 great pleasure to introduce Una Hathaway who is Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges and the co-author of this wonderful new book, The Internationalist and also her co-writer, Scott Shapiro, who is also a Professor of Law and also a Philosophy at Yale Law School and Director of the Center for Law and Philosophy. So we're going to open it up. Scott and Una are going to talk about some of the big themes of the book and then we'll open up the discussion with you. Thank you. Okay. Thank you so much, Peter, for having us here at New America. Really, really thrilled and honored to be here. I'll set out half the book. Una will set out the other half of the book and then we can have a discussion. Essentially, the book is about the origins of the modern international order, about the people who built it and about the imperative, despite its imperfections, that the world order be defended now perhaps more than ever. The central argument of the book is that the origins of the modern global order can be traced to a specific day, August 27th, 1928, when the great powers assembled in Paris to outlaw war. The treaty that was signed that day, which is often called the Calabrian Pact, although in the book we call it the Peace Pact, has been either completely forgotten or treated as a laughing stock. People just find it absurd that you could end war by outlawing it with a piece of paper. But through the course of our research on a related topic on the history of economic sanctions, Onin and I discovered something that we didn't expect, that as far from being ridiculous, the Peace Pact was transformative and it represented a hinge in history where one world order ended and another one began. Essentially before 1928, war was legal in the sense that it was a legitimate means of statecraft. It was the way in which states resolved their disputes. And astonishingly, war was legal, but economic sanctions were illegal. After 1928, war had not only become illegal but criminal and economic sanctions, which had previously been illegal, not only became legal but is the standard way in which international law is enforced throughout the world. In the course of mapping the shift from one world order to another, we came across a cast of characters, which we call the internationalists, who were crucial in affecting this transformation. Many of the people we had never heard of, though some we had, and we were taken with their imagination, their vision, their brilliance, and indeed in their canningness in figuring out how to take their ideas and translate them into action. We also came across another group, which we call the interventionists, who made arguments to uphold the legal and moral status of war. So what we do in the book is we try to map this kind of seismic shift over the course of roughly four and a half centuries where the status of war changed. Just in short, the book has three parts, the old world order, transformation, the new world order. The old world order is the order in which war was a legitimate means of statecraft. The transformation describes what happened when the internationalists succeeded in outlawing war and the chaos which ensued when this occurred. And then finally, the new world order, where we tried to show how the efforts of the internationalists have borne fruit and the good and the bad effects that the outlaw of war has had on the present. Okay, so let me just begin by talking about the old world order. Even though the book is about the Kellogg brand pact, it's really at a higher level about the status of war in the international system. And I think the reason why so many people have dismissed the Kellogg brand pact and have thought that outlawing war is ridiculous is because they don't appreciate the crucial role that war used to play in the pre-1928 world, what we call the old world 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 mechanism by which states resolved their disputes when one side claimed that they had been wronged. So in order to explain this rather alien world, we begin in 1603 off the coast of Singapore when Jacob Van Kiemskirk, the legendary Dutch explorer and trader, captured the Santa Can arena, a Portuguese karak and dragged it all the way back to Amsterdam where the contents were sold off in auction for three and a half million Dutch silver guilders, which is a lot. The employer of Kiemskirk, the Dutch East India Company, newly formed, was anxious to defend Kiemskirk's actions so as to defend the charges of piracy. They hired a 21-year-old polymath named Hugo Grosius, who was a humanist, a poet, but also a practicing lawyer. And when they hired him, it also turns out that Jacob Van Kiemskirk was his cousin. So when he was defending his client, he was also defending his cousin. And in the course of defending his cousin, he came up with a startling, brilliant and influential idea. And that is that the function of war is to allow victims to right wrongs that they have suffered in the absence of courts. War is a permissible remedy for wrongdoing. And as Grosius said, when judicial settlement ends, war begins. So the idea is that Kiemskirk is off the coast of Singapore. There are no courts he can go to, so he has to take the law into his own hands. Grosius, through the course of his life, developed this idea into an entire legal system, which we call the Old World Order, and which I will describe in a second. Now one of the critical ideas that Grosius introduces is that war is like a court. It's legal in the sense in which a court is legal, which is that you go to court and you get your claim heard and you get relief. The only difference between war and a court is that in war you win by killing the other side. And just like a court, you can go to war for any reason that you could sue somebody for. So not just self-defense, which is what the normal reason we think that people can go to war, but any cause of action, as lawyers would say, they could collect debts, go to war in order to collect debts, to recover property, compensation for accidents, resolve dynastic disputes, seek redress for treaty violations, protect the freedom of the seas, and to punish crimes. So any reason you could go to court, you could go to war if a court was not available. So this picture is a kind of a map, if you will, of the Old World Order, where the center is the privilege to use force, and surrounding it are a whole set of rights and rules which depend on the privilege to use force in order to right wrongs. So let me take them in order. So the first on the top left is the right of conquest. Now, if the point of war is to right wrongs, then if there is wrong that a state has suffered and claims to reparation have gone, have been ignored, the state had the legal right to use force, invade the property, seize it in compensation for the wrong that the state claimed justified the war in the first place. So the conquest was a legal right that was granted in order to compensate the state for the wrong which justified the war in the first place. So, for example, the Mexican session in 1848, not many people know that the main legal justification for the United States conquest of California, Utah, Nevada, and much of the Southwestern United States was that Mexico owed the United States money, about $2 million. It is true. They did owe the United States $2 million, and under the Old World Order, the United States was justified in going to war and justified in conquering the land. Moreover, if war was legal, then not only did states have the right of conquest, but they had the right of gunboat diplomacy, which is to say that if you have the right to wage war, then you have the right to threaten to wage war. So when Commodore Perry sailed his black, not sailed, steamed his black ships into Itto Bay, Tokyo Bay in the 1850s and demanded that Japan trade with the United States under the theory that Japan had the legal obligation to engage in global commerce, Perry threatened to destroy large portions of Itto unless the Japanese signed the treaty of friendship. The Japanese did sign the treaty at the point of a cannon, but what's crucial to realize is that the treaty that was signed under duress was legally valid. It was a good treaty, such a good treaty that if the Japanese had violated that treaty, the United States would then have been justified in going to war in order to enforce that treaty. If the function of war is to right wrongs, then it also follows that you can punish people who go to war in order to right wrongs. So soldiers and sovereigns were immune to prosecution. If you killed somebody outside of war, well that was murderous, but if you killed millions of people in war, that was glorious. In the old world order, belligerents were completely immune to prosecution as long as they abided by a separate set of rules, the laws of war, but they couldn't be prosecuted for going to war. So after World War I, when the victors promised to arraign in the Treaty of Versailles to arraign Kaiser Willem II for having started World War I, the Netherlands refused to give him up. The Netherlands, which is as we know the world capital of international criminal law, would not give up the Kaiser because under the law at the time the Kaiser could not be prosecuted for waging war. Finally, the last part of the old world order is that if war was legitimate, then the law also had to prevent certain forms of actions that were nonviolent to stop war from occurring. Thus, economic sanctions, that is, neutral states treating one side differently from another, was tantamount to an act of war because the neutral had no right to interfere with the rights of war of the belligerents. There was what lawyers called a strict duty of neutrality. And for that reason, when Woodrow Wilson campaigned in 1916 under the banner, he kept us from war, one of the ways in which he kept the United States from entering the war was by enforcing strict neutrality. He said the United States must be neutral in fact as well as a name during the days that are to try men's soul. We must be impartial in thought as well as action, as well as upon every transaction that might be construed as a preference of one party to the struggle before another. That is, if the United States had in any way protected, favored, great Britain over Germany, that would have been an act of war. And you'll, I hope this is not a copyright violation, but in Hamilton, the cabinet battle is all about the strict duty of neutrality. I assume this can be edited afterwards. Okay, so let me just return here. The point here is that in the Old World Order, there was a right to wage war, which wasn't one rule among many, but it was the central organizing principle of international relations before 1928. Because there was a privilege to use force, states had the right to conquer other territories, they had the right of gunboat diplomacy, they were immune to prosecution, and they, and neutrals are subject to strict duties of neutrality. This all will change. This is where I'm going to come in and pick up the story here with the second part of the book, where we talk about the transformation from the Old World Order to the new. And this is the transformation that begins in the period right after World War I and is really sparked by the Paris Peace Path. So there are many characters in this book and we're telling a story here through the kind of themes, but there are many people in our tale. And one of the most important ones is Sam and Levinson, who most of you probably have never heard of. We hadn't heard of him before we started this book, but he had this conviction that the only way to end this scourge of war was to outlaw war. And it was kind of a crazy idea. He's this bankruptcy lawyer in Chicago, he's not an international lawyer, he's never had anything to do with international affairs, but he cares deeply about trying to bring an end to war. And he begins developing this idea about law and war. In the book we tell the story about how we get from there to the pact. He founds a non-governmental organization, he writes and speaks with intellectuals and politicians around the country and indeed around the world, and manages through that process to create the Paris Peace Pact or the Kellogg Brand Pact that's commonly known, which is signed in 1928. And in that document the central commitment that states make is to outlaw war, that is they renounce war as a way of solving international controversies. And this, we argue in the book, changes everything. This is a crucial moment. It sets something in motion that they maybe didn't entirely anticipate or understand, but that this is a crucial turning point that sets the stage for everything that comes later. Now you may be thinking there are some things that happen after this. Was it really all that influential given what we know unfolds? And part of our argument is to play out how the events that follow in fact force the internationalists to think through how to make this commitment actually work. Because it's not immediately obvious how it's going to work, given that it's just this very small document that actually will fit on a postcard, thousands of which were actually printed and sent around. So as I said the old world order, as Scott said, the old world order had the privilege to use force at its core. And the new world order, and I'm going to walk through this, replaces that permission to use force with a prohibition on force, and everything else changes as a result. It doesn't happen immediately. It unfolds over time, but the story we try to tell in the middle part of the book is how that transformation takes place. And I'll walk through a bit of that here. It's a long book, so you won't get the full picture, but try to give you a sense of how these threads begin to unravel. So first and most obviously Japan invades Venturi in 1931. Japan had signed and ratified the pact, and yet that didn't stop it from going to war. Now this created a real problem for the rest of the parties to the pact because they had all signed the Paris peace pact saying that they wouldn't go to war. And now another state that was a party to this pact had gone to war. How are they going to enforce this commitment? Can they enforce the prohibition on war with war? And it was compounded by the fact that many of them were members of the League, which was founded on the idea that the way in which you enforced international law was through war. But now they had all signed the pact, which created something of a contrary obligation that is not to go to war. And it actually took them quite a long time to try and figure out how they were going to resolve this, what seemed to be conflicting obligations, and how in fact to enforce this prohibition on war without using force to do it. The idea that Henry Stimson comes up with after engaging in correspondence with his former Yale classmate Samon Levinson is what Levinson refers to as the sanctions of peace. So it's the idea that you may take the land, but we're not going to recognize it. So he sends these identical notes to Japan and China, and he says 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. This becomes the very famous Stimson doctrine, the doctrine of non-recognition. And while many of people have heard of the Stimson doctrine, most don't recognize that this is really the first time. This is a momentous change in the way in which states interacted with one another, because previously when states took territory, generally it became theirs. It was incorporated into the country, even if they had waged war for unlawful reasons, they, when they conquered territory and took it, got to keep it, it became part of their own territory. This is the first time where a country says no. We're not going to recognize that as yours, and the League quickly follows suit, thinks that this is actually a good way of solving the dilemma that they face, which is how do we enforce this obligation? So where there had been a right of conquest, now there is no right of conquest, so that was the first corner that flipped. Now, in that same set of notes that Stimson sent to Japan and China, he says we're not only going to not recognize the conquest, we're not going to recognize any treaty or agreement brought about through force or threats of force. So in the same note, he sets out a rejection not only of conquest, but also of gunboat diplomacy, which had up to this point been widely accepted, as Scott rightly said, as perfectly normal part of the way in which states did business with one another. This then later gets solidified in the Vienna Convention on Law of Treaties, which explicitly rejects the legal validity of any treaty brought about through duress, and Hirsch-Latterpachtu is one of the characters in the book who we talk a good deal about. He wrote in the commentary there that this was because of the pact, that the pact had changed the legality of gunboat diplomacy and means that no longer can states threaten to use force because threatening to use force and using force are illegal, therefore you cannot create agreements in this way. So really tying the line directly between the pact and the rejection of agreements brought about through duress. So where gunboat diplomacy had been perfectly legal now, there's no longer legal gunboat diplomacy. So next in the order of business was neutrality. So as Scott really mentioned, under the Old World Order, neutrality requires perfect impartiality. And this is a real struggle for the United States and lead into World War II because the neutrality acts of the 1930s really embodied this traditional understanding of neutrality, that is, that we're going to stay completely impartial. And yet they realized that that was hamstringing them because they weren't able to provide any additional support to the Allies. And the Allies were parties they wanted to support and more. They wanted to be able to provide assistance. And so they're struggling with this over time. Roosevelt is trying to get Congress on board with a revised understanding of neutrality and eventually does in one of the more famous statements of this, Robert Jackson, who at the time was attorney general, announces in his speech that the Treaty for Annunciation of War, which is another title for the same agreement, the Kelleybrian Pact of the Pact of Paris, by altering fundamentally the place of war in international law has affected a parallel change in the law and status of neutrality. And that is what allows the United States to engage in lend-lease, which was crucial to the survival of the Allies before the United States entered into the war. And so now where neutrality had required impartiality, now neutrality permits partiality. It lets the United States favor the Allies and that is not a violation of international law and that is not a act of war, as it would have been in the old world order. Last month, but not least of course, the crime of aggression. So after the war, the question of course comes up, can we try the Nazis for waging an aggressive war? And many people remember Nuremberg understandably as being about the Holocaust and of course it was. But the central legal hook and in the first count was the fact that the Nazis had violated the Pact of Paris. And in fact Germany had signed and ratified the Pact of Paris. It was actually one of the very earliest advocates of the Pact. And that as had Japan as I mentioned earlier and that was the legal hook to allow the prosecution of the Nazis for the crime of aggression because that had made war illegal and by making war illegal had allowed the Allies to try the Nazis for engaging in the crime of aggression. Now if it sounds like I'm making a bit of a logical leak, we spent three chapters explaining how you can draw the line from one to the other and how they struggled to figure out how to draw the line from the Pact to the crime of aggression. So where there had been immunity from prosecution for crimes of aggression, now you can in fact prosecute those who wage aggressive war for the crime of aggression. So remember the old world order had the privilege to use force at its core and then these other rules followed from it and the argument that we make is that when the Pact lets this central rule it changes everything else necessarily. It doesn't happen all at once, it doesn't happen immediately, they don't realize it at the moment that they're signing the Pact but it necessarily follows from the fact that they've decided to outlaw war and this is the legal process that's set in motion by the Pact. Now the last part of the book which I won't say a lot about here maps out the new world order and what are the consequences of this for how we see the modern legal order. I'll say just a few things about this so that we have a chance to have a conversation but a couple of things. So first of all I think it changes the way in which we look at the UN Charter. So you may be puzzling over what is this document. This document is a document we found in the archives at the Roosevelt Library in the Sumner Welles papers and it's what we believe to be the first draft of the United Nations Charter which was written by James T. Shotwell who is one of our internationalists who also happens to have been the ghostwriter of the Kellogg-Briand Pact for Briand. He was the one who brought the idea to Briand to actually draft a memo that then became the basis for the proposal that Briand makes the United States to outlaw war and he's brought in to a planning group in 1942 in the State Department convened by Sumner Welles who's the Undersecretary of the State and his charge is let's come up with a way to keep the peace once the war is over. Roosevelt's actually not particularly interested in this project he really wants to just win the war and worry about the peace afterwards but Welles rightly sees that once the war is over the allies what's kind of uniting the allies is going to fall to pieces and you've got to bring them in and start thinking about it now so he convenes this group and Shotwell who as I mentioned is the ghostwriter of the Pact in this initial draft of the UN Charter actually takes the pact and puts it verbatim at the beginning of the draft of the Charter it literally cuts and pastes it in there and then embeds this whole institutional construct around it that is what we now know of as the United Nations through conversations with the rest of the committee they change that so it's not quite so obvious so that's what they're doing but Article 24 in many ways is a legacy of that history so all members shall refrain in their international relations from the threat or use of force the idea there when they're writing this is they're thinking let's take the commitment of the pact and let's embed it in an international institution that's capable of actually enforcing it and so I think that this has an impact on how we think about the Charter and the commitments within it so we have a lot of data in this book only a little bit of which I'll mention here but one thing that we did is we collected data on all of the territorial conquests from 1816 to the present and this is just one of the charts in the book which it shows that what we call sticky conquest that is where a territory is taken by a state and it sticks that is they hold on to it it doesn't get reversed notably changes quite significantly so the first bar here is if you can't see it 1816 to 1928 the middle is 1929 to 1948 and the last is 1949 on and what you see here is that conquest was extremely common an average state could expect to be conquered roughly once every human could expect to have some of its territory conquered at least once every human lifetime after 1948 the average state can expect to suffer a conquest roughly every once or twice a millennium so the frequency and the size of conquests have fallen substantially in the wake of this transformation it does, yes then one other interesting fact is that the number of states grows precipitously after the end of World War II and at least part of the reason we hypothesize is that states are no longer likely to be conquered if they're small and they're relatively weak and so you see a proliferation of states from roughly 60 at the end of the war to now we have 193 members of the United Nations so we have a huge increase in the number of states that comes about after the close of the war now a dark side so this is not exclusively a happy story there are dark sides of this among them arise an intrastate wars so if states can no longer be conquered they no longer have to be able to be effective they don't have to be able to effectively collect taxes they don't have to be able to effectively defend themselves to survive because the law ensures that it does mean that weak and indeed failed states continue to survive and the downside of that is obvious is that we see an increase in civil wars and terrorism and other things that are generated by the fact that you have states that are not well governed and that's a dark side to the story that we tell and I think it's important to understand that and to think about ways in which we can remedy those problems there's an interesting, you'll notice this drop here in the kind of latter part the people who generated this data this is not my data I'm using other people's data it's from the correlative war project they don't really know why that drop happened either and one possibility is that UN peacekeeping has been quite effective we don't talk about this in the book because we don't know for sure but it's possible that some of the UN peacekeeping efforts actually are partially responsible for that drop but I want to emphasize here and mainly the reason I put this slide in here is just to say this is not purely a happy story it is a mostly happy story and in the end we think that this is a system worth defending but we also recognize that there are problems that are downsides, there are weaknesses there are things that need to be fixed since I haven't had a chance to talk a great deal about the individuals this is a book about individuals it's a book about ideas and in the end although we see much that needs to be remedied and improved in the world the story we see this book is really trying to tell is that people can make a difference that people with ideas can make a difference that Samon Levinson and his quixotic commitment to the outlawry of war really did make a difference in the world as did all the many people, politicians, lawyers, thinkers who tried to figure out how to make that commitment a reality had an immense impact in the world and so for us this is a happy story in the sense that as difficult and challenging as the world around us often looks what we get from this story is that it's not beyond our control that this is the sort of thing that people can make a difference and can in fact help remedy many of the problems we still see around the world so with that I'll look forward to the conversation thank you very much both of you so just a quick clarification question when you say one of the changes was that the permission of partiality as opposed to this kind of strict neutrality that was because the Nazis had conducted a war of aggression yes so right so yes it basically means I mean this is the point that Scott made earlier so prior to 1928 economic sanctions kind of impartiality partiality between belligerence and a war with illegal and after 1928 partiality was no longer illegal so it doesn't necessarily require so this project actually began with us trying to track down when did the economic sanctions start and so tell us about that did you know much about this pact before or was it not a bit and do you want to say a word well we toyed an international lot together at Yale and we like everyone does made fun of it you mention there's something called the Kelly brand pact in Germany, Italy, they'll sign it then within 10 years they're all at war ha ha and it's stupid and we teach international law we're not skeptics but even this we thought this is just idealism a bridge too far what we were really interested in doing is trying to figure out when sanctioning began sanctioning activities began and what we Ona had come across these studies which had started after World War I and when she wrote the authors and said well why are there no economic sanctions before World War I they said we don't know well that's strange so we just started hunting so my job was to start looking at Grosius because he's a philosopher and Ona would start hunting around World War I right after World War I and I started thinking like the next day I thought Ona this guy Grosius he's not what you think he is this guy is saying that war is the answer and then war is the answer that's true because that's not the story I mean to the extent that people have heard of you Grosius he's celebrated he is the patron saint of international law he's the father of international law he's celebrated as the great just war theorist but nobody actually reads him it turns out people read what other people have written about him but it turns out if you actually read him which Scott as initially an outsider to international law actually bothered to read him and discovered he said exactly the opposite of what everybody assumes he says and so we began kind of working he worked up from the 1600s and I worked back and we met in 1928 and we checked every successive treatise like we checked 1920 treatise 1922 treatise and then Ona came up with the Stimson Doctrine and she said there's something here called the general treaty for the renunciation of war and the pact of Paris we did not know what that was and then we found out it was the calibrant pact which we laughed off and then we thought oh wait a second maybe this is the turning point maybe this is the point in which economic sanctions begin because they become legal because war has become illegal as a way of resolving disputes maybe conquest is no longer recognized from this point on maybe done both the policy and then we thought maybe war is criminal and then you know like every world class scholarly researcher we googled it and it turned out that the Nuremberg trial the international military tribunal 1945 was all about the pact of Paris about the calibrant pact and so the whole that's what I said we just stumbled into this into this book Can I ask you two sort of slightly more contemporary questions one is the US war over Kosovo presumably it was not sanctioned by the UN and was sort of therefore outside the pact of Paris framework does anybody try to prosecute the United States for acting illegally well no and I mean so for our book that's a real problematic case now there are violations of the prohibition on war and I think there are some people who can test whether that is in fact a violation of the UN Charter because the Serbs were engaging in something close to genocide the claim of course is that there is a responsibility of the pact that is a shadow exception to the UN Charter we reject that view it's interesting as you know well the responsibility to protect is the liberal flip side of the ability to use drone strikes because it's sort of based on the same factual claim that the state is in control of its own territory and therefore we can either protect a genocidal or we can kill terrorists on the territory flip side of the same coin right well yes and I hope when people read the first part of the book they'll see an awful lot of those kinds of arguments being made in the old world order right so in the old world order it wasn't that they just went to war willy nilly like they had good reasons you failed to pay your debt actually humanitarian intervention was a common reason given those savages are treating them another badly and so we have to go and bring Christianity to them so you know those are the kinds of arguments that are commonly made and we want to give people pause when they hear those arguments today and say wait a minute here are arguments from both Republicans and Democrats I mean during the debates one of the few things that Donald Trump and Hillary Clinton agreed on even though the Niber them gave any detail was the idea of safe zones in Syria so yeah there's safe zones and there's safe zones there's different ways to do that I mean you could do that if you do that through the security council then well clearly that's a non-starter that's a non-starter so I'm just trying to think about the framework of your book that's a non-starter and a safe zone won't work unless you have the ability to shoot down other aircraft this is the problem I mean a safe zone sounds very antiseptic but I worked at the Department of Defense and it's not antiseptic it means shooting down and disabling all the anti-aircraft weaponry within the reach of the areas that you want to establish the safe zone is that something that we should do that is ethical but not legal that's we don't that's we talk about law here not so much about ethics but okay I would just say that in so far as this is a legal system worth defending anything that erodes it significantly is I think ethically worth defending and I recognize that there's a bipartisan agreement to expand the use of force to whittle away at the prohibition on war and I and so in this sense this we're fighting a two front war it is not acceptable for for states to violate international law except under maybe the most dire circumstances we recognize that we're not going to we would not defend the right of the prohibition against war if let's say there was another holocaust if there were millions and millions of people slaughtered if the system were not worth saving and what's the difference except in scale between what Assad is doing and the holocaust well the difference is is that the costs associated with throwing the international system which has been built up over the course of 70 years into chaos so large that they would have to be justified by benefits even larger and that so the idea is that we would not defend it to the ends of the earth but having a stable international order where people know what the rules are where war is still considered illegal is a precious legacy of World War II which should be defended almost at all costs there was the Trump administration strike after the chemical weapons attack was that legal, ethical, immoral rational I mean how do you describe it I think most international leaders agree it was not legal and they may so we argue that each step that is taken to the U.N. Charters that erodes those norms more and it's true a single act by itself is unlikely to destroy the system but enough single acts added together is enough to destroy the system so in a thought experiment where Russia and China didn't have a veto on the security you know then this wouldn't be an issue this would be an issue, yeah would not be an issue the story that we tell in the book was the price that the United States had to pay in order to get the prohibition on war accepted in the United Nations it wasn't an oversight it was a reluctant chit that they had to give away to Stalin in order to preserve the prohibition on war so it was self-consciously accepted as a painful compromise and you wrote the book together obviously how did that work well so we actually started by writing a large article together and it was an article that said many people think that international law is not enforced and therefore it's not law and it argued actually international law is enforced through sanctions what we called outcasting and when we finished writing the article we were like we should write a book together because that was fun and we thought it would be sort of an expansion of the outcasting idea but then we started thinking well when did all this start and that's what led us to this question about sanctions so I think we have a pretty obvious division of labor he's a philosopher and a lawyer and a lawyer and I also do national security law and formulations law and so it's almost always obvious who should be doing what and and so you know as we said thought sort of started with brochures I mean all the philosophers in this book and there are a number of them and they are fascinating brochures there's one of them is philosopher and a lawyer Karl Schmidt, philosopher and a lawyer at Kelsen you know so these are central figures in the book and they it's not a coincidence that it's philosopher and lawyers that are often Michio Mone also philosopher and lawyer although I did Michi but they are people who can kind of see the whole system and kind of understand where they are in the kind of broader picture and who are thinking about that as they're acting both for good and for ill so a lot of those were chapters that Scott took the lead on and then the kind of more present day stuff I tended to take more of the lead on and I'm also a person who likes to dig into the evidence and data and so I took the lead on a lot of that Let's open up the question Tram we'll start with you Thank you for that presentation the book sounds really fascinating I remember an undergrad taking an IR class and sort of learning how norms become law and I remember this sort of like trickle down so you have to have like there's like steps and you have to have acceptance in a certain group of people and then that sort of you know moves up until you actually get to the point where you're like okay I feel pretty confident that once we propose this this will become a law so I'd love to hear about that process sort of yeah sure you have before 1914 but what else is going on in the realm of norms that get people to the place where they're like okay we're ready to introduce this as international law That's a great question so that was part of our preoccupation here until chapter five I think it is really does try to tell that story so it begins with this guy with this idea but of course the guy with that idea is not going to get you a treaty so he he really works to create a movement I mean what's so fascinating about it is that he's working with there's already a significant number of peace groups out there particularly women's peace groups that he partners with and he holds rallies around the country he sends tens of thousands of pamphlets to ordinary people he meets with politicians he partners with senator knock he's partners with senator abora who is not an obvious partner to senator abora known as sort of this perfect isolationist but he having just defeated the Versailles treaty and having presidential ambitions realized he kind of has to get behind something and so is leavenson is very good at playing to his vanity and to his ambition and getting him interested in this project so he's and he's not the only one and there are other characters who are involved in pushing this project who think hey there's actually something powerful here and this is a way of addressing the problem nobody else has tried before and after the kind of initial reaction of like that's crazy and too idealistic I think people start realizing actually you know maybe this could work like let's think about what it would look like and they also work together with countries around the world so I mentioned shot well he meets with brian persuades him that this is a good idea and then he begins speaking with Kellogg Kellogg for whom the treaty is named initially really not happy about the idea and he thinks this is crazy you know idea of the peace activists he's irritated that they're pushing and pressing him from the public he's annoyed that shot well has kind of gone and done the end run around him by going directly to the french and getting them to propose an agreement so embarrassing for him to say no to this thing but he's been working really hard to keep the US from engaging in any kind of partnership you know joining any of the alliances that the europeans understand we want to draw them into and he sees it as a bit of a trap so that's part of what's so fascinating about this is that it took a lot of people working really hard over a period of time and it's not one thing it's non-governmental organizations politicians it's academics it's a lot of people thinking hard about how to make this happen and it's not a foregone conclusion that it's going to work I mean it takes them all working for basically a decade to go from the point where Levenson has this idea and writes this article that's published in the new republic to the point where they actually have a treaty that 15 nations are at the signing ceremony and within a year it's the most ratified treaty in the world which is kind of a remarkable thing but it was this process of building on building the normative commitment that took time yeah but without World War I could it have happened no I mean World War I was key to I mean this is part of what spurred all these peace movements and therefore created essentially like a standing army around the nation for this idea and the US had refused to join the Versailles Treaty and part of the story we tell here for me was a surprise I always thought of the people who defeated the Versailles Treaty as sort of like just wanting to keep the US out of everything like they just want to they want to hunker down and ignore the rest of the world and of course there's an element to that but it's also partially that they rightly understood that the league was about which was the league was a creature of the old world order the way in which the league enforced its rules was through recourse to war so you had to go first to a court but then you could go to war and what the Americans who were against it were rightly opposed to with the fact that they might be drawn into European war which would have almost certainly happened right so they were right actually I mean so Borow is right Levinson actually was a big Levinson who's our hero who's led to the PAC he was one of the big opponents of the league and a money of the people who became proponents of the PAC had opposed the league precisely because they were afraid it was going to lead to war not peace Todd Tucker Roosevelt Institute thanks for the plug for the Roosevelt Library it's great that it's useful hugely useful this actually kind of you've almost answered my initial question here but I wanted to get a little bit more into the left right ideological politics and the dimensionality of the time the late 1910's you did sort of have a left socialist position that was sort of skeptical of the league and sort of a right isolationist and then sort of somewhere in the middle what sounds like over the course of the 20's sort of a plan beats no plan you know and I think as you sort of said you see that left right dynamic happening today too where there's sort of dissatisfaction on the left and the right, sort of the internationalist structure I wonder if you could just say a little bit more about that sort of what do you think what causes either 1910's and then again sort of today this this sort of unease on sort of both sides of the political spectrum with this kind of a structure that's such a good question I mean I guess I might approach that a little bit differently and that what strikes me about this is the idea was not really an idea that was on either party's platform initially it wasn't really seen as so much a political issue as it was a new solution to a problem everybody was trying to figure out how to solve so there were various kinds of solutions that were floating out around there disarmament, the league you know these other kinds of just ignore everybody and hunker down you know these were various solutions that were being bandied about many of the people who are interesting and important to coming up with these ideas were not at least in my read of them not particularly ideological not at least driven biology obviously they had party affiliation and that was important to them but it wasn't at least my read of the papers and of the conversations I saw at the time actually was a much less divided moment than we find ourselves in right now and it was more about a search for a new solution to an age old problem and a sense that someone had come up with something new and different that might actually work fascinating that it was an article of the new republic that sort of sparked this I mean could you imagine is there an analog today of a place where this kind of idea could emerge from it obviously wouldn't be the new republic at this point I didn't think probably not, yeah well, yeah I mean that's an interesting question there's not how do we get an idea like this to catch fire today man on one hand we have much greater availability of information on the other hand we're so saturated it's hard for an idea to break through and that was not as much a problem although Levenson the reason Levenson got that published in the new republic is he his wife and John Dewey's wife were friends and therefore Levenson was friends with Dewey through their wives and Dewey was a key figure at the new republic and Levenson sent this memo to Dewey and said would you publish this under your own name in the new republic because he published lots of things in the new republic and Dewey instead sent it on to the new republic and said publish this under Levenson's name which they did for some reason this reminds me of the opening of the Samantha Power book with the lawyer who came up with the term genocide who was seen as sort of a yeah Lempkin right he was kind of seen as a kind of slightly kooky outsider at the beginning of the war right yeah absolutely I mean I think people with powerful ideas often are seen as kooky outsiders at the beginning and the question is whether they can convince people yeah and sometimes they are kooky outsiders sometimes they are kooky outsiders and sometimes they are kooky outsider ideas actually kind of brilliant this gentleman back and then the lady in back I don't know whether I miss something crucial or what but if war is outlawed then I don't remember anybody ever being called up for Vietnam or intervention in Afghanistan or all these minor you know the drone wars that are actually wars although we don't call them that I mean the only illegal thing was apparently that Congress didn't declare the war for example but I wonder how you address that and what you think of that yeah and so the fact that crime aggression is available doesn't mean that it is always used and so in the modern in the post 1928 era there is the possibility of a crime of aggression because going to war is seen as illegal and therefore waging aggressive war can be criminalized but this is a sort of legalistic answer there's the question of whether it could in theory be criminalized and then whether there's a court with jurisdiction over the crime that is in a position to be able to prosecute US for instance has not joined the Rome Statute for the International Criminal Court where one of the four crimes is the crime of aggression and therefore that is not an available option and there is no other international court with jurisdiction over any of the crimes if there are crimes that you noted so that's the challenge not only is it could it be criminalized but is there a court in a position to be able to actually bring somebody to justice putting a clarity on the Afghan war the United Nations essentially said by any means necessary you can respond and then NATO invoked Article 5 Congress passed an authorization to use a military force so this was a legal war as long as it's authorized under the UN Charter it's a perfectly legal war and there's no criminal act that's absolutely right so that's why I said to the extent that it is a criminal act the question then is is there a court with jurisdiction over that over that criminal act but you're absolutely right that if it's authorized by the UN Charter that's not criminal that's not in violation of international law if it's a wage in self-defense as long as it is in fact wage in self-defense as defined under Article 51 it's also not illegal if it's done with the consent of the state in which the actions are being waived so for instance the U.S. is now operating in Iraq with the consent of the state of Iraq that is also not criminal even though it is a war because it's legally authorized although I believe that some philosophers in the 60s Bertrand Russell, Sartre they actually tried the United States for Vietnam obviously that obviously not a valid international court gentlemen of the back James saying as a background for the time you were talking about there were things like the Washington Treaty followed by the London Treaty followed by London too was this an organization that was pursuing parallel tracks consciously one part of it was pursuing a track in spite of the other one or was they just ignoring each other totally what was going on, the State Department ever get its act together on the two sides why was doing the able treaties and banning war at the same time so there was there were cross currents some of which we discussed in the book some of them at cross purposes with one another some of them trying out different kinds of solutions to the problem so a lot of energy for a long time was being devoted towards requiring disarmament so during the same period that the whole movement towards that Lawry of War was one possible solution to how are we going to keep the peace but also a whole effort to require states to disarm as an alternative and then of course another mode of thinking through how do we make the league work and trying to put in place a machinery through the league that would actually be effective so there are many streams of thought some of them cross cutting, some of them at cross purposes with one another and we described many of those some of them similar people involved some of them different people and even within the outlawry movement there were different ideas about this problem so Levenson and Shotwell both were committed to this idea about Lawry of War but they had very different ideas about how to do it Levenson thought it was enough to just outlaw war and that's it and Shotwell said no you have to have a machinery around it you've got to have some way of enforcing it you've got to have some institutional structure within which you're going to embed it or it's not going to work and they were very much at cross purposes Levenson won initially at least because the pact itself only had the prohibition on war Shotwell maybe won in the end because he was part of embedding the commitment of the pact into the UN Charter which did have the machinery that he initially had been arguing was necessary so it's not that people propose an idea and everybody's like oh you're completely right I was wrong all along we're now all going to work together to make this work like people come up with ideas and people argue with one another and they disagree and they have different ideas about how to solve that problem and eventually an idea wins out in this case the outlaw idea won out and eventually became the pact and then as we described led to this change over the first time what's that no not at all you're absolutely right you see this now you see this today with anti-war groups they are not I mean they are against various countries engaging in war but they also work on parallel tracks for disarmament against nuclear weapons I mean they recognize that it's not enough just to end war you have to start the arms trade you have to prevent nuclear proliferation they're very excited now because of the the new nuclear weapons treaty which the suggestion has been made to us by the groups that we work with that the what seems like a quixotic action by the non-nuclear states to ban nuclear weapons much like the calabrian pact you know we laugh at it now but you know is in 90 years are going to yell academic is going to write a book about how that remade the world for the people watching on the live stream hi my name is Dimitri thank you very much I'm very much looking forward to reading this book bravo for writing it so I have two quick questions one is I guess the Soviet Union was not an initial of the pact so I'm wondering if you have any information on how they eventually came to it and the other one is kind of touching on what you're saying about disarmament and other means to avoid war what did these people view as a way did any of them other than disarmament did they think of about an eventual UN army of some kind to enforce this stuff I know I'm pretty sure when they were starting the UN they debated regional defense agreements fairly seriously what did they think about alliances and things like NATO and things like that thank you you want to take a second so they did sign on pretty quickly they weren't part of the initial group that was so it was initially a conversation between the French and the Americans and then the British quickly were brought in and the Germans but they did eventually become part of the group that was part of the pact early on along with nearly every country in the world so it was accepted each country had its own reasons but they were among those who joined right on they I mean they signed and ratified it so they had that non-aggression pact too with the Nazis yeah about enforcement as the owner said there were lots of thoughts about how to enforce the prohibition on war and even when it came to the UN Charter there were a number of solutions that the framers of the Charter considered one of them was these regional agreements that NATO being one of them afterwards but the second was called the military staff commission which is that the UN the people who established UN thought that the UN would have its own army and this never came this never came to fruition being killed roughly by the Cold War which begins almost immediately after the establishment of the United Nations and so now we have a hodgepodge of military alliances, self-defense authorization for states to use force not an ideal situation but again constant sense of experimentation and sometimes success sometimes failure can record you said the UN Charter prohibits war prohibition on the use of force prohibition on the use of force and yet the word aggression is never used in the Charter true I'm pretty sure it's true someone went to their magic box and figured it out pretty quick so how did the UN authorize the United States to intervene in Korea with that prohibition? yeah so there is although there's a general prohibition on use of force there are exceptions so one exception is authorization through Chapter 7 so the Security Council can authorize uses of force to address threats to international peace and security which was the case in Korea in part because there was not an entirely staffed Security Council at the time but yeah it was authorized so any use of military force so there's a general prohibition on use of force and then there are exceptions there are Chapter 7 authorized interventions Article 51 self actions and self defense and then if the state in which actions are taking place is consented that's also an exception earlier that it was a war is legal if it's authorized by the UN Charter you meant through a vote of the Security Council yeah that's right that's right I have a question regarding the question of economic sanctions because you said it was the origin of economic sanctions that kind of touches the outlawing war my question is how do you view the evolution of the use of force with the new economic sanctions that are being used in the past years especially as we have seen with Iran and now maybe North Korea will this have an influence on the illegal use of war so part of the argument that we're making is that when they no longer are able to use war to enforce the rules they had to come up with an alternative solution and part of the alternative solution was sanctions and part of the story we tell in the latter part of the book in the third part about the New World Order is various innovative ways in which they have tried to strengthen and improve that tool over time and so sanctions were a very blunt instrument early on they didn't really know how to use it in an effective way but over time we've gotten much better at using economic sanctions the technology basically the technology of sanctioning has become much better so an example is the sanctions that led to the Iran nuclear deal and so one of the innovations that took place was not only sanctioning Iran but sanctioning individuals within Iran so that the actual people who are involved in the policies that you wanted to stop were personally sanctioned so their own personal bank accounts were being frozen they could not personally travel but another piece of it was sanctioning not only Iranian banks but banks that did business with Iranian banks so that you had to make a decision you have to decide as a bank am I going to do business with Iran or am I going to do business with the United States and Europe and every country and nearly every bank decided they were going to do business with the US and Europe and not with Iran and that was very painful they almost stumbled across that of course they were thinking hard about how to make sanctions more effective so that was a really important innovation and if you look at the sanctions that have been designed to deal with Russian aggression and Crimea that's also been very innovative because one of the big dilemmas that you have using sanctions in a situation like that where you've got incredibly powerful large nations that not only has nuclear weapons but also it's a major source of energy resources for all of Europe if you cut them off immediately you not only destroy their economy you destroy your own economy along with it and so very innovative ways in which they back loaded a lot of the sanctions and designed the sanctions against Russia both US and EU sanctions against Russia to bend the growth curve of Russia and also particularly the sanction technologies that the US and EU have special control over and that Russia wouldn't be able to really get from anybody else so these are really innovative tools and techniques which are changing right now like these are very recent innovations and part of what we find so interesting is the way in which this is a constant process of evolution that this is not like we're at the end of history now and we can stop like this process of figuring out how to force the rules in ways that don't involve force military force that use all the rest of these other tools of what Levenson called the sanctions of peace in a more effective powerful way targeted way that process is still a process of learning and constant evolution and design which we hope more energy and thinking will go into figuring out how to do that better and that we'll continue that process of evolution so that we're even better at it we're better at targeting, we're better at not hurting the people we don't want to hurt and affecting the behavior of those we do so we spent a whole chapter on exactly that till the outcasting and it talked about the evolution of those techniques So we've gone from gross history of the sanctions on Iran, we want to thank you both very much Professors Hathaway and Professor Shapiro for a brilliant presentation Thank you