 Well, hello, I'm really pleased to be here again honored to have Hans's invitation to speak again most of you Who have heard me speak no, I usually speak on Analyst or property That's about it. No in libertarian legal topics. I do have a powerpoint today. I'm a little embarrassed But David Durr assured me he has one too. So I won't be alone I can't help myself sometimes. I make notes for my speeches and then I have to footnote or hyperlink But later I'll put this on my podcast and I like to put the the power point down But because it has links to things we discussed here that I might not be able to get to or further reading materials so Most of you who know me or know of me know of me through libertarian matters, but I have written and spoken on Some purely legal matters a reasonable amount in my career Mostly on intellectual property and law not the policy aspect but law itself and even oil and gas law used to do that and international law and even legal ethics and I have a whole nother website, which is not I don't recommend it It's not exciting, but it's can sell a lot. It's my lawyer website and my name There's Norman because I'm hoping to prevent searches from finding Stefan can sell us showing potential employers what I write for libertarian matters, but I have long had an interest in law itself legal theory comparative law international law and I think this has helped add to my interest in Libertarian theory, but also independently legal theories always interested me So today I wanted to speak about something. I haven't spoken about before Just international law itself and maybe with some libertarian insights to various aspects of it I think one reason I've been interested in this is I did study law in Louisiana Which is the only civil law state in the United States all the other 49 jurisdictions are common law based English common law based Louisiana has a civil law Legal system similar to what is present in most of the continental Europe But of course we had to learn the common law too. So I had an interest in comparative law I even spoke here. I wrote a long article for the JLS in 1995 on legislation and comparative law and I spoke on a related topic here in 2012 And then I went to a master's degree in international law in London. So That enhanced my interest in international law and I published on that too I published a book in 2005 with Oxford on international business law and the new additions coming out Soon very early next year, I think So that explains my interest in this and in fact, you know, the first PFS was 2006 Which Hans someone hastily called it was well done and nice But my very first talk here, which is not recorded But it was a panel discussion based upon that book that I wrote and it was about international investment So I actually did speak a little bit on this topic one time before And so did several other of the previous speakers who've been here for Rimi Shemashius and Nikolai Gertchev and Joza Sema from Czech Republic and Matt Mahai from Poland So I'm revisiting a topic in a sense from a long time ago For those who get a little interest in international law from my talk today I will have a list of recommended reading at the end But this is just a sample of some of the main books that I have read and relied upon Sort of the Bible and international law is the Brownlee book principles of public international law And then there's Oppenheim, which is out of date now, but being updated That's the the old comprehensive set and there's one by Mark Janus and one by Shaw And those are both excellent and well updated and systematic and comprehensive One of my professors at London School of Economics when I was in London is Rosalind Higgins Who was later a judge a judge on this international court of justice and one of the world's leading international lawyers And she she has a wonderful book. It's one of the favorite books. I've ever read actually It's not comprehensive, but it's your personal view about international law And I highly highly recommend this book. It's called problems in process. So it's about international law So anyone with an interest you can follow up with with that some of the classic books you just on the law of war from 1625 Divatel the law of nation 1758 So this is sort of leading up to the history I have an eclectic list of things that I find interesting that are relate to comparative law And I'll keep it on my my blog and you can look at it later Now so what is international law? So first you should know that International law is broken down into two basic types public and private international law Public international law is the little the body of law or rules that govern the relations among Independent sovereign states in the world today. There's a roughly 200 states in the world Now this is opposed to what's called municipal law, which we all think of as our government's law So the law is in Turkey or in the US or in England are called municipal law by international lawyers It's the domestic law of a given state And when people talk about international law, they usually are referring to public international law But there's a second body of rules called private international law Which really is about conflict of laws So that has to do with interactions between people of different countries trade and when there's a lawsuit or a dispute And it's usually going to be in a court of one of the countries Which laws apply is that the law of the other country of this one or some kind of special rule applied to them so private international law has to do more with transactions and trade between individuals and You can think of the distinction also Public international law the subjects of the law are states primarily and some other international bodies But primarily states are the actors on the public international international law scene whereas a private international laws how to How to handle disputes between corporations and private persons with their interactions across borders Okay, the history of international law in Roman times There was something called eus gentium the law of nations Which is not what we mean by the law of nations now the word law of nations now is more or less synonymous with what we call International law but back then it basically meant the law that was common or universal to mankind and the Romans could use those principles to apply the To apply to foreigners in the Roman courts and there was also use Intergentes that was the law between nations sort of like treaties. So it was very primitive It wasn't like our modern conception of international law for that to happen The conception of the state had to change and it started changing in the 16th century When the state started being thought of as the modern sovereign or political state As opposed to just being identified with the monarch But it was identified with the personality of the nation itself So the nation state arose and when the the concept conception of the state started changing Thinkers started saying well this law of nations starts up does apply to states themselves They're bound by some kind of higher law between the states and so Hugo Grosius in 1625 wrote about the laws of war What are states limits and obligations when they conduct war? And then the term of international law was actually introduced in 1789 by Jeremy Bentham And it took it took over and now that is the term that we use but it was called the law of nations pretty much before that So now we refer to it as international law Okay You know Montesquieu in 1748 had a formulation of what the modern state's system was like And it was offered to Napoleon in 1806 by tally rand And it was the idea that nations ought to do to one another in peace the most good and in war the least evil possible one of these sort of principles of how states should get along with each other and then of course the modern history of international law really started changing after 1945 after World War two with the formation of the United Nations which has almost all the states of the world about a hundred ninety three as members and with two Non-member observer states the holy sea and Palestine. I have the state of Palestine here. That's a mistake. It's it's not a state The problem is they're under the category non-member observer states So they're classified as a state to be a non-member observer, but they're not recognized as a state by anyone So it's an odd situation So you have countries that don't recognize Palestine that them to be admitted as a non-member observer state Even though they're not a state and I pointed out before in blogs like only Rockwell's blog years ago You know, you could say that the holy sea nowadays the Catholic Church is Maybe one example of a of a voluntary state It's got roughly a billion citizens the Catholics around the world who give voluntary contributions It doesn't have taxes does have an army. So it's really maybe one of the best states in the world Some people in Pennsylvania might disagree right now So one of the concepts that's important for the modern notion of international law is that the state is regarded as having sovereignty Okay, this basically means territorial sovereignty. So the other states agree to recognize the independence of those states And of course this concept it traces back in political theory to the peace of Westphalia in 1648 which ended the 30 years war Some people think that having obligations on states as sovereigns is inconsistent with their ability to be to be sovereign but that that issues pretty much been settled by now and International law is regarded as a real body of law that does govern what states can do There's a well-known treaty from 1933 the Montevideo Convention on statehood and it defines what states are How we recognize what is when there is a state so it has four criteria You have to have a permanent population a defined territory a government and the capacity to enter into relations with other states That's a little bit circular and it has to do with the idea of recognition one state recognizing the other but This is one reason why you can have microstates like some of the very tiny states like the Holy See Now there is something about recognition so recognition is regarded as a political fact That is the state either does exist or it doesn't exist as a political fact if it fulfills this criteria whether or not other states have officially recognized that state so It was one reason why you have the odd issue of the Palestine situation. They're not recognized, but they're admitted into the UN And The the same treaties and international rules govern the issue of succession of states States change over time and this political reality has to be recognized Otherwise the world would be ossified into one system that they didn't conform to reality So a good example would be the USSR when the USSR collapsed in 2001 I believe and Russia Russia assumed the seat of the USSR on the United States I mean on the UN permanent Security Council for example And is recognized as the successor in obligations under international law and treaties to what USSR had agreed to before So there's a there's an interesting part of international law dealing with how to recognize when states are successor states Now The definition of a state by international law is not the same as the political theory definition We would have as libertarians that for example Hapa following others like Rothbard and knock and These thinkers we would define the state if you look at the bottom definition Having two features two characteristics a compulsory territorial monopolist of ultimate decision-making That's this jurisdiction and then it's a territorial monopolist of taxation to but This definition which I think is a sensualist incorrect is it's not incompatible with the way international law looks at it It's hard to imagine a state that The libertarian definition recognized as a state and the international law wouldn't there they're they're pretty synonymous Definitions or classifications Now, how do we know what international is? How do we know what its concrete particular rules are? so the International Court of Justice, which is the the chief court of the United Nations and their statute There's a definition of how they determine what the law is. Okay, so it's got four four functions number one international conventions, which are like treaties international custom Okay, which is evidence that nations have accepted this now these first two if you think about it are consensual because the first is What nations have consensually agreed to that's what a treaty is it's explicitly agreed to and it's in writing and Custom is what states implicitly agreed to by the by their conduct and Then you have the general principles of law recognized by nations and how do you figure this out? Well, you can look and you can see what their municipal law is what the actual law of England is what the actual law of Argentina is and To the extent that those start Representing a common type of legal principle that would count, too And that is non-consensual if you think about it because These states as actors on the international scene will have that third source of law applied to them under international law Even if they didn't make that law themselves and then finally fourth of Judicial decisions that's like court decisions in different countries and the teachings of the most highly qualified Publishes that is scholars and thinkers right, so what's interesting is that One of the main sources of international law could be resort to reason and Natural law principles even given by by by theorists Because it's not a legislation based system Now compare this to municipal law the laws of countries and let's just take the two great systems of the world today The common law the English common law which is And and the civil law the European Continental law so in the common law the source of law used to be the courts court decisions Right judges trying to do fairness or equity in a given case trying to reach a fair result relying upon precedent Nowadays There's more and more legislation in common law countries like the US and even England You know from commercial code and tons of special legislation, so the court system has been watered down by legislation So legislation is now a big source of law even in the common law countries and in the civil law The civil codes were originally the basis of their law and the codes were codifications of principles developed in Rome and in Europe Through custom and and the Roman law was developed largely in the decentralized system similar to the common law actually by decentralized fact-finding sort of courts But they were legislative and codified so the legislature had some legal experts codify the law and then The legislature passed it as the law so it's there's a certain legal positivistic aspect to it and of course the civil codes have been now swamped By other special legislation so the point is in most municipal law systems common law and civil law Legislation is the key or a key source of law Although I have quoted here. I forgot to mention these these four articles This is the first four articles of the Louisiana civil code where we're the one I'm most familiar with And the first one says the sources of law are legislation and custom So at least they recognize custom as one source of law, but still legislation is primary Now in international law like I mentioned you can have natural law introduced into the argument about what the law should be Because as I mentioned the treaties and and and the and custom are based upon Consent by countries and the non-consensual sources can include the opinions of specialists jurists philosophy basically legal philosophers, so There's basically more room to argue for a just result in international law because you're not just arguing what the law What what the legislation is so one example would be and this is something I cover a lot in that in my book that I had Written on private international law There was a wave of the expropriations and nationalizations of Western oil companies and a Property in in the Middle East in the 70s right leading to the oil crisis and And that and so there was lots of international arbitrations and lawsuits by these the companies that had been victimized Texaco, etc. And before international arbitral tribunals arguing that they should be compensated, right? And so there were the question was well, I mean what what did what did what did the? The host countries argue that well first some of them didn't show up They said I we don't recognize the the legitimacy of the tribunal. We don't have to recognize it We're a sovereign country. These are just companies. They're not even on the international scene And then then they would argue We don't have to owe pay full compensation And then there's a this is a technical thing Lucrum says in or damn them emergence like the the damages that come just about from the taking or do you have to take To account lost profits for the future, which would be more like the full value and over time It's pretty much been settled in international law now that of course you have to pay compensation and it has to be full compensation Because of the reasoning of the Of the people advocating for that Didn't have to appeal to a to a statute that already settled the issue They could appeal to common sense and reason and fairness and justice and natural law This is some quote that I love. I've quoted this before here in 1884 There was an effort to codify the the common law of New York and one of the defenders of New York common law argued vigorously against it he won it wasn't codified legislatively and He's got this great quote when he talks about how hard the good thing about a common law system when they can be based upon custom and and The appeal to reason Okay, he says it present when any doubt arises in any particular case as to what the true rule of the unwritten law is It is assumed that the rule most in accordance with justice and sound policy is the one Which must be declared to be the law the search is for that rule The appeal is squarely made to the highest considerations of morality and justice These are the rallying points of the struggle the convention is ennobling and beneficial to the advocates to the judges the parties to the auditors and then to the whole community The decision made records another step in the advance of human reason toward the perfection after which it forever aspires But when the law is conceded to be written down in a statute and the only question is what the statute means a contention Unspeakably inferior is substituted the dispute is now about words the question of what is right or wrong just or unjust is simply irrelevant And out of place the only question is what has been written? What a wretched exchange for the manly encounter upon the elevated plaintiff principle? So this guy was great And anyway, you can see that the the international law is more like the spirit of this original common law than the appeal to statutes So that is one One appeal of international law Hans. How much time do I have? So this is sort of a grab-bag Speech I'm giving here because I'm taking different topics because because international law is a vast vast field. You can't cover it comprehensively These are some of the areas that concern international law or that are The laws of war is one big issue in the law of treaties because these are two of the biggest ways that Things that international law governs right how treaties are formed now Treaties are thought to be binding because of the idea. It's a latin term. Pacta suit savanda agreements are to be respected Now we have the United Nations, which is not to be confused with international law Of course, it plays a big role now in international law, but it doesn't make international law and It is distinct from international law There's a political science field of international relations. There's the international court of justice Then there are things called international organizations which have legal personality under international law And thus can be subjects of international law like the UN itself the European Union NATO There is an international criminal court the US refuses to be a member. I wonder why There's growing field of international human rights and humanitarian law Environmental law and then there's also private international law which I mentioned and a whole field of international arbitration where these large companies engage large law firms to sue countries in Switzerland or America or some some neutral place Couple of things that I find interesting in international law. I'm just gonna touch on them here There's something called the active state doctrine and the related idea sovereign immunity This is not a universal law a rule of international law But it is the active state doctrine is recognized in English and in US law And it's sort of the idea this based upon this idea of state sovereignty that One state's courts will not sit in judgment of the acts done by another government on their own soil It's sort of not respected in their sovereignty Okay, and usually this doctrine is invoked when there's an expropriation of the government of the property of of a national of another state and In the US for example one reason The government doesn't want people to be able to sue The the the offending state in their courts They want to go to the through the president's office to the executive branch so it can be handled politically And it's called the foreign active state doctrine in England. Okay. No I'll skip this case. There's a couple of key cases that define this the underhelvers Fernandez where there was a An American citizen in the underhill in Venezuela and after the revolution He was running this water work system in Cuitat Bolivar and the general denied him a passport So he'd stay there and run the water work system for a long time Finally when he got home he sued for being detained in American courts And he lost because the US court said we can't judge the actions of the Venezuelan court And there was a similar case when the Cubans nationalized American sugar industries Plants and and the plane that's lost there too because even though what Cuba did was illegal under international law Illegal because they didn't pay compensation Right, you can expropriate property, but it has to be a due process and has to have compensation and it didn't have that So those are two examples and there's a related doctrine called the foreign sovereign immunity or foreign sovereign immunity And it was codified in the US in 76 And it limits when a foreign government can even be sued in a US court So it's a jurisdictional issue and there's an important exception the commercial activity exception So when a foreign government acts the way that private companies act Then they can be sued and one example would be when Argentina defaulted on their bond payments they they could they said that you can't sue us because we're a sovereign and The court held it. No, you're you're engaging in a financial activity just like a Creditor would or or borrower would and there's one exception 2016 in the aftermath of a Guess 9-11 the justice against sponsors of terrorism acts so the American citizen can sue foreign countries in US courts Based upon damage from a terrorist act committed on US soil, so there is an exception there there too now Now one criticism of international law even by some libertarians is the is a sort of a criticism based upon the idea of legal positivism people will say international law isn't real because there's no There's no one-world government cop to enforce it and there's no statutes to enforce the law But that critique is similar to the mainstream critique of our anarchists are a libertarian idea of anarchy, right? I mean we believe you can have law without a sovereign state over us And so I think this critique is is flawed as in libertarians, especially shouldn't shouldn't make it now There is there has been for a long time and hostility towards not so much to international law Except how the West and the US have manipulated it for their for their benefit, but to the United Nations itself You know you you've seen these bumper stickers. I used to see them get the US out of the UN or get the UN out of the US Joseph Stromberg has some good articles on this actually one of one of our old Mises Institute friends and he said I understand that sentiment But as a libertarian friend of mine said around 1971 the UN may indeed be a mere debating society but if nations are debating at least they're not shooting so You know it's not the worst thing in the world when nations talk with each other instead of having war So I wouldn't say the UN has done a lot of good But it's not the worst danger there is and international law certainly is not something we should Now there was an interesting issue in the US The US has a strange clause in the Constitution is called the Supremacy Clause and what it says the the Constitution and federal law is the supreme law of the land But it also says entreaties made to it so there was a concern for quite a while that the president could basically do an executive agreement which is like a treaty under international law and And basically circumvent the Constitution by or the Congress could do it with it with a with a with an authorized treaty a ratified treaty So there was a concern that like the Bill of Rights could be overturned by a treaty with another country So Senator Bricker tried to get this amendment, which which was going to pass 1952 it would it would have it would have amended the US Constitution to prevent this to make sure that treaties could never Conflict with the Constitution's provisions, but it lost unfortunately So we don't have that now. So some people still bring that up from time to time and I would be a favor of the Bricker amendment I'll mention one more thing before I close. There's a fantastic article. It's not Directly related to this, but it's about this idea of anarchy which we have in the international system, right? We don't have a sovereign There's a classic article by Alfred Cousin who I think is not even a libertarian, but he wrote it in this 1979 issue of the JLS It's really a classic article. It's short if no one's out if you haven't read it You should read it. I think he wrote a follow-up about five years ago called revisited in the one of the last issues of the JLS What he argued is that We don't we don't really the argument is a fake argument that That we could ever have anarchy, you know when people say we could never have anarchy you have to have a government He's saying we actually never have a government. We we always have anarchy because The only question is what type of anarchy do we have do we have a pluralistic decentralized market anarchy? Which is what we favor or do we have like a non-market hierarchical or political anarchy, right? So when you have a state what they do is they abolish the anarchy among their subjects But they have anarchy inside the state and let me show you this figure here. This is a figure from his article You see on the left. This is this is natural anarchy. So all these citizens a b cd They have a bilateral relationship with each other But when the government steps in the figure on the right the G is the government the government Forces a and b and c and d to go through it, right? This is what hapa it means in his definition of the state is having a compulsory Monopoly on jurisdiction and dispute settlements, but on the bottom part of the Those are the people within the state They're not governed by something above the state because they constitute the state and there's no super state above them So they're in anarchy with each other. So you always have a type of anarchy. So you never get out of anarchy really I Think I'll close here I have some more material in this which you can read later and if anyone is more interested in this on the very last page I have some lists of further reading And I what I would highly recommend for anyone interested the top two things on here would be Rosalind Higgins book problems in process It's really readable and it's really a wonderful book and then there's a great online course on YouTube It's called the international international all MOOC, which I think means massively Open online course. It's like a 40 part thing five ten minutes each It's pretty recent, too. It's really good And then for more systematic treatments, I would start with Mark Janis's book. It's really a really good treat It's but that's that's a whole legal treat. It's which most of you won't want to read All right, so I'll stop here. Thanks very much