Lawfare Daily: Oona Hathaway on the Collapse of Norms Against the Use of Force

[Intro]

Oona Hathaway: The claims that were being made that there was going to be a mushroom cloud if we didn't act were clearly false 'cause they never found any evidence that there was an active nuclear weapons program. So I think that just demonstrates the dangers of this kind of preemptive or anticipatory self-defense, is that it leads you to take actions that are not well justified and then it creates justifications for others to do the same.

Mykhailo Soldatenko: It's Lawfare Podcast. My name is Mykhailo Soldatenko Lawfare Legal Fellow, and I'm joined today by Oona Hathaway, law professor at Yale Law School and president-elect of the American Society of International Law.

Oona Hathaway: If the system is going to survive the current challenge it is going to be because more states decide that it's important to step up and that they shouldn't remain on the sidelines, and that they do need to do something to try and support the international system, and that they can't wait for the U.S. to do that because it's no longer interested in that job.

Mykhailo Soldatenko: Today we are discussing how the current world events are harming the norm against the use of force in international relations, recent strikes on Iran, and implications from negotiations in the Russia Ukraine war.

[Main Podcast]

Professor Hathaway together with her colleague from Yale Law School wrote a piece for Foreign Affairs saying that current events pose a threat to the world order based on the prohibition of the use of force and their main argument, it's based on their 2017 book, “The Internationalists,” where they described how this new world order emerged.

So Professor Hathaway, could you please explain to our listeners who are not familiar with the internationalists, what is this new world order? How did it emerge? How it's related to the Kellogg-Briand Pact and the UN charter and how it differs from the old world order where the war was bread and butter of foreign policy.

Oona Hathaway: Yeah, thank you and thanks for that question. So, in the book we start with what we call the old world order. And what we mean by that is sort of the way in which the world worked for hundreds of years starting at least in the 1400s and up through the, at least the 1920s. And this is a world in which war was legal, war was the main way, in fact, in which states resolved their disputes with one another. It wasn't just a breakdown of law, it was a tool of law.

And Hugo Grotius, who's known by many as the father of international law, actually wrote about war as a main way in which states would resolve disputes with one another, in which they could, right wrongs, they could pursue their legal rights is through going to war.

And so we start there because I think this is a past, is a history that many of us have kind of forgotten. We've lived at least for the last 80 years in a very different kind of world, one in which war is not legal and lawful except in limited circumstances. And so what the book tries to do is kind of start readers off realizing like the world we've been in is not the world that has always existed and so part of the question is of course, how did we get from there to here?

And that transformation, we argue, got started through the 1928 Kellogg-Briand Pack, which of course, if, if your listeners have heard of it, you know, have thought of it as like the laughing stock of international law. It's sort of the, it's sort of the butt of all the jokes, you know, how could you possibly think that a treaty could do anything about war? What a joke.

And what we try to say is, that's the wrong way to understand the Kellogg Briand Pact that of course, it didn't succeed at its goal of ending war, obviously World War II follows. But it set in motion this transformation in the legal order and that you can't really understand the world we would live in today if you don't understand that transformation.

And the basic idea is that the Kellogg Briand Pact outlaws war. It is for the first time, the time which states were announced the right to resort to war as a tool of national policy. And that then requires changing the whole international legal system, which had up to that point been built on this idea that states can go to war and that's legal and lawful to go to war. And in fact, that's the way in which you right wrongs.

And all of a sudden now you're not allowed to go to war. And you have to kind of recreate the whole international legal system around a totally different foundational principle. And that then becomes the core of the UN charter, which of course provides that states cannot use force against one another. And all of the rules that we have today around prohibition on conquest and prohibition of gunboat diplomacy and all the rest flow from this important transformation, this kind of critical transformative moment.

And the last thing I'll say is just that the key argument here is that the foundational shift that takes place is around the legal treatment of war and whether war is lawful or not, and whether states can change the legal rights through using military force or not.

And the claim that underlies the project and this idea of the new world order is that the modern international legal order rests on the prohibition of war, that that is the kind of core foundational principle of the rest of the whole system. 

Mykhailo Soldatenko: I think an important question before considering why that's problematic that it's unraveling, it's important to understand why it's important.

So I think like for people who are in countries that are under armed attacks, like Ukraine and other countries may have a different views than let's say people in Spain or people in the United States. There is a notion between the U.S. and Europe, there are no threats like major threats of invasion in the hemisphere, neither from like Canada, Mexico, whatever. Why the ordinary people should care about this, that this order should be maintained?

Oona Hathaway: Yeah, it's a good question. And you know, the claim that we make and, and I, and I believe is true is that this prohibition on force is the kind of foundational norm of the legal order and everything else kind of is built on top of it.

So if war is illegal, then conquest is illegal. If war is illegal, then global diplomacy is illegal. If war is illegal, then the main way in which states can influence one another and engage in relations with one, one another is through trade and diplomacy and peaceful relations with one another. And so all the things that we've kind of come to expect from the global legal order really flow from this foundational principle.

If you begin to weaken it, if you unravel that foundational principle, sure, the first ones to feel it are gonna be Ukraine and then Poland and the Baltic states, maybe Canada, we're gonna talk about that. But it's gonna make for a radically more unstable world. It’s gonna make for a world in which no state can be entirely confident that its neighbor isn't going to invade it, that it's going to immune, be immune from the use of force, that it engages in trade relations with another state that state's not gonna turn around and just try and take back whatever you've just traded with them for.

It just makes a much more chaotic and unstable world and the United States, even though maybe at this moment it doesn't have reason to worry about other states invading it. That's, I think that's fair to say, and I think Donald Trump certainly, you know, part of his view here is like the U.S. has a big military, why not use it?

But it does mean that our, we're constantly gonna be in defense of, of our allies, there are gonna be those that are trading partners who are at risk that we are then going to be called on to try and come and defend. And it is going to, it, it's not just the U.S. that might use this force, it's, it's our adversaries as well.

And so we're gonna be constantly kind of trying to press back at the margins with our adversaries through use of force and, and use of force is not something that's just sort of an antiseptic thing, it's, it's literally people's lives and, and destruction as opposed to engaging in trade and peaceful relations.

So it will make for much more chaotic and brutal world and, you know, we won't be able to depend on the prosperity and peace that we have largely been able to enjoy, certainly for the last 80 years.

Mykhailo Soldatenko: One of the main critique of “The Internationalists” is directed at the fact that you give law so much importance.

And, and I, and I think so Harvard Kennedy School Professor Steven Walt wrote a review of “The Internationalist” saying, liberals, no, saying no to wars, doesn't mean ending them. And, and kind of, I think this argument goes that correlation does not mean causation. There are many factors, there are alliances, balance of power, nuclear deterrence, nationalism, free trade, you name it.

And they say you need to work with the, the balance of power structure and not concentrate so much on law. What's your reply to that? Why law is so important and the norm is important, and do you think that the primary reason that we have this, you know, we had this more or less stable world, or there are other variables in this equation?

Oona Hathaway: So we wrote a response to Steve Walt’s review, which I encourage listeners to, to look up called “What Realists Don't Understand About Law.” And it's on my SSRN page and you can find it on Foreign Policy.

And what I think Steve was missing there and, and I think critics of international law generally are missing is that all of those things matter. We don't deny that. You know, nuclear weapons matter, trade matters, these things all matter, they all make a difference. This is not an argument that the power is irrelevant, but that power both creates law and then it reinforces and strengthens the law and it acts in service of the law.

And so, look, the United States was a key advocate of the modern legal order. The UN charter, the first draft was written in the U.S. State Department in the midst of the war. And then the U.S., you know, basically brought it to other countries and said, you know, we think this is a set of rules that we have to abide by. And of course, it was amended and negotiated and changed in various ways.

But U.S. believed in a system and advocated for a system, and really fought for a system in World War II that prohibited war as a, as a tool of, of resolving disputes. Now, did they do that in part, did the U.S., UK, and France support that in part because they had succeeded in doing a lot of conquest and they had a lot of interest in like drawing the line at that point and saying, now is the time to stop, just as there are all these rising powers around the world? Sure, that was absolutely in their interest.

It's also the case that the law then takes on a force of its own. They create it because it serves their interests, and then, but it also serves all states’ interests. Frankly, war is not in anybody's best interest. It's destructive and, and, and causes a lot of horror. Then, you know, the U.S. after World War II was the only state that had nuclear weapons.

If nuclear weapons were the only kind of story here, why didn't the U.S. use that to conquer all kinds of territory? Why didn't we take Greenland and Canada back then? Why stop at you know, what we took from Mexico in the 1800s? Why not keep going? Well, part of the reason was we had this set of legal commitments and moral commitments, but the moral commitments were reflected in legal commitments around prohibition on conquest and prohibition on using force and threats of force to resolve disputes and to, and to assert legal rights over territory.

And so nuclear weapons, sure they're in service of this goal and they support that goal, but it's not just nuclear weapons aren't the entire story because if they were, we'd have wars between states that are not nuclear weapons states are not supported by nuclear weapons states, and we also don't see that.

So it's also the case that trade, look, trade too is enabled by a world where states can trust that the prosperity that they accumulate isn't just going to be taken from them. This is one of the kind of fundamental dilemmas of the real, of realist theory is why would states ever trade with one another? Because whenever you trade with one another, both sides are advantaged, but one side is, is inevitably advantaged more than the other. It's impossible to have kind of perfectly even advantage gained from trade.

And the realist theory goes, well then therefore it's impossible to have any kind of real trade arrangement, because if you do even though both sides are being advantaged, the fact that one is being advantaged more than the other means that the state that's the less advantaged one isn't going to want to enter into that arrangement because the other side is getting more powerful than they are at a faster rate. They're accumulating more economic might, and therefore, you know, the potential for military might and so these arrangements are going to break down.

And what we see in a world in which states actually are confident that this illegal prohibition on wars that is going to succeed, they enter into longstanding trade deals and arrangements where even though one side might be advantaged somewhat more than the other, they still nonetheless last because they don't have these fears. And then those trade relations help build broader and more sustained economic ties and communications and you know, broader understanding among communities and all these things that then further reinforce this idea that states are not going to go to war with one another.

So it's not an either or, the two are working together. But the point that we're trying to make is that the law is playing this critical role in setting a set of expectations about how states what, what they can expect from one another and therefore what their interests are in light of those expectations. And so it's not that law is acting contrary to interest, it's that you create law that serve your interests and then it shapes your interests in ways that then are in service of the law.

So that's, I think the kind of complexity that political scientists, I was trained as political scientists as a as an undergraduate. I teach in the political science department at Yale. I think that's the piece that a lot of political scientists are, are missing.

Mykhailo Soldatenko: So you mentioned that the U.K. and the U.S., they played a significant role in building this order. And another prominent scholar in of the past who is a legal scholar, Carl Schmitt, he didn't read “The Internationalist,” but you mentioned him there.

Oona Hathaway: He is one of the villains of our book.

Mykhailo Soldatenko: He was of the villains of, of this notion. And he called this order, Anglo-Saxon formalism, that this is just a coverup for real politic.

And I think the people who rely on Schmitt, they would make an argument that from the very beginning you had Yalta, you had spheres of influence, you had the Cold War, you had Reagan and Brezhnev doctrines where everybody like both powers invaded countries based on the ideological reasons, ones to fight communists and other to protect socialism abroad. And so that was antithetical to this world order and to the UN charter as such.

So I think the question is, why do you pinpoint the collapse of the order right now? Is it plausible to say that actually there were problems with the norm from the very beginning, and it's up to us to make it strong in the future?

Oona Hathaway: I mean, I actually wouldn't argue with that. I do think that there have been failures from the very get go.

You know, I would add to that maybe the most significant failure is the Iraq war which was, you know, in my view, pretty clearly a violation of the UN charter, so there've been plenty of violations. And you know, I think that that's, it's important to recognize that, that the truth of that, but it's also the case that law can't ever expect perfection or perfect compliance and we wouldn't expect that of domestic law.

We wouldn't say, well, because there are murders that still occur, therefore there's no point to having laws against murder, we'd say, no, you know, that's a breakdown in the system. When murder does happen, we should do everything that we can to prevent it, when we find somebody who is engaged in murder, we should prosecute them to the full extent of the law, and if they're found guilty, put them in jail. But we shouldn't sort of say, well, because there are murders, the whole system is kind of, there's no point to it all.

And the way I think about it is, is that it's a constant project of trying to strengthen and improve the system and to try and do better and to try and find the failures and find ways to, to respond to them and strengthen the system. And I think you see that over the course of the last 80 years.

I mean, you see obviously the Cold War, the Security Council trying to find a way to work together despite the fact that there's extraordinary animosity, particularly between the U.S. and the USSR. You see this in, you know, the various illegal uses of force that have taken place while, still far more modest than the uses of force that took place before 1928 and 1945, you know, still not something to be ignored.

And you see these constant efforts at, at, at trying to strengthen and improve the system. You see, for instance, new technologies of economic sanctions, you know, better mechanisms for what Scott and I call “outcasting.” So better tools for using the ability to respond through non forceful means to illegal behavior and to really strengthen the system in a variety of different ways, creating different kinds of coalitions and so there's lots of ways in which there's this constant process of, of, of reinvention and creation.

You know, the question is, is this moment all that different? And I guess, you know, that's a fair question. I think that the reason I worry that it might be, you know, and then the question is like, at what point, you know, does the system become so undermined that it just begins to fall apart?

I, I think what's, what to me at least feels different about this moment is that you have Russia and the one hand invading Ukraine in the most kind of flagrant violation of the UN charter and first effort at conquesting Europe since World War II. You have China building bases on disputed rocks, islands, and reefs in the South China Sea.

You have the United States now–which has been kinda the bulwark against both of those, you know, has been since 2014 and the invasion of Crimea and the, the full scale invasion of 2022 into Ukraine. Like led the charge against, you know, trying to assist Ukraine in defending itself and, and sanctioning Russia for its illegal invasion and rallying the international community to respond. And doing the same thing in the South China Sea, you know, doing the stream of navigation exercises and other things to respond to China's unlawful actions.

Now, not only is the U.S. pulling back from those kinds of enforcement activities, those kinds of like norm reinforcing activities which it's been doing for, for, for the last many years. But also sort of suggesting that maybe it's gonna violate the rules too. And, you know, talking about Canada as a 51st state and taking over Greenland and owning Gaza and invading the Panama Canal.

Like that's extremely corrosive and it makes it seem that these rules don't really matter and that they're up for grabs. And by making what has been the unthinkable thinkable, it really, I think might be the kind of the final blow. I hope it's not, you know, I hope it's just another, you know, chink in the armor and we keep going on.

And to some degree that depends a bit on how other states respond and whether they kind of step into the breach, but it, it, it does worry me that this is, this might be the last straw. You know, that this is the moment at which the damn breaks and the whole thing kind of falls apart.

Mykhailo Soldatenko: And from your Foreign Affairs piece, I got an impression that your argument goes, that you think the current U.S. administration has an intentional policy to dismantle the order. Why other people may say that just they don't care about the key rules here, which would be a different, different scenario.

And other people said that that's just a part of the unraveling of post-Cold War order where the U.S. had primacy. Now it understood that it doesn't have that much power to defend the order and that that's why it somewhat softens the role of the world policemen, so to speak. Is it this new world order and its crisis, if we can call it this way, and the international liberal order with the U.S. primacy, are they interrelated in that respect?

Oona Hathaway: Yeah, so I mean this idea that, you know, the U.S. is stepping back from its role as a policeman, if that was all that was happening and that's when, you know, we came into the Trump administration.

I ran an op-ed for the Times saying basically, you know, we're in for we're, we're about to find out how much American leadership mattered. You know, we're about to see, you know, this clearly Trump administration, Trump doesn't seem to care much about doing the work of policing the international legal order, and we're gonna see whether that makes a difference. I think it probably is gonna make a difference, we'll see.

But I didn't at the time, you know, this was, I wrote it right after the election, didn't really anticipate that not only would the U.S. be pulling back from policing and, and enforcing the order, but that it might be acting in ways that violate these core norms.

Now, it's important to note that a lot of this is so far bluster, right? There hasn't been a lot of action on it, although the illegal bombing campaign in Iran is, is some action. But some of the worst, you know, claims of, you know, making Canada 51st State may just be may just be kind of Trump being Trump. But I think what we tried to say in this piece is, look, if, if we are always just dismissing this as like Trump being Trump, you know, kinda the bluster, we miss the pattern.

You know, there is a real pattern that's developing here. And that pattern is one in which he seems prepared to, first of all, he doesn't care at all or doesn't seem to care at all about this central principle of international order that is a prohibition on use of force. He seemed prepared to really use threats of force to strong arm states into deals, you know, part of his deal making, you know.

After the Panama threats, it, it didn't go unnoticed that Panama agreed to take in a bunch of these deported immigrants who weren't from Panama. You know, the famous pictures of the, you know, immigrants in this, that giant hotel, none of them from Panama. But you know, clearly that was a deal that was worked out with the Trump administration and it seems likely that Panama did that in part to sort of make nice with the Trump administration and avoid any kind of military action.

And that might be seen as kind of a soft gunboat diplomacy, which is again, like really erosion of a principle that states shouldn't be coerced through force into international agreements. And so I think it's just seeing, like once you see this happening again and again and again, you see this pattern developing, which seems to be sort of testing the waters about this idea that maybe this is a dispensable principle.

And I, you know, there's a sense coming out of Washington right now that, look, we've got this nice big army, why don't we use it? And I think a lack of appreciation for the fact that, you know, the U.S.-led global legal order has been one that didn't depend on use of force and was in fact all about the rejection of that very idea. And, you know, a willingness to put that all at risk right now in a way that I think is different from anything we've seen up until now.

Mykhailo Soldatenko: You mentioned the rhetoric in respect of Canada, Panama, Greenland. And so it's understandable why the threats of force are problematic because they're prohibited under the UN charter and so under the new world, world order that you described.

Do you think the short of that, so statements 51st, our cherished 51st state, Governor Trudeau, do you think those statements, which are likely below the threshold of the threat of force because there is no seriousness of it appearing soon, so do you think that's also corrosive in your judgment?

Oona Hathaway: I do. I think it's very corrosive because it, it's, it's walking that line, right? It, and it's suggesting that that's an acceptable thing to, to propose.

It's obviously meant partially to needle, you know, I mean, again, this is where, you know, the question of how, how seriously does one take Trump and, and his threats. But it does feel a bit like a, an attempt at sort of messaging to sort of test the waters of like, how, you know, how bad would it really be if we did this? You know, what kind of reaction are we going to get?

I, I think what you can look at is how do people on the receiving end of these threats respond. You know, Denmark feels very threatened clearly. There was talk about sending NATO troops to Greenland as a possible defense against the U.S. invasion, which of course is a, a it would be an oddity because it'd be NATO troops defending themselves against NATO troops, but people are taking it seriously in the countries where these threats are happening.

Canada is taking it very seriously. Canadians are incredibly upset. I mean, ordinary Canadians won't buy U.S.-made goods. You know, there's these vetoes of U.S. made goods, aren't traveling to the U.S. because they feel very threatened by this. In Panama clearly they're quite scared because they've essentially pushed China's, well, it's not even China, it's got this Hong Kong owned company that Hutchison supports, that owns the ports on either side of the Panama Canal has agreed to sell them to a U.S. owned company. Clearly strong armed into doing that out of fear that Trump will make good on his threats.

So I think we ought to take it from the people on the receiving ends of these threats as to whether they think they're for real and they seem to think they're for real, and I, and, and I trust them in that. And the fact that they're scared means that, you know, people believe that this could really happen and that really corrodes the international order because then when China does the same or Russia does the same, or another state does the same, it's very hard to work up the same kind of pushback that, you know, was worked up against Russia and invaded Ukraine because no, maybe this is not really the underlying principle of the international legal order anymore.

Mykhailo Soldatenko: So, moving forward to actions, recent, recent strikes on Iran and in your New York Times op-ed you said that they are unlawful.

There are two, I think there are two arguments that some people put forward in support. And I think that, let's start with the first one, the preventive collective self-defense of Israel, because Iran will have nukes and we wanna prevent that. And it, and it looks like the Bush doctrine, something that is, you know, far from Caroline test, not that immediate, so why do you think that argument is not colorable?

Oona Hathaway: Look the UN charter Article 51 of the UN charter, which, which provides for right of self-defense, provides for right of self-defense against an armed attack on a state. So the language of the charter specifically provides for an actual attack before you have a right of self-defense or collective self-defense.

Now then the question becomes, well, has there already been an attack? You know, can we include, you know, all these various exchanges of fire between Iran and Israel as sort of part of a broader conflict? Or, or is it enough to say, well, it's imminent enough, you know, there been these threats, you know, death to Israel, et cetera.

You know, that suggests that, that this is, that this is imminent. But there, I think it's very, so first of all, there hasn't been a kind of clear armed attack of the kind that relates to the nuclear threat. You know, obviously there hasn't been a use of nuclear weapons, thank goodness.

And second of all, there's nothing that was brought out. There was no intelligence provided or even sort of statements made that suggested something really important, had shifted the justified acting now. Because at the moment that the strikes happen, they're in the midst of diplomacy and engaging in talks with Iran around, you know, possibly creating a successor agreement to the Joint Comprehensive Plan of Action, which Trump in the last in his first term undid but which had been very successful in reducing Iranian enrichment of nuclear material.

And so it's far from clear that the moment was ripe that this was a moment at which this kind of a strike was necessary, that there was any kind of imminent threat. And in fact, Trump said in his, you know, one of his many sort of statements about this, that while they've been, they've been threatening Israel for 40 years or they've been sort of a threat for 40 years. And that suggests that there's not really anything, particularly new or new intelligence, that something was on the horizon that justifies an imminent strike.

And there was never any attempt to go to the Security Council. There was never any attempt to bring in any allies. There was never really any attempt either before or after to explain it to the American people to even go to Congress. So, you know, it seems like it was, it was done a bit on a whim or target of opportunity, I guess. But, but the normal rules of international law require more than that, and they just didn't show that there was enough of a reason that this had to happen right now.

Mykhailo Soldatenko: So the Biden administration, the U.S. government always consider it as a contingency that it may need to use force against Iran if Iran would go nuclear. And from the UN charter perspective, that that would be problematic in any case, if there was no threat of armed attack, just attacking a country because it developed a nuclear weapon according to the traditional theory would not be enough.

And the fact that there was a threat of the U.S. attack, if Iran goes nuclear, Iran was arguably deterred. I'm not an expert in the Middle East, but that's, that's what the conventional wisdom suggests. So, and my question is, do you think in such case, if we would imagine that everything, diplomacy is exhausted and Iran goes nuclear. And you have risks for the legal order and you have a policy question whether you act or not.

So that's a question outside of the law, but what are your thoughts about that? Are there any situations where, you know, other equities prevail?

Oona Hathaway: Well, so one lesson I learned when I was a lawyer at the U.S. Department of Defense is don't answer hypotheticals because you know, clients always wanna come up with hypotheticals and you get boxed into a corner when you do that.

Look, I think there's a long way between where we are and, and that scenario and a lot of possible ways to get off of that ramp and obviously there are critical diplomatic negotiations that were underway and that I hope will continue to be underway to try and address this diplomatically. And you know, I think that's the first and foremost critical tool.

Are there scenarios in which an administration might decide to violate international law? Sure, but I don't think that taking preemptive action is gonna be consistent with international law. Presidents have decided to violate international law before. You know, as a lawyer, that's not what I would advise, but that's, you know, the job of the lawyer is to say, this is what the law is and this is what the law isn't and then it's up to the client to make the decision.

So, you know, I think that that's what would happen in that situation, but it's hard to find a way of justifying that under international law. And here's what I will say is that once you start talking about preemptive self-defense and anticipatory self-defense and you know, all the Bush doctrine language that was used to try and justify the war in Iraq.

First of all, we can see what that leads to. The war in Iraq was, you know, preemptive self-defense or anticipatory self-defense against believed weapons of mass destruction that turned out didn't actually exist, and that led to total catastrophe. And in many ways, we can trace a lot of the like terrible events that have unfolded in the Middle East to, to, you know, that kind of original sin in a sense. It gave rise to ISIS, you know, it, it arguably played a significant role in refugee crisis that we're still dealing with. You know, there's a lot of ways that it really reshaped the Middle East for the worse.

And, you know, not to mention the fact that the claims that were being made that there was going to be a mushroom cloud if we didn't act, were clearly false 'cause they never found any evidence that there was an active nuclear weapons program. So I think that just demonstrates the dangers of this kind of preemptive or anticipatory self-defense is that it leads you to take actions that are not well justified.

And then it creates justifications for others to do the same. It's not, shouldn't be lost on us that Putin, when he invaded Ukraine, gave a big speech about the importance of self-defense and collective self-defense. And he is defending Russia and defending Russian citizens. He is echoing this exact same language. And so you're justifying, you're giving a justification to others to train around and use that same language against you. You know, I think that's the danger of taking liberties with law is that you create the justification for others to do the same. 

Mykhailo Soldatenko: And what's your opinion about another legal argument that I've heard on that? So I think that's the second main argument is about that this is a continuation of Israeli armed conflict against Iran and its proxy, Hezbollah, Houthis, and Hamas. And that's U.S. going into collective self-defense protecting Israel in that conflict. What's the problem with that argument?

Oona Hathaway: Yeah, look, there is a right of collective self-defense under the UN charter, under Article 51, but in order to act in collective self-defense, the actor that you're acting on behalf of has to themself have an Article 51 right of self-defense.

And that means that in fact, they have to be subject to an armed attack or an imminent, you know, immediately imminent attack in the Caroline Standard way. And that it's necessary, that their response is necessary and proportionate to that threat and I think most of international lawyers looking at this concluded that that wasn't the case. And certainly there are a few lawyers who argued the other side.

But I think both the it's far from clear that there was an imminent threat and as far from clear that this was necessary. And so without those basic requirements being met, then, you know, Israel wouldn't have had a right itself to act under Article 51, and therefore the U.S. doesn't have the right to act on its behalf under Article 51.

So that's, that's the kind of critical piece of this and I, and I just, from everything that I've seen, that those basic requirements just haven't been met.

Mykhailo Soldatenko: And so an important factor in maintaining the norm is how the international community reacts. And so the NATO and Europeans reaction to strikes on Iran was somewhat positive, no major pushback. German Chancellor Merz said that Israel is doing dirty job for us.

The word duty might mean not perfectly legal, but Mark Rutte said that he didn't see any violations of international law. And even Ukraine, Ukraine didn't call it either legal or illegal, called for diplomatic solution, but the main you know, spirit of the message was somewhat supportive.

And there are understandable reasons for that because many European states don't want to have bad relations with the current U.S. administration and for Ukraine, that's in a way existential to keep the support of the U.S. government. And so many people then criticized the Europeans saying that you support the order when it's in your interests and when it's not, you just don't react.

What do you think about that? Is that corrosive? Are you, are you concerned about that?

Oona Hathaway: Yeah, I mean, I think that, I think you summarize it well. Look, it's noticeable that unlike many other cases where the U.S. has used force in the Middle East, it did it entirely alone. In the past when the U.S. has, has tried to, has used force in ways that, for instance, in Libya, it did it in coalition with NATO. When it used force in Kosovo, it did in coalition with NATO. When it used force in Iraq, it, you know, built a coalition, quote unquote coalition, the willing.

It is really striking that this was a kind of go at your own kind of operation. And it's not that the U.S. has generally acted collectively because it needed, it needed the military might of its allies, but that it understood that that was part of building a legitimacy and a sense of kind of buy-in from the international community with the actions. And they seem not to have made an effort to do that, but they certainly didn't get it whether they made an effort or not. And so this suggests that the U.S. really didn't have kind of deep buy-in from other partners.

And I think that you're right that many countries are just right now not looking to pick fights with the Trump administration. You know, the Trump administration has made it clear that it's pretty vindictive and willing to go after anybody that disagrees with it. And kind of, I can imagine various leaders thinking kind of what's the point? You know this, this is said and done, it seems like they're not planning on kind of going back and doing this again, so like why pick a fight with the Trump administration now?

But I think that that failure to respond, and this is part of why this is so corrosive, is when you've got the United States, which has traditionally been the kind of actor that well imperfectly, but nonetheless still importantly, played the role in maintaining the system is now acting in ways that are inconsistent with it all those reflexes are to support the U.S. The reflexes are to think that the U.S. must have a good reason, even if when you look at the evidence, it seems like they really don't.

And so, you know, that's part of the reason I think this is so corrosive because the player that you would be expecting would have some good legal justification for his actions seems not in the end actually to have had good legal justifications. If they have them, they certainly haven't shared them. And, and yeah, I think that's part of the reason that this is, this is, this is so damaging is because it, it also leads others to fail to live up to their own principles.

And look, the rest of the world has, throughout the war in Ukraine, been saying that exact same thing, which is now Europe really cares, you know. And, and they're telling us that we need to join sanctions against Russia, they're telling us that we need to support Ukraine. But you know, they seem not to care about uses of force when they're taking place in the Middle East or in the Global South, and so why should we be asked to make sacrifices to support this principle that seems to only really apply when it's Europeans that are on the receiving end.

And I think this is just reinforcing that further and the sense of alienation from the global system, from many countries who I think otherwise really believe in these basic principles, understand that a prohibition on use of force is really in their best interests, but they just feel like the international system is kind of so hypocritical and states that, you know, are, when they're defending the international legal order are, are doing it in some circumstances and not in others. I think that does drain the system of a lot of the support that it otherwise would have.

Mykhailo Soldatenko: Moving forward in your piece, you also mentioned the negotiations of the so-called minerals deal where the U.S. leveraged the aid in order to get some concessions from Ukraine. And the deal relates not only to minerals, it's relates to infrastructure, profits from infrastructure projects, oil and gas production, and everything else.

So my question is, so it's a common thing in foreign policy to leverage aid because that's just like one of power tools, how you achieve your interests and all U.S. administrations did it in one way or another. What's the difference between legitimate and illegitimate leverage in terms of aid and why you thought that in this particular context, that was problematic?

Oona Hathaway: Yeah, that's great. So look, it's perfectly legitimate to use economic incentives to draw states into agreements and, you know, lots of agreements the United States enters into or done in that way. You know, provides assistance, foreign, foreign aid assistance, other kinds of assistance in return for various agreements by foreign partners.

Here I think the reason it feels different, even though you're right, that it's about kind of provision of aid so in a way you might say, well, it's just the same thing, is that the U.S. is essentially threatening to kind of throw Ukraine to the wolves, to withdraw support, to stop supplying arms, which now because the Ukrainian army has been getting arms and support and intelligence and all the rest from the U.S., really now they're set up around that infrastructure.

You know, they, once you, once you have a set of infrastructure of military goods from a particular country, you need to keep getting supplies from them. You need to be able to get ammunition to, you know, use your weapons. And if you can't buy that, you can't get access to it, you're incapable of defending yourself. So I think what's different here is that it's, it's clear that the, the threat is not that the U.S. is gonna invade and take over Ukrainian territory, but the U.S. is essentially going to let Russia do what it wishes and take Ukrainian territory without U.S. support.

And so that's not a direct threat of conquest, a direct threat of use of force. It's sort of an indirect threat of use of force. And that to me is what really makes this different than ordinary run of the mill promises of foreign aid and response in return for, for various kinds of international agreements.

Mykhailo Soldatenko: And so right now there are negotiations between Ukraine and Russia. The administrations support them, promote them in one way or another, there, there are changes in the rhetoric recently, but the, the question that I have, so there is a continuing Russia aggression and one may argue that a negotiated settlement on conditions favorable to Ukraine is a good thing.

How to reconcile the norm against conquest and against the use of force with a peace deal with an aggressor? So, would any agreement be null and void and the Vienna Convention on the Law of Treaties? Does it matter where there is a de jure or de factor recognition of the territories? And does it matter whether the Security Council steps in in order to endorse the agreement?

So there are, you know, there is this dilemma between peace and justice, but I think there is the same dilemma between the world order and a negotiated settlement.

Oona Hathaway: Yeah, it's a great question and honestly, I am still puzzling over this myself. The Vienna Convention on the Law of Treaties provides that an agreement brought about as a result of duress, meaning a threat of use of force is null and void. It is void. It's not, it's not that it could be voided or it could be like refused to be, you know, that you could choose not to enforce it. It is void.

And so given that it, it is a real puzzle, how do you, how do you, in this case where it's clear that there's a threat of ongoing use of force, there is in fact an ongoing use of force and that that's the only reason that Ukraine would enter into an agreement because if Russia was to say, oh, we'll just go home regardless Ukraine would never enter into the agreement. It suggests that it's very hard to imagine that you have an enforceable binding international agreement in light of that.

And yet I think you're also right that it is in Ukraine's best interest to be able to negotiate a deal of some sort. You know, it's up to Ukrainians to decide what that deal ought to be and what's acceptable and what's not. But could it include concession of territory? That would be extraordinarily antithetical to the modern legal order.

I mean this, this would be a clear violation of the prohibition on use of force and conquest and yeah, it's hard to imagine how that's enforceable or how that's consistent with the modern legal order, and yet nonetheless, do we think Ukraine should be able to make that deal? I mean, certainly it feels to me that they shouldn't be compelled to continue to fight. So yeah, I'm not sure what the right answer is.

I suspect what may end up happening is a non-binding agreement, because the truth is, I'm not sure anybody believes that it would, a binding agreement is going to be enforced anyway. So essentially it would be a deal, a kind of non-binding deal, not considered to be an enforceable international treaty, but a, a non-binding agreement where essentially I, I doubt Ukraine will concede that the secession of the territory, but that they might have a kind of an agreed, you know, cease fire and you know, a line of demarcation–

Mykhailo Soldatenko: Korea armistice

Oona Hathaway: A, a Korea armistice kind of situation. And I suspect that's the kind of thing that we're going to see. So it's not gonna be a conquest Exactly, it's not gonna be recognized as Russian territory, it’s gonna be something similar to what happened with Crimea since 2014, where, you know, most countries didn't recognize that as Russia and, and yet Russia, you know, is administered it as if it's Russia.

And Russia claims it is Russia. I think you're gonna see something similar to at least some parts of Eastern Ukraine that are currently occupied by, by Russia. If there's a deal, I think that's what it's gonna look like. And I think it'll be a not, I suspect, it’ll be a non-binding deal, both because you have this legal problem and because truthfully it's not clear to me, it makes a difference.

If it's binding or not, you know, the fact that it's legally binding, what does that give you really, in this instance? I mean, I'm a lawyer and I believe in law. I've also written a lot about the use of non-binding agreements, and in this case, I don't think that you've get a lot from making it legally binding as opposed to having it non-binding.

But that's just my guess as to, as to where it's gonna land and how one can square the circle of the Vienna Convention on the Law of Treaties, which, which has this prohibition on duress precisely because of the Kellogg Briand Pact. I mean, the author of the Vienna Convention on the Law of Treaties specifically stated that whereas agreements that used to be compelled through force used to be perfectly legally enforceable because of the prohibition on war that was adopted in 1928. That was no longer true, and therefore agreements brought about in violation of this prohibition couldn't be enforceable.

You know, this is gonna be flaunting that basic principle and therefore I think you can't have a binding treaty. But if it's a non-binding, it's not covered by the Vienna Convention on the Law of Treaties. So you don't have that problem.

Mykhailo Soldatenko: One problem that might happen with the non-binding agreements, because there is somewhat less expectation of performance and when circumstances change, there is a risk that one party may say, you know, circumstances changed, I wanna renegotiate. And there was a similar problem with prior ceasefires, they were non-binding and in a way, you know, it's always, there is uncertainty with that.

What do you think, if there is a non-binding agreement and it's endorsed by the Security Council, does it change an equation? Can the Security Council, like would it be able to cure even like the null and vois nature of the binding agreement?

Oona Hathaway: Yeah, it's an interesting question. That is a kind of arrangement that was done with the Joint Comprehensive Plan of Action. So, the JCPOA with Iran was a non-binding deal, and then it was endorsed by the Security Council. And the Security Council backed it with relaxation of Security Council, of sanctions that had been mandated by the Security Council. So that was a kind of binding action in support of the JCPOA.

So you could imagine that perhaps the Security Council would endorse a deal. It can't turn a non-binding agreement into a binding agreement, but what it could do is it, you know, could endorse it in the same way that the Security Council endorsed the JCPOA.

So you could have a kind of combination. But the truth is, look, this problem about, like it'll constantly be re-, renegotiated or, you know, Russia will backtrack on it, or Ukraine will backtrack it on it. That's gonna be true of a binding agreement too. Like that's just, that's just the fact of the matter.

I think neither side really trusts the other. I think Ukraine has great reason not to trust Russia and, and so I'm not sure, I'm not sure. I mean, look, somebody could come to me and say, well, here's the good reasons why you have to make it binding and maybe there are reasons that I'm not appreciating. But on the face of it, it strikes me that you're gonna have a set of deals, yeah, a lot of non-binding agreements do a lot of serious work that basically condition certain actions by one side on the actions by the other.

And that is a kind of self-enforcing mechanism that's built into a non-binding agreement. So while it's not binding in the kind of formal legal sense, it's backed by certain kinds of promises. And then I imagine, you know, and again, I don't know, I'm not involved in negotiations, but I imagine it will involve like, positioning of NATO troops or, or some to maybe if not NATO, you know, some maybe U.S. troops on the Ukrainian side to try and provide some kind of guarantee that Russia won't come over the line.

There will be various kinds of, like, facts on the ground that are gonna be established to try and quote unquote enforce it, or to make it, you know, less likely that that one side of the other is going to, is going to renege on it. And that, that's going to be meaningful and probably just as meaningful as if it's quote unquote binding.

I mean, there is a whole separate question, this is not our subject today, but you know, there's a really fascinating question, it's like, what do you get from making something binding versus not? Written a whole article with Jack Goldsmith and Kurt Bradley called “The Rise of Non-Binding Agreements” about the increasing use of non-bindings and all the reasons that states are increasingly relying on non-bindings.

And we say a little bit there about why you know about this trade off, but I think it's a fascinating ongoing question and increasingly we're seeing states wanting to use non bindings and I think this is a perfect case where we're gonna see, I, I would predict that's what we're gonna see here.

Mykhailo Soldatenko: So, turning back to the crisis of the world order. So what the international community can do? What is the suggested plan of action? I think in Foreign Affairs piece, you suggested going through the general assembly where small and medium states would form coalition and do a pushback.

Do you think that's realistic especially how, you know, some states tend not to push back against the U.S. right now, other states tolerate the Russian aggression against Ukraine and it looks like it, it's moving forward, maybe not exactly, but to the sphere of influence in one way or another. So what is the way forward?

Oona Hathaway: Yeah, look, I mean, this is, I spent a lot of time worrying about this question, you know, what, what can we do? And it's very easy to kind of throw up your hands and give up and think, well, you know, that's been a good run. We had a nice 80 years there. Now, you know, we're gonna, we're gonna descend into chaos and violence and, you know, let's give up.

And, you know, I like to think that things are not all lost, that, that there are things that we could do to try and strengthen and reinforce the system and try and hold it together as best we can. And when I think about how that could be done, I think that it does rest on not relying on the United States to play this central role in policing the legal order because it's clear the U.S. is not particularly interested in that job anymore.

And I don't think that Europe, by itself can just step into the void and replace the United States in this role. It both doesn't have the coherence and cohesiveness politically. It doesn't have the military and economic might to be able to do it. It's stretched thin as it is, you know, it's, it's, it's an important player, it, it should play a significant role, but I don't think by itself it, it can do it alone.

I think if the system is going to survive the current challenge, it's going to be because more states decide that it's important to step up and that they shouldn't remain on the sidelines, and that they do need to do something to try and support the international system, and that they can't wait for the U.S. to do that because it's no longer interested in that job.

Now are they going to do that? I don't know. It may not be realistic to hope for, but you know, if something good could come out of this moment of crisis, I actually think that is something good that would emerge. Because we have had, you know, a system in the last 80 years that has been quite imbalanced.

The P-5 doesn't make a whole lot of sense in the modern global environment. These are the five states that kind of anointed themselves after World War II, but it leaves out a lot of the world. I mean, Africa, of course, is left out entirely. There are very powerful populous states, economically powerful states that are, that are left out of the equation.

And, you know, this would be an opportunity for states, I think, to come forward and say, look, we're not gonna do it in the way that the U.S. has done it. But we do think that these are principles that are important for us, that we believe in the prohibition and use of force, that states shouldn't be bullying one another into agreements that we don't wanna see a total breakdown into chaos and that we're willing to work together with one another to try and enforce those legal rules. And none of us can do it by ourselves, but collectively we can make a real difference.

And it may be too hopeful. You know, it may, it may be hoping for too much, but I think if there's a way out of this that's, that's the way out. And so, you know, I do remain hopeful that, that, that other states will be willing to step into some of the breach.

Mykhailo Soldatenko: And the final question that I have, so you mentioned potential chaos, and some people argued that actually the sphere of influence, the concert of Europe style, world global governance would be stable because each great power would have a sphere of influence, they would balance each other and there would be less wars. Why we should be concerned about that pathway to stability?

Oona Hathaway: Well, I mean, first of all, the idea of sph-, spheres of influence really robs some of the weaker states within those spheres of any kind of ability to make judgements about their country's future for themselves because the ideas of course, that the powerful states within the sphere get to dominate those within it. And that those within it kind of have to go along with what the powerful states want.

So China gets to dominate its sphere, the U.S. gets to dominate the western hemisphere, Russia dominates Europe. And, you know, those on the periphery kinda hope that they don't draw the interest of, of any of the powerful states. You know, that's a pretty unpleasant world to be in, if you imagine that states want to be able to make their, determine their own futures for themselves and not be bullied into, in making decisions based on what's best for the hegemon within their sphere.

I think it's also the case that look, there's lots of opportunities for conflict in that world. Those, those, those spheres are not necessarily well settled. You know, who's in charge of the South China Sea? I guess China would think that that belongs to them, but you know, is the U.S. prepared to concede that?

Well, how about Europe? What about Western Europe? Is that the Russian sphere or is that the American sphere? We have lots of historic and longstanding cultural, political, military connections in Western Europe. Does that fall into the Russian sphere? Are we prepared to give it up?

You know, so certainly the Europeans wouldn't want that, but they all too, they too don't want to be dominated by the U.S. either. So I don't think that's a particularly pleasing outcome for most of the world. It might be where we're headed, but I think we ought to do all we can to try and prevent that.

Mykhailo Soldatenko: Professor Hathaway, thank you very much for joining Lawfare Podcast.

Oona Hathaway: Thank you so much for having me.

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