Marxist Insights for International Law

by Stephan Kinsella on January 28, 2026

Fascinating recent lecture by Antonios Tzanakopoulos, Professor of Public International Law at the University of Oxford, ¹ for the Lauterpacht Centre for International Law at Cambridge University: “‘Marxist Insights for International Law’ – Prof Antonios Tzanakopoulos, University of Oxford.” (apple podcasts)

Summary and transcript below.

Like some intelligent and passionate Marxists, he has some good insights; see Hoppe: Marx was “Essentially Correct”. But it is marred by his socialist views on positive rights, the labor theory of value, and exploitation. His picture of international law as one analogous to private municipal law is insightful, but shares the same criticisms of international law as it does of private law: that its equality is a mirage because it only prohibits force but not economic coercion and does not. He of course opposes a free market with private ownership of property where workers have no positive rights and own only their labor since this leads to exploitation; on the international sphere, protecting sovereignty of “all nations” in practice tilts the rules in the favor of advanced nations who can use freedom, freedom. a freedom that does not good to smaller, more backward nations (see his Japan fishing example). He laments the inability of international legislation like the originally proposed, more egalitarian version of the United Nations Convention on the Law of the Sea (UNCLOS), ² and that it had to be watered down to a less egalitarian version (which is still too socialistic to libertarian eyes and even the US has not ratified it). In this lament he too readily and positivistically equates international law and progress in international law with multilateral treaties—the equivalent on the international sphere to municipal legislation—and is not satisfied with the pure public international law that prohibits aggression and respects treaties and national sovereignty, the equivalent of self-ownership and negative property rights and contracts rights in the domestic sphere. So his criticism of and frustration with the intentional vagueness of international treaties and conventions has echoes of John Hasnas’s criticism of law, but like Hasnas’s analysis, which is better applied to legislation than to decentralized, organic law ³ (like the common law), it is less applicable to the basic rules of customary international law as opposed to welfarist treaties. His brief criticism of western capitalist private ownership of technology might be taken to imply opposition to intellectual property, but like many leftists skeptical of IP, they are skeptical of IP not for the right reasons but because they mistakenly think it is a legitimate form of private property, ⁴ and oppose it for this reason. ⁵

Anyway, I enjoyed his cynical perspective, despite some of the Marxist taints.

Concise Summary

In his talk “Marxist Insights for International Law” at the Lauterpacht Centre, Professor Antonios Tzanakopoulos applies Marxist theory—particularly Pashukanis’s ideas on the legal form—to argue that international law is not under existential threat but operating exactly as designed to preserve structural inequalities and protect dominant class interests. Responding to recent anxieties about the erosion of the “rules-based order” (sparked by Mark Carney’s Davos remarks and events like U.S. tariff threats over Greenland, Venezuela’s invasion, and Chagos), he contends that what is being challenged are specific rules or applications, not the system itself. He dissects the legal relation’s structure: formal sovereign equality masks vast factual inequalities (like domestic contract law disguising power imbalances between individuals and corporations); its object is fundamentally the protection of bourgeois property in the means of production (territory, resources, investment protections, even the origins of human rights as safeguards for alien/investor property); coercion is baked in through countermeasures, retorsion, and economic pressure that disproportionately favor powerful states; interpretation is inherently political with wide plausible margins; and the system’s justification relies on ideology that naturalizes private ownership and market relations.

Tzanakopoulos concludes that international law offers limited emancipatory potential—best suited for rearguard actions to slow slippage rather than transformative change, as it remains the “master’s tool.” He expresses a middle-ground position: neither fully rejecting law (contra China Miéville) nor uncritically defending it. Current non-condemnations of aggressive acts (e.g., by the UK and Greece) show even basic resistance failing, allowing slippage to accelerate. The talk serves as a bird’s-eye Marxist critique to illuminate how international law co-constitutes and sustains underlying power relations, even amid apparent crises.

Detailed Summary

The talk titled “Marxist Insights for International Law” was delivered by Professor Antonios Tzanakopoulos (University of Oxford) at the Lauterpacht Centre for International Law, University of Cambridge, as part of the Friday Lunchtime Lectures series (likely on or around January 23, 2026, based on event listings). It draws heavily from his chapter/paper “The Master’s Tools and the Master’s House: Marxist Insights for International Law” (published in The Oxford Handbook of International Law in Europe and available as a pre-print/SSRN paper), applying Marxist theory—particularly influences from Evgeny Pashukanis—to core concepts in international law.

The speaker uses a Marxist lens to analyze the structure, operation, content, and justification of international law, arguing that the system is not collapsing but functioning as designed to maintain underlying power inequalities. He responds to contemporary anxieties about the “international rules-based order” (prompted by Mark Carney’s recent Davos speech criticizing its erosion amid U.S. actions like tariff threats over Greenland) and events such as Trump’s policies, Venezuela, Chagos, etc. Tzanakopoulos contends that what appears as an attack on international law is actually a challenge to specific rules or applications, while the deeper structural logic remains intact and serves dominant interests.

Introduction and Context

The session begins with a warm welcome from the chair (likely Jan Klabbers), praising Tzanakopoulos’s work, including his book on disobeying the Security Council. Tzanakopoulos expresses gratitude for the invitation and humorously accepts the “jack of all trades” label. He frames the talk as potentially provocative, alternatively titling it “Is the international legal order coming to an end?” He references Mark Carney’s recent speech (at Davos, where Carney described the rules-based order as a “sham” now that powerful Western states feel its effects, e.g., via U.S. coercion like tariffs on allies over Greenland). Tzanakopoulos finds this “shocking” as it belatedly acknowledges what critics of the system have long argued: the order has always disadvantaged the oppressed, and resistance emerges only when the powerful become victims.

He notes widespread concern post-Trump’s re-election—people asking if international lawyers are “out of a job”—and the defensive posture of many lawyers claiming “we” must protect the legal order. Tzanakopoulos questions who this “we” is (peoples? lawyers?) and argues international law itself is not under attack—only particular rules or applications are. The system works exactly as intended, protecting dominant class interests through the state.

Subjects of International Law: Formal Equality Masking Factual Inequality

Drawing on basic textbook concepts, Tzanakopoulos applies Marxist ideas (e.g., Pashukanis) to the “international legal form.” The primary subject is the state, flattened into juridical equality via sovereign equality. This formal equality disguises vast factual inequalities in power and resources, much like domestic law pretends equal contracting parties (e.g., an individual vs. Apple or Jeff Bezos) while economic realities coerce outcomes.

He illustrates with examples: individuals cannot meaningfully negotiate iPhone terms or job offers without starving; similarly, states face formal equality but real coercion. Carney’s complaint exemplifies hypocrisy—interventions were tolerated when targeting “weird brown people,” but not when directed at “civilized” Western states (e.g., tariffs on Canada/EU over Greenland). Legal equality has some equalizing effect but is overwhelmingly structural and negative.

Object of International Law: Protection of Property (Means of Production)

Reductively, law’s object is protecting property—specifically bourgeois ownership of the means of production (nature, technology, labor power). International law centers on this: territorial title, resource control, investment law as modern colonialism. Even human rights originate from 18th-century bourgeois revolutions, initially protecting “aliens” (white property owners in colonial contexts) via standards like no denial of justice, life, liberty, security—requirements for enjoying property.

These “negative” rights (state non-interference) are cheap to enforce, unlike expensive positive rights (e.g., housing, water, health). Originally for investors/aliens, they later extended selectively post-WWII. The speaker cynically notes police and courts are prerequisites for property enjoyment, revealing law’s class-serving role.

Freedom of the Seas and the Common Heritage Principle

Using the law of the sea as an example, “freedom of the seas” grants formal equal rights (e.g., Japan fishing off Equatorial Guinea and vice versa), but technological and economic disparities make it illusory for weaker states. Newly independent states pushed for the deep seabed as “common heritage of humankind” during UNCLOS negotiations (1973–1982), winning formal inclusion with sharing provisions.

However, when the 1982 Convention neared entry into force (1994) with minimal Western ratifications, an “interpretation” agreement gutted sharing/technology transfer provisions. This shows law’s structural resistance to redistribution—hard to use law against the relations it constitutes.

Operation of Law: Coercion Baked into the System

Law is coercive (a command backed by sanction). In decentralized international law, coercion occurs via countermeasures (violating in response to violation), retorsion (unfriendly but lawful acts like tariffs, aid withdrawal, diplomatic slights), and economic pressure. Powerful states bear costs easily (U.S., EU, China vs. Congo).

Economic coercion is generally lawful unless it involves threat/use of force. Trump’s tariff threats (e.g., on Denmark/EU over Greenland) are objectionable but not illegal under treaties like the Vienna Convention on the Law of Treaties—coercion via economic means rarely invalidates agreements (e.g., Greece’s debt crisis). Only force threats are prohibited, and even that norm erodes.

Content of Law: Interpretation as Inherently Political

Interpretation under Vienna Convention Article 31 (good faith, ordinary meaning, context, object/purpose) and 32 (preparatory works) provides vast plausible options—no “one true meaning.” It sets outer limits but leaves choices political (biases, positions). Kelsen noted law designates who authoritatively interprets among plausibles. Courts vary: WTO Appellate Body was textual; ECtHR emphasizes effective rights over strict text. Interpretation is political in domestic and international law.

Justification of Law: Ideology

Law’s justification is ideological—making contingent arrangements seem natural/common sense. Example: contract law lets workers sell labor power while accepting private ownership of production means as inevitable/grateful-worthy. Ideology conditions acceptance; questioning it seems “loony.” U.S. actions now disrupt this common sense, potentially opening emancipatory questioning—but likely in a bad direction without organized alternatives.

Emancipatory Potential and Role of Lawyers

The big question: Can lawyers use law emancipatorily, or is it the “master’s tool” (Audre Lorde reference) useless for dismantling the system? Tzanakopoulos sits in the middle—neither fully pessimistic (contra China Miéville, who abandoned Marxist IL theory for fiction) nor naively optimistic (defend IL at all costs). Law suits rearguard actions—preventing slippage, small advances—but not revolution. Current events (e.g., Venezuela invasion minimally justified/debated; weak condemnations from UK/Greece) show even slippage prevention failing—law changes via practice/opinio juris, and non-condemnation implies acceptance.

He ends on a “happy note” of slippage accelerating, opening for discussion. The talk is a bird’s-eye view applying Marxist structural analysis to illuminate international law’s class-serving nature amid perceived crises.

Transcript

Introduction and Welcome

[0:05] Hey ladies and gentlemen, welcome to our first Friday lunch meeting of this term. We’re delighted to have as our speaker Antonios Tzanakopoulos who first appeared on my radar when he wrote a brilliant study on disobeying the Security Council. Still not sure I buy the ultimate argument but the technical level competence of skill is absolutely amazing. You may have seen him recently on social media giving lectures, small lectures, small talks on a variety of topics. He does pretty much everything within international law. Proper generalist I guess. And we are delighted to have him here. Antonios thank you very much.

[0:53] I suppose I need to use the microphone, right? Yeah, because we’re online as well. Well, great honor to be starting the year for the other place. It’s very, very nice to be invited. So, thanks to Jan, thanks to the Lauterpacht Centre. And everyone at Cambridge for the invitation. And thanks for that also very kind introduction. Jack of all trades, master of none, I suppose you call it. And also for praising the technical skill. Being technically correct is being my finest kind of being correct. So even if you don’t buy the argument all right.

Title and Framing of the Talk

[1:38] The title is a little bit maybe provocative or maybe not well thought out: some Marxist insights for international law or what that might even mean. Another way actually we could have entitled this is: is the international legal order coming to an end? There’s apparently that sort of like unfold today. That’s like what we all talk about. And basically I thought that I’d rather structure a talk around that while taking some pieces from a particular paper that I’ve written on Marxist insights for international law. And sort of taking the initiative from Mark Carney’s speech a couple days ago. And I don’t know how I see some of you nodding. I was like, “Yeah, yeah, we heard all about that.” Which I found quite shocking truly because it sort of like lifts the veil.

[2:41] It basically says, “Oh, yeah. This, what is it that they call it now? The international rules-based order. I have no idea what that means.” It can’t mean something good. But he basically sort of like lifted the veil and simply said we always knew that was sort of like to some extent a sham. And now that we’re on the receiving end of the sham we need to resist it. I’m like oh welcome Mark Carney to the side of the oppressed. It’s not nice being on the receiving end of the whole thing is it?

Questioning Attacks on International Law

[3:29] But in reality the way to go about this is to ask sort of where is all this worry about, I won’t use the term international rules based order because I don’t know what it means but I will use the term international law. And you hear all those talks so international like people come to you and say what are you all about what are you even doing and I’ve had people in college tell me things like that in the last few days and weeks and generally after the second election of Trump or are you out of a job yet? You know, that kind of thing. On the one hand and on the other hand, you get all the international lawyers turning around and saying we need to defend the international legal order. We need to do sort of do this. We need to do that.

[4:20] And I’m like, first of all, who the hell is we, right? I never know who is it the we that need to defend international law. Is it we the peoples? Is it we the international lawyers? Is it we? Who we exactly? And why is it up to international lawyers to defend international law? But the other thing is is international law really under attack because I don’t see international law being under attack. What I see is particular rules of international law being under attack. The law is not under attack at all.

[5:04] And we can take all sorts of like recent incidents, but perhaps before I go there, so I was thinking, you know, we can discuss Venezuela, we can discuss Greenland, we can discuss Chagos even back in vogue now after Trump said Keir is an idiot for trying to make a deal and so on. But I thought I would try to provide some structure before I pick up those questions in an attempt to show that the international legal order isn’t under attack. It’s a particular emanation or a particular content of international legal order that is under attack. The system is here and it’s very well and is working exactly as intended in a way. And that is not under attack at all.

Structure of the International Legal Relation: Subjects

[5:56] But in order to sort of structure thoughts about that and I will I promise I will not talk for long and I will not go deep into the theory. I’ll just make a few points and then we’ll open it up to discussion. Let’s start with the structure of the international legal relation right the international legal form. What do we mean by that term and how is it structured? So as in any standard textbook and the whole point about Marxist insights for international law is how you take a little bit of Marxist theory especially Pashukanis that kind of thing and apply it to basic concepts of international law as you will find them in any undergraduate course.

[6:39] So what’s sort of like the first part of any undergraduate course that you know you open any book the first whole point is who are the subjects of the law right so if we look at the structure of the international legal form of the international legal relation then we can say first thing is the subject of the international legal relation who’s the subject of the international legal relation this applies as much to domestic law as it does to international law which is that effectively what we’re dealing with here is what the law does is to essentially flatten out everything into equal juridical subjects. But it’s equality of as you know public international law oh if you’re a state and you’re sovereign nobody knows what that means let’s just say it means right you have all the power okay if you have all the power then everybody else also had all the power so you’re all equal and that’s the concept of sovereign equality right.

[7:45] But as Mark Carney will tell you today well that’s not quite true is it so this legal equality isn’t anything but right a way to disguise the factual inequality between the legal subjects and it is like that both in international law and in domestic law as I tell my undergraduate students when they come in they say oh this whole international law what’s the point and this that and the other thing I’m like okay good luck suing Jeff Bezos right or good luck not accepting the terms and conditions of Apple when you turn on your notebook or your iPad or whatever it is that you have.

[8:28] I mean, what are you going to tell? Yes, you’re free and equal and you are free to make that contract. But are you really sorry? You’re going to call up Apple and say, well, actually term 3.2.1 I have a bit of an amendment there because I’m not sure that I want you to use my data in this way. You’re going to be say they’re going to be saying well in the exercise of your freedom and equality you are free not to accept this contract and then you’re like ah yeah or in a similar term you’re free not to accept an offer of a job and die under a bridge without any food bit populist people would say but it is what it is right.

[9:14] So why is it any different between states in reality is exactly the same between states. We have this type of formal legal equality and that’s sort of like the legal reality and then we have the real reality which is that states are not at all free and equal in any way, shape or form. And you can going back to Mark Carney is basically what you were saying is I thought we were on the side of the powerful and for as long as we were on the side of the powerful we didn’t have particular problem with interventions here and there right as long as it’s the weird brown people that this is done to that’s absolutely fine but now you’re turning against the civilized west President Trump and how dare you do that to us we are white and civilized, right?

Structure of the International Legal Relation: Object

[10:28] You can’t be doing yeah, you can pull that stuff off in Venezuela or wherever. But when you start sort of like using coercive measures against Canada by using tariffs or trying to take over Greenland through the use of tariffs, that’s coercion that we won’t stand for except for when we do it to others. That’s fine. So the subject of the legal relation is one point for that legal equality behind which we have that factual inequality. I’m not saying that it doesn’t help equalize to a certain extent. Right? So there is a positive side to this as well. But the negative side is overwhelming and it’s structural and that’s the important thing and I’ll come back.

[10:58] If we look at the object of a legal relation in a way I’m going to be sort of super cynical and super reductive here. The object of a legal relation is in reality property. That’s all that it is about. The whole point of not just international law but effectively of all law is to protect property. Now you will and I don’t mean this in the crash way of sort of idiotic people coming over to you and saying oh yet you have an iPhone or something like that. We’re not talking about that kind of property. We’re talking about property of means of production.

[11:28] We’re talking and when we say means of production which is a very cool Marxist way of saying basically nature technology labor power right who had the ownership of the mean by which we can produce anything to make a living. It’s the same thing in domestic law in international law. If you think about it, the whole object of the legal relation is to protect property of this kind of means of production for a particular dominant class even through the lens of the state. So if you think about it titled to territory, right? The whole discussion what where do we start? Oh, the territory of the state. How the state is sovereign over its territory. Territory is inviolable and so on and so forth, right?

[12:21] But it’s not just territory. It goes beyond territory. It goes beyond territory on a number of levels. Resources, right? From colonialism to what is essentially colonialism today, which is investment law. In reality, this all comes down to that kind of protection of property. Even if you think about it, things like human rights, again, I’m being very quick and very crash. There is a paper, you can read it and disagree, but think about human rights. Everyone’s like, “Oh, human rights isn’t that wonderful and da da and little hearts.” And the whole thing, where does human rights come from?

[13:03] It comes essentially from the bourgeois revolutions of the late 18th century which are then translated into the international law for the protection of aliens. And the international law for the protection of aliens is nothing but the protection of the white man’s property in the weird uncivilized brown areas that he because it’s invariably he goes to in order to basically extract the resources if you think about it. And starting from that protection of property, then we have everything else that you are required to have in order to enjoy your property. Like for example, what’s the first thing that you need to have in order to be able to enjoy your property properly? Anyone? Police. Well, even before the police, your life, your life, right?

[13:50] The life. You need to have first of all, you need to be alive in order to be able to enjoy your property. Then you also need to be to have freedom, liberty, and security of the person, right? So you’re not thrown in jail or certainly like not taken hostage or something like that. You need to also have a legal system to protect that property. So no denial of justice. Does all of this sound familiar? I know originally this is just for the alien, what we today call the investor, but back then we call the alien, right?

[14:16] It’s only after the second world war that this starts being extended to everyone. And even then only with respect to particular rights which are sometimes called negative rights as in oh these are rights where we demand the state not enter into right it’s these are rights where the state basically needs to stay away from and that’s why we can protect them because that’s cheap as opposed to positive rights like for example economic social and cultural rights which are very expensive to guarantee that you have a right to a home, to clean water, to a livable environment, to health, to anything like that. That’s way too expensive.

[15:00] So we can’t really protect that. Which is of course not true because even the so-called negative rights in reality they do require the police they do require a court system they do require all sorts of state mechanisms in order to guarantee them right they have positive aspects we tend to forget that when we talk about them sorry I’m getting on too long about rights anyway you get the point I think.

Freedom of the Seas and Common Heritage

[15:36] Right. So the object of a legal I could go on and talk about the concept of the area right the whole idea of how this sort of like there’s been there there was an attempt you talk about freedom of the seas right I don’t know if anybody’s doing law of the sea but you know what I tell my students when whenever you hear freedom run right somebody it’s it’s not going to be your freedom or it will be if you’re very rich but if you aren’t it’s not your freedom. So freedom of the seas means what? It means basically everybody has the right. Let’s take the old rule three nautical mile territorial sea. It means that Japan has as much of a right to fish four miles off the coast of Equatorial Guinea as Equatorial Guinea has to fish four miles off the coast of Japan.

[16:27] Except that’s right? in very simple terms because Japan is a technologically advanced rich powerful state that has a distant water fishing fleet that can go around the world and fish off the coast of Equatorial Guinea any day. Whereas Equatorial Guinea, what are they going to do? And especially what were they going to do like in the 60s and the 70s go get into their wooden boats and paddle over to Japan. So of course you have an equal right but is it really an equal right when newly independent states coming out of colonialism sort of during the negotiation of the UN convention on the law of the sea so 1973 1982 in the context of also the new international economic order tried to push for something different when they were discussing the international seabed they said we don’t want this to belong to nobody and be free like the high sea We want this to belong to everybody, right?

[17:23] We want to share it. We want this to be a common heritage of humankind. And they had the number. They had the numbers and they formally won as in today the area is the international is the common heritage of humankind and all the rest of it. But the problem is the system will not let you legislate on. It doesn’t work that way. So if in case you know what happened right 1982 the convention is made with the concept of the common heritage of humankind. It has very very complicated provisions for technology sharing for sharing proceeds and so on and so forth. You wait for 12 years to get the required ratifications. You come up to 1994. The treaty is about to enter into force and it has precisely how many western states ratifying it. Take a wild guess. Four. One. The very powerful state of Iceland.

[18:38] Of course that means the convention will be non viable if you don’t have any western states participating in especially for a convention that provides for a number of institutions including for the international seabed right you need the authority you need the enterprise you’re creating a new court the international tribunal for the law of the sea and so on and so forth which can pay for all that stuff so what do you do what you do is you make an agreement on the interpretation agreement of part 11 on the deep sea bit which means basically you get rid of most of the provisions with respect to sharing. There is no way that it’s an example of how difficult it is to use the law right to sort of like overcome a structural relation that the law itself co-constitutes and is there to maintain. It’s very very hard to do.

Operation of the Legal Relation: Coercion

[19:39] Picking and choosing. Let me leave this behind as well and move to another concept. So we talked about the subject of the legal relation. We’ve talked about the object of the legal relation. So as we’re looking at the structure of the legal relation let’s look at the operation of the legal relation as well. This can be a very big chapter because it centers around the concept of coercion. Law is a coercive order. That is the general idea, right? The whole point is that a rule is a command backed by some sort of sanction by some sort of sanction that is coercive, right? That means something is happening to you whether you like it or not. May happen to you. Doesn’t always happen to you. When I park illegally, I always get a ticket. When my friend George parks illegally, he never gets a ticket. He’s just lucky it happens. That doesn’t mean there is no coercive sanction, right? Just because he got lucky. True story, by the way.

[20:48] And this is what creates a particular problem. I mean, it’s the same in domestic law. But it creates a particular problem in a decentralized legal order like the international legal order where basically most coercion but where coercion is baked into the system in the sense of essentially counter measures the reaction to illegality right the reaction to illegality is basically decentralized coercive activity because the way that it works it’s a violation in response to a violation state A violates the law towards state B. State B can call upon that state to sort of like cease the violation if it is continuing, offer assurances, guarantees of non-repetition, offer reparation, right? Standard state responsibility stuff.

[21:32] Okay, what happens if state A doesn’t do that? Well, all that state B can do but also something that state B can do is to take countermeasures, right? To violate in response to that violation. Plus, state B also retains the power at any moment to do any number of things that are unfriendly but perfectly lawful. What we know as retortion, right? You’re familiar with the concept of retortion or do I need to withdraw of voluntary aid even breaking off diplomatic relations? The road in front of the Russian embassy in London being renamed Kiev Road. The first ones who did that was the Glasgow city council who renamed the square of the South African consulate during apartheid into Nelson Mandela Square so that all the diplomats from South Africa had to cross Nelson Mandela Square to get into their consulate.

[22:31] That kind of thing. So a perfectly lawful but unfriendly act which of course allows quite a bit of economic coercion. If you don’t have an obligation not to have tariffs then of course you can impose whatever tariffs you want. That’s not in fact states have been doing it for the longest time. And even those things that might be unlawful in terms of economic coercion or other forms of coercion may be justifiable as countermeasures. Right? So coercion is baked into the system and of course in a decentralized legal order coercion is mostly available to those who have the power to impose such coercive measures in the sense that they can deal with the cost for imposing such coercive measures because these things come with cost but it’s a different thing bearing that cost if you’re the United States or if you’re the European Union or even if you’re China and it’s a different thing bearing that cost if you are I don’t know the Congo right.

Coercion in Current Events

[23:50] So there we have covered to a certain extent the structure of the relation what this explains is basically everybody sort of like going nuts about oh my god Trump he’s using coercion do all those things coercion by the way you might say well but coercion in international law is prohibited no I mean there are provisions that refer to coercion but if you look at any one of them the only way that coercion is defined is threat or use of force because economic coercion is perfectly allowable that’s the point. It always was economic coercion is perfectly allowable in domestic law as well. Go and try and get a job. You are less powerful than your employer. Your employer is going to say, “This is the salary. Would you like to negotiate it?” And you’re like, “Yes, I would.” Except you can’t. I mean, you can try. you can become a member of a union and then you have a better shot but not in this country after that. So that’s you get the idea.

[25:00] So what he’s doing right now sort of like imposing random tariffs on Denmark or threatening to impose tariffs on Denmark, threatening to impose tariffs on the rest of the European Union in order to force them to sort of like cede Greenland and so on and so forth. Into objection and all but strictly speaking who has told that that this is unlawful what is unlawful is threatening force right that would be unlawful version but making a treaty right imagine the situation where they come to some sort of agreement on the basis of economic coercion only without the threat of use of force then that would not be invalid at the convention on the law of treaties in fact that happens all the time when that happened to Greece for example during the Greek sovereign debt crisis nobody was like oh my god they’re being coerced isn’t that invalid under the Vienna convention no it’s perfectly fine it’s objectionable on all sorts of other levels but it’s actually legally perfectly fine as long as you don’t threaten to bomb them it’s okay and even that is sort of like quickly disappearing now And I’ll come back to I mean it’s been disappearing for decades but only now do we realize how this is sort of like accelerating.

Content of the Legal Relation: Interpretation

[26:25] So we’ve dealt with the structure of the legal relation. You throw something at me when I need to I’ll make I’ll make two quick points and we’ll stop from that. So we’ve dealt with the structure of the legal relation. So subject object and operation. Let’s look at the content of the legal relation. This comes down to interpretation. This also something that is extremely extremely important. There are all these like tons of ink have been spilled about people writing on interpretation this that the other thing the Vienna Convention and all that stuff. You look at the Vienna Convention Article 31. What does it say? A treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in light of the treaty’s object and purpose which basically means nothing. It means literally nothing.

[27:18] This is exactly what we say in all domestic law. And in all domestic law, it means equally nothing because all that it tells you is in order to interpret inherently indeterminate to a larger or smaller extent terms. What you need to do is to read the textual interpretation in context contextual interpretation in light of the object and purpose teleological right purpose of interpretation. And then article 32 says and in order to confirm you can go to the preparatory works right which is historical interpretation but it doesn’t tell you how but doesn’t tell you how much text how much context how much object and purpose how much history should I put in I mean what good is a recipe where somebody tells you oh you need meat oil onions and turmeric and you’re like okay but how much. Oh, the says if you just throw it all in a crucible and something will come out. Now, that is a recipe. But what is a recipe for? It’s a recipe for disaster, right?

[28:28] What am I trying to say with this? That prescribes some outer limits of interpretation, but they’re very vast outer limits within which you find a lot of plausible interpretations. And there are these sort of like theorists of the law who will tell you I have the way to find the one true meaning using the tool that a convention gives me or whatever interpretive theory gives me I will dig through the ground and come up with the one true meaning of this particular provision which of course there isn’t one that is the whole point there are more or less plausible meanings but whether they’re more or less plausible doesn’t actually depend on the law and the law doesn’t tell you anything about whether they are more or less plausible They are essentially political decisions.

[29:19] Political in the very broad term, right? I don’t want to take this to Robert Sapolsky and sort of like it’s all determined by whether your faraway ancestors from like 100,000 years ago were pastoralists or people living in the desert or people living in jungles. Nor am I trying to say do I want to take it back to it might be ethical and in that sense it’s not political and all that stuff. Essentially it is political in the final analysis. It is predetermined by your conscious biases, your unconscious biases, your political position, the way that you grew up and so on and so forth. All that the law does and this is not me, this is Kelsen, right? A positive positivist if there ever was one is to tell you who is the one who gets to make the political decision of choosing the authoritative interpretation from among the plausible interpretations.

[30:15] So interpretation is inherently political and it’s the same in all whether it is domestic or international but it’s very very clear in international law. And you can see it not just in the decisions of the International Court of Justice, the inconsistencies and we can get into all of that if we and I wish we had time. You can see it if you compare sort of like WTO appellate body made rest in peace as opposed to sort of like European Court of Human Rights, right? Where you get anything into the appellate body and they’re like is su like whiskey? They have to be like products. Oxford English dictionary like means that’s what they do, right? Like it’s a whole ton of text and then maybe they’ll take into consideration some context and some object and purpose. Whereas you go to European Court of Human Rights like well the convention is meant to guarantee rights that are effective and not rights that are illusory. So we might forget about the end in that sentence. So yes text but yeah no there’s a lot more object and purpose.

Justification of the Legal Relation: Ideology

[31:36] So you see how this operates and this is all legitimate interpretation under the Vienna convention. You can’t say oh the one court is wrong and the other is right. One final thing I’m throwing a lot of things out there and then we can discuss them. We dealt with the structure of the legal relation. We dealt with the content of the legal relation and we can discuss this in a lot of detail if you want but let me also talk a little bit about the justification of the legal relation and the justification of the legal relation is what in Marx you would simply call ideology right and I’ll give you a very simple example of that.

[32:12] I was doing we were doing an undergraduate lecture the other day like literally on Tuesday or whenever it was and I don’t remember what we were discussing. We were discussing something about something about law in general. There was like meant to be on jurisdiction and I was talking about jurisdiction and then somehow like one of the students turned around and said oh but the law can also sort of help you sort of like be free and for example it enables you to have a salary. Contract law ens but this is the operation of ideology. You are so conditioned right to think that it is absolutely common sense that we should own nothing but our hands and brains. That’s basically it.

[33:16] That the means of production, the nature, technology, anything will be privately owned by very very few individuals and that all that we have is our labor power to sell and we are enabled to do so by contract law. So we should be actually grateful that this is the situation rather than be like who the hell made that guy, right? That it but not to him. And this is how ideology operates, right? It’s all of a sudden certain things have become common sense and you are not allowed to question them because if you question them you’re left like this guy is loony right these things will never happen but as Nelson Mandela used to say things will never happen until they happen so breaking free from that chain of ideology or at least trying to question it to a certain extent is very very helpful and in a very peculiar way and very dangerous way.

[34:19] What the United States is doing today is doing precisely that. It is allowing you to question the common sense of what had been happening so far. Now, of course, it can go two ways and it’s far more likely to go one way, the bad way, than it is to go the good way simply because there is no organization in terms of taking it the good way. And that is a very very big problem. But this in a way sort of brings everything to a close in giving you a basic structure of certain sort of like Marxist concepts that you can draw out of not so much Marx himself even though there is quite a lot in that too but from other theorists and use them in the way that you think about international law at least to illuminate some aspects.

Role of Lawyers and Emancipatory Potential

[35:10] This all comes down in the end to a very very big question which is as lawyers what are we supposed to do with the law right is the law is it are we able to do anything with it or is it just something absolutely sort of like forsaken that we can’t use that we shall just hope the revolution will come and then it will wither and die along with the state as Marx famously said or is there something that we or is there some emancipatory potential in the law? That’s that’s sort of like the big fight. I’m sort of in the middle like a proper sort of like revisionist sitting on the fence because there are people like there’s this a very well-known guy to me at least China Miéville I don’t know if you’ve read China Miéville he’s fantastic okay you can disagree with lots of things but basically he wrote his PhD which was on a Marxist theory of international law and he did a lot of Pashukanis and in the end is like all of this is useless so he wrote the book published it then threw it away and continued writing his science fiction which is what he’s really known to the non nerds or to a whole different kind of nerds than we are.

[36:30] So that’s one side and then there’s another side of all these people say oh no we must defend international law because there is emancipatory potential and so on and so forth. In reality, I’m a little bit in the middle in the sense of yes, the law is good for basically rearguard actions. Like at most what we’re trying to do is prevent further slippage and potentially sort of like make a small ingress here and there. But it will never help you for anything more. Like it literally is the master’s tool and you can never use the master’s tools to bring down the master’s house. Like you can prevent slippage, you can fight rearguard actions, but it’s something that we’re not even doing today if you think about it.

[37:16] So you have the invasion of Venezuela. For me, that’s the most shocking thing. And then people start debating, oh, is this lawful or unlawful? I’m like seriously? I mean, yes, okay, plausible interpretations, but really guys, I mean, this is I mean, in terms of unlawfulness, this pretty much beats it, right? There was not even an attempt to justify it. But of course that doesn’t matter because international law changes through the practice and opinio juris of states. And if you have this kind of as we know from Nicaragua whether something is lawful or unlawful in the end whether something is a violation or an exception depends really on the reaction of other states.

[37:58] What was the reaction of other states? It was Keir coming out one of his ministers basically saying it’s not the United Kingdom’s position to sit in judgment of other states. And I’m like, what? That is the whole point. Like you were sitting in judgment of Russia and you did well like not even two years ago. You sit in judgment of everyone and all of a sudden you don’t sit in judgment of that simply because you don’t want to condemn. But if you don’t condemn what does that mean? You accept. Or the Greek prime minister. He was the other fantastic guy who tweeted it is not the time. This is not the time to discuss the legality of the recent actions and like when is the time prime minister when do you think might be a good time to discuss?

[38:50] So we’re not even preventing slippage. Slippage is accelerating, right? So let me on this happy note let me put it to rest. I hope it wasn’t too all over the place for you. It was supposed to be sort of like a bird’s eye view. And open up the discussion. Is that all right? Yeah. Thank you.