,
act on a distinct legal claim and are presumed to have legal effects within the state only to the extent that domestic law has incorporated them.
And this is the fundamental principle of the dualism.
Although the word dualism has a number of different meanings in this area, rather confusingly.
But the basic idea here is that you can have international legal obligations that do that are not incorporated into
the domestic legal order that domestically let's take decisions can be taken fully consistent with domestic law,
which are in breach of the international obligation.
And then what follows is a situation is where where the same act is lawful and unlawful simultaneously.
And under those circumstances, I want to argue that international law, by the operation of its own doctrines, in many cases,
has to acknowledge the legal facts that are created by this domestic legal order,
notwithstanding its incompatibility with the international obligation.
And this is particularly important in international criminal law with the concept of nil agreements,
unilag II, where the leg is something that necessarily is affected by the domestic legal order.
It is significant from the standpoint of international human rights,
of whether someone is convicted in accordance with a law that operates internally at the time and place of the the act in question.
There are other applications too, and one of them has to do with permanent sovereignty over national resources.
A state may unlawfully expropriate resources.
That doesn't mean that the title to that expropriated property doesn't pass to
the government for purposes of being passed on potentially to other actors.
And there's a whole set of controversies over this.
But again, I would argue that the the significance is that the states act as such has not only domestic,
but even international legal significance, notwithstanding the fact that it's taken in breach of international obligations.
The third thing is the presumption of the inviolability of states,
territorial integrity and political independence as against broader use of force or as against extreme economic or political coercion as
that is invoked and in documents such as the UN Declaration of Principles of International Law concerning friendly relations from 1970.
And. And these are presumed to withstand even the violation of international legal norms.
And simply isn't the case that states a right to territorial integrity and political independence is
contingent straightforwardly on fulfilment of international legal obligations and countermeasures
that can be taken against violators of international legal norms are quite expressly limited
by norms that have to do with territorial integrity and political independence of states.
And and this demonstrates that there are limitations on the amount of coercion
that can lawfully be brought to bear to vindicate international legal norms,
which is seems sort of counterintuitive from the standpoint of any legal order.
When people are used to thinking about domestic legal orders, they're thinking about the idea that if a norm is breached,
there must be someone somewhere within the system who has sufficient coercive authority to be able to vindicate the norm.
And it is not merely a matter of practice, but a matter of principle that in international law that's frequently not the case.
That because what we have is a horizontal legal order and because we have untrusted and untrustworthy implementers of supposed international order,
we necessarily have a situation in which states have certain kinds of immunities from exercises of force and coercion,
which which withstand even their own misbehaviour.
So I boiled down at the bottom of this page the four paradoxes that the same act can be lawful and unlawful simultaneously on coexisting legal planes.
The legal obligation does not imply the licensing of measures sufficient to compel compliance.
That legal obligation does not imply the renunciation of authority to commit of reaching act,
which follows from the dualistic point and and also that.
Whereas internally, the rule of law is about subjecting sovereign authority itself to law sovereignty as constituted.
By legal norms. The international rule of law is based on a sovereign equality,
which is an accommodation among territorial communities that bear an underlying capacity to overthrow domestic authority.
This is something that goes very much to this problem recognition of secessions and coups, which I deal with extensively.
But we we tend to imagine somehow an international legal order as one that would in some way be a legal order of
legal orders and and one that would therefore provide an opportunity to make determinations of of legitimacy,
of exercise, of power at the domestic level based on compatibility with international norms, about the internal exercise of power.
And I want to argue that that, in fact, is not what we've had, at least traditionally as an international legal order.
Rather, what we have is an international legal order that recognises these sovereign territorial communities.
And part of the aspect of their sovereignty is this supposed inalienable right to choose their own political,
economic, social and cultural systems without interference from from any other state for any reason whatsoever.
The language of the friendly relations declaration and a number of other articulations.
And that therefore what you have is a kind of sovereign right of political communities to breach their own domestic legal orders
and establish through the principle of effectivity a UN order that has to be then respected by the international legal system.
This is what I referred to somewhat a perfectly as there are the right to be ruled by our own thugs and to fight your civil wars in peace.
And and if it sounds like that's the kind of international legal order that I'm standing up for, one, that respects these ideas.
That's absolutely right. In that that I am, in fact,
seeking to bolster the reputation of of a legal order that that represents the that I want to
sort of move along so that we can we can talk more or more concretely about specific issues.
But I want to lay out for you a little bit the reason why the there is I put so much importance on the diversity of opinion in the international
order and therefore the give certain kind of respect for clashes over the question of what counts as just and legitimate internal public order.
And the problem that I find in many of the ways in which these matters get discussed is that there tends to
be a kind of invocation of universality in concepts having to do with political justice and legitimacy,
and that those those concepts about universality break down.
And I want to argue they break down for reasons that don't have to do specifically with cultural relativism,
that the real problem here is neither that there are some sort of special immunities for different cultures,
for the way in which they may think about politics and and therefore that power can be exercised against people
within communities based upon some illiberal conception that that needs to be respected because it it conforms to,
to some deep seeded difference of of a of a different group of people, such that if one fails to respect their norms of public order,
one would be failing to respect them and their dignity as human beings.
I think that there's something fundamentally wrong with that way of thinking about international pluralism,
and particularly because the pluralism that I'm speaking to only pertains to the most extreme kinds of reactions of the international community,
only the kinds of coercive acts of intervention or international criminal prosecution that occur in circumstances
where what you have are of the impositions of a modern state on something that doesn't look anything like,
you know. But by terms, it doesn't look anything like a kind of traditional governance of some deep seated cultural character.
I think that is really quite irrelevant to the.
To to even question whether under certain circumstances we might, I think,
take seriously cultural relativism as a break on our universalist conception of political morality.
I think from the standpoint of the modern state apparatus, there is there's very little to be conceded with respect to problems of culture.
But I think the problem is not the any kind of special immunities that we all have to confer upon people on the basis of cultural difference,
but rather the fact that disagreement about political matters is endemic in political life, not just for some unusual and foreign them, but for us.
Indeed, that the kinds of of political differences that exist in the world that give rise to internal
political conflict are the kinds of differences that we should have no difficulty in processing,
actually, as as Westerners, as a people who indeed have among us at some level of abstraction, consensus about basic values of human dignity.
Because what turns out to be the case in many circumstances is that these these consensuses break down for for very systematic reasons.
The the goal of of of trying to abstract from different comprehensive doctrines about
human flourishing and to to find some transcendent conception of of the right that,
you know, sort of encompasses a variety of views of the good.
It doesn't work very well in the final analysis,
when one tries to apply the abstractions that have been derived through that process to real circumstances,
that in fact, there are important conflicts that emerge among norms.
There are conflicting priorities that are attributed by people on the basis of the
comprehensive doctrines that that one is sort of seeking to abstract from in the first place.
And most importantly,
that there are going to be certain circumstances in which the there are going to be different different forces that regard the end
as justifying the means such that presumptively wrong acts that can be agreed upon as being presumptively wrong in the abstract.
Certainly among a wide swath of people end up becoming subject to this overarching logic where people consider very
fundamental values being threatened and people then become quite willing to invoke all kinds of methods that they would not,
in ordinary circumstances, be willing to accept.
The problem that I see here in a lot of discourse is that we we tend to assume that
whereas other people commit ruthless acts for sort of trivial or unprincipled reasons,
that of course we do it for some different category of reason,
that that the sorts of acts that have been committed by Western liberal democratic states
are of an entirely different order and category of from the sort that are committed in,
in these kinds of conflicts, when in fact, the major difference is the sort of stakes of that that currently exist in poorer
and more polarised and otherwise beleaguered territorial political communities,
versus the kind of political life that we have, by and large managed to establish in Western liberal democratic states over time.
And so the the basic point that I try to make, and it's really my by reference to a series of,
of historical circumstances that are not the ones that most commonly are invoked by more optimistic, human rights oriented scholars.
The point that I make is that under sufficiently adverse conditions such as extreme ethno national or socioeconomic polarisation,
the inability to agree on a fair, basic structure of public order,
combined with the inability to agree on what measures are inadmissible in the struggle to install and maintain a basic structure of public order that
comports with one's own conception of fairness leads informed persons of good faith and sound reason to support ruthless measures against one another.
So the the claim being made here is that internal political conflicts of a.
Violent sword of a sort that violates fundamental human rights obligations is in fact not some sort of pathology
that either is derived from perverse cultures on the one hand or mere cynical political entrepreneurs on the other.
But that is something that is endemic to political life.
And that and this manifests itself in particular structural circumstances in which people
find their most fundamental interests being pitted against one another in their films,
fundamental values being pitted against one another.
And it is for that reason that that and the extent of stake that people have in those kinds of conflicts.
And I think it becomes very important to take seriously a pluralism of the international order.
This isn't a pluralism that is non-judgmental.
This is not an argument that there are simply people who are right and people who are wrong in these conflicts.
It's not an argument that you know of.
Who are we to judge? It's not as that is not in any sense an argument from humility.
It is rather an argument that at the end of the day, there are certain people who have an unshared stake in the outcomes of their internal conflict,
and that outsiders who don't share that stake have legitimate,
have limited legitimacy in and sort of imposing their will upon these circumstances by force and direct coercion.
And that indeed people who are tending to impose these judgements from without
often do so in ways that are not only skewed by their own self-interest,
but also skewed by their own and often quite altruistic tendencies to identify with members of foreign societies that look the most like them,
that with whom they have a tendency to identify people whom they have direct access to and who tell their compelling stories,
perhaps at the expense of whole other people, whole other sets of people out of sight whose compelling stories don't get heard in the same way.
And so I think that there is an importance, morally speaking, to a system that favours self-determination of political communities,
that that presumes that these matters are going to be rather rapidly worked out with political conflict through political conflict within states,
and that there is no automatic reason to think that it will be salutary,
particularly for unilateral action from the outside, to impose itself upon these kinds of circumstances.
The argument here is not an argument that the Security Council should not intervene in circumstances.
The Security Council is only going to be intervening when there is such a clear case that there is a really broad based consensus in the international
system about fundamental elements of this conflict that will cut across different ideological and cultural perceptions about these matters.
And and so actually have a reasonable level of confidence in the Security Council as a device for accomplishing this.
But want to take seriously the idea that the Security Council veto is not actually a sign of dysfunction,
is not evidence of the system failing, but rather is of the hedge against a kind of of partisan intervention,
the internal affairs of states, which is unlikely to be salutary in which it violates,
I think, relatively important considerations having to do with with self-determination.
I also want to argue strongly against a certain kind of promiscuous use of international criminal justice and domestic courts,
which hasn't happened yet and may never happen and hopefully will never happen from my perspective,
but which is very much at work in the rhetoric about international justice,
which makes it all too easy for domestic court systems to seek to invoke international law,
to criminalise existing regimes abroad with the effect of undermining the the structures
that would maintain some level of non-intervention in the internal affairs of states.
This is a problem both prospectively and retrospectively because of some of the efforts to invoke these kinds of foreign.
Supporters of international criminal law are efforts which would, I think, tend to look backward in history of people who had counselled constraint.
In respect of these matters and sort of show them up to be fools and names that
that that the real villains of past conflicts have been those who have counselled
non-intervention and that now that we can invoke international law to pillory people
as as being beyond the scope of the protections of the international legal order,
that then makes it all the more possible not to do something about these people.
And and part of the problem of this is that the institutional capacities of the international order being very much dependent
upon consent don't ordinarily give rise to opportunities to do something directly about what people identify as being criminal.
And therefore, you have what I refer to as the fork in the road, as I put it in the outline,
in generating demands that the institutional capacities of the international system, the quest for justice,
for justice that transcends sovereign equality, leads to a fork in the road where one path leads to frustration and disillusionment,
and the other to alliance with neo conservatives who are, in essence,
liberal internationalists have become disillusioned with the constraints of both broad multilateralism and the ideological ethics,
the the the sorts of dynamics that one saw in 2003,
where people in the United States and in the United Kingdom and in some other important Western countries have found
themselves hamstrung in their ability to stand up for the international order based upon certain kinds of appeals.
I think is is part of the danger that we see here.
And for a wonderful example of the kind of legal scholarship that I think leads to this fork in the road quite expressly, there's a wonderful, if,
from my point of view,
on War and Peace by Michael Riesman in the 2000 volume of the European Journal of International Law and Multilateral on Unilateralism,
which I think makes very directly the argument for why it is that since international institutions can't keep up with international norms,
that someone has to come along and do the dirty work.
So this is the sort of thing that I think one needs to guard against in terms of the use of the rhetoric of international
law to what to pursue purposes that I think are at odds with the importance of accommodation in the international order.
It's very difficult to cram all of this material into a very short period.
And so I'm apologised for, for any incoherence of all of this and also for the abstraction of it,
as I hadn't been able to get to two specific cases that might be be more enlightening in terms of the impact of, of all of us.
But I hope you have at least started a conversation about the relationship between sovereignty and the international legal order.
And I look forward to discussing with you concerns that you may have on these topics.
And thank you very much for your time. Thank.
Well, thank you very much.