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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.

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And I've got that right.

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And he has published a very, very broadly and widely on a number of issues and international politics and international comparative law.

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And I will just highlight his work, 1999 from Oxford University, Oxford University Press and Governmental Illegitimacy and an International Law.

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And his topic today will be sovereign equality and moral disagreements.

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Thank you very much, David.

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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,

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who unfortunately probably won't be able to make it here.

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But thank you all very much.

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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,

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Sovereign Equality and Moral Disagreement Premises of a Pluralist International Legal Order.

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And I've stolen some of my thunder by giving a handout here that lays out some

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of the more complex concepts that I'm trying to deal with in the talk today.

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And I will focus on some of this material and perhaps leave over for our

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discussion some of the more practical applications of some of this this material.

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The book itself is organised in some sense in two parts,

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with the first part having to do with more conceptual issues about the project of

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international legality and the relationship between international and state authority.

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And the latter part then goes to applications and questions having to do with issues of humanitarian intervention,

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international responses to secessions and coups and international criminal justice,

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and particularly international criminal justice carried out by domestic legal orders.

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And so we can get to to many issues that I'm sure are burning questions for people on those latter topics.

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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,

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of my approach to international legal order and on some of the more distinctive concepts that I'm seeking to draw on in laying

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out the work that I do generally is application of political theory to problems in international and comparative public law.

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And so a great deal of my work is in fact on the relationship between international and domestic authority.

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My first book on governmental illegitimacy was this question of when is a government not a government for purposes of international law?

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And ever since then, I have been dealing with a whole range of questions involving the use of force,

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involving international criminal justice, human rights and the law of war,

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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,

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but the relationship between international law and international political morality.

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And it is in some ways my my dissatisfaction with the way that the rhetoric has presented that relationship,

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that has driven what I've attempted to general in this book.

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The book itself is rather strident on behalf of what our I think ultimately some rather moderate propositions.

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The point of the book is, in some sense to vindicate on moral ground some of the essence of the existing international legal order.

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It is, one might say, a conservative book, not in the sense of being from the right side of the political spectrum,

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but in the sense of seeking to vindicate and provide moral justification for what are established and existing principles of international law,

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and to try to demonstrate that international law, even in respect of its most unpopular doctrines,

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doctrines associated with the prerogatives of the sovereign state, nonetheless has very significant moral value.

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And the thesis broadly is set out for you at the start here in these two sentences at the top of the outline,

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the sovereign equality based international legal order serves as a constraint on self-help,

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denying the strong license to pursue justice as they perceive it, redefining sovereignty as responsibility and disallowing impunity.

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The widely viewed as progressive aims represent potential threats to constraint on untrusted and untrustworthy implementers of universal justice.

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So that seeks to cram a whole bunch of controversial statements into two pithy sentences.

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But I'll try to lay out for you a little bit what I'm trying to get at with all of this and.

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What sort of vision of international order I'm seeking to replicate the well perhaps

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driving inside of of the project here is something I've borrowed from Jeremy Waldron,

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who borrowed it from Immanuel Kant.

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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,

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lawful state of society is established, individual men,

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nations and states can never be certain that they are secure against violence from one

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another because each will have his own right to do what seems just and good to him,

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entirely independent of the opinion of others. And so this is the fundamental problem of moral disagreement.

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We often think about the international legal order as a reconciliation of a clash of interests internationally.

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And it is relatively rarely that we focus on the extent to which principled disagreement drives conflict in the international order.

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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.

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Can't insight goes beyond that to say that even perhaps if men were angels,

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the problem would be that their pursuit of justice and righteousness would lead them to

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conflict with other people who had different understandings of the content of justice,

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of righteousness, and that we would need some kind of order to reconcile not only competing interests, but competing conceptions of the right.

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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,

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you see an interesting effort on Waldron's part in ways you to harmonise with halves in this regard or perhaps somewhat

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counterintuitively to demonstrate the ways in which positive law actually performs this important moral function.

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And that being serious about the rule of law means adherence to positive law under

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circumstances where one's personal moral view not only about the nature of the good,

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but about the nature of the right one leave one to a different conclusion.

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So this is a kind of grounding point of the project here on international legality.

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And the fundamental difficulty is that not only do we have a plurality of conceptions

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of just and legitimate internal public order in the international system,

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but we also have invocations of universal values by empowered actors who are both untrusted and untrustworthy.

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And the fact that they're untrusted is gives rise to one set of problems.

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The fact that they're untrustworthy give rise to another from the standpoint from different standpoints within the international order.

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The fact that they are untrusted means that they need to concede something to weaker parts of the

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international order in order to legitimate the exercise of power within the international system,

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the disproportionate authority of rich, powerful, liberal, democratic states in the international system,

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which perhaps from the standpoint of those of us who live within rich,

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powerful, liberal, democratic countries, seems like the most natural thing is, in fact,

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something viewed with justifiable suspicion and concern by those who are less empowered

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in the international order and less comfortable with the notion that those in wealthy,

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liberal, democratic countries either have their best interests at heart or know what their best interests are.

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And so from the standpoint even of rich and powerful nations,

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it is important to establish legitimacy through an international legal order that

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respects something along the lines of what I'll describe as sovereign equality.

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Whereas from the standpoint of disempowered elements of the international order,

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the question is not so much the untrusted ness, but the untrustworthiness of those who exercise power.

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That indeed memory is quite long in many parts of the world about how it is that in the name of civilisation,

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great powers both in Western Europe and in North America have exerted authority in other

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parts of the world in ways that perhaps had a remarkably dubious result and therefore.

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The international order needs to be understood as a kind of compact.

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One might say a kind of principle deal among different forces in the international system.

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One of the sources of frustration for me in looking at the way in which people speak about international political morality,

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is the tendency to try to generate an ethos of international order from the

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very idea that we can sort of find hypothetical agreement with hypothesise,

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reasonable others when in fact these hypothesise reasonable others in works that people like John

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Rawls end up becoming the kinds of people who would be altogether too easy to get along with,

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because the nature of our disagreement with them doesn't in fact drive us to any very strong sense of outrage or emotion.

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And and the reality is that if we are going to have a working international order,

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we are going to have to deal not just with people whom we can respect in the ways and the

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sort of deep ways that that a John Rawls would hope to in the in the Law of Peoples,

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but rather that we are going to have to deal with people very much as they are,

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at least insofar as there are people who we cannot in a reasonable human cost, overcome by force, coercion and so on.

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We we need to have an international order that is effectively capable of establishing legitimacy across a broad range of not only interests,

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but also ideological proclivities. Now, it seems strange to be saying that in 2011,

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given the fact that the Cold War is long behind us and that many developments can can be invoked

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for the notion that ideological diversity has greatly narrowed in the international order.

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And certainly there's been a substantial diminution in the self-confidence of

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those who would challenge liberal democratic norms in the international order.

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And nothing that I say here is an effort to disparage those developments.

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I think that they are, in many important respects, real, and that they provide important opportunities for international order to do more to,

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in fact, have a much greater reach than in any previous era.

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The problem is that the reach still exceeds the grasp in important ways.

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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

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quickly into a remarkably fractious and indeed violent dissonances on how those norms are applied in real life situations in internal conflict.

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The book is very much focuses on the concept of sovereignty or in terms of orienting the relationship between international and domestic public order.

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And therefore, it's going to be important to describe exactly what is meant by sovereignty, and also,

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I think, to give some justification for why it is that this arcane concept is worth keeping around.

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The word sovereignty has been used in so many different ways that perhaps it means nothing at all.

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Particularly, it has been invoked for many propositions that seem, in the final analysis, not to what to work out in practice,

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and therefore it becomes quite plausible for many people to think that whatever it is

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you want to say about this relationship between international and domestic authority,

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the word sovereignty only works to confuse the matter. And I'm sympathetic to that critique,

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but I nonetheless want to resist it because I think that there is a peculiarity of the concept of sovereignty that is actually crucial

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in understanding the nature of the relationship between international and domestic legal authority in the international system,

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as we've known it. But first, it's important to think about sovereignty not simply as a range of different conceptions,

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but actually as a number of distinctly different concepts that actually apply to very different kinds of conversations,

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which in some ways overlap, but which have to be understood as completely distinct.

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Well, the first sense of sovereignty, which I lay out in the outline here,

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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.

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And so this is an empirical conception of sovereignty.

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And people can look at to what extent the states have been sovereign over time as measured by certain empirical criteria.

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And the significance of this in the current period is to say that there has been this diminution of sovereignty understood in this way,

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and therefore that we need to stop or reduce talking about about sovereignty.

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There is also the argument, of course, that sovereignty never really was this in the first place,

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that people like Stephen Krasner have pointed out that much of what has been asserted for sovereignty is is historically unjustified.

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The big problem here, though, is that this is a particular kind of conversation about sovereignty,

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which has an effect on the normative conversation, ultimately, because if if the independence of states were really so far diminished,

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that this was no longer a meaningful way to talk about international behaviour,

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there wouldn't necessarily be an effect on the normative framework that that connects to all.

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But the tendency is to greatly exaggerated, it seems to me, the diminution of the significance of the sovereign state.

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It is it's easy to see the the nature of changes in the international order and certainly all of

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the incentives from a standpoint of scholarship and a focus on how much things have changed,

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rather at the expense of how many mundane things have stayed the same.

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And most crucially, I would say the fundamental concerns are that the ground discussions of sovereignty have

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to do with the importance of territorial order to the organisation of anyone's life.

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There are very few people in the world, no matter how globally oriented they may be,

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whose lives would not be devastated by the collapse of territorial public order from where they are based.

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And and so the idea of of sovereignty as somehow an issue that's sort of withering away,

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I think, is not not particularly pertinent to to my enterprise here.

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Another sense in which the word sovereignty is used as as a kind of policy imperative,

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an imperative of maintaining or reasserting unilateral control over a particular field of activity.

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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.

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And it now has in the last few years this new colouration with the term American exceptionalism,

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which has been sort of dug out and and transformed into some new and more idiosyncratic concept here.

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But, of course, when people are speaking about sovereignty in the sense, first of all,

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they're not speaking at all in terms of sovereignty under international law.

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They're not speaking of sovereign equality of states with one another.

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They're speaking particularly on the American right of the sovereignty,

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the external sovereignty of the United States, to pursue policies abroad as as the United States sees fit alone,

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as well as to to operate internally without regard for the international legal obligations or without regard for the international public opinion.

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This is, again, pertinent to two questions about sovereignty in international law, but it is essentially a political assertion.

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It is one that, you know, in some contexts has some, I think, significance.

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If it were not if the arguments were not coming from some of the most empowered actors in the world,

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one might take more seriously the concerns about the way in which international order may deprive existing political communities

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of their ability to set their own course and make decisions that are fundamental to social life within their territories.

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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,

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as someone very much on the left side of the political spectrum in the United States,

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I can I can concede that, you know, we don't win a lot of elections in the United States and.

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We don't necessarily get a lot of favourable court decisions on the basis of domestic law and there is a natural

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tendency for people on the left side of the political spectrum in the United States to be drawn to forum shopping,

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to be drawn to moving the discussion to a different level of decision making, where frankly,

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cosmopolitan elites with whom we perhaps feel more affinity than with voting blocs in the United States are going to side with us.

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And in the name of some sort of naturalistic truth, weigh in on our side in domestic political controversies.

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This one may think about this, however one might, but it's important to be sort of sensitive to this,

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in part because of the way that it relates to much more consequential considerations

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that affect much less less powerful actors in the international order and

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those who see their ways of life being in some way threatened by the encroachment

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of of external influences that are able to penetrate their societies at will.

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The third concept of sovereignty, which also is slightly different from the issue that I'm seeking to deal with here,

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is what I call the domestic juridical conception of of sovereignty.

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And this has to do with the ultimate source of authority within any particular domestic legal regime.

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And the classical idea about sovereignty is that we are looking for the UN commanded commander,

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that sovereign that the sovereign is engaged in a kind of project that that is a symbol to of a the

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notion of a of a command backed by a threat in the traditional conceptions about positive law.

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And if, according to people like Boden and Hobbes, you look far enough into any legal order,

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you find that there's someone who can give commands without having to take them,

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and indeed that this is absolutely foundational to any working of political order.

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The the Hobson conception is not very popular any more among jurisprudence and for very good reason.

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The project of domestic legality is effectively a project to recast sovereignty as something that is constituted by legal norms.

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And so that in some sense the project is to extinguish this idea of unaccountable,

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potentially arbitrary decision making and to reduce all of that to the making decisions within established competencies of,

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of, of norm bounded institutions.

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And that is the project of public law.

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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.

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And and Schmitt, I think, successfully demonstrates the continued significance of Bowden and Hobbs that the

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project of extinguishing sovereignty internally is beset by this difficulty,

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that the legal order can find itself in crisis where it needs to have recourse to extralegal means to protect itself from its enemies.

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And this is a problem that long predates Schmitt's discussion,

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long predates Article 48 of the Weimar Constitution, which was Schmitt's subject matter.

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It was was operative in the early stages of the Civil War in the United States,

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when Abraham Lincoln unilaterally suspended habeas corpus and made similar kinds of of arguments.

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It goes back in in the literature to places like Machiavelli's Discourses,

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in which he argues in favour of of of the institution of what was then called dictatorship,

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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.

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The the significance of this discussion to the overall concept of sovereignty is perhaps a little bit difficult to grasp.

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But the fundamental point it comes from Schmitt's interpretation of Beaudin.

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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.

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And from Schmidt's standpoint, Beaudin is saying that the covenants are indeed binding in some sense,

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and yet the sovereign may determine unilaterally that abiding by the covenants in any given instance does not serve the purposes of justice.

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And there isn't anyone who can then impose any judgement, any adverse judgement on the sovereign decision to suspend compliance with the covenants.

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And that, I think, says something very fundamental about what the nature of sovereignty is.

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And I think whatever else one might think of Schmidt And there are many negative things to say about Schmidt.

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The they're this fundamental. Schmidt and insight which is boiled down to his famous expression sovereign is he who

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decides on the exception is that sovereignty is the authority to suspend valid law.

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That sovereignty and obligation are not mutually exclusive.

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That there is residual sovereignty that withstands the existence of legal obligation.

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And and therefore that acts which are in breach of obligation, are not necessarily null and void.

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And that is, I think, a very accurate understanding of the nature of sovereignty and its relationship with international legal obligation,

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which which comes next.

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The the fourth aspect of sovereignty here is this international and juridical conception of sovereignty, which is the focus of the book.

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And it has to do with the terms of mutual, reciprocal recognition among states in a horizontal order.

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And what sovereignty means from the standpoint of international law, it seems to me, are effectively three things three presumptions,

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all of which can be, in certain circumstances, overcome and indeed are overcome in certain circumstances,

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but all of which are quite strong presumptions.

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Actually, the first presumption has to do with how international law is made, how norms are recognised in the international order,

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and that is the presumption that states are bound only by the terms of their own consent.

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What that means turns out to be much more nuanced than any straightforward interpretation of consent would admit.

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And there is a whole overlay of of international legal methodology and, of course,

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disputation within an international legal methodology about what can count effectively as an act attributable to the will of the state itself.

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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.

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But a fundamental principle having to do with consent is the flip side of of the negative of consent,

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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,

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regardless of how the norm operates for the rest of the international system in principle,

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under the kinds of methods that are have been generally accepted historically in the international legal order.

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The state is free of those norms. The state cannot be bound where it persistently object.

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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.

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And what counts as use kogan's ends up being extraordinarily fraught as a matter in the international order.

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But the important thing to know about invocations of use kogan's is that they have really relatively limited kinds of legal effects.

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There's a tremendous amount of ink spilled over the question of use.

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KOGAN And very little real payoff because there's almost never a controversy that actually turns on this question of of

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whether something counts as use kogan's where significant states continue to remain outside of of an international consensus.

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The fact is that one cannot prevail against them on on this kind of theory.

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And and there are really very few circumstances where where use kogan's.

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Actually, it can be productively invoked in a legal controversy.

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The second presumption is that states obligations don't binding on the state as a corporate entity,

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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.

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And this is the fundamental principle of the dualism.

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Although the word dualism has a number of different meanings in this area, rather confusingly.

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But the basic idea here is that you can have international legal obligations that do that are not incorporated into

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the domestic legal order that domestically let's take decisions can be taken fully consistent with domestic law,

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which are in breach of the international obligation.

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And then what follows is a situation is where where the same act is lawful and unlawful simultaneously.

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And under those circumstances, I want to argue that international law, by the operation of its own doctrines, in many cases,

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has to acknowledge the legal facts that are created by this domestic legal order,

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notwithstanding its incompatibility with the international obligation.

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And this is particularly important in international criminal law with the concept of nil agreements,

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unilag II, where the leg is something that necessarily is affected by the domestic legal order.

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It is significant from the standpoint of international human rights,

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of whether someone is convicted in accordance with a law that operates internally at the time and place of the the act in question.

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There are other applications too, and one of them has to do with permanent sovereignty over national resources.

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A state may unlawfully expropriate resources.

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That doesn't mean that the title to that expropriated property doesn't pass to

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the government for purposes of being passed on potentially to other actors.

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And there's a whole set of controversies over this.

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But again, I would argue that the the significance is that the states act as such has not only domestic,

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but even international legal significance, notwithstanding the fact that it's taken in breach of international obligations.

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The third thing is the presumption of the inviolability of states,

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territorial integrity and political independence as against broader use of force or as against extreme economic or political coercion as

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that is invoked and in documents such as the UN Declaration of Principles of International Law concerning friendly relations from 1970.

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And. And these are presumed to withstand even the violation of international legal norms.

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And simply isn't the case that states a right to territorial integrity and political independence is

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contingent straightforwardly on fulfilment of international legal obligations and countermeasures

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that can be taken against violators of international legal norms are quite expressly limited

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by norms that have to do with territorial integrity and political independence of states.

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And and this demonstrates that there are limitations on the amount of coercion

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that can lawfully be brought to bear to vindicate international legal norms,

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which is seems sort of counterintuitive from the standpoint of any legal order.

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When people are used to thinking about domestic legal orders, they're thinking about the idea that if a norm is breached,

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there must be someone somewhere within the system who has sufficient coercive authority to be able to vindicate the norm.

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And it is not merely a matter of practice, but a matter of principle that in international law that's frequently not the case.

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That because what we have is a horizontal legal order and because we have untrusted and untrustworthy implementers of supposed international order,

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we necessarily have a situation in which states have certain kinds of immunities from exercises of force and coercion,

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which which withstand even their own misbehaviour.

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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.

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The legal obligation does not imply the licensing of measures sufficient to compel compliance.

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That legal obligation does not imply the renunciation of authority to commit of reaching act,

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which follows from the dualistic point and and also that.

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Whereas internally, the rule of law is about subjecting sovereign authority itself to law sovereignty as constituted.

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By legal norms. The international rule of law is based on a sovereign equality,

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which is an accommodation among territorial communities that bear an underlying capacity to overthrow domestic authority.

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This is something that goes very much to this problem recognition of secessions and coups, which I deal with extensively.

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But we we tend to imagine somehow an international legal order as one that would in some way be a legal order of

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legal orders and and one that would therefore provide an opportunity to make determinations of of legitimacy,

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of exercise, of power at the domestic level based on compatibility with international norms, about the internal exercise of power.

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And I want to argue that that, in fact, is not what we've had, at least traditionally as an international legal order.

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Rather, what we have is an international legal order that recognises these sovereign territorial communities.

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And part of the aspect of their sovereignty is this supposed inalienable right to choose their own political,

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economic, social and cultural systems without interference from from any other state for any reason whatsoever.

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The language of the friendly relations declaration and a number of other articulations.

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And that therefore what you have is a kind of sovereign right of political communities to breach their own domestic legal orders

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and establish through the principle of effectivity a UN order that has to be then respected by the international legal system.

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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.

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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.

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That's absolutely right. In that that I am, in fact,

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seeking to bolster the reputation of of a legal order that that represents the that I want to

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sort of move along so that we can we can talk more or more concretely about specific issues.

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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

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order and therefore the give certain kind of respect for clashes over the question of what counts as just and legitimate internal public order.

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And the problem that I find in many of the ways in which these matters get discussed is that there tends to

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be a kind of invocation of universality in concepts having to do with political justice and legitimacy,

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and that those those concepts about universality break down.

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And I want to argue they break down for reasons that don't have to do specifically with cultural relativism,

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that the real problem here is neither that there are some sort of special immunities for different cultures,

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for the way in which they may think about politics and and therefore that power can be exercised against people

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within communities based upon some illiberal conception that that needs to be respected because it it conforms to,

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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,

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one would be failing to respect them and their dignity as human beings.

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I think that there's something fundamentally wrong with that way of thinking about international pluralism,

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and particularly because the pluralism that I'm speaking to only pertains to the most extreme kinds of reactions of the international community,

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only the kinds of coercive acts of intervention or international criminal prosecution that occur in circumstances

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where what you have are of the impositions of a modern state on something that doesn't look anything like,

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you know. But by terms, it doesn't look anything like a kind of traditional governance of some deep seated cultural character.

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I think that is really quite irrelevant to the.

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To to even question whether under certain circumstances we might, I think,

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take seriously cultural relativism as a break on our universalist conception of political morality.

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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.

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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,

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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.

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Indeed, that the kinds of of political differences that exist in the world that give rise to internal

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political conflict are the kinds of differences that we should have no difficulty in processing,

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actually, as as Westerners, as a people who indeed have among us at some level of abstraction, consensus about basic values of human dignity.

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Because what turns out to be the case in many circumstances is that these these consensuses break down for for very systematic reasons.

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The the goal of of of trying to abstract from different comprehensive doctrines about

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human flourishing and to to find some transcendent conception of of the right that,

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you know, sort of encompasses a variety of views of the good.

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It doesn't work very well in the final analysis,

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when one tries to apply the abstractions that have been derived through that process to real circumstances,

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that in fact, there are important conflicts that emerge among norms.

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There are conflicting priorities that are attributed by people on the basis of the

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comprehensive doctrines that that one is sort of seeking to abstract from in the first place.

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And most importantly,

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that there are going to be certain circumstances in which the there are going to be different different forces that regard the end

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as justifying the means such that presumptively wrong acts that can be agreed upon as being presumptively wrong in the abstract.

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Certainly among a wide swath of people end up becoming subject to this overarching logic where people consider very

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fundamental values being threatened and people then become quite willing to invoke all kinds of methods that they would not,

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in ordinary circumstances, be willing to accept.

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The problem that I see here in a lot of discourse is that we we tend to assume that

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whereas other people commit ruthless acts for sort of trivial or unprincipled reasons,

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that of course we do it for some different category of reason,

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that that the sorts of acts that have been committed by Western liberal democratic states

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are of an entirely different order and category of from the sort that are committed in,

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in these kinds of conflicts, when in fact, the major difference is the sort of stakes of that that currently exist in poorer

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and more polarised and otherwise beleaguered territorial political communities,

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versus the kind of political life that we have, by and large managed to establish in Western liberal democratic states over time.

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And so the the basic point that I try to make, and it's really my by reference to a series of,

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of historical circumstances that are not the ones that most commonly are invoked by more optimistic, human rights oriented scholars.

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The point that I make is that under sufficiently adverse conditions such as extreme ethno national or socioeconomic polarisation,

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the inability to agree on a fair, basic structure of public order,

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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

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comports with one's own conception of fairness leads informed persons of good faith and sound reason to support ruthless measures against one another.

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So the the claim being made here is that internal political conflicts of a.

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Violent sword of a sort that violates fundamental human rights obligations is in fact not some sort of pathology

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that either is derived from perverse cultures on the one hand or mere cynical political entrepreneurs on the other.

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But that is something that is endemic to political life.

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And that and this manifests itself in particular structural circumstances in which people

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find their most fundamental interests being pitted against one another in their films,

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fundamental values being pitted against one another.

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And it is for that reason that that and the extent of stake that people have in those kinds of conflicts.

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And I think it becomes very important to take seriously a pluralism of the international order.

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This isn't a pluralism that is non-judgmental.

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This is not an argument that there are simply people who are right and people who are wrong in these conflicts.

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It's not an argument that you know of.

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Who are we to judge? It's not as that is not in any sense an argument from humility.

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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,

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and that outsiders who don't share that stake have legitimate,

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have limited legitimacy in and sort of imposing their will upon these circumstances by force and direct coercion.

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And that indeed people who are tending to impose these judgements from without

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often do so in ways that are not only skewed by their own self-interest,

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but also skewed by their own and often quite altruistic tendencies to identify with members of foreign societies that look the most like them,

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that with whom they have a tendency to identify people whom they have direct access to and who tell their compelling stories,

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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.

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And so I think that there is an importance, morally speaking, to a system that favours self-determination of political communities,

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that that presumes that these matters are going to be rather rapidly worked out with political conflict through political conflict within states,

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and that there is no automatic reason to think that it will be salutary,

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particularly for unilateral action from the outside, to impose itself upon these kinds of circumstances.

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The argument here is not an argument that the Security Council should not intervene in circumstances.

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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

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system about fundamental elements of this conflict that will cut across different ideological and cultural perceptions about these matters.

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And and so actually have a reasonable level of confidence in the Security Council as a device for accomplishing this.

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But want to take seriously the idea that the Security Council veto is not actually a sign of dysfunction,

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is not evidence of the system failing, but rather is of the hedge against a kind of of partisan intervention,

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the internal affairs of states, which is unlikely to be salutary in which it violates,

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I think, relatively important considerations having to do with with self-determination.

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I also want to argue strongly against a certain kind of promiscuous use of international criminal justice and domestic courts,

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which hasn't happened yet and may never happen and hopefully will never happen from my perspective,

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but which is very much at work in the rhetoric about international justice,

396
00:49:24,010 --> 00:49:31,720
which makes it all too easy for domestic court systems to seek to invoke international law,

397
00:49:32,230 --> 00:49:44,560
to criminalise existing regimes abroad with the effect of undermining the the structures

398
00:49:45,100 --> 00:49:50,650
that would maintain some level of non-intervention in the internal affairs of states.

399
00:49:51,340 --> 00:50:00,230
This is a problem both prospectively and retrospectively because of some of the efforts to invoke these kinds of foreign.

400
00:50:00,320 --> 00:50:12,050
Supporters of international criminal law are efforts which would, I think, tend to look backward in history of people who had counselled constraint.

401
00:50:12,620 --> 00:50:18,220
In respect of these matters and sort of show them up to be fools and names that

402
00:50:18,440 --> 00:50:23,870
that that the real villains of past conflicts have been those who have counselled

403
00:50:23,870 --> 00:50:29,480
non-intervention and that now that we can invoke international law to pillory people

404
00:50:29,990 --> 00:50:35,000
as as being beyond the scope of the protections of the international legal order,

405
00:50:35,600 --> 00:50:40,340
that then makes it all the more possible not to do something about these people.

406
00:50:41,060 --> 00:50:48,530
And and part of the problem of this is that the institutional capacities of the international order being very much dependent

407
00:50:48,530 --> 00:50:59,900
upon consent don't ordinarily give rise to opportunities to do something directly about what people identify as being criminal.

408
00:51:00,470 --> 00:51:06,830
And therefore, you have what I refer to as the fork in the road, as I put it in the outline,

409
00:51:06,830 --> 00:51:11,809
in generating demands that the institutional capacities of the international system, the quest for justice,

410
00:51:11,810 --> 00:51:17,690
for justice that transcends sovereign equality, leads to a fork in the road where one path leads to frustration and disillusionment,

411
00:51:18,140 --> 00:51:21,680
and the other to alliance with neo conservatives who are, in essence,

412
00:51:21,680 --> 00:51:28,670
liberal internationalists have become disillusioned with the constraints of both broad multilateralism and the ideological ethics,

413
00:51:29,560 --> 00:51:34,160
the the the sorts of dynamics that one saw in 2003,

414
00:51:35,030 --> 00:51:42,649
where people in the United States and in the United Kingdom and in some other important Western countries have found

415
00:51:42,650 --> 00:51:50,840
themselves hamstrung in their ability to stand up for the international order based upon certain kinds of appeals.

416
00:51:51,410 --> 00:51:55,400
I think is is part of the danger that we see here.

417
00:51:55,410 --> 00:52:06,200
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,

418
00:52:06,650 --> 00:52:07,670
from my point of view,

419
00:52:07,950 --> 00:52:16,610
on War and Peace by Michael Riesman in the 2000 volume of the European Journal of International Law and Multilateral on Unilateralism,

420
00:52:17,090 --> 00:52:23,810
which I think makes very directly the argument for why it is that since international institutions can't keep up with international norms,

421
00:52:24,350 --> 00:52:27,650
that someone has to come along and do the dirty work.

422
00:52:29,060 --> 00:52:35,900
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

423
00:52:35,900 --> 00:52:42,560
law to what to pursue purposes that I think are at odds with the importance of accommodation in the international order.

424
00:52:44,060 --> 00:52:48,440
It's very difficult to cram all of this material into a very short period.

425
00:52:48,440 --> 00:52:53,719
And so I'm apologised for, for any incoherence of all of this and also for the abstraction of it,

426
00:52:53,720 --> 00:53:02,960
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.

427
00:53:03,690 --> 00:53:10,790
But I hope you have at least started a conversation about the relationship between sovereignty and the international legal order.

428
00:53:10,790 --> 00:53:15,670
And I look forward to discussing with you concerns that you may have on these topics.

429
00:53:15,680 --> 00:53:19,080
And thank you very much for your time. Thank.

430
00:53:23,290 --> 00:53:24,130
Well, thank you very much.