Skip to main content

tv   Customary International Law  CSPAN  December 30, 2013 1:00am-2:01am EST

1:00 am
these are fundamental to our progtity. .. an adviser to several war crime and genocide tribunals, looks at moments in history when international law or the interpretation of international law has evolved rapidly. he says that we are in the midst of one of those moments regarding the laws that alie to humanitarian interventions and targeted killings. this hourlong program is next on booktv. >> all right. hello and welcome to case could downtown in the city called cleveland. my name's dan, i'm the ceo of
1:01 am
the city club, and i'm very delighted to be here today with professor michael similar. michael is the acting dean of the law school, he's the baker hostettler professor of law, a leader in the practice and study of international criminal law and the host of the public radio program talking foreign policy, all of which is wonderful, but we're actually here to talk about something else, his new book. it is called "customary international law in times of fundamental change: recognizing grotian moments." >> wow. >> wow. which sounds like a mouthful of academic jargon, but what it's really about is how certain moments in history create the kinds of conditions for new laws to emerge as a force for good on a planetary scale which is certainly relevant today. michael, great to see you. >> and, dan, do you want to mention who you are? >> i did, i did. okay. i'm going to assume that i'm not the only lawyer in the audience, here in the room or watching on
1:02 am
c-span. so can we start with a couple of terms, customary international law and grotian moment. which one do you want to start with? >> we'll start with customary international law. >> all right. >> all right, so if you were in my first year international law class, the first day if class you would learn that the international law is made up of two types of law; treaty law, which is the documents the countries get together and negotiate and their parliaments ratify, and customary international law which is the unwritten law but is the actually more important and pervasive part. traditionally, customary international law is thought to grow very slowly. they use the word crystallization because it takes decades, maybe centuries for it to harden as a custom so that the whole world recognizes this is something that they're bound to do. and what we've recently
1:03 am
recognized is sometimes these customary rules emerge very quickly, and that wrecks the whole theory of what custom is all about. so this is the focus of the book. now, the other -- >> grotian. >> there's this guy named hugo, and he is thought to be the father of international law. >> this is a 17th century scholar. >> yes. he was the mozart of law. he was a very, very gifted young an who got his ph.d. when he was 15, wrote his first several books before he was 20, was governor of -- >> you know, the s. a.t.s were a lot easier. [laughter] >> probably so. anyway, he wrote a book called "the laws of war and peace" at a time when europe was run by empires. there was the holy roman empire, there was the spanish empire be, the french empire, the swedish empire, and countries weren't sovereign. and his book was about how to
1:04 am
finish and bring to a resolution the 80 years' war. there had to be a massive peace treaty, and all the little countries of europe should be southern, and they should be guided by treaties between them. so he came up with this whole paradigm. and be in 1648 at the peace of westphalia, they adopted it. and he had died during negotiations, so he didn't get to see it through. but they called this a grotian moment because it really launched the whole idea of sovereign states and modern international law. so when we're looking at moments that are like paradigm shifts where international law changes very radically and quickly, why not call them grotian moments? >> now, the original a war lasting eight decades to get to, to actually crystallize. >> so other people have looked as these moments like radial
1:05 am
changes like wold war ii, finish world war ii, and they say those are international constitutional moments, and they're taking a phrase from bruce ackerman, a famous constitutional law professor who looked at the new deal revolution and said that was a constitutional appropriatemoment. and so these folks are saying that happens sometimes in international law, so let's call them international constitutional moments. my problem -- >> that's sort of a little bit specific to the u.s.. >> yeah. and also even if you analogize the u.n. charter to a constitution, what we're talking about if in this book is much broader. customary international law is very broad. it's not within a constituent treaty. so we need some other title. i argue why not call it grotian moments. and there's a princeton professor who actually coined the phrase. he didn't use it quite the way i'm using it, but he was the one who gave me the idea.
1:06 am
>> are people thanking you? >> some people love it. others are saying if you look at him, he was a bit of a colonialist. so if you're from a developing country and you're a law professor, you really don't like to have his name tagged with things. but i've run into that a little bit. other people have this theory that grotian moments have to be huge, things like the peace of westphalia or the u.n. charter s. what i'm talking about are mini moments, transformative moments and maybe they shouldn't have the big g next to them. but a lot of people are starting to use the failed. when i wrote the book, there were only a couple of precedents of citations and law review articles. just did a recent view, you can go on wexler or google, and there are literally thousands of them now. so this word is getting out there. it's getting to be a hot word. >> why does -- forgive this sort of vague, general question, but why does this matter? why does this matter what we
1:07 am
call a moment of change? >> well, we have to -- >> we've got to call it something. >> you have to have a name. and part of it there's this theory called symbiotics which political scientists and others know the power of words. and how their meanings change over time. and it may be that his name and his legacy has been amplified to such an extent that it's a distortion historically, but i think everybody recognizes the tradition, the name is a powerful world. so if we're coming up with a powerful new doctrine, why not give it something that has that kind of heft? >> so let's then dig into, i mean, i've got some other kind of these sort of philosophical questions, but i'll hold off while we dig into the grotian appointments that you identify -- >> do you want to ask why i wrote the book? >> i'm going to get there eventually. [laughter] >> okay. >> but the, what is the
1:08 am
prototypical grotian moment in modern history ear? you've got a few that you talk about, the trial of nuremberg, the truman doctrine regarding offshore oil drilling, those are the first two. where do you want to start? >> what base law, i think let's start with nuremberg. >> okay. >> everybody's pretty familiar with nuremberg of. in fact, at our law school we had until recently one of the nuremberg prosecutors on our faculty. henry king. so let's start with nuremberg. >> okay. let's start with nuremberg and henry king. so what makes that a grotian moment? in a lot of ways, it feels obvious. but unpack it for us. >> so the history of war crimes prosecutions was pretty much nonexistent before nuremberg. there had been an attempt in world war i to indict the kaiser, and then they decided not to. so there really wasn't any international war crimes prosecutions. in fact, international law prior
1:09 am
to nuremberg said what a country did to its own people was its own business. so there wasn't even human rights law. you just couldn't complain about what was going on within a country's own borders. >> because it was an issue of sovereignty? >> an issue of sovereignty. so world war ii and the holocaust changes all that. it's so radical and so fundamental that the world was ready for a completely new paradigm. and the paradigm is if you're a leader and you commit genocide or war crimes, you can be prosecuted by the international community. and today this isn't so novel because we see the yugoslavia tribunal, the cambodia tribunal, we see duns prosecuting -- countries prosecuting their own leaders like saddam hussein, they're talking about prosecuting assad after the crisis -- >> judges in spain who want to prosecute george w. bush. >> but before world war ii, nobody even thought about that. so that was the paradigm shift. and then you had the major
1:10 am
nuremberg trial, mini trials conducted by the occupying powers, then you had the u.n. pass a resolution that universeally endorsed the principles of nuremberg. and these are principles we all sort of are familiar with. one which we're talking about is that leaders can be held responsible. just because they're the president or the king doesn't mean they can escape liability anymore. other ones is you can't use to bead yens to orders defense. others are that there's universal jurisdiction to prosecute international crimes. that's why in spain they go after george bush, for example. and then one of them is that when you prosecute people in an international tribunal, you can use a principle that is similar to the united states' conspiracy or pinkerton rule or a felony murder rule -- i'll stop and tell you what that means. the u.s. is pretty unique in the breadth of our conspiracy rules. and so in the u.s. if you join a l criminal activity and you say,
1:11 am
dan, you and i, we're going to go rob a bank, and i want you to be the getaway driver. i'll go in and do the bank thing. >> perfect. >> so i'm in the bank, and we thought we were just going to do a bank robbery, we weren't going to bring guns, babe just toy -- maybe just toy guns, but i brought a gun. they catch you running away, and they're going to prosecute you not just for being an accomplice, but for felony murder because you were part of this criminal enterprise. >> joint criminal enterprise. >> and so in international war crimes cases, the top people will have a plan, but the bottom people will deviate from the plan and do all sorts of other things, and this means the top people could be prosecuted for all the things if tear reasonably foreseeable. and this, for the u.s., is pretty standard stuff. but for europe and for other countries, the civil law tradition, this is a real big expansion. and they did that at nuremberg, and then the way i got involved in this issue was in 2008 i was
1:12 am
on my sabbatical. we get those as law professors every seven yearses, and i spent a semester as a special assistant to the chief prosecutor of the cambodia tribunal with. so i arrive at this new international tribunal set up by the u.n., and i say what do you want me to do? and he says we're going to have you write the brief in response to the defense motion to dismiss the charges of joint criminal enterprise liability. and they call this jce. we'll talk about that and those initials. the defense says it stands for just convict everyone. [laughter] once you have the standard, it's very pro-prosecution. >> ah, legal humor. [laughter] >> told you i'd make them laugh. anyway, the problem we had was this joint criminal enterprise liability had been established in all the modern tribruins, but the cambodia tribunal goes back to eventings in the 1970s. so the only precedent they had
1:13 am
was the nuremberg precedent. and the defense counsel argues that nuremberg is one trial, you have a general assembly resolution a year later, that's one year. that's not enough for customary international law. so they're going pack to the traditional notion that customary international law takes decades, centuries, you know, millennia to crystallize, and we're saying that it did it in one year with one trial. so i actually used this term -- >> and that was the genesis of this whole grotian moment thing? >> you know like every -- >> for you. >> -- comic book superhero has a back story? >> yeah. >> this is my origin story. so i'm in cambodia, and i stick it in the brief, and it goes to the tribunal, and the tribunal says we agree with this, and they used the term grotian moment. and that's when people started talking about in this term, and that's when i said i've got to write a whole book about this. >> huh. so that was the moment that you
1:14 am
identified nuremberg as, like, your prototypical grotian moment. and it seems to work because it was such a big moment for the world. >> right. >> and the universe of legal scholars. everybody was paying attention, and everybody noted, yes, this changes everything. >> right, right. except for the defense come. >> except for the defense counsel. >> who appealed and lost on appeal. [laughter] >> anyway, it made -- [inaudible] at some point. then you start looking around for other grotian moments. did you think you would find anything as significant as nuremberg? because that was kind of a big deal. >> this is where the origin story gets another interesting twist. on my 50th birthday i go to the hague, and i visit an old law professor friend of mine named chris greenwood -- >> you planned this for yourself as part of your 50th birthday? >> this is what i do. chris has to take me to lunch. the reason -- [laughter] the judge from the u.k. of the
1:15 am
international court of justice. so my little professor friend has gone from london school of economics to being the judge of the world court. and i always like to go there because they have really good soup, as you say. [laughter] the facilities at the world court. so i go there, and he says what are you working on, mike? because he can't really tell me about the cases he's working on, so it's all about what i'm doing, and he can, like, give me his thoughts. and he is probably the most insight. law professor, now judge that anyone could know. he's very well respected on the court, and his mind is very anymoren, and he thinks very quick. i say what other grotian moments do you think there are? and he just starts going there's this, this, this, and this. he comes up with six of them. >> so it's his fault. >> it's his fault. and four of them i decide are are legitimate moments and two i decide don't meet the criteria. and you can learn a lot by, you know, having a test case. and so the two that aren't -- which we'll talk about later --
1:16 am
are humanitarian intervention and targeted killing of terrorists. and so that's the most controversial part of the book. in fact, despite the wonky title, the reason the book so hot right now is because it's one of the first books to come out to talk about these two issues that are in the news like almost every day in the last year. >> uh-huh. >> the targets killings. and also -- many and whether you go into places like syria. >> exactly. >> well, let's jump into that. why not? the, i mean, i think you could run through the other case studies, and it's pretty clear why, i mean, the space -- outer space law, like, it was happening. you can't get to space without flying over everybody else's countries, so you quickly come to an agreement. >> huge technological change. it would take too long to create treaties during the cold war, so they create customary international law through general -- >> this is like your coining of this phrase, custom pioneer, which is a really funny thing of you don't know that a you're
1:17 am
doing it at the time necessarily -- you can only be a custom pioneer in retrospect, right? in hindsight. >> i'm actually more cynical an it. >> really? >> i think they're the major powers that want to create new customary international law like involving space law, so this would be the soviet union and the united states. they can't say they're creating new law because customary international law is basically -- >> if you say it, you actually have to do it through treaty. >> yeah, yeah. what they say is -- >> no intentions this the law we're creating right now. >> this is just a minor extension or a nuance on existing law. that's how they usually do it. but if you look at it, they're radical and fundamental changes. >> right. the continental shelf was another example, right? customary law had been that your border extends three miles or maybe five miles into the -- >> but not 200, and now we can claim the oil and gas reserves all the way out through the gulf of mexico because president truman in 1945 said we believe that this is part of the natural
1:18 am
prolongation of our territory. and, again, they cast it as if -- >> inevitable. everybody knows this. >> but it was really new wine in old bot be les, and it made it palatable. everybody was willing to try the new vintage. >> well, it worked out for everybody because there's no, not for everybody everybody, because if you're landlocked, it doesn't really matter that much to you. it doesn't change your world if you're andora, say. but if you are, you know, if you have a coastline, suddenly it got better. >> think about shallow in the netherlands, i don't think they would have been that excited that we were banning the gulf of mexico to their oil exploration. and, in fact, one of the ways they got around it is when truman said that we are going to have this new authority. he said but we're going to lease it out so all the countries in the world on the same kinds of terms that we do to americans so
1:19 am
you won't be disadvantaged. so that kind of was another political way to soften the transition. but ultimately, he had claimed the authority, and he didn't have to lease it out, and we don't have to necessarily. >> right. but what i was saying is it creates a win for australia, it creates a win for france, it creates a win for everybody that has some sort of coastline potentially where there could be resources, yet undiscovered resources. >> and like space law, or this was a technological change, and it also happened right after world war ii, so there was huge demand for oil and gas, and suddenly we had the ability to drill way out there on the con continental shelf. and still to this day most of our oil comes from that area. it's a very important resource for us in the united states. >> before we get into why the final two case studies don't really qualify as a grotian moment, tell me generally what are the moments in your mind that disqualify it?
1:20 am
>> let me tell you one other part of the origin story. it's sort of a three-parter. you've not the part where i go to cambodia, the hague, and then the thursday part is i get invited to go to kyoto, japan, who is the ceo of the kyocera company -- >> and the benefactor at a certain -- >> of our ethics prize for ethical leadership. so he invites the president and the trustees and is some professors to come, and i got invited to go. so i traveled to kyoto, i go to his company, and they give me a tour. and they have a museum there where they show all the different things that they've made over time. and one of the things that they're making now that is very exciting for them are recrystallized gem stones. so you look -- >> manufactured gem stones. >> they're like manufactured diamonds and rubies and emeralds, and they are not like culturalled pearls. there's no way to distinguish them from the real thing. but the way they manufacture
1:21 am
them is through intense heat, intense pressure and some secret ingredients that they won't tell you. and it takes months, so it's not instantaneous. and it's slightly less than the cost of the real thing, but not so much. so what they are is they're precious, they're somewhat rare, but they're quick. and they're happening fast, and it's through these external ingredients. and so what it occurred to me is happening with the grotian moment is you don't just have this thing that they call latin for a sense of legal obligation, but you also have this external factor that everybody has ignored over time that is creating the ingredients for accelerated formation of customary international law. it's an accelerant. so that was the analogy that got me hunting. so what am i looking for? the parameters of the grotian moment concept as i've seat them
1:22 am
is it has to be something that's emerged within ten years, because that's really fast. and several of the ones we talk about in the book emerged within just a year or two, but ten years is sort of a good way to look at it. secondly, it has to be a radical change even though the custom pioneers -- as you mentioned, say that they're not doing anything differently, you have to show that it is huge change in the law and that it's not just a continuation. and this is one of the big arguments that people have had with me even with nuremberg. they say you're just focusing on the nuremberg trial, but if you look back at all the things that went into the history that ended us up with nuremberg, it's a long continuation, and it's more like customary international law. you can go back to the hague convention of the early 1900s, you can go back to the lever code that president lincoln had during world war ii -- or the civil war. and all these things led up to
1:23 am
it. if that's the case, this is just regular customary international law, it took decades. so what you have to do is look at it and say was this really a radical change? was it more or less a air rah dime shift. >> >> -- paradigm shift? >> the difference, like, why does the distinction matter? if the change happens anyway, why does it matter whetherst the crystallization of decades of evolution or a rapid change? >> okay, so -- >> what's the value in the rapid change? >> for academic bs it's always important. for the real world maybe it has some importance in various unique circumstances, and be i'll explain what i mean. >> okay. >> some academic stands up and says, look, i have a new concept, a new doctrine, a paradigm shift, everybody's going to want to explore it and test it because, you know, that's what we think of ourselves as scientists even though we're political scientists and legal scientists. and so one of the arguments is that am i talking about paradigm shifts or just tipping points,
1:24 am
and that's the kind of stuff they talk about. in the practical world, here's why it's important. just like in the case before the cambodia tribunal where the defense said if it doesn't take decades, it's not finish it cannot be customary international law, and you cannot rely on it. what this basically says is that i can prove that customary international law can sometimes form very quickly. i have four cases that i say it has. there may be others out there. this means that in the future when a court is considering whether something is a new doctrine of customary international law, it doesn't have to have the presumption that time so important. so it gets over that more or less. and here's where -- >> like, it gives international criminal prosecutors a little bit more leverage, more ammunition. >> but it could come up in noncriminal context. here's one i was thinking about. it's not in the book, because it's happening just as we speak. we have global warming, and all of a sudden the water levs are
1:25 am
rising -- levels are rising, and there are countries that are literally at the eventual of losing their lands. and the estimates are that within ten years several of these countries, they're states, they're members of theup, are not going of to have land territory to. so when their citizens go to other countries, they're going to want to be refugees, climate refugees, but the refugee convention only talks about people who were fleeing political persecution. and unless there's a treaty change, which there probably won't be, it's going to be a question of did this radical change in the world -- >> external factor. >> -- create very quick changes so that people can just recognize we have a new world, we have to have new rules, we don't have time for treaties, let's just accept it, we'll have a human rights commission resolution that gets it started, and if there's not a lot of defense, it'll just happen. and it's not just the refugee status, also do these countries get to continue their u.n. membership and their membership in the other bodies of the world
1:26 am
if they have no land. >> can you still be a nation-state or a state actor -- >> you know, it'll be chapter one of volume two of the book. but this is the kind of thing that shows the practical importance of the concept. >> that's really interesting. >> yeah. >> is that really, i mean, are we really that close to u.n. charter nations losing -- >> the scientists say yes. >> when good god. we were talking about what disqualifies a potential -- >> right. >> a potential transformation from being a grotian moment. so what's the disqualification that sort of -- >> okay. the other thing i need to mention here is a lot of these grotian moments are capped off with a general assembly resolution from the united nations. now, most everybody knows that the security council has the authority to have binding decisions, and the general assembly is just the big debate society of the world. it doesn't have the ability to bind countries. but often the general assembly
1:27 am
will pass resolutions in these grotian moments that are accepted as sort of midwifing if we can use that phrase, new law. the grotian moment principle may explain sometimes general assembly resolutions should be given heightened importance. now, just like a resolution can crystallize one of these grotiam moments, so, too, can an adverse one break it, you know, stop it from blooming. and i think that's partly what happens in the two case studies. >> okay. so let's jump into 9/11. of. >> okay. >> the post-9/11 world. and you focused specifically on drone attacks and targeted killings. >> right. >> there seem to be a, i mean, there was a whole lot of new doctrine that came out of, that came out of the white house after 9/11. >> sure, right. and that's partly the context in which we're talking about. >> absolutely. >> go ahead. >> okay. so think about in time, 9/11 happened.
1:28 am
for the first time, a terrorist organization that is not state sponsored has the technological and organizational and financial capabilities to make a major blow at a world power. 3,000 people are killed, that's as many as died during the japanese invasion of pearl harbor. huge issues. so immediately of after that president bush announces a new bush doctrine. he says you're either with us or against us. if the terrorists are located this your country, we consider you against us, and we will attack you. and then he says that's part one of the bush doctrine. part two is we don't have to wait this -- until we are attacked, we can act preventively. if we think -- >> preemptively. >> and preventively. of. >> yes. so the problem legally with that doctrine was that under international law if you attack
1:29 am
nonstate actors, terrorists or rebels in another state, it is a violation of that state easter to have y'all integrity, and that's a violation of the u.n. charter and a violation of customary international law with a couple of exceptions. but one of them is the security council authorizes it. that hasn't happened with respect to al-qaeda. the second is if you say you're acting in self-defense, you have to show -- according to the international court of justice in the nicaragua case -- that the country whose territory you're attacking actually had control of the rebels or the terrorists, that the terrorists' acts are imputable to the country finish. >> not exactly state sponsored, but state sanctioned. >> well, it's more than just saying they were unable or unwilling to control the terrorists, and that's the current standard we have. so what we were trying to do as the united states was to change the law on it. to say not just you have control
1:30 am
if the acts are imputable, but now if you just lack control, the you're unable or unwilling to control the terrorists, we're going in, and we're going to take care of them. and that's what we've been doing. the bush team did it and then obama ramped it up with all of the predator drone strikes in pakistan, yemen, somalia and ore places as well. >> so you have the technological innovation of the predator drones, the predator drone kind of hardware, although it's really just a plane that fires missiles, and, you know, that's piloted by somebody in nevada rather than somebody in the cockpit. but it's still, i mean, it's essentially -- that technological innovation isn't really as dramatic, not as dramatic as space flight or something like that. and then you have -- but you do have this new kind of threat that hadn't existed before. in the end, ultimately, you say this doesn't count. this doesn't -- is that because ultimately it hasn't changed international law? >> i think there was a moment
1:31 am
when a grotian moment could have formed. and it would have been if we were more careful in trying to define the owls we were trying to promote. truman was very careful in trying to define very narrow rules. bush was not so. so basically the theory he could have had that i think would have worked, and it may still be the theory down the line, is an analogy to the laws of neutrality. ..
1:32 am
>> in a formal manner? >> gave a speech in 2010 at the american society of international law were he propounded the very near greuel that we are designed to give countries a lot of comfort. the problem was that when -- we were not actually obeying by those rules. only use the predators' not -- drawn as a last resort, distinguish between the terrorists and the civilians, minimize any collateral damage, the family members are other people. and then because of mr. snowden who want to talk about again, we have learned that the casualties
1:33 am
of an expensive without their permission we have gone from an area where they gave us permission to operate to the entire country, using these predator drones, and we have not been following, in their opinion, the rule that the legal adviser said out. so, you know, there was another moment where we could have had a version. >> you are kind of a lefty. kind of a lefty. anyway, but i want to put you on the spot you for a second. aviano -- had a line of the you're not just making value judgments? these are doctrines. these are things that i liken these at things that are not right. >> that is solely the problem with any new doctrine. they come with their own baggage. you say i am a lefty. and actually known in academia,
1:34 am
a practical minded person. >> policy conversations. >> yupik issues. >> anyway. we might have cleared it up. >> exactly. you always have to ask that. if someone comes in with the new series. >> nuremberg, that created a force for good. humanity. the continental shelf sheriff's and seems to have created new energy, you know, and about capitalism and the spreading of markets and the economy in economic growth.
1:35 am
you know, you can -- if you are not getting over the environmental about you can probably say that has been a force for good in the world and a force for growth. space travel similarly, there is not allowed to argue. it is after the fact. relaxing people. and, you know -- >> things are not really that complicity. for a sample. and the world of space law, we put geode synchronous satellite on top of countries, and they stay there at all times. spying, doing research, whenever they're doing, but it is valuable real estate. and so if you were someone -- >> the rates down extend down the stratosphere. >> case and where it began as the moment. spaces, the upper levels at a fixed wing aircraft could fly. now, that probably does not make sense today because the virgin
1:36 am
atlantic flights will be going into outer space with their plans and coming back down, but that is where it was. anyway, a lot of these, there were people who were not happy with the change, but it made sense. it happened to crystallize. it did not protest. i suppose the answer is the second case study which i also think would have been one that in the liberal would have loved to have seen. >> talk about that one. this is a humanitarian. >> all right. so humanitarian intervention, in the old days countries like vietnam tried to stop the killing fields in cambodia by intervening. the world said that vietnam, you should never done that maybe its potential.
1:37 am
you can't do intervention unless the security council says you can come in they have the problem of the detail. right now we're back almost where we were with the cold war. everything that we want to do it then syria. so 1999. the albanians. 500,000 of them took to the mountains. started to decrease. that probably would have all frozen and night, and it would have been genocide. we forget that ultimately may be 10,000 people were killed because 500,000 abbottabad were saved by the humanitarian intervention, but it would have been and genocide. we will call it a potential genocide. the united states goes to security council's botox to its allies, russia, china, led to a
1:38 am
security council resolution authorizing humanitarian intervention to save these people. russia was a historic ally. nader says he will do it anyway. when they do, the countries have all these different reasons and rationales. some say we are doing it for humanitarian reasons. the u.k. says this is our right to save people. international law allows this. international law before that would have justified that. the united states was afraid of a new humanitarian intervention role because it could be so easily abused. the u.s. said that this is a new law. it is generous. it is a one time deal. special factors never to be repeated. don't take this. after words almost every country in the world applauded this.
1:39 am
on the road to independence. the u.n. was able to move in, a story with a good ending. the u.s. secretary general says what to make of this, what happens when there is another rwanda. i we going to save their lives and the outlaws? how do we make sense of this? so he said it was a situation that the called unlawful by legitimate. and i am pulling my hair out. as a lawyer. i suppose what it could have been his -- >> it justifies the means. >> and this side of the penalty should be, and there is no penalty. israel those in argentina and kidnaps the nazi was irresponsible for a lot of the holocaust, hiding in argentina. they do that without argentina's permission. they complain that they violated their sovereignty. the security council says, we continue, but then it is silent
1:40 am
on what happened. so is zero bows and prosecutes eichmann. convicted. hong, and no one complained. is that what they're talking about? >> and nice job, by the way. >> but it was not comfortable. so the group was convened in canada, the international committee on sovereignty and intervention. they came up with a new concept as some of you may have heard of other responsibility to protect doctrine. it has this cool bumper sticker freeze. part two t. so the responsibility to protect doctrine. what they said is when the security council was paralyzed sometimes countries are allowed to act alone if they act with the right intentions, if they get out of there as soon as they can, if it is not a land grab. so they created this new doctrine, and the doctrine after
1:41 am
1999 could a blend into the moment. it was right to do so. the problem was, well, to problems, three. one problem is that the u.s. was not comfortable with it. so they have not announced a doctrine with clear guidelines. the second problem is the timing. the united states in beast, and almost every country said it was unlawful. >> that's the thing. remember the claim that the september 11th that was never found, the yellowcake could sit not exist, but there was a simultaneous claim that we had to do it to stop saddam hussein from killing more people because he had killed millions.
1:42 am
on both sides. so -- >> and chemical weapons. the only legitimate argument. >> it was not accepted. the world cup that this was just his war. he had lied his own country into it and there were very unhappy with it. there are afraid now. going to be abused. russia in votes responsibly to protect and it goes to the south of georgia. if we have to do this. this is a land grab, totally abusive. because of all that, the security council and general
1:43 am
assembly finally passed resolutions that endorsed kaj instead of saying, yes, you can do it, your other factors they said it sees this as a political principle that you can never intervene with the security council authorization. so they took of the energy out, and it at that fact. the beginning of the war in syria, starting to come and and make this complicated, almost everyone in the cabinet was ready to intervene. it talked about the legality. and this is an interesting point. a lot of people think when it comes to use of force countries
1:44 am
don't really care, and sometimes they do act outside of what is the awful, but i had this other but. this is my last one. foreign policy in a crisis which is all about of the times when presidents and other foreign leaders decide not to intervene are not to use force because the legal advisers still in that it is unlawful which are stores that most people don't know. >> we only had a moment when something like some lawful. a legal adviser comes up with the rationale. >> but in the u.k. they literally have this debate on parliament. they had a commission coming hearings, they had the former legal adviser of the united kingdom and had resigned in protest of the 2003 invasion saying that it was unlawful. and by a very narrow margin the parliament said, we think it
1:45 am
would be unlawful to intervene. we will not allow you to do that the u.s. is saying, well, maybe we have to ask our congress for permission since u.s. to parliament. our congress is going to say no. so of a sudden because the illegality was so murky it made it much more difficult. >> and the story they you just described explains why all of this actually matters. had that been a true moment in definition, this would be a very different conversation about syrian intervention during that. >> some people will tell you that all of this talk was just a pretext. it was too messy to go when. going to be the new country, government, going to turn into egypt and libya which has not turned up that well. so all of these other reasons as well, but the discussion is about law which is what was interesting.
1:46 am
>> to any of you have questions? i can keep going. >> i think it is just me. >> we have a microphone coming. >> a lot of it comes out. >> this seems to me that maybe it is over simplistic. takes decades in the hands when you need everybody on board, but it is a moment if the u.s. needs it to happen now. tammy, you know, if that was like no romberg, pretty back -- three black-and-white. it starts to seem just out of convenience. to the point where you say, oh, the security council meets to sign off on it. again, you see that it is these major, traditional powers.
1:47 am
>> is this a descriptive concept or normative? and my answer would be that customary international law even when it forms slowly under the traditional elements as this concept of the international court of justice and other tribunals to recognize that certain countries count more, especially effective. think about savannah. you have the big giants heard of elephants that come by. that is the u.s. and the u.k. and russia and china. and then the herd of elephants are going to leave footprints in the path. and then they're going to have a pass that is not as customary with international law. power by repetition. the zero countries don't have the footprint. that was always recognized and even when it took a long time. there is another aspect of this,
1:48 am
and that is that countries can opt out of customary international law by being a persistent objector. so with treaties, if you don't sign it you are not bound. with customary international law when you see other countries doing something at the time is lawful and you say, no, it's not, you have to protest. i suppose you're right, the persistent objector rule does not work so well when things are sped up, but in some respects the united states may think this is a great idea, but governments are trying to be much more cautious about this. they know that there is treaty that they can stay out of to protect there interest. if it grows slowly the next demonstration can lori about that or five down the road, but if it grows within a single administration and they have to be concerned about this. there will probably be pushed back from the very government that you think will be in favor of this concept because there
1:49 am
will be afraid of the implications. ultimately i am giving definition to it. i'm telling people about something in countries that they have ignored. a point you make is true. the way customary international law forms, they are the pioneers that generally generate the new law. >> great question. >> we need a microphone over year.
1:50 am
>> it seems that trying to said it is suddenly a rise in customary law that is a fatal oxymoron and i am wondering why when you were developing your theory you did not simply say that this is a whole new third branch or foundation of international law, i saw the statement of an accepted international norm that would have avoided the oxymoron the still stayed with what i think you are trying to say. in new bottles. >> this is why this story was so important to me. and i was writing the book and thinking about the very question and you ask him that was when the light bulb went off. customary international law crystallizes. that is the term everyone uses. we think of it as this millennial or 100 your process. and what i learned is a you can recrystallize gemstones within one year.
1:51 am
if you can do that to gemstones and still use the concept of crystallization, why not with customary international law would be my -- >> rapid crystallization. >> other questions? >> let's talk about and lord snowdon who has my vote, by the way, for a person of the year, not that that matters. this moment over the last nine to ten months or so has changed our understanding of how state actors be a total another. and many we now know are violating international law and violating the basic understanding of sovereignty, and it is not just the u.s. now it is coming up that everyone is tapping angela marcos' own. it is a metaphor. it is not true.
1:52 am
what is your theory about what is going on here? >> related to this, expected to be smuggled out on the airplane by the bolivian president the united states forced to land. and polybius said, violated our territorial integrity. the president's aircraft is like our country. bnl was not happy. there were reluctantly -- i don't know what we promised them. bolivia was mad. we will take this to the international court of justice. you know, new international moment. the other thing, usually the discourse between countries is all caps secret. so they practiced.
1:53 am
it's hard to find some times. presidential statements and press releases and so forth, but now we know all the cable traffic that has been going on. we know that much more. >> but it is the same sort. >> so i think the fact that all of this stuff has to bunt -- suddenly been brought to light is going to cause all sorts of just shock waves through the international system. it could be that we see new law created by it. countries my say to the united states, we want a memorandum of understanding that you pledge and because of this event which is technologically and politically driven, it could be the formation of some new law,
1:54 am
some transformative moments. >> do you see the international law community in the circles in which to operate talking about this? >> yes, but they are talking to faced. the countries are upset and want to do something about it. yet as you pointed out, it was not just tapped by obama but have the other countries in the world that have the technology. everybody as part of national security is doing a lot of this. >> we don't want it done to us, but we want to keep being able to do it to you. >> in general i would say that the internet could create a new moment because so much is happening. the ability to intercept a communication in just a real question of what we are willing to live with. do we have an expectation of privacy anymore? if that changes for constitutional purposes we have a moment, but it could be one that is just broader than the u.s.
1:55 am
>> other questions? >> as this book been received? >> i no there is something on the back this is this is not as safe book. >> my good friend. >> your good friend. >> i am glad he did that. he said the very provocative thing. the book has been launched. all of the major players at the international tribunals were still there. at think they're going to start setting this in their decision. then we went to washington d.c. sean murphy, a u.s. member of the international law commission, a u.n. body that is codifying international law has a debate. he said that the commission has taken a the study of the formations as the first time ever. and in the draft study, paragraph one is the citation. there are debating and
1:56 am
discussing. sean actually liked most of what i was saying. he had some quibbles. that is on youtube. then i went up to new york. we got to have our discussion. his major point was the one that you were making in the audience. he thought that the moments were undemocratic and basically customary international law was a bit undemocratic. i am not going back far enough. i am basically describing something that he thinks is probably a tactic. many of the things in there, including the importance of customer national lawyer endorsed. we have a great discussion. basically the book is hot right now. i hope the general audience that is out there watching and even on lawyers will read the history
1:57 am
chapters, the chapters on humanitarian intervention and on the targets killing because that stuff is written for a general audience. it is so important and relevant to today's events. ♪ what do you think about your friends point, you are just describing something and maybe go bad. is it could go bad? where you come down? are these good for the world of bad for the world? >> i think these things happen. lightning strikes, girl bad. i think that it is important that you have to study it and bring into light. you cannot ignore it because you're basically having a distorted view of the law if you don't recognize that there is this third element that is affecting the rapidity, the velocity of the formation of customary international law, but i am ambivalent, conflicted. >> what's next? >> what's next, well, a book on
1:58 am
piracy. >> high seas piracy. >> yes. the problem right now. >> i thought johnny depp was going to be in that. guess that's why americans like is some much. >> staying at home a little bit. but my right. it is in my blood. >> the fundamental change. the author, thank you so much. [applause] >> you're watching book tv, nonfiction authors and books ever president has blurbbed
1:59 am
2:00 am
on the front. thanks for being on book tv. >> peter schweizer argues contrary to popular belief big money interests do not control politicians. he says that it's the politicians who extort money from corporations and other wealthy groups noting that members of congress often introduce legislation for no other reason than to get donations from groups that will be impacted by it. this isab


info Stream Only

Uploaded by TV Archive on