The city club, and im very delighted to be here today with professor michael similar. Michael is the acting dean of the law school, hes the Baker Hostettler professor of law, a leader in the practice and study of International Criminal law and the host of the Public Radio Program talking foreign policy, all of which is wonderful, but were actually here to talk about something else, his new book. It is called customary International Law in times of fundamental change recognizing grotian moments. Wow. Wow. Which sounds like a mouthful of academic jargon, but what its really about is how certain moments in history create the kinds of conditions for new laws to emerge as a force for good on a planetary scale which is certainly relevant today. Michael, great to see you. And, dan, do you want to mention who you are . I did, i did. Okay. Im going to assume that im not the only lawyer in the audience, here in the room or watching on cspan. So can we start with a couple of terms, customary International Law and grotian moment. Which one do you want to start with . Well start with customary International Law. All right. All right, so if you were in my first year International Law class, the first day if class you would learn that the International Law is made up of two types of law; treaty law, which is the documents the countries get together and negotiate and their parliaments ratify, and customary International Law which is the unwritten law but is the actually more important and pervasive part. Traditionally, customary International Law is thought to grow very slowly. They use the word crystallization because it takes decades, maybe centuries for it to harden as a custom so that the whole world recognizes this is something that theyre bound to do. And what weve recently recognized is sometimes these customary rules emerge very quickly, and that wrecks the whole theory of what custom is all about. So this is the focus of the book. Now, the other grotian. Theres this guy named hugo, and he is thought to be the father of International Law. This is a 17th century scholar. Yes. He was the mozart of law. He was a very, very gifted young an who got his ph. D. When he was 15, wrote his first several books before he was 20, was governor of you know, the s. A. T. S were a lot easier. [laughter] probably so. Anyway, he wrote a book called the laws of war and peace at a time when europe was run by empires. There was the holy roman empire, there was the spanish empire be, the french empire, the swedish empire, and countries werent sovereign. And his book was about how to finish and bring to a resolution the 80 years war. There had to be a massive peace treaty, and all the little countries of europe should be southern, and they should be guided by treaties between them. So he came up with this whole paradigm. And be in 1648 at the peace of westphalia, they adopted it. And he had died during negotiations, so he didnt get to see it through. But they called this a grotian moment because it really launched the whole idea of sovereign states and modern International Law. So when were looking at moments that are like paradigm shifts where International Law changes very radically and quickly, why not call them grotian moments . Now, the original a war lasting eight decades to get to, to actually crystallize. So other people have looked as these moments like radial changes like wold war ii, finish world war ii, and they say those are International Constitutional moments, and theyre taking a phrase from bruce ackerman, a famous constitutional law professor who looked at the new deal revolution and said that was a constitutional appropriatemoment. And so these folks are saying that happens sometimes in International Law, so lets call them International Constitutional moments. My problem thats sort of a little bit specific to the u. S. Yeah. And also even if you analogize the u. N. Charter to a constitution, what were talking about if in this book is much broader. Customary International Law is very broad. Its not within a constituent treaty. So we need some other title. I argue why not call it grotian moments. And theres a princeton professor who actually coined the phrase. He didnt use it quite the way im using it, but he was the one who gave me the idea. Are people thanking you . Some people love it. Others are saying if you look at him, he was a bit of a colonialist. So if youre from a developing country and youre a law professor, you really dont like to have his name tagged with things. But ive run into that a little bit. Other people have this theory that grotian moments have to be huge, things like the peace of westphalia or the u. N. Charter s. What im talking about are mini moments, transformative moments and maybe they shouldnt have the big g next to them. But a lot of people are starting to use the failed. When i wrote the book, there were only a couple of precedents of citations and law review articles. Just did a recent view, you can go on wexler or google, and there are literally thousands of them now. So this word is getting out there. Its getting to be a hot word. Why does forgive this sort of vague, general question, but why does this matter . Why does this matter what we call a moment of change . Well, we have to weve got to call it something. You have to have a name. And part of it theres this theory called symbiotics which political scientists and others know the power of words. And how their meanings change over time. And it may be that his name and his legacy has been amplified to such an extent that its a distortion historically, but i think everybody recognizes the tradition, the name is a powerful world. So if were coming up with a powerful new doctrine, why not give it something that has that kind of heft . So lets then dig into, i mean, ive got some other kind of these sort of philosophical questions, but ill hold off while we dig into the grotian appointments that you identify do you want to ask why i wrote the book . Im going to get there eventually. [laughter] okay. But the, what is the prototypical grotian moment in modern history ear . Youve got a few that you talk about, the trial of nuremberg, the truman doctrine regarding offshore oil drilling, those are the first two. Where do you want to start . What base law, i think lets start with nuremberg. Okay. Everybodys pretty familiar with nuremberg of. In fact, at our law school we had until recently one of the nuremberg prosecutors on our faculty. Henry king. So lets start with nuremberg. Okay. Lets start with nuremberg and henry king. So what makes that a grotian moment . In a lot of ways, it feels obvious. But unpack it for us. So the history of war crimes prosecutions was pretty much nonexistent before nuremberg. There had been an attempt in world war i to indict the kaiser, and then they decided not to. So there really wasnt any International War crimes prosecutions. In fact, International Law prior to nuremberg said what a country did to its own people was its own business. So there wasnt even human rights law. You just couldnt complain about what was going on within a countrys own borders. Because it was an issue of sovereignty . An issue of sovereignty. So world war ii and the holocaust changes all that. Its so radical and so fundamental that the world was ready for a completely new paradigm. And the paradigm is if youre a leader and you commit genocide or war crimes, you can be prosecuted by the international community. And today this isnt so novel because we see the yugoslavia tribunal, the cambodia tribunal, we see duns prosecuting countries prosecuting their own leaders like Saddam Hussein, theyre talking about prosecuting assad after the crisis judges in spain who want to prosecute george w. Bush. But before world war ii, nobody even thought about that. So that was the paradigm shift. And then you had the major nuremberg trial, mini trials conducted by the occupying powers, then you had the u. N. Pass a resolution that universeally endorsed the principles of nuremberg. And these are principles we all sort of are familiar with. One which were talking about is that leaders can be held responsible. Just because theyre the president or the king doesnt mean they can escape liability anymore. Other ones is you cant use to bead yens to orders defense. Others are that theres universal jurisdiction to prosecute international crimes. Thats why in spain they go after george bush, for example. And then one of them is that when you prosecute people in an International Tribunal, you can use a principle that is similar to the United States conspiracy or pinkerton rule or a felony murder rule ill stop and tell you what that means. The u. S. Is pretty unique in the breadth of our conspiracy rules. And so in the u. S. If you join a l criminal activity and you say, dan, you and i, were going to go rob a bank, and i want you to be the getaway driver. Ill go in and do the bank thing. Perfect. So im in the bank, and we thought we were just going to do a bank robbery, we werent going to bring guns, babe just toy maybe just toy guns, but i brought a gun. They catch you running away, and theyre going to prosecute you not just for being an accomplice, but for felony murder because you were part of this criminal enterprise. Joint criminal enterprise. And so in International War crimes cases, the top people will have a plan, but the bottom people will deviate from the plan and do all sorts of other things, and this means the top people could be prosecuted for all the things if tear reasonably foreseeable. And this, for the u. S. , is pretty standard stuff. But for europe and for other countries, the civil law tradition, this is a real big expansion. And they did that at nuremberg, and then the way i got involved in this issue was in 2008 i was on my sabbatical. We get those as law professors every seven yearses, and i spent a semester as a special assistant to the chief prosecutor of the cambodia tribunal with. So i arrive at this new International Tribunal set up by the u. N. , and i say what do you want me to do . And he says were going to have you write the brief in response to the defense motion to dismiss the charges of joint criminal enterprise liability. And they call this jce. Well talk about that and those initials. The defense says it stands for just convict everyone. [laughter] once you have the standard, its very proprosecution. Ah, legal humor. [laughter] told you id make them laugh. Anyway, the problem we had was this joint criminal enterprise liability had been established in all the modern tribruins, but the cambodia tribunal goes back to eventings in the 1970s. So the only precedent they had was the nuremberg precedent. And the defense counsel argues that nuremberg is one trial, you have a General Assembly resolution a year later, thats one year. Thats not enough for customary International Law. So theyre going pack to the traditional notion that customary International Law takes decades, centuries, you know, millennia to crystallize, and were saying that it did it in one year with one trial. So i actually used this term and that was the genesis of this whole grotian moment thing . You know like every for you. Comic book superhero has a back story . Yeah. This is my origin story. So im in cambodia, and i stick it in the brief, and it goes to the tribunal, and the tribunal says we agree with this, and they used the term grotian moment. And thats when people started talking about in this term, and thats when i said ive got to write a whole book about this. Huh. So that was the moment that you identified nuremberg as, like, your prototypical grotian moment. And it seems to work because it was such a big moment for the world. Right. And the universe of legal scholars. Everybody was paying attention, and everybody noted, yes, this changes everything. Right, right. Except for the defense come. Except for the defense counsel. Who appealed and lost on appeal. [laughter] anyway, it made [inaudible] at some point. Then you start looking around for other grotian moments. Did you think you would find anything as significant as nuremberg . Because that was kind of a big deal. This is where the origin story gets another interesting twist. On my 50th birthday i go to the hague, and i visit an old law professor friend of mine named Chris Greenwood you planned this for yourself as part of your 50th birthday . This is what i do. Chris has to take me to lunch. The reason [laughter] the judge from the u. K. Of the International Court of justice. So my little professor friend has gone from London School of economics to being the judge of the world court. And i always like to go there because they have really good soup, as you say. [laughter] the facilities at the world court. So i go there, and he says what are you working on, mike . Because he cant really tell me about the cases hes working on, so its all about what im doing, and he can, like, give me his thoughts. And he is probably the most insight. Law professor, now judge that anyone could know. Hes very well respected on the court, and his mind is very anymoren, and he thinks very quick. I say what other grotian moments do you think there are . And he just starts going theres this, this, this, and this. He comes up with six of them. So its his fault. Its his fault. And four of them i decide are are legitimate moments and two i decide dont meet the criteria. And you can learn a lot by, you know, having a test case. And so the two that arent which well talk about later are humanitarian intervention and targeted killing of terrorists. And so thats the most controversial part of the book. In fact, despite the wonky title, the reason the book so hot right now is because its one of the first books to come out to talk about these two issues that are in the news like almost every day in the last year. Uhhuh. The targets killings. And also many and whether you go into places like syria. Exactly. Well, lets jump into that. Why not . The, i mean, i think you could run through the other case studies, and its pretty clear why, i mean, the space outer space law, like, it was happening. You cant get to space without flying over everybody elses countries, so you quickly come to an agreement. Huge technological change. It would take too long to create treaties during the cold war, so they create customary International Law through general this is like your coining of this phrase, custom pioneer, which is a really funny thing of you dont know that a youre doing it at the time necessarily you can only be a custom pioneer in retrospect, right . In hindsight. Im actually more cynical an it. Really . I think theyre the major powers that want to create new customary International Law like involving space law, so this would be the soviet union and the United States. They cant say theyre creating new law because customary International Law is basically if you say it, you actually have to do it through treaty. Yeah, yeah. What they say is no intentions this the law were creating right now. This is just a minor extension or a nuance on existing law. Thats how they usually do it. But if you look at it, theyre radical and fundamental changes. Right. The Continental Shelf was another example, right . Customary law had been that your border extends three miles or maybe five miles into the but not 200, and now we can claim the oil and gas reserves all the way out through the gulf of mexico because president truman in 1945 said we believe that this is part of the natural prolongation of our territory. And, again, they cast it as if inevitable. Everybody knows this. But it was really new wine in old bot be les, and it made it palatable. Everybody was willing to try the new vintage. Well, it worked out for everybody because theres no, not for everybody everybody, because if youre landlocked, it doesnt really matter that much to you. It doesnt change your world if youre andora, say. But if you are, you know, if you have a coastline, suddenly it got better. Think about shallow in the netherlands, i dont think they would have been that excited that we were banning the gulf of mexico to their oil exploration. And, in fact, one of the ways they got around it is when truman said that we are going to have this new authority. He said but were going to lease it out so all the countries in the world on the same kinds of terms that we do to americans so you wont be disadvantaged. So that kind of was another political way to soften the transition. But ultimately, he had claimed the authority, and he didnt have to lease it out, and we dont have to necessarily. Right. But what i was saying is it creates a win for australia, it creates a win for france, it creates a win for everybody that has some sort of coastline potentially where there could be resources, yet undiscovered resources. And like space law, or this was a technological change, and it also happened right after world war ii, so there was huge demand for oil and gas, and suddenly we had the ability to drill way out there on the con Continental Shelf. And still to this day most of our oil comes from that area. Its a very important resource for us in the United States. Before we get into why the final two case studies dont really qualify as a grotian moment, tell me generally what are the moments in your mind that disqualify it . Let me tell you one other part of the origin story. Its sort of a threeparter. Youve not the part where i go to cambodia, the hague, and then the thursday part is i get invited to go to kyoto, japan, who is the ceo of the Kyocera Company and the benefactor at a certain of our