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Speaker 1: Among the many questions raised by Donald Trump's tough talk

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Speaker 1: towards North Korea, whether the U. S. President is at

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Speaker 1: risk of violating international law. Trump vowed on Wednesday to

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Speaker 1: meet any additional threats by North Korea with fire and fury.

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Speaker 1: He followed up this morning with a tweet saying, quote,

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Speaker 1: military solutions are now fully emplaced, place, locked and loaded.

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Speaker 1: Trump's statements suggested the possibility he might order a preemptive

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Speaker 1: strike at North Korea. Today on the show, we're going

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Speaker 1: to talk about whether that is permissible under international law.

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Speaker 1: Our guests are two experts on the subject. Yen's. David

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Speaker 1: o'lean is a professor at Cornell University Law School, and

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Speaker 1: Kevin John Heller is a professor at the University of London.

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Speaker 1: Thank you both for joining us um Yen's. Before we

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Speaker 1: get into the specifics of North Korea and what Donald

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Speaker 1: Trump has said and what he might do, just give

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Speaker 1: us the broad overview of international law. Win Can one

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Speaker 1: country attack another under international law? The basic rules are

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Speaker 1: pretty simple on that, but they're difficult to apply and

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Speaker 1: concrete situations. The u N Charter says that there are

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Speaker 1: really only two circumstances when when force is justified under

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Speaker 1: international law. The first is when the Security Council authorizes

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Speaker 1: the military force, so they would pass a resolution telling

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Speaker 1: one country or a group of countries that they're allowed

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Speaker 1: to use military force. And the second circumstances is self defense. So, um,

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Speaker 1: you know, if one state has been attacked or is

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Speaker 1: facing an imminent attack, they're entitled to use defensive force

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Speaker 1: to to repel the assault. And those really are the

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Speaker 1: only two circumstances when force is appropriate under international law. So, Kevin,

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Speaker 1: as we sit here right now, obviously this is a

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Speaker 1: moving target and things things can change, but as we

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Speaker 1: sit here right now, how close is North Korea to

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Speaker 1: being that sort of imminent threat that Jens was talking about.

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Speaker 1: They don't seem to be particularly close to it. I mean,

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Speaker 1: I suppose we would need to have distinguished between their

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Speaker 1: kind of ongoing bluster about, you know, reducing the continental

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Speaker 1: United States to ashes, which I don't think anybody takes

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Speaker 1: seriously at this point. I mean, they certainly are on

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Speaker 1: the road to nuclear weapons, but I don't think anyone,

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Speaker 1: even the most pessimistic, thinks they're that close. Would need

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Speaker 1: to distinguish that then from kind of their threats against Guam.

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Speaker 1: They do seem to have been making much more concrete

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Speaker 1: plans for an attack on US military installations there. Um.

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Speaker 1: And so again I don't think they've come close to

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Speaker 1: the level of an imminent attack. I think they said

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Speaker 1: a few days we might attack Guam, um, but certainly

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Speaker 1: closer in that context and in the much more blustery

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Speaker 1: claims yen is is that your your analysis as well?

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Speaker 1: And and if so? Uh, would it change if say

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Speaker 1: they carried out that threat to launch missiles that landed

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Speaker 1: near Guam, would that be enough to to say, Okay,

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Speaker 1: now now we've gotten to the point of imminence. That

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Speaker 1: does change the situation and um, but the details matter

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Speaker 1: a lot. I think, um, you know, words um by

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Speaker 1: themselves just kind of the blustery talk and threatening the

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Speaker 1: United States with an attack. It's it's it's hard to

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Speaker 1: define that as an imminent attack because countries are um,

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Speaker 1: you know, engaging in those types of blustery threats all

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Speaker 1: the time. But if they were to actually launch missiles

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Speaker 1: towards Guam, then you'd have the kind of you know,

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Speaker 1: tangible manifest um movement of military arms in a in

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Speaker 1: a way that could be defined as a UH as

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Speaker 1: an imminent attack or actually an ongoing attack. Now I

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Speaker 1: think it would matter where the missiles actually land. UM.

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Speaker 1: So the North Koreans, I think of m articulated a

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Speaker 1: desire to launch missiles that would land in the ocean

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Speaker 1: outside of Guam, but outside of Guam's territorial waters, basically

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Speaker 1: in international water. Um. If they were to do that,

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Speaker 1: it would be a very provocative threat. But would that

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Speaker 1: constitute an imminent attack or an attack against Guam? Well,

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Speaker 1: if the missile landed at international waters, I think North

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Speaker 1: Korea could say, look, this is a you know, a

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Speaker 1: test meant to sort of demonstrate our our resolve, but

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Speaker 1: we haven't really done anything to implicate the sovereignty of

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Speaker 1: the United States or Guam. However, if that missile were

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Speaker 1: to land within the territorial waters of Guam, either by

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Speaker 1: design because that's what North Korea intended, or because it

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Speaker 1: accidentally fell within the territorial waters of Guam, then at

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Speaker 1: that point I think you do have an attack, and

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Speaker 1: the United States would be justified in responding, though I

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Speaker 1: think that response would have to be proportional. Um. Let

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Speaker 1: me get to that issue of proportionality in a second.

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Speaker 1: But I want to back up just for a second, Kevin,

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Speaker 1: I just launched into international law like it was some

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Speaker 1: written in some books somewhere. But what's the source of

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Speaker 1: all this international law that we're talking about? Where does

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Speaker 1: it come from? It comes from too basic, uh, to

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Speaker 1: basic places. The Yen's has already mentioned the first one.

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Speaker 1: It comes from the UN Charter, and Article to four

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Speaker 1: of the UN Charter prohibits the use sort of threat

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Speaker 1: of force against the territorial integrity or political independence of

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Speaker 1: another state. And then you have Article fifty one of

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Speaker 1: the UN Charter which inscribes the right of self defense.

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Speaker 1: But of course those provisions are very vague. They they

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Speaker 1: don't cover every situation, they don't define all of the terms.

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Speaker 1: And so then we also have to rely on customary

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Speaker 1: international law, which is essentially unwritten international law that rules

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Speaker 1: that states have said they believe to be legally obligatory.

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Speaker 1: And and most of what we're talking about here in

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Speaker 1: terms of the right of self defense, is not fleshed

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Speaker 1: out by the UN Charter. It really is fleshed out

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Speaker 1: by state practice and the statements of states as to

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Speaker 1: what they believe is legally obligatory. Donald Trump didn't hold

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Speaker 1: back this week when asked about the aggressive talk coming

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Speaker 1: from North Korea, north Korea best not make any more

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Speaker 1: threats to the United States. They will be met with

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Speaker 1: fire and fury like the world has never seen. Trump

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Speaker 1: followed up this morning with a tweet that said military

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Speaker 1: solutions are now fully in place, locked and loaded. What

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Speaker 1: a preemptive attack on North Korea and it's growing nuclear

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Speaker 1: threat violate international law. We're talking about that with yen's

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Speaker 1: David o'lean of Cornell University Law School and Kevin John

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Speaker 1: hell Are of the University of London, UM Yen's. Uh.

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Speaker 1: You know, the nuclear threat from North Korea is of

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Speaker 1: course a major factor in this in this dispute, What

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Speaker 1: under international law is the United States supposed to do

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Speaker 1: with this threat that seems to be growing Right now?

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Speaker 1: North Korea can't strike Washington with a nuclear missile, but

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Speaker 1: if we wait a certain amount of time, they're going

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Speaker 1: to be able to. Is there some way in which

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Speaker 1: the US can say, look, we need to get in

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Speaker 1: there now before that threat gets even worse. It's you know,

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Speaker 1: it's a contested point under international law whether or not

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Speaker 1: you can use military force to degrade an enemy's capacity

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Speaker 1: to develop some kind of military technology that could be

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Speaker 1: used against you in the in the future. UM. There

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Speaker 1: are two sort of historical precedents that that come to

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Speaker 1: mind on this and and both were very controversial. The

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Speaker 1: first is when George W. Bush UM, you know, took

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Speaker 1: the United States into into Iraq. And there there were

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Speaker 1: multiple arguments for for going into Iraq, but at least

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Speaker 1: one of them was to dispossessed Saddam Hussein of the

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Speaker 1: capacity to develop weapons of mass destruction. And I think

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Speaker 1: that that that argument was was very controversial under under

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Speaker 1: international law. That the second historical precedent, which is which

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Speaker 1: is perhaps more directly on point, is when Israel sent

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Speaker 1: some fighter jets into Iraq UM to destroy a nuclear

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Speaker 1: reactor in in os irak Um and successfully destroyed this

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Speaker 1: this nuclear reactor. And at the time most countries were

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Speaker 1: you know, condemned Israel UM pretty resoundly for um, you know,

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Speaker 1: using military force too quickly to prevent another country from

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Speaker 1: developing military technology. And somewhat UM ironically, the United States

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Speaker 1: UM also criticized Israel. UM. So I think it would

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Speaker 1: be a little bit difficult for the United States to

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Speaker 1: to justify a kind of preventive strike meant to, you know,

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Speaker 1: simply deny um the North Korean regime nuclear technology and now,

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Speaker 1: of course North Korea is under an obligation from the

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Speaker 1: United Nations not to be developing nuclear technology and and

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Speaker 1: of course nuclear um, North Korea has ignored those rules

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Speaker 1: that have been set by by the United Nations. UM.

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Speaker 1: But whether in the United States could just sort of

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Speaker 1: go in with its military and and and bomb North

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Speaker 1: Korea just to get it to comply with those obligations,

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Speaker 1: I think is is very much an open question. Kevin.

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Speaker 1: How much does that U n position help the US here?

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Speaker 1: Obviously there's not an authorization direct authorization for the use

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Speaker 1: of force. But does the fact that the UN has

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Speaker 1: taken a position against North Korea developing nuclear weapons help

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Speaker 1: the U s S case here for a preemptive strike. No,

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Speaker 1: I don't think it helps it at all. Um. The

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Speaker 1: Security Council is essentially doing one of the things that

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Speaker 1: Security Council can do, and that's sanctioned North Korea and

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Speaker 1: try to make it extremely economically painful for North Korea

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Speaker 1: to develop nuclear weapons. But they certainly haven't authorized the

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Speaker 1: United States to use force against North Korea, which they

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Speaker 1: could do if they'd wanted to um. And so really

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Speaker 1: the fact that the the U n Is going a

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Speaker 1: kind of non violent route in dealing with North Korea

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Speaker 1: really weakens the case for the United States to do it. Now,

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Speaker 1: the fact that the United Nation hasn't blessed military force

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Speaker 1: in no way deprive the United States of its right

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Speaker 1: to act in self defense. But again, a preemptive strike

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Speaker 1: is not the kind of strike that is self defense

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Speaker 1: at all. It's not against an imminent threat, it's against

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Speaker 1: a future, hypothetical, perhaps evolving threat. So there still is

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Speaker 1: a very large cloud of illegality hanging over preventive strike

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Speaker 1: like that. And why does all of this matter is

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Speaker 1: really kind of a big, big picture question about international law.

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Speaker 1: You know, you violate domestic law, you can be sued,

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Speaker 1: you can you can you can be put in jail

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Speaker 1: if it's criminal. Uh, why does it matter whether or

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Speaker 1: not the US is in compliance with international law? Well,

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Speaker 1: I think there's there's two two answers to that, at

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Speaker 1: least two answers to that question. That there's many possible consequences,

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Speaker 1: but I'll just I'll highlight two that we might care about.

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Speaker 1: One is very kind of large and abstract and one

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Speaker 1: is much more specific and and loayally. Uh. The large

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Speaker 1: abstract point is that, um, you know, we live by

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Speaker 1: the rules of international law, and and those rules constrain

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Speaker 1: the United States, but they also protect the United States. UM.

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Speaker 1: And when you think about the fact that we're entering

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Speaker 1: an age where more and more countries are going to

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Speaker 1: be developing UM aggressive military technologies, whether that is nuclear

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Speaker 1: weapons or um chemical weapons, cyber attack capabilities. Right, all

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Speaker 1: of these technical technological advances are giving smaller countries greater

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Speaker 1: capacity to use military force, and they're going to be

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Speaker 1: able to use military force against the United States and

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Speaker 1: our allies. And so in that sense, international law is

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Speaker 1: not just a constraint on the United States. It's a

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Speaker 1: it's a it's a friendly um legal regime that will

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Speaker 1: protect the interests of the United States as more states

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Speaker 1: have the of the power in the future to to

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Speaker 1: attack the United States. The second point, which is a

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Speaker 1: much more loyally point, is that the President of the

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Speaker 1: United States, Donald Trump UM, is required under the Constitution

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Speaker 1: to take care that the laws are faithfully executed. And

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Speaker 1: one of those laws is a treaty called United Nations Charter.

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Speaker 1: And so there's this kind of connection between international law

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Speaker 1: and domestic law, and that U n Charter that we've

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Speaker 1: been talking about is a treaty, and treaties are um

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Speaker 1: incorporated into into federal law. So there's a sense in

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Speaker 1: which the President is required under US constitutional law to

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Speaker 1: um to ensure that we stay in compliance with with

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Speaker 1: our treaty obligations. We're gonna have to leave it there.

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Speaker 1: Thanks to our guest Jams David o'lean of Cornell University

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Speaker 1: and Kevin jen Heller of the University of London talking

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Speaker 1: about international law and the North Korea issue. Coming up

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Speaker 1: on Bloomberg Law, we'll discuss the growing world of litigation finance.

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Speaker 1: Is it promoting justice or encouraging frivolous lawsuits