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Summer 05: International Law Without a Global Cop · Diplomacy and International Relations

• 0:00
  So welcome back to the 5th installment of our summer series
• 0:04
  on Diplomacy and International Relations.
• 0:07
  We are really excited to get into today's deep dive.
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  Yeah, it's a, it's a big one today, really foundational
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  stuff. It absolutely is.
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  But before we get into the invisible architecture of global
• 0:17
  rules, just a quick reminder for you, the listener.
• 0:20
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• 0:26
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• 0:34
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• 0:40
  politics. Which is such a great community
• 0:42
  to be part of. We always have fantastic
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  discussions in there. We really do.
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  So let's jump right into the hook for today.
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  When you and I, just regular people think about the concept
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  of law, there's always this expectation of immediate
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  physical enforcement, right? Yeah, exactly.
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  You expect someone to show up if a rule is broken?
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  Right. Like picture this.
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  You're driving down the highway, maybe you're running late for
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  work and you push the speedometer like 15 miles over
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  the limit. A radar gun clocks you and boom.
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  The flashing lights in the rearview mirror.
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  We all know that feeling. It's the worst, but the point is
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  a police officer pulls you over, runs your plates and hands you a
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  ticket. The state actually observed A
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  violation, physically intervened and imposed a consequence.
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  Yeah, the hierarchy there is completely undeniable.
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  You have the state above you, the law as their tool, and the
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  officer acting as the enforcer. Exactly.
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  But the second we zoom out and look at the international arena,
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  that whole vertical architecture just, well, it's anishes.
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  It totally disappears. There's no global police cruiser
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  waiting to pull a country over. Right.
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  There's no world parliament passing binding global
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  legislation and there's no Supreme International Court that
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  can just force the country to show up without their prior
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  consent. Which leaves us staring at this
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  massive paradox. I mean, it forces us to ask a
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  really uncomfortable question. If a sovereign state with its
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  own military and economy can just decide to ignore a rule, is
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  international law actually law? That is the perfect question,
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  and it connects right back to our previous discussion on
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  international relations theory. Oh yeah.
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  The classic divide. Right.
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  Because if you look at the early realists, you know, writing
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  after the League of Nations collapse in World War 2
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  happened, they looked at this system and basically said
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  international law is a total illusion.
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  Yeah. Scholars like Hans Wargenthal,
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  they argued that law is just totally subservient to raw
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  power. Exactly like if a state followed
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  A treaty, it was only because it was in their national interest
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  anyway, not because the law actually forced them to do
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  anything. It's just a polite fiction for
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  them, a way to mask power politics.
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  But other theories like the Liberals and constructivists,
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  that they see it entirely differently, right?
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  They do. They argue that even without a
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  global Cop, the law creates this vital framework.
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  It sets expectations, and those expectations actively shape how
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  states behave. So to really understand how that
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  works, I think we need to strip away all the modern complexity.
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  Forget the UN, forget nuclear weapons.
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  Let's do a thought experiment. I.
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  Love a good thought experiment? Let's hear it.
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  OK, so imagine a very primitive, isolated village.
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  There's no mayor, no village council, no police force
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  patrolling the dirt roads. Just anarchy basically, but not
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  violent chaos, just no higher authority.
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  Exactly political anarchy. Now in this village there are
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  several parcels of land and one family lives on each parcel and
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  they operate with total autonomy.
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  OK, so they're all little sovereign entities.
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  Right. And they engage in bilateral
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  relations. Maybe one family grows a ton of
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  wheat and another family raises cattle.
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  So they just negotiate a trade directly.
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  Makes sense, but what happens if something goes wrong?
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  Like what if someone diverts a stream that waters their
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  neighbor's crop? Well, the Agreed family can't
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  call the sheriff because that isn't one they handle it
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  themselves. It's accepted that they can use
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  proportional force to defend their property.
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  And the other families just stay out of it.
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  Usually, yeah, unless their own water is threatened.
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  Or maybe they made a mutual defense pact beforehand.
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  See, when you describe it like that, it sounds like the law of
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  the jungle. It sounds completely lawless.
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  Right, but is it? No, because if you look closely
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  you see the proto institutions of a legal system.
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  You have borders. You have the concept of
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  property. And you have the sanctity of
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  contracts in those barter agreements.
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  Exactly. You even have customary rules
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  like maybe when the head of a family dies, everyone just
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  accepts that the heirs will honor the existing deaths.
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  Nobody voted on that rule, it just became an obligation over
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  time. Because they functionally need
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  those rules just to survive next to each other.
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  Precisely. And this village is the perfect
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  model for the traditional international legal order.
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  Just swap out the families for sovereign nation states.
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  So the states are the principal actors.
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  They hold supreme authority over their own land, they trade, and
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  they rely on self help when things go wrong.
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  And the defining characteristic of these states, the thing that
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  makes them the heads of their families, is sovereignty.
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  Sovereignty. That's a word that gets thrown
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  around a lot. We should probably unpack that,
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  yeah. It's foundational.
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  The concept really matured in Europe between the 16th and 18th
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  centuries. The big turning point was the
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  Peace of Westphalia in 1648. Right after the 30 Years War.
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  Because before that Europe was just a tangled mess of
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  overlapping loyalties, wasn't it?
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  Oh. An absolute mess.
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  You could have a local Lord and emperor 1000 miles away and the
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  Pope all claiming they had authority over your specific
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  town. Which?
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  Sounds like a nightmare for governance.
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  Total nightmare. So Westphalia streamlined it.
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  It established that within a specific defined territory, the
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  state has the final supreme say. No external power can dictate
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  your domestic laws. OK, but wait, that brings up a
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  massive logical law. If every state has supreme final
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  authority, how can they be bound by anything that's.
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  The $1,000,000 question. Right, because if you truly
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  answer to no one, international law can't be pushed down on you
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  from above. It has to come from the States
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  themselves. Exactly.
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  This is the idea that states are the masters of the law.
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  They are only bound by rules that they actively and
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  explicitly consent to which? Brings us to a super famous
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  historical case that really proves this point, the 1927
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  Lotus case, ah. Yes, the Permanent Court of
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  International Justice in The Hague.
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  This case is legendary in legal circles.
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  It really is. Let's set the scene for the
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  listener. It's August 2, 1926, just before
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  midnight. Out on the high seas of the
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  agent. Right.
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  And a French mail steamer, the S S Lotus, is sailing along and it
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  violently collides with a Turkish coal ship, the Boscort.
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  And it wasn't a minor scrape, the Turkish ship was basically
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  sliced in two and sank incredibly fast. 8 Turkish
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  sailors drowned just. A horrific tragedy.
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  So the French ship survives. They pull survivors out of the
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  water and they keep sailing until they dock in
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  Constantinople, modern day Istanbul.
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  And I'm guessing the Turkish authorities weren't just going
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  to let that go. Not at all.
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  The second The Lotus stocks, Turkey launches an
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  investigation. They arrest the French officer
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  who was on watch, Lieutenant Demons, and they charge him with
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  involuntary manslaughter. OK, so Turkey arrests a French
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  citizen. France must have been furious.
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  Oh. They were outraged.
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  France points to a core rule of the sea because the crash
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  happened on the high seas, which belonged to no one.
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  A ship is treated like a floating piece of the country
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  whose flag it flies. Ah, so France says that
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  collision happened on French territory.
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  Exactly. They argued Turkey was violating
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  French sovereignty by trying a French citizen for something
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  that technically happened on French soil.
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  They demanded Turkey release him immediately.
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  But. Turkey obviously pushes back.
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  They say hold on your ship, hit our ship.
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  You killed our citizens. We have every right to put this
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  guy on trial. Right.
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  It's a total stalemate. So they take it to the Permanent
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  Court of International Justice. And the way the court rules,
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  what makes this so important? Because France's entire argument
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  was that Turkey had to point to a specific international rule
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  that explicitly allowed them to arrest a foreign national on the
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  high seas. And since there wasn't a
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  specific rule saying Turkey could do it, France assumed
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  Turkeys actions were illegal. But the court basically looked
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  at France and said you have it completely backward.
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  They flipped the whole logic on it, Ted they.
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  Really. Did the court ruled that because
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  states are sovereign, whatever is not explicitly prohibited is
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  permitted? That is wild, right?
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  The court actually wrote. Restrictions upon the
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  independence of states cannot therefore be presumed.
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  So because France couldn't find a rule preventing Turkey from
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  prosecuting, Turkey's actions were totally legal.
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  Restrictions cannot be presumed. That is a massive precedent.
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  It basically means the default setting of the entire globe is
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  total freedom of action. Exactly.
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  You can do whatever you want, unless you've agreed not to.
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  But I have to push back on this. If a country is only bound by
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  what it freely agrees to, and can presumably just withdraw
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  that consent whenever, this is an illegal system.
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  It's an honor system. It does sound a bit flimsy when
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  you put it like that. Right, it's like playing poker,
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  but the rules only apply to the people who are winning and
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  anyone can just change the game if they draw a bad hand.
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  How do borders stay stable? How does trade work?
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  Well, the realists would agree with your skepticism, but there
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  is a glue that holds this honor system together, and it's a
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  customary principle called Pakdasun Cervanda, Which.
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  Means. Agreements must be kept.
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  It is the absolute bedrock of international law, and it
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  doesn't exist because states are morally good.
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  It exists out of sheer functional necessity.
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  Let's take that back to our village analogy.
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  If one family is constantly breaking promises, like they
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  take the cattle but refuse to hand over the wheat, there's no
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  sheriff to arrest them. Right, but the consequences are
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  still huge. The other families will just
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  embargo them. Exactly.
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  They won't trade with them them they won't respect their
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  property lines. That rogue family becomes a
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  total pariah and survival gets incredibly difficult.
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  The. Exact same thing applies to
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  nation states. The cost of isolation is almost
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  always worse than whatever temporary benefit you get from
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  breaking a treaty. Because even a massive
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  superpower needs to use foreign airspace or export goods or
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  protect its diplomats. Yes, If a state gets a
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  reputation for violating treaties, foreign investment
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  dries up, sanctions hit. The whole system relies on
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  horizontal pressure from the community, not vertical pressure
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  from a boss. OK.
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  That makes a lot of sense. Now I want to pivot slightly
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  because we've been talking about this through a very European
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  lens. Yeah.
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  We mentioned Westphalia, friendships, European judges in
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  The Hague. Right.
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  And there is this really pervasive narrative out there
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  that international law was basically invented in Europe,
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  codified by Western philosophers, and then exported,
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  or, let's be honest, forcefully imposed on the rest of the
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  world. That narrative is everywhere,
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  but it's just historically incomplete if you look at it
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  that way. You're ignoring incredibly rich
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  legal traditions from outside the West that existed millennia
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  before Westphalia. Exactly like the idea that only
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  Europeans knew how to draft a binding treaty is just factually
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  wrong. Look at the ancient Near East.
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  Oh. The Treaty of Kadesh.
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  Yes, signed around 12:59 BC. You have the Egyptian pharaoh
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  Ramses the second and the Hittite king.
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  How to sleeve the third. They fight this massive bloody
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  battle. It ends in a stalemate and they
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  realize perpetual war is going to destroy them both.
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  So they don't just agree to a ceasefire, they draft a highly
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  sophisticated, legally binding treaty.
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  And it had everything, mutual non aggression, alliances
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  against third party threats, even rules for extraditing
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  political refugees. And they inscribed it on silver
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  tablets in both languages. That is statecraft and
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  international law at an incredibly high level over 3000
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  years ago and we. See it in the Islamic world too.
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  Way before the Geneva Conventions, Islamic scholars
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  were developing CR, which is the Islamic law of nations.
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  Yeah, back in the 7th and 8th centuries, jurists were writing
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  massive treatises on how to conduct war, how to treat
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  prisoners and how to protect diplomats.
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  And that framework governed relations all across Persia,
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  India, the Middle East and even their dealings with Christian
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  Europe. So while the modern UN system is
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  definitely rooted in that European Westphalian model, the
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  actual substance of diplomacy and warfare limits is this
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  global tapestry. It's a universal human endeavor.
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  And that endeavor has gotten infinitely more complicated
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  since 12:59 BC. When people hear international
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  law today, they probably picture diplomats in suits arguing about
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  nuclear weapons. Right, the high stakes political
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  stuff. But the reality is that the law
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  has diversified so much that it's regulating the tiny details
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  of your everyday life. It.
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  Really is In the late 19th and 20th centuries, we shifted from
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  a law of coexistence to a law of cooperation.
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  Because states realized technology was creating problems
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  they couldn't solve just by respecting borders.
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  Exactly. Take something as mundane as
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  sending a postcard, let's say from Copenhagen to Tokyo.
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  In the 1800s, that would have been a nightmare.
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  You'd have to pay the Postal Service of every single country
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  the letter passed through. Doing currency conversions at
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  every border. It was terribly inefficient, so
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  states fixed it by creating the Universal Postal Union in 1874.
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  They pooled their sovereignty to make one seamless global postal
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  network. And we did the same thing with
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  Civil Aviation. When you get on a commercial
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  flight today, the fact that the plane can safely fly through
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  foreign airspace and talk to foreign air traffic controllers
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  and standardized English is all dictated by the 1944 Chicago
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  Convention, right? States have created over 5000
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  intergovernmental organizations to handle this stuff.
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  Which brings us to a super relevant dynamic, especially for
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  listeners following Danish politics.
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  How does a modern state like Denmark navigate this?
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  Because we're not just talking about global treaties now, we're
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  talking about regional law. Yeah, and the European Union is
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  the most advanced example of this in the world.
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  It operates on a concept called super nationality.
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  Meaning it sits above the nation.
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  Exactly. When Denmark joined the EU, it
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  didn't just sign a normal treaty, it entered a legal order
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  where EU institutions like the Commission and the Parliament
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  can make laws that apply directly inside Denmark.
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  Which totally scrambles that old Westphalian idea of sovereignty.
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  Under the old model, the Danish parliament would have to
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  manually pass a domestic law to implement an international rule.
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  They were the gatekeepers. But in the EU, that gatekeeper
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  role is bypassed because of doctrines like the principle of
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  direct effect and EU regulation on, say, data privacy
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  automatically becomes law in Denmark the day it passes.
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  And it grants rights to Danish citizens immediately.
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  Plus, EU law holds supremacy over conflicting national law,
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  right? It does.
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  If the Danish parliament passes an environmental law that
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  violates an EU directive, Danish courts actually have to set
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  aside the national law and apply the EU one.
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  That is a huge surrender of that supreme family in the village
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  authority. Why would a sovereign state
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  voluntarily agree to that? Because it's a strategic pooling
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  of sovereignty. Denmark knows that in a
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  globalized world, isolation is a massive weakness.
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  You can't manage climate change or compete with the US and China
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  unilaterally. So they trade some domestic
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  autonomy for immense regulatory power and market access across
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  Europe. Exactly.
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  Sovereignty isn't this brittle shield anymore.
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  It's a resource you invest in institutions to get better
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  security and prosperity. That perfectly frames the modern
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  law of peace, but we have to talk about the darker side,
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  because this cooperative web tears frequently.
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  It does, and when diplomacy fails, the law of peace is
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  replaced by the law of war. And historically, international
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  law didn't even view war as illegal, right?
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  It was just a legitimate tool. If you wanted a neighbor's
• 15:54
  territory, you just went to war, right?
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  It was a sovereign prerogative, but today the legal framework
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  around conflict is divided into two Latin categories.
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  Just add Bellum and Justin Bello.
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  OK, let's define those for the listener starting with just add
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  bellum. Just add Bellum is the law
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  regulating the actual resort to force.
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  It dictates when a state can legally start a war, and the UN
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  charter basically revolutionized this after World War 2.
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  Because Article 2 of the Charter outlaws using force to conquer
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  territory, right? Yes, a general prohibition on
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  the use of force, but it's not absolute pacifism.
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  There are exceptions. Self-defense being the big one.
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  Exactly. Under Article 51, if you suffer
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  an armed attack, you have the inherent right to shoot back and
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  defend yourself until the UN Security Council can step in.
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  And the other exception is if the Security Council itself
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  authorizes force to restore peace.
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  Right. But once the fighting actually
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  begins, regardless of whether the war is legal or illegal, a
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  totally different set of rules kicks in.
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  That's just Umbello. Also known as international
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  humanitarian law or IHL. Right, and IHL doesn't care who
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  started the war. Its whole purpose is to regulate
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  how the war is fought. The idea that even in the
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  ultimate brutality of combat, there have to be limits and the.
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  Catalyst for modern IHL is actually a very specific crazy
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  historical moment. Oh.
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  Henry Dunant at the Battle of Sol Farina.
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  Yes, it's 1859 and Dunant, the Swiss businessman, is just
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  traveling through Italy, and he stumbles upon the the aftermath
• 17:24
  of this massive battle. He.
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  Saw something like 40,000 dead and wounded soldiers just
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  abandoned in the mud, no medical care, nothing.
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  And the sheer preventable suffering just completely
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  horrify him. So he writes this book, A Memory
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  of Sulfurino, and it shocks European Society to its core.
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  And that book directly led to the founding of the Red Cross in
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  1863, the very first Geneva Convention in 1860. 4 which
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  eventually expanded into the modern Geneva Conventions after
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  World War 2, and they dictate that you have to protect
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  noncombatants, civilians, medics, prisoners of war.
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  And they ban certain weapons too, things that cause
• 18:01
  unnecessary suffering, like biological agents or chemical
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  weapons. But the problem today is that
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  this neat division between war and peace has really eroded.
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  We almost never see 2U state armies declaring war on each
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  other anymore. No, it's all civil wars, proxy
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  conflicts, terrorism, cyberattacks.
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  The lines are totally blurred. Which is why we've seen this
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  massive rise in international human rights law and
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  International Criminal law. Because traditionally, how a
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  state treated its own citizens inside its own borders was
• 18:30
  nobody else's business, right? Sovereignty was a shield.
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  If a dictator massacred his own people, other states had no
• 18:36
  legal right to intervene. But the Holocaust completely
• 18:39
  shattered that paradigm. It had to.
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  When the world saw a modern sovereign state use its
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  bureaucracy to commit genocide against its own population, the
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  legal system had to adapt, had to reach down past the state and
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  protect the individual. Starting with the Universal
• 18:54
  Declaration of Human Rights in 1948, it basically said that you
• 18:58
  have rights simply because you are human and your government is
• 19:01
  legally obligated to respect them.
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  And Pearl to that, we got International Criminal law.
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  If individuals have rights, then individuals, not just abstract
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  governments, can be put in jail for violating them.
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  Like the Nuremberg trials and later the tribunals were Rwanda
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  and Yugoslavia in the 90s. Culminating in the International
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  Criminal Court, the ICC in 2002, a permanent court that can
• 19:23
  theoretically prosecute heads of state for atrocities which.
• 19:26
  Represents a massive normative shift.
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  Speaking of which, how does a norm actually change globally?
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  Like how does torture go from being widely accepted to
• 19:35
  universally outlawed when there's no world legislature?
• 19:39
  Constructivist scholars track this through something called
• 19:41
  the norm life cycle. It happens in three stages.
• 19:44
  The first is norm emergence. Driven by norm entrepreneurs,
• 19:47
  right? Like Ng OS activists, maybe
• 19:50
  journalists? Exactly.
• 19:51
  They see a practice like torture, find it abhorrent and
• 19:55
  start a campaign. They name and shame, publish
• 19:58
  reports and try to persuade states to adopt A new standard.
• 20:02
  And if they convince enough states, they hit Stage 2, the
• 20:06
  tipping point. Which triggers A norm cascade.
• 20:08
  Peer pressure takes over. Early adopters tell the holdouts
• 20:12
  if you want to trade with us, you have to stop torturing
• 20:15
  people. The norm cascades through the
• 20:18
  international. Community and the final stage is
• 20:20
  internalization. The norm becomes so deeply
• 20:23
  embedded it's just taken for granted.
• 20:25
  It becomes just cogen's a peremptory norm you can never
• 20:28
  violate. Even states that secretly
• 20:30
  torture people will publicly deny it because admitting it
• 20:33
  would destroy their legitimacy. The.
• 20:34
  Hypocrisy itself proves the rule exists.
• 20:37
  That is fascinating, but I want to do a quick simulated
• 20:39
  interview with you. Oh, a role play I'm in.
• 20:41
  OK. I want you to step into the role
• 20:43
  of a practicing international law scholar.
• 20:45
  We're going rapid fire. First question, if there is no
• 20:49
  global code book, where do you actually look to prove what the
• 20:52
  law is? Well, as a scholar, my road map
• 20:55
  is Article 38 of the International Court of Justice
• 20:58
  Statute. It gives me strict hierarchy #1
• 21:01
  treaties. Has everyone signed a written
• 21:03
  contract about this issue? Simple enough, but what if
• 21:06
  there's no treaty? Then I move to #2 customary
• 21:10
  international law, unwritten rules.
• 21:13
  I have to prove two things here. First, state practice that
• 21:17
  countries consistently behave a certain way over a long time.
• 21:21
  But habit isn't a lot like Rolling out a red carpet for a
• 21:23
  president is a habit, but it's not a crime to skip it.
• 21:26
  Exactly, which is why I need the second element, Pino juris.
• 21:30
  I have to prove states follow the practice because they
• 21:33
  psychologically believe it's a legally binding obligation.
• 21:36
  It's incredibly hard to prove. OK, second question, In our
• 21:39
  rapid fire in a major crisis, does this law actually stop
• 21:43
  powerful countries or do they just do whatever they want the
• 21:46
  law? Doesn't have a physical force
• 21:47
  field to stop a tank, but it creates profound argumentative
• 21:52
  needs. Even a superpower can't just say
• 21:54
  we invaded because we wanted to. They'd face massive sanctions
• 21:57
  and. So they have to use the language
• 21:58
  of the law, yes. If they launch a drone strike,
• 22:01
  they have to frame it as pre emptive self-defense.
• 22:04
  They stretch the law, but by invoking it they force
• 22:07
  themselves into global forums where they have to prove their
• 22:10
  case. The law mitigates the brutality.
• 22:13
  Brilliant. OK, stepping out of the role
• 22:14
  play that leads perfectly into our key takeaways, I'm going to
• 22:18
  distill this massive topic into three points for the listener.
• 22:21
  Let's hear them #1 the basic architecture.
• 22:25
  International law operates in an anarchy without a global cop.
• 22:29
  It relies on state sovereignty treaties and custom.
• 22:33
  It's held together by the absolute necessity of pactus on
• 22:35
  Cervanda. Agreements must be kept.
• 22:37
  Spot on #2 everyday relevance. It's not just diplomats in
• 22:41
  Geneva. International law is the
• 22:43
  invisible infrastructure of your life, from airplane safety to
• 22:47
  Internet data routing. Especially when states pool
• 22:49
  sovereignty like Denmark does in the EU, right?
• 22:52
  It's everywhere. And #3 diplomatic power.
• 22:55
  Legal arguments create those argumentative needs.
• 22:58
  They force states to justify their actions, expose them
• 23:01
  scrutiny and provide the only peaceful way we have to resolve
• 23:04
  global disputes. That's a great summary.
• 23:06
  It's a dynamic, ever changing field.
• 23:08
  Before we sign off, just a quick reminder to hit that Patreon
• 23:11
  link in the description. Your support keeps us going and
• 23:14
  those Danish politics briefings are waiting for you.
• 23:17
  Also, please rate the show 5 stars on your app, it really
• 23:20
  helps us grow. And next time on the summer
• 23:22
  series, we're diving into international organizations.
• 23:25
  We touched on the UN and EU today, but next time we're
• 23:28
  looking at how these bureaucratic behemoths actually
• 23:30
  function and fund themselves. I can't wait for that, but I
• 23:33
  want to leave you, the listener, with one final provocative
• 23:37
  thought. For centuries, this law only
• 23:40
  cared about states, but with the rise of human rights in criminal
• 23:43
  courts, the individual finally has standing.
• 23:47
  As global law increasingly pierces borders to protect
• 23:50
  everyday people, are we witnessing the slow death of
• 23:53
  Westphalian sovereignty? Could we be moving toward a
• 23:56
  future where the individual, not the state, holds the ultimate
• 24:00
  power on the global stage? A total structural inversion.
• 24:03
  I love it. Something to Mull over.
• 24:04
  Until next time, Thank you for joining us for this deep dive.
• 24:07
  Keep questioning the architecture around you.