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HIRO MIYAZAKI: Welcome everyone, it is really great to see you all today. We have all-star lineup today. So I'm not going to speak too long. But I see you all agree the topic is both important and timely. So for those of you who don't know me, I'm Hiro Miyazaki the director of the Mario Einaudi Center for International Studies. I'm also a professor of anthropology here at Cornell.
Today's event is the latest in Einadi Center's Lund Critical Debate Series, which brings leading thinkers and scholars to campus to interact with Cornell faculty and students for public discussion on urgent international issues. The series is made possible by a generous gift from Judith Lund Biggs of the class of 1957. We are grateful to Judith for her vision and her support.
This semester we will actually have two Lund Debates on related topics. On April 23, there will be a discussion about North Korea. So please stay tuned for further information on that event. It is my privilege to introduce the moderator for this afternoon's discussion. He will then introduce our guest speakers and our Cornell faculty commentators.
Professor Matthew Evangelista is the President White Professor of History and Political Science in the Department of Government at Cornell. He's also the director of the Judith Reppy Institute for Peace and Conflict Studies at the Einadi Center. His research interests include international humanitarian law, separatist movements, and gender and conflict. He also has written extensively about the relationship between law and war.
In fact, last year, he co-edited a volume Do the Geneva Conventions Matter? with Nina Tannenwold. Please welcome Matt Evangelista.
[APPLAUSE]
MATTHEW EVANGELISTA: Thanks very much, Hiro, for that generous and detailed introduction. I've already told the panelists I'm going to do nothing like that for them in the interest of having us hear them and also to give me a moment to introduce our topic. Thanks very much, all of you, for coming to hear about a debate on the relationship between international law and the behavior of states, especially their decisions to go to war. It's a debate of the sort that we have here in the university setting.
Really, the only proper way of having a debate is on a question that doesn't lend itself to easy yes or no answers that you can't say pro or con on the question. Because that's not the nature of the important questions that we discuss here. This particular debate on whether law can contribute to the prevention of war, as you know, is based on this fascinating new book called The Internationalists, How a Radical Plan to Outlaw War Remade the World.
And so we're welcoming, among our participants in this discussion, the authors Oona Hathaway and Scott Shapiro, both professors of law at Yale University. And we're having as respondents to local specialists Isabel Hull of the history department and [? Ian ?] [? Zoline ?] of the law school. You can read about their more detailed biographies, their fancier titles than the ones I gave them, and the relevant books they've written in your program.
But I just want to say, about another minute more, on the importance of this topic. We know that law plays an important role in international life because we see states engaging in negotiations over treaties.
For example, we have treaties on climate change, we have treaties on trade, and even though they come under criticism and some skeptics-- sometimes called realists-- would argue that they really don't matter, that they only reflect the distribution of power among states. We have the sense that there's more going on and that they do have more importance. And that's partly what this book and what this discussion is intended to engage.
The point that treaties can be focal points. Treaties can represent the aspirations of people. And treaties can actually have an impact on the behavior. The particular focus of the book is the 1928 Peace Pact, as it was called at the time. It's come down in history as the Kellogg-Briand Treaty usually. And there's a fascinating discussion of where it came from. But the discussion in the book actually spans several centuries. It relies on research in many languages. And it's a very engaging read.
The authors, our guests, were generous enough to donate copies of the book. And so there are still some more outside. I would encourage you to pick one up and read it.
Why is this topic still important? It's because we still have treaties that, in some sense, are aspirational , but we also hope will have a meaningful effect. Just last June, for example, 122 states signed a treaty prohibiting the production, stockpiling, and use of nuclear weapons. 122, I always ask my students, is that a large number or a small number? It's a large number among the states-- members of the United Nations.
What about the treaty itself? It's a bit paradoxical to have a treaty like that when we also have leaders of countries, such as North Korea and the United States, issuing threats to use nuclear weapons. Can we expect the treaty to have any effect in that kind of environment? The answer is maybe. And if we look at history, we can see the role that treaties have played in influencing the behavior of states.
But what we have in mind then to address this question in this historical context is to have Scott and Oona start with a presentation of the argument of the book. That will last about a half hour. And then, [? Itsy ?] Hull and [? Ian ?] [? Zoline ?] will respond with about 10 minutes of reactions. Then we'll open up the discussion for questions and comments from the floor allowing our panelists to respond. And then, the two authors will have some summary comments at the very end. And we wind up by 6:00. So that's the plan.
Thanks again so much for being here. And so now we'll hear the presentation starting with Scott.
SCOTT SHAPIRO: Well, thank you so much for the introduction, for the invitation. It's really an honor to be here. And wow, this is a really nice auditorium. Thank you.
So our book, The Internationalists, is about the origins of the modern international order. It's about the people, the internationalists, as we call them, who helped to build it and why, we argue, despite its imperfections. It's crucial that the international order be defended now more than ever. The basic central argument to the book is that the origins of the modern international order could be traced to a specific date in history, August 27, 1928, when the world leaders gathered together in Paris to outlaw war.
And as Professor Evangelista mentioned, the treaty that was signed that day, which, now, we call the Kellogg-Briand Pact after Frank Kellogg, the US Secretary of State, and Aristide Briand, the French Foreign Minister-- though, in the book, we call it "The Peace Pact"-- has either been forgotten. I mean, most people have not heard of it. And the people that have, have treated it as a consummate example of diplomatic folly, of dangerous idealism in international law.
Tell you the truth, when Oona and I taught international law together before we wrote the book, we also treated it as somewhat absurd. It just seemed kind of ridiculous that you could get rid of war by signing a piece of paper. But, through the course of our research on what we thought was a completely different topic-- on the history of economic sanctions-- we discovered something we really didn't expect.
Rather than being ridiculous, we discovered that-- or at least we claim-- that the outlawry of war was transformative. And 1928 represents, if you will, a hinge in history, where one world order ended and another one began. In short, and I'll expound on this in a bit, before 1928, war was a legitimate tool of statecraft. It was the way in which states enforce their rights against each other.
Indeed, much to our astonishment, we discovered that before 1928 war was legal, but economic sanctions by neutrals was illegal. After 1928, this flips and it flips very, very quickly in historical terms. War becomes illegitimate, indeed criminal, and international and economic sanctions are the standard way in which international law is now enforced the world over.
Now this tectonic shift in history, which we describe at pivoting around 1928 and the signing of the Kellogg-Briand Pact, we describe in the book, but we describe it narratively, through the group of people, which I mentioned before, we call "the internationalists", who fought long and hard to outlaw war.
Most of these people-- let me-- did that go off? Yeah, most of the internationalists we had never heard of. But the more we learned about them, the more we were inspired, amazed at their brilliance, their vision, their determination, their canniness in being able to take their ideas and translate them into action. And the other group of people we discussed, we call "the interventionists", people who also fought long and hard to preserve the moral and legal status of war.
And one of the things that we found most interesting about the project is that it upended, really, virtually everything we thought we knew about international law. So, you know, when you do international law, one of the great-- the father of international law, the so-called father of international law, Hugo Grotius, who is a 17th century Dutch lawyer humanist philosopher. He is treated as a great humanitarian and one of the princes of peace.
I was just mentioning this to Professor Evangelista because he is the Andrew Dickson White professor. And, as you know, Andrew Dickson White was the first president of this university. And he, actually, Grotius was one of his heroes. In fact, one of his portraits of Grotius that he went to Europe to get, now hangs in the library. Well, actually, as you'll find out in the book, Grotius was no great humanitarian. He was a really irritating corporate lawyer who worked for the Dutch East India Company to enrich his cousin and the Dutch East India Company. Sorry about that, Matt.
So the book has three parts. The Old World Order, which is the name that we use to describe the system of international relations and international law that existed before 1928, where war was illegal and might was right. It was brutal, bloody and unjust. The Transformation describes what happened right after 1928, when the internationalists were successful in outlawing war. But unwittingly unleashed chaos upon the international sphere as states scrambled to figure out-- if not war, what?
And then, finally, the New World Order, which starts from 1945, describes the surprising success of the internationalists and why, despite its imperfections, a world in which war has been outlawed is a more peaceful and prosperous one as a result. OK, so let me talk about the Old World Order, and then Oona wil come up. She'll talk about the Transformation and the New World Order.
I think the reason why most people-- at least for kind of introspecting, at least for me-- the reason why it seems so absurd to think that you could do anything by outlawing war is because I think we fail to appreciate the crucial role that war used to play in the international order. Today, we think of war as being the consummate breakdown of the international system. Whereas, before 1928, war was the system. War was the legal way in which states enforced their rights against one another.
And we begin discussing the Old World Order through the work in February 25, 1603, off the coast of Singapore, when the Dutch merchant and explorer Jacob Van Heemskerk captured a Portuguese carrack and dragged it all the way back to Amsterdam where he sold off at auction for 3 and 1/2 million Dutch silver gilders. Now, in order to justify this seizure, the Dutch East India Company hired a 20-year-old lawyer, named who Hugo Grotius, to defend the Company. And it turned out that Jacob Van Heemskerk, the pirate, was also his cousin.
And in the course of this assignment, Grotius developed what would become the intellectual foundations of the Old World Order. The basic principle of the Old World Order is what we call the remedial conception of war, which is that war is a permissible remedy for wrongdoing, which is to say that if a state had been wronged and demanded reparation, demanded that the wrong be righted, and the state who had committed the wrong refused to right the wrong, then, as a last resort, the victim state could go to war in order to right that wrong, in order to repair the injury.
Now this may seem kind of bizarre, the idea that states can go to war in order to right wrongs. But, in some sense, it shouldn't be understood from the international perspective. And the argument that Grotius made was, when we are wronged and we live in a state, we can go to the state, we can go to the police, we can go the courts, we could hire a lawyer, we can sue. We can do something using the machinery of the state in order to have that wrong righted.
Unfortunately, if you're a state, you're a sovereign state, and you recognize no higher authority, there is no Supreme Court of the world that you can appeal to, no world government that's going to right the wrong for you.
So Grotius said, and this is from his treatise, The Law of War and Peace, "when judicial settlement ends, war begins." So the idea is that war is like going to court, but when there's no court. Now, Grotius meant this very, I mean, almost literally. Because his argument was that not just the wrongs of invasion or self-defense, but any legal wrong whatsoever you could go to war in order to enforce that right that had been infringed as a last resort.
He says, "the subject matter is the same in warfare as in judicial trials." And he counted as the [INAUDIBLE], the just causes of war are not just self-defense but the collection of deaths, the recovery of property, compensation for accidents, the resolution of dynastic disputes, to seek redress for treaty violations, protect the freedom of the seas, to punish crimes. Now this just was not Grotius' idea. He was, in some sense, describing past practice. So he was systematizing it.
But, in fact, this turned out to be state practice going forward. One of the ways we verified this is that we collected these documents called "war manifestos", which were legal justifications issued by sovereigns, which set out their just causes of war. And what we found was that all these justifications that we would think to be quite absurd today and reasons for going to war were, in fact, routinely used.
We took all these manifestos and we put them online. So if you went to our website for the book, theinternationalistsbook.com and look under the data section, we have over 400 war manifestos from 1491 to 1945. And, you know, war is a terrible thing. But some of them are fun to read. And so if you have some time on a snowy Friday or Saturday, you might want to take a look at them.
OK, so this is what we call the Old World Order. And I'm going to run through it very quickly. The fundamental-- the basic core-- idea, which I just set out, which was the privilege use to use force, which is a right to wage war in order to enforce legal wrongs. Now, as this diagram shows, it wasn't just a legal permission to use force, but the Old World Order provided states a whole set of rights and responsibilities that made that privilege to use force valuable.
So the most important one, and the first one which we mention, is the right of conquest. What was the right of conquest? The right of conquest was that if a state had wronged another state and that state demanded reparation and reparation did not come, that state had the-- not just the privilege to use force, to invade, and to seize property-- but also had the power to acquire that territory as the sovereign, owned all the public land, and became the new owner. And that was not just the de facto act of conquest, but it was the de jure, the legal right of conquest.
Most people don't realize that California and Nevada, Arizona, New Mexico, part of Oklahoma, basically 500,000 square miles of Mexican territory was seized in 1846, 1847, 1848 by the United States with the official legal justification that Mexico owed $2 million to the United States. In fact, Mexico did owe that money, we tell the story, the United States tried to get it back for 20 years. And then seized what is now the southwestern part of the United States as compensation.
This was not the act of a rogue imperial power. This was the ordinary behavior of states when you could go to war in order to collect debts. So if war is legal, conquest must be legal. Because that's the way in which war is made valuable. Now, if war is legal, then another thing follows. Then it must be the case that threatening to go to war is legal. And this legitimated the practice, which we call "gunboat diplomacy".
So in the 19th century, when Japan refused to trade with the West, the West claimed that that was a violation of its legal obligation to engage in global commerce. And Matthew Perry sent his Black Ships. And this is the Japanese rendition of the Commodore Perry's Black Ships, the steam boats with large guns, and threatened to destroy Edo Harbor, that is Edo Bay, Tokyo Bay, unless they signed a treaty of friendship.
In the Old World Order, treaties signed through the barrel of a gun were legally valid. In fact, to violate that treaty was a justified cause of war. Now, if war is legal, then there can be no crime of aggression because you can't be prosecuted for doing something you're allowed to do so.
Kaiser Wilhelm II, after the first World War, the victors avowed in the Treaty of Versailles to prosecute the Kaiser for waging an aggressive war. And the Netherlands would not give him up on the theory, which was quite correct, that starting World War I was not a prosecutable offense.
And finally, and this I mentioned at the beginning, if war is legal, then states cannot favor one side over another. That is neutral states cannot favor one belligerent over another. That's the-- we call the strict duty of neutrality, which prohibits favoring one belligerent over another.
If some of you have seen Hamilton or heard the soundtrack "Cabinet Battle 2" is all about the strict duty of neutrality, the idea that the United States could not favor France over Great Britain in the war. Because to do so would be to violate the duties of neutrality and would be an act of war. So economic sanctions in the Old World Order were illegal. They were acts of war. Even if nobody fired a shot.
So just to sum up, basically, this is the picture that existed before 1928, where there's a privilege to use force and then there's a right of conquest. It is basically a license to kill in war. There's the power of gunboat diplomacy. And neutrality is understood to be strict impartiality, thereby prohibiting the use of economic sanctions. And that, as Oona will now explain, will all change.
OONA HATHAWAY: Thanks, Scott. And thanks again for having us here. So I will briefly discuss the next two parts of the book. The middle part of the book talks about the transformation from this Old World Order. Because you should be thinking as you're hearing this story that Scott's telling you that this is not how things work today, so how did it change? And the middle of the book really tries to explain what changed, how it changed, what were the reasons for that change. And then the last part of the book talks about the New World Order. So I'm going to say a little bit about each one.
So the transformation really gets a start in an unlikely place. A character we've never heard of before, his name's Salman Levinson. He's a bankruptcy lawyer in Chicago. He really had nothing to do with international law or international relations before in his life. But he has two fighting-age sons. And he's concerned with trying to find some way to prevent war from breaking out again.
In the midst of World War I, he begins thinking about this question. And in 1917, he begins to develop putting his ideas down on paper. And he develops this idea of outlawing war. Now, lots of people are trying to think about how to prevent war at this time. There's talk about disarmament treaties. There's, of course, thought about putting in place the League of Nations. So there's a lot of other ways in which people are beginning to think about how to bring about peace.
But he is the one who really has this idea that the way in which you can bring about peace is by outlawing war, which seems like kind of a crazy idea, and I think was seen as sort of a crazy idea at the time. He wrote, "The real disease of the world is the legality and availability of war as the court of first and last resort to protect criminal nations and their breed of aggression. We should have, not as now, laws of war, but laws against war, just as there are no laws of murder or of poisoning, but laws against them."
So this is an idea that he has. He founds an organization called the American Community for the Outlawry of War, which is a non-governmental organization that works all around the country to spread this idea. He works with politicians, with idea leaders, to get this idea into the zeitgeist, to get people to understand that this is a way in which we might be able to prevent war from once again breaking out.
He's not alone in this. There are many other people that he is in conversation with and that he, sometimes, disagreeing with. One of them is James Shotwell, who's a medieval historian at Columbia, who also is working hard to end war. He latches onto this idea of outlawing war, though he had some different ideas about how to do it. He thinks that Levinson is mistaken to think you could just outlaw war without thinking about what the machinery is to put in place to make that actually function.
He wants what he calls "outlawry with teeth". But he basically shares this vision that outlawing war is the way in which we could, in fact, begin to see an end to war. So there are a bunch of people-- and this is why we call the book The Internationalists. What we're fascinated by is these people who have this idea, this conviction, that there's a way to end war and who try to spread this idea and work hard to make it a reality.
Levinson and the various outlawists spread this idea around the world. Shotwell, in particular, takes the idea to Europe. And he gives a series of lectures. He also meets with Aristide Briand and shares this idea with Aristide Briand, this thought-- maybe the thing that we could do to prevent war is to outlaw war. Now Briand gets excited about the idea, not so much because he sees the power of it, although I think he does, but because he sees in it a way to pull the United States into a closer relationship with France.
The United States has been resisting entering into treaties of friendship with France and into alliances with France or any European powers. The United States at this time really does not want to be pulled into a series of alliances with European powers after World War I. And so, Briand gets the idea, well, maybe what he should do is propose a treaty to the United States that they'll outlaw war between the two of them. So even if the United States won't enter into alliance, maybe it will enter into this kind of an agreement that's to say, we won't go to war with each other.
And so he brings this idea to Briand. And Briand decides to propose it back to the United States, which makes Kellogg-- who's, then, the US Secretary of State-- incredibly angry. Because he feels like he's being tricked into looking bad. Because either way, things go badly for him. On the one hand, he's desperate. He really doesn't want to enter into any special relationship with France. On the other hand, saying no to an outlawry of war treaty seems like he's trying to preserve the right of the United States to go to war with France. So he feels boxed into a corner.
His solution is to propose, just to try and outmaneuver Briand by making it a proposal for a general treaty, to open it up to everybody, which he thinks will frustrate France's interest to pull the United States into a special relationship. And he's right about that. Initially, Briand gets very upset about it. But he, too, decides it's better to have the United States in an agreement with us and many others to outlaw war than it is to have nothing. And so they agree to this.
So this is Briand-- this is him at the time that the two of them are negotiating this idea. And Shotwell, having spoken with him, he then writes this article in The New York Times, which makes Kellogg pretty upset but ultimately does lead to the signing of the treaty and the Kellogg-Briand Pact in 1928. They hold a big celebration in Paris. There are 15 nations that gather together in this very fancy signing ceremony that the book starts with.
And by the end of the year, it's the most ratified treaty in the world. Nearly every country in the world has ratified this treaty to outlaw war. And it's widely celebrated as an extraordinary step in international relations, as an opportunity to begin to reverse the course after World War I.
The agreement itself says, "The High Contracting Parties condemn recourse to war for a solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another." Now, looking at this from modern eyes, it doesn't look all that remarkable. But if you view it against the backdrop of the history of everything that came before, it is pretty remarkable.
Because up until this point, war really had been the central way in which states resolved their controversies, resolved their disputes, and they are renouncing that right in this treaty and recognizing that they're no longer going to be able to use war to resolve their disagreements or to resolve their controversies with one another.
And so, while this was the Old World Order, as Scott said, the privilege to use force is at the core and all these rules follow from it. In the New World Order, this core rule flips-- is our claim. Because where the permission to use force is now the prohibition on force, each one of these has to shift too. Now, what's interesting is that they didn't fully appreciate this.
Part of what's striking is how little they understood about the full consequences of the decision that they were making. They understood they were outlawing war, but it appears they didn't fully appreciate how many rules rested on this idea of war as a legal mechanism for righting wrongs and didn't fully appreciate that the rest of these rules were going to have to change as a result. And so a lot of the book, the central part of the book, is telling about how they begin to figure this out and try to work out the rules that are going to support this new legal order.
So one of the first moments at which they're confronted with the reality of the situation and how difficult it is going to be to make this commitment work is Japan's invasion of Manchuria in 1931. So they've just outlawed war. Japan was at the fancy signing ceremony. They signed on the dotted line renouncing recourse to war, and then they go to war. And the world is really perplexed about how to respond to this. Because, they, of course, just signed a treaty saying that they won't go to war with one another.
So how are they going to enforce this commitment? How to they enforce the Pact of Paris, which, itself, doesn't have any enforcement mechanism built into it. It doesn't say how to enforce it. It takes them some time. So at first, they send an investigatory committee to kind of find out what actually happened, who was actually at fault. But they end up determining, yes, Japan, they were the aggressors, that they were at fault. And then they have to figure out how to respond to that.
And they come up with an idea, which is the beginning of this modern idea of economic sanctions, which is known later as the Stimson Doctrine. And many of you are IR students, you've probably heard about the Stimson doctrine. Or if you haven't, you will.
And the Stimson Doctrine was first enunciated by Stimson in his notes that he sends to Japan and China stating that "the American Government does not intend to recognize any situation, treaty, or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris." The League of Nations very quickly follows suit. So what he's saying here is, yes, you can take the land, but we're not going to recognize it. We're not going to recognize that this land is now part of Japan or belongs to Japan.
This is a pretty revolutionary move. Up to this point, generally when states took territory, if they effectively establish control over that territory, even if they were waging war for what wasn't actually just cause, that conquest is generally recognized as legal and legitimate. But, in this case, this is the first moment to which the world says, no, if you are engaging in a conquest that is against the rules of the Pact of Paris, which, again, the states here had signed, we're not going to recognize the transfer-- the rights-- in that new territory that you've taken.
So where there was a right of conquest, now there's no right of conquest. So the first square has begun to get resolved. This first new rules has begun to be put in place. In that same set of notes, notice that he says, "the American Government doesn't intend to recognize the situation, treaty, or agreement brought about by means contrary to the Pact of Paris."
In other words, you can't force China into an agreement saying that they recognize this transfer of territory, and then consider it to be a legal and legitimate agreement. We're no longer going to recognize gunboat diplomacy. We're no longer recognize agreements brought about through coercion in that way.
So this is the second piece of the puzzle to kind of fall into place. Where there used to be gunboat diplomacy, now there isn't. This later gets reaffirmed in the Vienna Conventional Law of Treaties. The Article 52 says, a "treaty is void if its conclusion has been procured through the threat or use of force."
Herschel Lauterpacht, who's one of our internationalist figures in the book-- we're not going to say much about him today, but he is an important figure-- he explains that this is really because of the Pact. The rule used to be that it was fine to bring about agreements through coercion, but after the part, which outlaws aggression, that requires also rejecting international agreements that are brought about through aggression. So where gunboat diplomacy had been perfectly legal and legitimate under the Old World Order, now there's no longer gunboat diplomacy because war has now been outlawed.
Third is this question of neutrality. So Attorney General Robert Jackson in Cuba in 1941 is trying to defend Lend-Lease. And he wants to be able to provide support-- the US government wants to be able to provide support to the Allies. But they're facing resistance from those who are worried that providing economic support, even more favorable trade terms to the Allies, is equivalent to violating neutrality and therefore would bring the United States into war.
And that certainly was the rules of the Old World Order-- favoring one side in the fight, even if you're just favoring them with more favorable trade terms, is equivalent to entering the fight, violates neutrality. And he says, well, no, the rules have changed. "The treaty for the Renunciation of War by altering fundamentally the place of war in international law, has effected a parallel change in the law of neutrality." And that permits the use of-- to providing more favorable trade terms to the Allies than to the Axis powers and is not a violation of neutrality, because the rules have changed.
So where neutrality used to require impartiality, now neutrality permits partiality. Last, but not least, the crime of aggression. This is an image from Nuremberg, as you all know. After the war, the question is, well, are things different after this war than they were at the end of World War I, when we discovered we couldn't legally prosecute the Kaiser for the crime of aggression?
And the answer was, yes, things are different. The first count in Nuremberg is grounded in the Pact of Paris, in the Kellogg-Briand Pact. They state that because the wars of aggression were planned in violation of the Kellogg-Briand Pact, that's the legal hook. That's what makes this war different from World War I. That's what makes it permissible to prosecute them for the crime of aggression because this is not an ex post facto law. This is not coming about after the fact.
But this is a law that had been in place before Germany was among the many nations that had ratified the Pact. And therefore, its members could be held responsible for waging a crime of aggression. So where there had been immunity from prosecution for the crime of aggression, now there can be prosecution for crimes of aggression.
So again, where the Old World Order had a privilege to use force and all these rules followed from it, in the New World Order, the rules have to shift. And they effectively become their mirror image in the New World Order because of the outlawry of war.
Now just a couple of very brief words about the New World Order, because I want to leave time for the rest of the conversation. But you may be thinking, well, what does this to do with the UN Charter World? And we have a lot about the UN Charter in the book. One discovery we made, that we found exciting, was that during World War II, they are trying to figure out, OK, what are we going to do to prevent this from happening again?
And they convene a group-- Sumner Wells, an Under Security of State, one of our internationalist figures, convenes a group in the State Department to try and engage in planning for the after the war. What are we going to do to try and prevent this from happening again? And he gets a group of people together. And they begin writing what eventually becomes the United Nations Charter. It becomes a first draft of the UN Charter, which then is brought to the International Conference in [INAUDIBLE].
And the very first draft I, found in the archives at Roosevelt Library in Sumner Welles' papers, and it's prepared by JTS, who we figured out was James Thomas Shotwell. The very same guy who ghostwrote the Kellogg-Briand Pact for Briand, back before the Kellogg-Briand Pact was put in place.
And he, in fact, in this initial draft, literally, cut and paste the Kellogg-Briand Pact directly at the beginning of what would become the UN Charter. So the first article was, basically, the Kellogg-Briand Pact gets rewritten into what is today Article 2(4), which is the prohibition on use of force. "All members shall refrain in their international relations from the threat or use of force."
| so, the argument that we make in the book, is that this foundational principle gets reaffirmed and put into a new institutional framework in the UN Charter but that that is the central rule of the modern international legal order. It really gets it start in 1928 with the outlawry of war and the Kellogg-Briand Pact.
I won't say much about this because we're low on time, but one thing you might say is, well, does this actually make any difference in the world? One set of data that we looked to, and there are others-- this is one of the graphs in the book-- is the fall off in conquests.
So conquests, we show, once were quite common. This is the 1816 to 1928 period. This was the average of the amount of conquests a year. In the modern era, much lower, not nonexistent. So it's easy to pick out cases that go the other way. Crimea is in here. But much less common than they used to be. And so it does seem like something pretty important has changed on the ground.
One unintended consequence of this transformation. And just so-- lest you think that this is a story about everything has changed and all is wonderful in the world and, you know, there's nothing left to be fixed-- one interesting unintended consequence of this is that even as there's been a massive decline in inter-state wars, there has been an increase in intrastate wars-- that is in civil wars. And that's one thing that we show and we document.
And at least one possible reason for this is that failed states and weak states can continue to exist in this legal order, because they're not subject to conquest. And these failed states and weak states often do descend into civil war. And so one of the real challenges of the Modern Legal Order is how to shore up the state institutions of many of these weak states. How to try and provide them with the tools that they need to more effectively govern their territories and prevent descent into violence. And that's at least one of the projects of the Modern Legal Order that remains to be addressed.
So just a last word, you know, part of what's fascinating about this, and we haven't really been able to talk much about them here because we wanted to give you the kind of basic intellectual architecture of the book, but the book really is about people and their ideas. Levinson, Lauterpacht, Shotwell, and Sumner Welles, and many others that they worked with, who had this deep conviction that there was a way to end the war and that law could be used to end war.
And we think that they-- while didn't create a perfect system, really did manage to change the world for the better. So that's the central argument of the book. And I look forward to the conversation.
MATTHEW EVANGELISTA: OK, so I think it was fair to characterize that as the pro argument. The authors argued in favor of the argument they made in their book, which we invited them to do. Now we'll turn to more critical responses, starting with Professor Hull, please.
ISABEL HULL: Thank you. Let me just say that I agree with my colleague Matt. This is a really interesting book, and you should go out there and read it. I'm going to spend my time in the Old World Order, which I think is intimately connected with the events of 1928 and beyond.
Can law prevent war? Sure, it can. But it doesn't necessarily always work. And so the question is, how does it work and why? The 19th century theory-- or one theory-- was that law worked because precisely of force, that you needed sanctions to uphold it. We now, of course, recognize that sanctions are of a much sort of broader palate than bopping other states over the head. There are other things that one can do. But states also obey law, and including curbing war, for positive reasons. Because they recognize it, for example, as law, as binding, as an obligation that a state has to the state community. And reciprocally, that other states have to it, which is, of course, fundamental.
How does that recognition come about? It comes about partly because it is in the interest of most states, most of the time, to do this. And because the states themselves are, among other things, the legislators of the law. And were very indebted to the authors, I think, for shining a light on the activity of civil society and helping to bring this process about. And they've done an excellent job in doing that.
But in my view, there's a much longer history of curbing war, which reveals the role, not simply of civil society, but of states, of state leaders, of diplomats, and also of military men in doing this. So I'm going to take a look at-- very, very briefly in my 10 minutes-- at curbing war prior to 1914. Because curbing war, it seems to me, is the result of a century's long process of very difficult and uneven learning.
And I'm going to start completely arbitrarily with 1648, the end of the 30 Years War, the wars of religion. In which, for Europe, religion was removed as a valid reason to go to war. It was simply taken off the plate. But that's not enough to prevent such wars from breaking out. So that what happened was that mechanisms of justice parity between Catholics and at least two Protestant groups were put into effect. Systems of adjudication, two different systems of law courts, were put into effect. And the guarantees of great powers of the peace that was then put forward in central Europe meant that proxy wars were going to be pretty much out of the question there.
If you jump to the next big event, it would be the Napoleonic or post-French Revolutionary Wars, which didn't go on for 30 years, but they went on for 23 and tore up the pea patch pretty significantly. And at the Congress of Vienna in 1814 and 1815, they set about curbing war in different ways. They reached collective agreement to settle difficult issues like Poland and Saxony. They drew borders and then froze them, which guaranteed the existence of small and middle-sized states against conquest, precisely.
They drew up the principle-- and actually institutionalized it-- of frequent security meetings, conferences, and congresses. And they adopted the principle that, yes, change will happen, but it will only happen if we all meet and agree about it. And this series of mechanisms and principles that were accepted by great powers, middle-sized powers, and small powers, produced the relatively peaceful 19th century-- understood in the long sense down to 1914, the outbreak of the First World War.
But there were, of course, lapses that happened in the 19th century. And it's instructive to look at those. There were four wars that were due to changes or disputes in areas that were on the periphery of these agreements, which is to say, in the Ottoman Empire. There were six wars of Italian and German unification, which came about under the cover of the principle of national self-determination, which had been agreed on and actually recognized at the Congress of Vienna.
And there were, of course, the Colonial Wars, which, again, were outside the purview of the rules of the Congress of Vienna. Nevertheless, the 19th century sees an ongoing development of different ways to curb war. In 1907, Russia's military representative to the second Hague Peace Conference, General [? Yermalof, ?] pointed out that these curbs were being understood in a kind of systematic way.
And he told his fellow delegates that states had already produced international legislation that succeeded in limiting-- or rather circumscribing-- war as to space. And here he's referring to neutral states that are off limits. He referred, also, to proper military object, which is to say the distinction between combatants and noncombatants. And he proposed, also, to do it in terms of time, which I can't go into because I don't have the time.
But in addition of this, and what you see when you-- when I look, at least-- at the 19th century, is a growing trend of state action. For example, a wave of bilateral treaties in which the signatories agreed that they would not use force against one another. A very strong interest in both mediation and arbitration as a substitute for war, which culminated in 1899 in the first establishment of an international court, the Permanent Court of Arbitration, which still exists and still works.
The rejection of the use of force to collect state debts, which was one of the things you might have seen on the board in the Old World Order. And the requirement that you declare war before, in fact, engaging in it, this is in 1907.
And the purpose of that, as the French representative said, "was that the difficulty of definitively stating reasons and the necessity of advancing reasons not well substantiated or out of proportion to the gravity of war itself will naturally arrest the attention of neutral powers and enlightened public opinion", which is to say, it will embarrass the hell out of wrongdoers and possibly act as a deterrent. Or in fact, and this is actually said, cause states to act in such a way as to punish or, in some way, do sanctions against a belligerent of that kind.
Now obviously, the hopes of the world in curbing war, or curbing large wars anyway, ended in this period at least, in July and August, 1914. But there was the widespread expectation at that time that Germany and Austria would, in fact, submit to arbitration and mediation. And there were at least five public attempts, in fact, to initiate that process. Germany rejected arbitration on principle as incompatible with great power status and sovereignty.
And in my view, what Germany was advancing here was an alternate theory of international relations and international law against the one that was, in fact, the main stream, which was moving in the direction of greater and greater curbs on war. Austria announced that the Serbian question was, quote, "not a European question." And, as I said, Germany rejected great power mediation, quote, "as an arbitration court."
Their rejection of arbitration or mediation convinced Allied and Neutral opinion alike of their guilt in starting the war. That was the foundation of the really draconian stuff and the armistice and also in the Treaty of Versailles, which laid the groundwork for the legal order in post-1919. This, in my view, is the longer background to the Kellogg-Briand Pact. To make law work, it seems to me, it must be consolidated through a long and uneven process driven by state practice, by statesmen, diplomats, military men, agreements-- bilateral and multilateral, public opinion, NGOs, international courts, now, and active civil society.
But as in the case of Germany and Austria, as they show, there is going to be opposition to this. And so from the dustbin of the 19th century, let me pull out three things-- three causes of opposition. One is if states lose their temper at not having their disputes settled over a long period of time. That's the Austrian case, which did not reject international law or the consort [INAUDIBLE], but in relation to Serbia. It had lost its patience.
Or if, number two, states develop-- I would say, usually, for internal reasons-- counter-assumptions about sovereignty or states' rights or superiority, which cause them to become, quote unquote, "revisionists", which is to say that they reject the rule of international law altogether. Or if there are non-regulated areas, which in the 19th century were the colonial areas, the Balkans, for example, and nowadays, the civil wars-- that Oona mentioned-- which then slop over and undermine the interstate community as, unfortunately, the Syrian Civil War has done in our day.
MATTHEW EVANGELISTA: Thank you. Jens?
JENS D. OHLIN: So first off, I want to congratulate the authors for producing just such a remarkable book. It's fascinating to read. The stories in it are really compelling, and the theoretical argument is very rich in it's interdisciplinary approach. It very skillfully weaves together law, history, and political science in a way that I don't think I've seen in a book before. So it was really a tremendous accomplishment.
Another thing that I really adored about the book is the degree to which it brings questions of the use of force to center stage. And that's a kind of refreshing change, I think, to contemporary discourse. In today's world, everyone cares very deeply and is disturbed by the horrors of warfare. But in contemporary discourse, the language of war crimes and the restrictions on the conduct of warfare have very much sucked all the oxygen out of the room.
So that when we talk about war, whether it's in Afghanistan or in Iraq or in Syria or elsewhere, we're inclined to focus on whether or not the particular military engagements have complied with the laws of war. And I spent a long time on the phone with reporters. And inevitably, the question they want to ask is, well, was that a war crime? And they very rarely ask whether or not the armed conflict was initiated in a just or lawful fashion.
So one of the things I find very refreshing is the way this book, I think, is a corrective that can reorient our discussions and bring back use of force questions to a central place, both in scholarship but also in political discussions as well.
Now, moving on to the central claims of the book, one of the most common reactions to the book's argument that you've seen in the many reviews that have appeared in the nation's leading newspapers which have reviewed this book often is that the book fails to give sufficient credence to what comes later after the Kellogg-Briand Pact and fails to give sufficient due to the negotiation and the drafting and the passage of the UN Charter and the creation of the Security Council.
So if there's a particular date that people focus on in their criticism of this book, it's to say really the most important date here is 1945. It's the creation of the security regime that's embodied in the UN Charter and the creation of the Security Council, that's really the turning point for history. It comes later. And this book has sort of moved it too far earlier in history.
And I have a different reaction. My inclination is to say that what the argument in the book fails to give sufficient credence to is the restrictions on the use of force that existed before the creation of the Kellogg-Briand Pact. And in saying that, I think I echo what Professor Hull was saying and in her remarks.
When I think of the natural law era, what Professor Shapiro very skillfully described as the Old World Order, I like that phrase very much. I like to think of it as the natural law era because it was an era when international law was based around the idea that law could be discovered through natural law, through reason, and had a deep connection to morality as opposed to today's world, where we think of law as being sharply limited by the positive sources of laws. You look to written sources of law. You look to you look to treaties. You don't look to what philosophers are sort of musing about and writing in their lofty treatises.
But in the natural law era, including [? in Grotius, ?] there were substantial constraints on the use of force. And some people make it sound, when they read Grotius, as if states could simply assert any reason for going to war, but that's clearly an exaggeration, as Professor Shapiro and Professor Hathaway point out in their excellent PowerPoint slide, where they were they articulate the principles that guided the use of force.
States needed to point to a particular right that was violated by some other state, some wrongdoing on the part of another state. They also needed to show, in order to justify a recourse to force, that there was some tight connection between the recourse of force and the vindication of that underlying right that was violated by another state. In other words, there was a fairly robust necessity condition.
It wasn't as if you could simply say, well, another state did something wrong and now we're going to launch a war. There had to be some connection between the two. You could vindicate your right by going to war and launching a military attack against the state that engaged in the wrongdoing. And, of course, you couldn't use force cavalierly. It had to be a requirement of last resort if nonmilitary measures were somehow ineffective.
Now, of course, that was all mentioned on the PowerPoint slide. And none of this is, I think, anything that Professor Shapiro and Hathaway would disagree with. So there's almost a kind of Rorschach quality here to my disagreement. Where they look at those particular principles and see simply license to go to war, I look at the very same principles and I see constraint. I see a whole bunch of rules which say there are limits to using military force.
Certainly, there were more reasons that could be marshaled in favor of armed conflict during that period. But those licensing principles, to me, look a lot like constraints. There was a limit on the arguments that could be used to justify the use of force. Now, of course, there is, inevitably, a problem of pretext. States during that period could simply marshal a bizarre claim of a right that was violated and then say we're going to war. And in so doing, they could, I suppose, violate the necessity condition or the requirement of last resort.
In other words, they could point to something that was done wrong to them and use that as a pretext for going to war, when going to war really wasn't necessary to vindicate that right. But, of course, that problem of pretext isn't really special to that era, it's a problem that plagues us to this day, where states will often say, we're going to claim self-defense. And then we're going to go to war. But it's really a kind of flimsy argument. In fact, the United States gets accused of that all the time.
And so, the major change here is a question of who gets to decide and who gets to evaluate whether or not these arguments are legitimate or not and whether or not the criteria have been met before the use of force is allowed? And what you had in that period was a kind of decentralized mechanism, where states had to decide for themselves whether or not the use of force was necessary in order to vindicate a right that was violated by some wrongdoing. And then the rest of the world community could look at that argument and decide whether or not it was legitimate or it was flimsy.
What is the alternative to that kind of decentralized mechanism? Well, we do have an alternative today and that's the creation of the Security Council, which is in the position now of deciding and adjudicating whether or not a particular argument for going to war outside of the self-defense context is legitimate or not. The Security Council, in today's structure of the United Nations, performs a kind of clearinghouse function and adjudicate these questions of whether or not the use of force is appropriate or not.
But all of this is just to say that I think that major switch from a decentralized system to a more centralized system embodied in the Security Council, again, is a product of 1945, which is the creation of the United Nations and not so much a creation of the Kellogg-Briand Pact.
So the last thing that I want to discuss is the question of conquered territory. The seizure of conquered territory and the ability of states to permanently claim a right to conquered territory. The book, I think, has done a really expert and important job of marshaling empirical evidence of looking at these claims of-- or cases of conquered territory. And the PowerPoint slide where you see the reduction in claims of armed conflict that has produced a conquered territory and the reduction in those bar graphs is really quite striking. And it's undeniable.
But the question that I have is really, is that the right question to be asking? It seems to me that if the argument is that we have seen a plan to end war, then the more relevant question to ask is whether or not cases of armed conflict have gone down and to look at the number of cases of warfare and the number of cases where conquered territory itself has gone down is, to me, less connected to the overall question of whether or not war has been effectively outlawed and whether or not it was outlawed on the basis of the Kellogg-Briand Pact.
To sort of pause at a kind of alternate explanation for why there might have been a reduction in conquered territory, we live in a world today where it's simply become less relevant how much territory you have. States very much care about their own interests, and they care about influence, but the era of projecting your influence by seizing territory has gone down.
But I don't think it's gone down because the law has had something to say about your ability to use war to conquer territory. I think it's gone down because the way the world works is very, very different. States simply just don't have an interest in conquering large amounts of territory. And that's not very surprising to me because, in some sense, governing large amounts of territory is as much a burden as it is a benefit. It's a huge drain.
And it's a much better system to project your sphere of influence over other sovereign states, to turn them into, basically, client states rather than invade them and conquer them. That's what the United States has done. That's what all of the major world powers have done. They've projected their influence without actually claiming territory.
The groups that really care about conquering territory are zealots. I mean, ISIS cares about conquering territory because they want to impose Sharia over the local population. Because they really care about whether or not people are living their lives in accordance with Sharia law. But, I mean, that's a kind of bizarre, sort of, religiously-inspired view, which I think is the exception that proves the rule.
The last thing I want to mention is that there hasn't been a lot of discussion about self-defense. And I think it would be interesting to sort of push the discussion in that direction. In the text of the Kellogg-Briand Pact, there is no discussion, explicitly, of self-defense. And I was very taken and convinced by this argument that in the rough draft of the UN Charter, in 1945, you originally have the Kellogg-Briand Pact being sort of cut and pasted into the first draft. And it becomes the iconic prohibition on the use of force in the UN Charter. That seems very right to me.
But what that brings to mind in my imagination, is that there is no Article 51 in the Kellogg-Briand Pact. And what I mean by that, Article 51 is the article in the UN Charter, which says that states have an inherent right of self-defense.
And it seems to me that one of the reasons why the Kellog-Briand Pact didn't have the success and the influence that it was supposed to have was because, in a way, it was so idealistic. It was an over-regulation of the use of force. Because it didn't really have explicit criteria for when the use of force would be allowed. And that's a mistake that I think is rectified in the UN Charter in 1945, which explicitly carves out self-defense cases from the prohibition on the use of force.
In conclusion, I just want to thank the authors for coming to Cornell to present this fascinating history in this very evocative legal and historical and political science argument and thank them for opening up such fruitful lines of inquiry for all of us. So thank you.
MATTHEW EVANGELISTA: So let's also thank both of our commentators.
They're eager to respond, I'm sure. But I'd like to open it up more broadly first. And I would like to favor questions from students first and that requires that some of you raise your hands and ask them. Yes, please.
AUDIENCE: You talked about how the neutrality kind of prevented people from going to war in the old war, I think that this is interesting because it will kind of lead that fact that you cannot be neutral without getting involved in the war. It kind of forces countries afterwards to become more globalized because they can respond to other conflicts as such force.
But also, do you think that globalization was something that kind of pushed for the neutrality thing to be effective? And not only that, but the fact that weapons, over the course of-- especially starting from World War I, continuing in World War II, and throughout the Cold War, became much more dangerous to the point where when you attacked a country, you would be hurting and decimating a lot of people, a lot of regions around it in addition.
And that is the driving force for why war should be curbed and much more internationally discussed, I guess, than more, also, like the Kellogg-Briand Pact with trying to prevent war.
MATTHEW EVANGELISTA: OK, thanks. I think I'll try to collect a couple. If you'll note down what you'd like to respond to. Are there others at this point? Yeah. Yes, please.
AUDIENCE: Thank you all for doing this. It was a great presentation and discussion. I guess, my question would sort of center around the relationship, I guess, between international law and international politics, because I think we'd all agree that war is as much, if not more, a matter of politics as it is of law, although the two are often closely related. And you, to the authors in particular, did, I think, an excellent job of explaining the development of the legal norms through treaties and customary law that has kind of developed up till now.
But war still occurs. And it occurs at a high rate in today's society. And in a world where democratization has increased. So, to a certain extent, you have to acknowledge that publics are behind a lot of this military conflict. And the role of domestic politics and kind of cultural or historical conflicts factors into war just as much as kind of legal questions of wrongs or outstanding debts or territorial claims.
So I would kind of ask, I guess, has there been any sort of-- that you could identify-- development in popular opinion about war? Have the views of publics around the world changed about war at all? Because, obviously, war still continues in a more democratic world than was the case in previous--
MATTHEW EVANGELISTA: Thank you. So I think, why don't we do a round of responses and then maybe open it up again. So be thinking of your question. Thank you.
OONA HATHAWAY: So I can take a quick stab at that. Should I wait on responding to--
MATTHEW EVANGELISTA: No, I think you could do so now.
OONA HATHAWAY: --until I wrap up or do that now? OK. All right, that's a lot then, all right. Just a couple of things, and then I'll let Scott jump in on whatever I've failed to address.
So I think both of you have kind of a similar critique, in that it's sort of, wait a minute, what about all these changes that happened before? There were curbs on war before 1928 that we're not really spending a lot of time talking about. And then on the other hand, Jens rightly notes that one of the critiques of the book is going, well, isn't it 1945, really not 1928? So it's like, either before or after. But, you know, why 1928?
So I guess there are two things I want to say to that. One is, you don't necessarily have to buy our argument that it is 1928 on the dot. That's the key moment. If you get the argument that something important shifted in the legality of war in this period, that's important to understanding the international legal order, if you get that, you're kind of 90% of the way there with us, and we're OK with that.
Because the central claim is that it's important in the modern era to recognize the importance of the prohibition on war as a central organizing principle of the modern international legal order. And whether you date that to before 1928 or 1945, doesn't exactly all that much matter to us. Although it does matter to us because we wrote a whole book about why it's 1928.
But the central normative argument is founded on this idea that at this moment what really counts is that you need to understand that the system depends on this idea of outlawing war and of prohibiting states from unilaterally using a recourse to war to right wrongs. And that if we don't defend that and uphold it, the whole legal order as we know it kind of stands at risk of collapse. That's the central normative argument.
So regardless of where you date that exactly, doesn't so much matter to that part of the argument. But nonetheless, we think it's 1928, right? So we wrote a whole book, again, on making that argument. And we think that the key element and the reason that 1928 is so important, despite the fact that you're absolutely right that there were efforts to try and restrict and curb recourse to war well before 1928 in various ways, both [INAUDIBLE] efforts. So both efforts to restrict the use of military force, but also efforts to restrict the way in which it was done.
We do think that the decision to outlaw war was important. This idea that you cannot legally resort to the use of military force, even in cases where you have a just cause, is an important change. And that's-- we said something about that here, I won't repeat why-- but that, to us, is key. And the reason-- yes, 1945 is important, but you can't understand '45 without understanding '28 is our claim.
And the direct connection even, between the draft of the UN Charter and the decision to outlaw war in 1928 seems to us a key element to that. It's very hard to understand why the prohibition on use of force in the UN Charter is important if you don't understand the beginning of that idea in 1928 or so the claim is.
On-- is conquest the right question-- you're right, conquest is only one of the right questions, I guess I would say. I mean, there's been a lot of writing about the decline in interstate war. So we don't repeat a lot of that. We sort of cite to it, but we don't-- we didn't do our own empirical work on that because other people have done empirical work on that. We did our own empirical work on the decline of conquest. So we have lots of graphs because we spent a lot of time gathering that data. So if you spend a lot of time gathering data, you want to put it out there.
But we did sort of count on people having seen a lot of this data. And, in fact, it's pretty irrefutable that interstate war-- that is wars between states-- have fallen off pretty rapidly. What has increased is the increase in wars within states. And we tried to say something about why we think that's important.
And then last, on self-defense, self-defense-- you're absolutely right, and we talk about this just briefly in the conclusion-- has become almost the exception that, at this moment, is kind of at risk of swallowing the rule. And part of the argument we make here is don't let that exception swallow the rule because it would be very, very dangerous if you allowed it to. And what's interesting is at the time the Kellogg-Briand Pact, which, of course, is just two articles. It's really small. It literally fit on a postcard.
And they were debating whether to include a self-defense exception in it, and they said, well, it's sort of obvious that you can defend yourself if you're attacked. And look, if we put an explicit exception in there, then what's going to happen is everybody is going to reframe their wars as defensive wars. And so, we're not going to explicitly put in a defense exception. But in the UN Charter, which is a lot longer, and there are many, many articles that they insisted on adding a exception for self-defense.
And it looks like, maybe, the outlawrists were sort of prescient in thinking that create an explicit exception might have made it very difficult to limit the use of that exception. So that's all, I'll pause there. I've got lots more to say, but I know we don't have much time.
MATTHEW EVANGELISTA: Could I ask you, or maybe Scott now, to engage a little bit the questions that came--
SCOTT SHAPIRO: That's what I was going to do.
MATTHEW EVANGELISTA: --from the audience? Because I think they're linked to these other things that Oona has been talking.
SCOTT SHAPIRO: They are. Just one thing I want to just say that regardless of any criticisms that we get, there's one thing that we're irrefutably right about, which was when Matt asked who we wanted to comment on our book, we said Professors Hull and Ohlin. And so we were totally right about that. Thank you.
So the, if you will, the two main or most controversial claims in the book, one has to do with this cut point of 1928 and the second one is the causal claim that the fact that outlawing war made a significant difference. And so the only thing I'll say about the cut point issue is that how do you ever make a judgment about cut points in any type of taxonomy? You do it only if it has theoretical benefits, and you can explain things that you couldn't explain otherwise.
And then, that's why those charts, those kind of diagrams, made a big difference. Because you see things change and change very rapidly on major structural issues when the privilege to use force changes. And so that's the theoretical justification for why that cut point.
But the issue that was raised, actually, I think in the audience that both questions, I think, are kind of pushing at the causal claim. And let me just address it and see if I could do a decent job in a very short period of time.
So about weapons, you would have thought that after World War I, the meat grinder that the European powers had created, which made war as horrifying as you can imagine, that the response would have been to outlaw this practice of going to war in order to enforce your rights. But that's not what happens.
The League of Nations at the Covenant of the League of Nations-- and one of the reasons why our internationalists are against the League of Nations, actually, is precisely because it allows there to still be a right of war. You just have to go to the league, either to the council or the ICJ, the Permanent Court of Arbitration. But then you have to wait three months, and then you can go to war again. So they don't get rid of the right of war, that takes 1928 for that change.
Now, Oona and I do not think that the reason why you get the long peace in Europe and the decline in state wars and the decline of conquest is simply because of the outlawry of war, that is not our claim. We do not deny all of the various peace hypotheses. We don't deny that the advent of nuclear weapons makes an enormous difference. We don't deny that international politics makes a big difference. The democratic peace hypothesis globalization, we don't deny any of those.
What we do argue in the book is that aside from the fact that states do respect this norm, even in the breach by lying about it, that those peace hypotheses-- globalization democracy, nuclear weapons-- are not wrong, they're just incomplete. That is, they don't include a premise which they're implicitly relying on but they don't mention.
So for example, take nuclear weapons. Nuclear weapons are used to enforce a rule against war. They're not used ever in a proactive way in order to enforce rights. Even though Mexico does not have nuclear weapons, we do not threaten to use tactical nuclear weapons against Mexico if they don't pay for the wall. Now if you think, well, that's a crazy thing to do, we did it. That's why California's part of the United States is because we felt like this was our due. They owed us money. So it's not that nuclear weapons don't matter. They matter enormously. It's just that the rule that they're used to enforce has changed.
Globalization is another example. Globalization-- it's not just that the interconnection between states has made war more costly, it's that outlawing war has promoted interconnection. That is, a robust trading system only makes sense if the relative gains are such that they will not be used against you later on. And so one can trade in the New World Order free of having to worry that the relative gains that the other side gets will be used against you because they can be used against you in the way that they used to be used against you.
Finally, the democratic peace hypothesis and international politics, I think, it is true that the United States public is a particularly-- how to put it? It is not particularly anti-war. And that has many explanations from the fact that preeminent military force, the fact that it's an all volunteer army. There are lots of reasons for it. It's just that the norms have changed so dramatically about when you're allowed to go to war that certain types of action are unthinkable.
Now in 2018, never say "unthinkable" because I'm going to open my Twitter feed and it's going to be there. But the idea that, again, you could go to war with Mexico to get them to pay for a border wall is currently unthinkable. And it used to be thinkable just 100 years ago. So, again, the idea is not that nothing matters besides law, but law plays an essential role in structuring relations-- economic relations, military relations-- such that those explanations require this hidden premise that we take for granted. But only changed not that long ago.
MATTHEW EVANGELISTA: I could take a couple of more very brief questions, really brief please. Peter. Yes, yes.
AUDIENCE: I guess a very simple question from a simple person. You know, the only war I think anything about anymore is the US versus North Korea. And I wonder if you can think of any conceivable way that the powers that exist at the moment but have something to add to reducing that possibility?
MATTHEW EVANGELISTA: Thank you. Any equally succinct question? Yes, Letitia, please.
AUDIENCE: I have a question about where your book leaves off, specifically, the chapters about outcasting. I'm wondering, now that we're in an age where intrastate or civil wars are more common than interstate wars. What are some of the most compelling solutions-- maybe innovative legal solutions or mechanisms-- that we can use to mitigate this type of violence when these systems of outcasting don't work?
MATTHEW EVANGELISTA: OK, thanks. And you will have the last word then, you two.
OONA HATHAWAY: I'll take the first, you take the second? OK, so on the US versus North Korea, I mean, many of us are worrying about this right now. And what is interesting is that Donald Trump has been talking a very dangerous game thus far-- knock on wood-- has not acted on some of those claims.
And he's received a good deal of push-back, and rightly so, to this claim that he has a legal right to use military force against North Korea without any clear evidence that there is, in fact, an imminent threat-- that's the standard-- imminent direct threat to the United States or to an ally. And we hope that remains the case.
As to what can be done about it, I think, pressing and reminding that any kind of preemptive strike would not be supported by the international community. And I think that there's been a lot of press-back on the suggestion that there might be a preemptive strike-- a so-called bloody nose strike-- on North Korea. And I think that that has helped to contain the situation. But I agree with you, it's pretty dangerous.
And that's exactly what this book is trying to argue against. All right, that's exactly why we wrote the book is to say, if you were to take a preemptive strike on North Korea in clear violation of international law and domestic law, that not only is a terrible thing for that region and a deeply violative act, but puts the whole system at risk. That these kinds of illegal actions of that nature don't just break the law once but expose the fragility of the whole system.
And so there's much more at stake, even then, it seems. Sorry to make it even more terrible that it might seem. But it's terrible enough as it is. But, to us, it's truly dangerous to the whole international legal order. And that's part of the argument of the book.
SCOTT SHAPIRO: Just very briefly about what to do about civil wars. One thing to do is not to engage in interstate wars which create civil wars. So one can very well place responsibility for the Syrian conflict on the United States for having engaged in an illegal and reckless war in Iraq in violation of the UN Charter. That's the first thing.
Second thing is there can be forms of resource capacity building. That is, to identify weak states and help through various types of initiatives, training, various types of funding to build-up through rule of law initiatives and the like. Finally, a hypothesis that might be true is that in the chart that Oona showed before there seemed to have been a real dip in the-- was it the late '90s to early 2000s-- in intrastate wars. And one hypothesis might be the robust use of UN peacekeepers. And that practice has fallen away.
And so I don't think-- we don't have a silver bullet. And it's kind of a give with one, take with the other. That is, a world in which you've outlawed interstate wars. A world in which intrastate war that becomes pressure towards that. And so you have to think innovatively about resource building, about peacekeeping, and really just don't go to war.
Because that's one of the-- if one of the-- just think about this-- if one of the reasons why civil wars break out is because of weak and failed states, wars are the greatest creators of weak and failed states. So the preservation of the prohibition against the use of force would go a long way.
MATTHEW EVANGELISTA: Let's thank all of our participants for an excellent discussion.
[APPLAUSE]
On March 1, 2018, legal experts Professors Oona Hathaway and Scott Shapiro of Yale Law School debated the role of law in preventing war with Cornell University professors Isabel Hull (History) and Jens Ohlin (Law). Matthew Evangelista (Government) moderated the discussion.
The event was part of the Einaudi Center's Lund Critical Debate Series.
