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

Summary

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

Episode: Lawfare Daily: Oona Hathaway on the Collapse of Norms Against the Use of Force
Released: August 6, 2025
Host: Mihaila Soldatenko
Guest: Oona Hathaway, Law Professor at Yale Law School and President-Elect of the American Society of International Law
Podcast: The Lawfare Podcast by The Lawfare Institute

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1. Introduction to the Collapse of Norms Against the Use of Force

In this episode, Mihaila Soldatenko engages in a profound discussion with Yale Law Professor Oona Hathaway about the erosion of international norms that prohibit the use of force. They explore the historical foundations of international law, recent global events threatening these norms, and the potential consequences for the international order.

2. Historical Context: From the Old to the New World Order

Old World Order: Hathaway begins by contrasting the "old world order" with the contemporary international system. She explains:

"The old world order... was a world in which war was legal and the main method for states to resolve disputes. Hugo Grotius, known as the father of international law, even advocated war as a means to right wrongs and pursue legal rights."
[02:06]

Transition to the New World Order: The shift began with the Kellogg-Briand Pact of 1928, which outlawed war as national policy:

"The Kellogg-Briand Pact... renounced the right to resort to war as a tool of national policy, fundamentally transforming the international legal system."
[04:10]

This transformation laid the groundwork for the United Nations Charter, embedding the prohibition of force and establishing a legal framework for peaceful international relations.

3. The Importance of Norms Against the Use of Force

Hathaway emphasizes the foundational role of the prohibition on force:

"The prohibition on force is the foundational norm of the international legal order. It underpins rules against conquest, coercive diplomacy, and supports peaceful mechanisms like trade and diplomacy."
[08:26]

She asserts that weakening this norm leads to a more unstable and chaotic world where states cannot trust their neighbors to refrain from aggression.

4. Critique of Realist Perspectives on International Law

Addressing critiques from realists like Stephen Walt, who argue that international law is less significant than power dynamics, Hathaway responds:

"Power creates law and reinforces it. The United States, for example, was a key advocate of the modern legal order, shaping it to serve collective interests beyond mere power politics."
[12:02]

She counters the realist view by illustrating how international law facilitates sustained peace through mutual trust and economic interdependence, challenging the notion that power alone dictates state behavior.

5. The U.S. Administration's Role in Maintaining International Order

Hathaway discusses the impact of the Trump administration's policies on international norms:

"The Trump administration has not only pulled back from policing the international order but has also made derogatory remarks about its principles, such as referring to Canada as a 'fifty-first state.' This rhetoric undermines the foundational norms."
[17:26]

She points out that unilateral and coercive actions by the U.S. erode global trust and encourage other states to disregard international norms.

6. Specific Cases Undermining the Norms

Threats Against Canada and Greenland: Hathaway analyzes the implications of threats like making Canada a "fifty-first state" and asserting claims over Greenland:

"Such threats are corrosive because they suggest that the prohibition on the use of force is dispensable, leading other states to question the reliability of international norms."
[27:58]

Strikes on Iran: Discussing the U.S. strikes on Iran, Hathaway critiques the legality under international law:

"Under Article 51 of the UN Charter, self-defense requires an actual or imminent armed attack. The strikes on Iran lacked clear evidence of an imminent threat, making them unlawful."
[30:19]

Collective Self-Defense Claims: She challenges the argument that these actions are justified under collective self-defense:

"For the U.S. to act in collective self-defense on behalf of Israel, there must first be a clear right of self-defense invoked by Israel, which was not adequately demonstrated."
[41:49]

7. International Community's Response and Its Impact

Hathaway observes the varied international responses to the U.S.'s actions:

"European leaders like Merkel and Rutte downplayed the legal violations, while Ukraine refrained from labeling the strikes as legal or illegal, indicating a selective support for norms based on national interests."
[43:27]

This selective endorsement weakens the universal application of international law, fostering a perception of hypocrisy and diminishing collective resolve to uphold norms.

8. Future Implications for the International Order

Potential Outcomes of Norm Erosion: Hathaway warns of a more volatile world:

"Without confidence in the prohibition of force, states cannot rely on peaceful mechanisms, leading to increased military conflicts and instability."
[08:26]

Pathways Forward: She advocates for a collective effort beyond U.S. primacy to uphold international norms:

"The survival of the international system depends on more states stepping up to support and reinforce these norms, rather than relying solely on the U.S. to police the order."
[60:27]

9. Recommendations for Strengthening International Norms

Hathaway suggests actionable steps to mitigate the crisis:

• Coalition Building in the General Assembly: By forming coalitions of small and medium states, the international community can push back against norm erosion.

• Reinforcing Legal Commitments: States must prioritize legal and moral commitments over power politics to restore trust and maintain a stable order.

• Innovative Diplomatic Tools: Enhancing mechanisms like economic sanctions and outcasting to address illegal state behaviors without resorting to force.

10. Conclusion: Hope Amidst Challenges

Despite the grim outlook, Hathaway remains cautiously optimistic:

"There are opportunities for other states to come forward and support the international legal order, ensuring that principles like the prohibition on force are upheld collectively."
[61:09]

She underscores the importance of global solidarity in preserving the established norms and preventing a descent into chaos.

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Notable Quotes with Timestamps

• On the Old vs. New World Order:
  "War was legal and the main way... resolving disputes. Hugo Grotius... advocated war as a means to pursue legal rights."
  [02:06]

• On the Kellogg-Briand Pact:
  "The Kellogg-Briand Pact renounced the right to resort to war as a tool of national policy, fundamentally transforming the international legal system."
  [04:10]

• On the Foundational Norms:
  "The prohibition on force is the foundational norm of the international legal order."
  [08:26]

• On Realist Critiques:
  "Power creates law and reinforces it... facilitating sustained peace through mutual trust and economic interdependence."
  [12:02]

• On U.S. Threats:
  "Threats like making Canada a 'fifty-first state' undermine global trust and encourage disregard for international norms."
  [27:58]

• On Strikes on Iran:
  "The strikes on Iran lacked clear evidence of an imminent threat, making them unlawful under Article 51."
  [30:19]

• On International Community's Selective Support:
  "Selective endorsement weakens the universal application of international law, fostering a perception of hypocrisy."
  [43:27]

• On Pathways Forward:
  "The survival of the international system depends on more states stepping up to support and reinforce these norms."
  [60:27]

• On Hope:
  "There are opportunities for other states to come forward and support the international legal order."
  [61:09]

---

Final Thoughts

Oona Hathaway provides a comprehensive analysis of how recent actions by powerful states, particularly the United States, threaten to dismantle entrenched international norms against the use of force. She underscores the importance of collective global responsibility in upholding these norms to maintain international stability and peace. While highlighting the challenges posed by unilateral policies and selective support, Hathaway remains hopeful that a broader coalition of states can reinvigorate and strengthen the international legal order.

Transcript

[Lawfare Host]

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[Mihaila Soldatenko]

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[Ona Hathaway]

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[Mihaila Soldatenko]

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[Ona Hathaway]

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[Mihaila Soldatenko]

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[Ona Hathaway]

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[Mihaila Soldatenko]

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[Ona Hathaway]

The claims that were being made that there was going to be a mushroom cloud if we didn't act were clearly false because 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.

[Mihaila Soldatenko]

Lawfair podcast my name is mihaila soldatenko lawfair legal fellow and i'm joined today by ona hathaway law professor at yale law school and president elect of the american society of international law if the.

[Ona Hathaway]

System is going to survive the current challenge 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 us to do that because it's no longer interested in that.

[Mihaila Soldatenko]

Job today we are discussing how the current world events are harming the norm against the use of forces force in international relations recent strikes on iran and implications from negotiations in the russia ukraine war 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 is based on their twenty seventeen book the internationalists where they described how this new world order emerged so professor husaway 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 bryan pact and the un charter and how it differs from the old world order where the war was bread and butter of foreign policy yeah thank.

[Ona Hathaway]

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 fourteen hundreds and up through the at least the nineteen twenties 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 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 we start there because i think this is a past this is a history that many of us have kind of forgotten we've lived at least for the last eighty 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 nineteen twenty eight kellogg brand pact 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 keller brian pact that of course it didn't support succeed at its goal of ending war obviously world war two follows but it set in motion this transformation in the legal order and that you can't really understand the world we live in today if you don't understand that transformation and the basic idea is that the kelly brand pact outlaws war it is for the first time the time which states renounce 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 gumbo 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 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 i think an important.

[Mihaila Soldatenko]

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 us 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.

[Ona Hathaway]

Should be maintained yeah it's a good question and you know the claim that we make 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 go vote diplomacy is illegal if war is illegal then the main way in which states can influence one another and engage in relations with 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 going to be ukraine and then poland and the baltic states maybe canada we're going to talk about that but it's going to make for a radically more unstable world and it's going to 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 if it engages in trade relations with another state that state's not going to 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 us has a big military why not use it but it does mean that we're constantly going to be in defense of our allies there are going to 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's not just the us that might use this force it's our adversaries as well and so we're going to be constantly kind of trying to press back at the margins with our adversaries through use of force and use of force is not something that's just sort of an antiseptic thing it's literally people's lives and destruction as opposed to engaging in trade and peaceful relations so it will make for a much more chaotic and brutal world and we won't be able to depend on the prosperity and peace that we have largely been able to enjoy certainly for the last.

[Mihaila Soldatenko]

Eighty years one of the main critique of the internationalists is directed at the fact that you give law so much importance and i think so harvard kennedy school professor stephen walt wrote review of the internationalist saying liberals know saying no to wars doesn't mean ending them 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 they say you need to work with 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.

[Ona Hathaway]

Equation so we wrote a response to steve walt's review which i encourage listeners 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 i think critics of international law generally are missing is that all of those things matter we don't deny that nuclear weapons matter trade matters these things all matter they all make a difference this is not an argument that 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 us state department in the midst of the war and then the us basically brought it to other countries and said 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 us believed in a system and advocated for a system and really fought for a system in world war two that prohibited war as a as a tool of resolving disputes now did they do that in part did the us and 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's the time to stop just as there are all these rising powers around the world sure that was absolutely in their interests 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 serves all states interests frankly war is not in anybody's best interest it's destructive and causes a lot of horror and then the us after world war two was the only state that had nuclear weapons if nuclear weapons were the only kind of story here why didn't the us use that to conquer all kinds of territory why didn't we take greenland in canada back then why stop at what we took from mexico in the eighteen hundreds 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 assert legal rights over territory 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 weapon states are not supported by nuclear weapon states and we also don't see that so it's also the case that trade 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 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 there's a legal prohibition on wars that is going to succeed they enter into long standing 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 interests 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 missing so.

[Mihaila Soldatenko]

You mentioned that the uk and the us they played a significant role in building this order and another prominent scholar of the past who is a legal scholar carl schmidt he didn't read the internationalist but you mentioned him there he's.

[Ona Hathaway]

One of the villains of our book.

[Mihaila Soldatenko]

He was of the villains of this notion and he called this order anglo saxon formalism that this is just a cover up for real politik and i think the people who rely on schmidt 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 one to fight communists another 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.

[Ona Hathaway]

Yeah i mean i actually wouldn't argue with that i do think that there have been failures from the very get go i would add to that maybe the most significant failure is the iraq war which was in my view pretty clearly a violation of the un charter so there have been plenty of violations and you know i think that that's it's important to recognize 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 doesn't 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 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 respond to them and strengthen the system and i think you see that over the course of the last eighty 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 us and the ussr you see this in the various illegal uses of force that have taken place while still far more modest than the uses of force that took place before nineteen twenty eight and nineteen forty five you know still not something to be ignored and you see these constant efforts 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 reinvention and creation the question is is this moment all that different and i guess that's a fair question i think that the reason i worry that it might be and the question is like at what point 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 on 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 two 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 kind of bulwark against both of those you know has been since twenty fourteen and the invasion of crimea and that the full scale invasion of twenty twenty two into ukraine like led the charge against you know trying to assist ukraine in defending itself 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 exerc exercises and other things to respond to china's unlawful actions now not only is the us pulling back from those kinds of enforcement activities this kind 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 going to violate the rules too and you know talking about canada as a fifty first state and taking over greenland and owning gaza and invading the panama canal like that's extremely corro 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 and but it does worry me that this might be the last straw that this is the moment at which the dam breaks and the whole thing kind.

[Mihaila Soldatenko]

Of falls apart and from your foreign affairs piece i got an impression that your argument goes that you think the current us 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 scenario and other people said that that's just a part of the unraveling of post cold war order where the us had primacy now it understood that it doesn't have that much power to defend the order and that's why it somewhat softens the role of the world policeman 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 us primacy are they interrelated in.

[Ona Hathaway]

That respect yeah so i mean this idea that the us is stepping back from his role as a policeman if that was all that was happening and that's when we came into the trump administration run up ed for the times saying basically were in for 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 going to see whether that makes a difference i think it probably is going to 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 us be pulling back from policing 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 fifty first 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 we're always just dismissing this as like trump being trump you know kind of blust 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 the international order that is a prohibition on use of force he seems 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 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 gumbo diplomacy which is again like really a 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 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 us 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 you.

[Mihaila Soldatenko]

Mentioned the rhetoric in respect of canada panama greenland and so it's understandable why the threats of force are problematic because they are prohibited under the un charter and so under the new world order that you described do you think the short of that so statements fifty first our cherished fifty first 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.

[Ona Hathaway]

I do i think it's very corrosive because it's walking that line right and it's suggesting that that's an acceptable thing to propose it's obviously meant partially to needle again i mean again this is where the question of how seriously does one take trump and his threats but it does feel a bit like 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 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 us invasion which of course is 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 us made goods you know there's these vetoes of us made goods aren't traveling to the us because they feel very threatened by this in panama clearly they're quite scared because they've essentially pushed china well it's not even china it's got this hong kong owned company that hutchinson ports that owns the ports on either side of the panama canal has agreed to sell them to a us owned company clearly strong armed into doing that out of fear that trump will make good on his threat 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 when invaded ukraine because noel maybe this is not really the underlying principle of the international legal order anymore so moving.

[Mihaila Soldatenko]

Forward to actions recent recent strikes on iran and in your new york times opad 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 want to prevent that 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 look the un charter.

[Ona Hathaway]

Article fifty one of the un charter 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 have been these threats you know death to israel etcetera you know that suggest 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 in nuclear weapon 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 suggest that something really important had shifted that 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 possibly creating a successor agreement to the joint comprehensive plan of action which trump 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 well they've been they've been threatening israel for forty years or they've been sort of a threat for forty 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 done a bit on a whim or target of opportunity i guess 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.

[Lawfare Host]

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[Mihaila Soldatenko]

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[Ona Hathaway]

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[Ona Hathaway]

So.

[Mihaila Soldatenko]

The biden administration the us 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 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 us attack if iran goes nuclear iran was arguably deterred i'm not an expert in the middle east but that's what the conventional wisdom suggests 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.

[Ona Hathaway]

Well so one lesson i learned when i was a lawyer at the us department of defense is don't answer hypotheticals because you know clients always want to 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 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 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 going to 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 and 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 you know that kind of original sin in a sense it gave rise to isis you know it arguably played a significant role in refugee crisis that we're still dealing with you know there's a lot of ways that 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 because 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's defending russia and defending russian citizens he's echoing this exact same language and so you're justifying you're giving a justification to others to turn 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 and what's.

[Mihaila Soldatenko]

Your opinion about another legal argument that i've heard on that so i think that the second main argument is about that this is a continuation of israeli armed conflict against iran and its proxy hezbollah hussiz and hamas and that's us going into collective self defense protecting israel in that conflict what's the problem with.

[Ona Hathaway]

That argument yeah look there is a right of collective self defense under the un charter under article fifty one but in order to act in collective self defense the actor that you're acting on behalf of has to themselves have an article fifty one 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 i think most international lawyers looking at this concluded that that wasn't the case and certainly there are a few lawyers who argue the other side but i think both it's far from clear that there was an imminent threat and it's far from clear that this was necessary and so without those basic requirements being met then israel wouldn't have had a right itself to act under article fifty one and therefore the us doesn't have the right to act on its behalf under article fifty one so that's the kind of critical piece of this and from everything that i've seen that those basic requirements just haven't been met and.

[Mihaila Soldatenko]

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 mertz 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 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 us administration and for ukraine that's in a way existential to keep the support of the us 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 concerned about that.

[Ona Hathaway]

Yeah i mean i think that i think you summarize it well look it's noticeable that unlike many other cases where the us has used force in the middle east it did it entirely alone in the past when the us 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 of 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 us 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 us 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 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 play the role in maintaining the system is now acting in ways that are inconsistent with it all those reflexes are to support the us the reflexes are to think that the us 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 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 when they're defending the international legal order 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 moving forward in.

[Mihaila Soldatenko]

Your piece you also mentioned the negotiations of the so called minerals deal where the us leveraged the aid in order to get some concessions from ukraine and the deal relates not only to minerals it 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 us 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.

[Ona Hathaway]

Problematic yeah that's great so look it's perfectly legitimate to use economic incentives to draw states into agreements and lots of agreements the united states enters into or done in that way provides assistance 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 us is essentially threatening 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 us 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 us is going to invade and take over ukrainian territory but the us is essentially going to let russia do what it wishes and take ukrainian territory without us support and so while it'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 various kinds of.

[Mihaila Soldatenko]

International agreements and so right now there are negotiations between ukraine and russia the administration supports them promotes them in one way or another there are changes in rhetoric recently but the question that i have so there is a continuing russian 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 under the vienna convention of the law of treaties does it matter where there is a de jure or de facto recognition of the territories and does it matter whether the security council steps in in order to endorse the agreement so there is this dilemma between peace and justice but i think there is the same dilemma between the world order and a negotiated settlement.

[Ona Hathaway]

Yeah it's a great question and honestly i am still puzzling over this myself the vienna conventional law 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 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 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 a binding agreement is going to be enforced anyway so it'll essentially be a deal a kind of non binding deal not considered to be an enforceable international treaty but a non binding agreement where essentially i doubt ukraine will concede the accession of the territory but that they might have a kind of an agreed cease fire and a line of demarcation korea armistice 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 going to be a conquest exactly it's not going to be recognized as russian territory it's going to be something similar to what happened with crimea since twenty fourteen where most countries didn't recognize that as russian and yet russia you know has administered it as if it's russia and russia claims it is russia i think you're going to 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 going to 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 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 going to land and how one can square the circle of the vienna conventional law treaties which which has this prohibition on duress precisely because of the keller brienne pact i mean the author of the vienna conventional law 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 nineteen twenty eight that was no longer true and therefore agreements brought about in violation of this prohibition couldn't be enforceable this is going to 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 fiana conventional law treaties and you don't have that.

[Mihaila Soldatenko]

Problem 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 want to renegotiate and there was a similar problem with priority 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 void nature of the binding agreement yeah.

[Ona Hathaway]

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 a relaxation of security count 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 renegotiated or you know russia will backtrack on it or ukraine will backtrack it on it that's going to 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 going to have a set of deals 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 and again i don't know i'm not involved in negotiations but i imagine it will involve positioning of nato troops or some maybe if not nato some maybe us 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 going to be established to try and quote unquote enforce it or to make it less likely that one side or the other 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 going to see i would predict that's what we're going to see here.

[Mihaila 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 us right now other states tolerate the russian aggression against ukraine and it looks like it's moving forward maybe not exactly but to the sphere of influence in one way or another so what is the way forward.

[Ona Hathaway]

Yeah look i mean i spent a lot of time worrying about this question what can we do and it's very easy to kind of throw up your hands and and give up and think well you know that's been a good run we had a nice eighty 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 us 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 at both it 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 an important player it should play a significant role but i don't think by itself 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 us 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 a system in the last eighty years that has been quite imbalanced the p five 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 two 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 left out of the equation and this would be an opportunity for states i think to come forward and say look we're not going to do it in the way that the us has done it but we do think that these are principles that are important for us that we believe in the prohibition on use of force that states shouldn't be bullying one another into agreements that we don't want to see a total breakdown into chaos and that we're willing to work together with one another to try and enforce those legal rules that 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.

[Mihaila 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.

[Ona Hathaway]

Stability well i mean first of all the idea of spheres of influence really robs some of the weaker states within those spheres of any kind of ability to make judgments about their country's future for themselves because the idea is 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 fear us gets to dominate the western hemisphere russia dominates europe and you know those on the periphery kind of 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 spheres are not necessarily well settled who's in charge of the south china sea i guess china would think that that belongs to them but is the us 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 long standing 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 too don't want to be dominated by the us 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.

[Mihaila Soldatenko]

To try and prevent that professor hathaway thank you very much for joining lawfair.

[Ona Hathaway]

Podcast thank you so much for having me.

[Mihaila Soldatenko]

The lawfair podcast is produced in cooperation with the brookings institution you can get ad free version of this and other la fare podcasts by becoming a la fair material supporter through our website lawfairmedia dot org support you'll also get access to special events and other content available only to our supporters please rate and review us wherever you get your podcasts look out for our other podcasts including rational security allies the aftermath and escalation our latest law fair presents podcast series about the war in ukraine check out our written work at lawfaremedia dot org the podcast is edited by jen pacha and our audio engineer for this episode was kara schillen of goat rodeo our theme song is from alabai music as always thank you for listening.

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