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Rutgers University—Newark

Division of Global Affairs

Is International Law About Power or Justice?

The Primacy of Power and the Shaping of the Horizon of

Reality

Sean P. Maguire

Global Justice

08 December 2015

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Table of Contents

I. Introduction… 2

II. What is Law? … 2-3

III. What is International Law? …3-6

IV. Why is International Law a Hybrid of Power and Justice? …

6-10

V. Why and How is International Law Primarily About Power?

… 10-15

VI. Concluding Remarks: How Then Do We Elevate Justice? …

15-16

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I. Introduction

When we speak of international law, we tend to see power and justice as incompatible;

the presence of one denoting the absence of the other. However, this representation is that of a

false dichotomy. The truth of the matter is that international law is the legal embodiment of the

complex and intertwining relationship of the two. Approached from this more analytical

perspective, we can see that we must in actuality ask several questions to ascertain a proper

understanding of the relationship: why and how is international law a hybrid of power and

justice; why does international law have to appear in a credible fashion; and why and how is

international law about power? In answering these questions, we will discover the true dynamic

relationship between power and justice in international law; a relationship wherein there is a

structural imbalance towards power at the expense of justice. This is so because of the ability of

power to define justice and to determine who is entitled to justice. Demonstrating this will bring

us to our final question: how do we enhance the justice dimension of international law?

The discussion and demonstration will take place as follows. First, we must determine

what we mean when we speak of law. Moving on from establishing a base definition of law and

what entails, we will transpose in to the international arena by using our definition of law to in

turn move onto defining international law. Having demonstrated and defined the scope and

language of the conceptual analysis that is to take place, we will move on to answering the

previously proposed questions in turn. We will finish with an analysis of the Genocide

Convention before our concluding question.. We begin, then, with law.

II. What is law?

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When we are discussing law we are discussing a system of governance. We are talking

about a system founded upon, “the recognition and implementation of moral or ethical values

that are considered so fundamentally important in terms of each individual‟s life and relations

among people that they are established in legal rights and their corresponding duties. [These]

values receive the legal endorsement that makes them the foundations, guidelines, and horizon of

reality geared toward socialization…law offers a set of mechanisms aimed at securing the

realization of the vision of morality that society identifies with”.1 There are several important

aspects to highlight here. Law determines the relationships among people by prescribing to them

rights and corresponding duties. In doing so, it determines the boundaries of reality, i.e. what is

possible or what is permissible through the conception of the vision of the world that is a not an

objective reflection, but a reflection of the morality with which that society has its bias. Finally,

law gives you the mechanisms [i.e. the power] to secure the realization of this reflection.

However, a definition of law would not be complete without also defining it as a

reflection of, “the necessary relations deriving from the nature of things…in other words law

does not belong to an ideal order. It maintains an intimate relationship with phenomena”.2 This is

to say, that the vision of morality [in turn that of reality] and that the values that have received a

legal endorsement do not inherently swoon to the ideal. Thus, while rights and duties may be

given, they may not reflect an ideal distribution. How does this correspond to international law?

III. What is International Law?

1 Jean-Marc Coicaud, Beyond the National Interest: The Future of UN Peacekeeping and Multilateralism in an Era of

U.S. Primacy (Washington, DC: United States Institute of Peace, 2007) 95. 2 Jean-Marc Coicaud, Legitimacy and Politics, trans. David Ames Curtis (Tokyo: United Nations University, 2002)

101

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We must first establish two things: to who are we addressing the definition of

international law and, given our definition of law, what reality is it taking place in? When we

speak of international law, we are speaking of the law of international society. As such, it is

necessary for us to define what we mean when we speak of international society. International

society is to be understood as a society where humans are engaged in mutual and common affairs

through the specific institution of sovereign States. These affairs are then to be understood as

being managed by international law.3 The sovereign state system can be understood as based

upon the fundamental principle of mutual recognition of the supremacy of territorial sovereignty

of States in the managing of human affairs.4 Thus, we are dealing with a system where

sovereign-States are granted the ability [right] to exclusively manage their affairs in a

predetermined territorial boundary and are expected [have the duty] to ensure this is respected by

respecting the ability [right] of other sovereign States to do the same, i.e. a system of reciprocity.

However, we would do well to give an anchored definition of what is a sovereign state [i.e. a

state accepted to international society and thus having its relations managed through international

law]. We can expand upon the already established parameters and give more specifics, such as: a

permanent population, a defined territory, a government, and the capacity to enter into relations

with other states.5 However, this is a rather inclusive and modern definition. As I will

demonstrate in the coming pages, the application of a more exclusive definition was a reflection

and embodiment of the role of power in shaping justice, an application that was made to the

detriment of the people it affected.

3 Onuma, Yasuaki, A Transcivilizational Perspective on International Law. (Boston: Martinus Nijhoff,

2010) 39. 4 Onuma, Yasuaki, A Transcivilizational Perspective on International Law. (Boston: Martinus Nijhoff,

2010) 41 . 5 Jose E. Alvarez, International Organizations as Law-Makers (Oxford: Oxford University Press, 2006) 148.

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The other aspect of reality is that though these states are nominally defined in equal terms

through the concept of territorial sovereignty, this does not imply actual equality. There is a

power hierarchy internationally which must be accepted as a facet of life; the more powerful a

state is the more international weight it carries6 and these inequalities of power cannot entirely be

eliminated.7 I now feel comfortable enough in presenting for us a working definition of

international law:

International law defines the legal responsibilities of States in their conduct with each

other, and their treatment of individuals within State boundaries.8

It is then to be understood as a system of socialization, where socialization is understood

as the process wherein norms, customs, and ideologies are disseminated amongst the

international community and as such allow individual actors9 to participate more fully in

international society. We then need a proper understanding of what is being disseminated and

adhered to in the international community. Modern international law10

is grounded upon several

fundamental principles: sovereign equality of states, self-determination of peoples, prohibition of

the threat or use of force, peaceful settlement of disputes, nonintervention in the internal or

external affairs of other states, respect for human rights, and good faith.11

However, all principles

are not created equally and there is a hierarchy of principles which in turn determines a hierarchy

of right-holders in the international arena. We begin the analysis of international law with this

6 Jean-Marc Coicaud, Fault Lines of International Legitimacy, (New York: Cambridge University Press, 2010) 48.

7 Jean-Marc Coicaud, Fault Lines of International Legitimacy, (New York: Cambridge University Press, 2010) 35.

8 http://www.un.org/en/sections/what-we-do/uphold-international-law/

9 For the better part of modern history understood to be States.

10 Understood to be after 1945 and the signing of the UN Charter.

11 “Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States, in

Accordance with the Charter of the United Nations,” adopted by consensus in the UN General Assembly on October 24, 1970 (New York: United Nations, UN General Assembly Resolution 2625).

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definition and the recognition that there is a hierarchy of principles underlining international law.

However, how is that hierarchy determined? The answer is legitimacy.

IV. Why is International Law a Hybrid of Power and Justice?

When we are asking this question, what we are essence talking about is the issue of

legitimacy and the need for law to be seen as legitimate. What then do we mean when we speak

of legitimacy?

(A) Legitimacy

We should understand legitimacy as, “the governed recognizing the right of the

governors to lead and, to a certain extent, their entitlement to the perks of power. It is a process

through which both political power and obedience are justified… [However,] three conditions

must be met for the acknowledgement or the justification, of the right to govern to take place.

First, those in power must deliver a service to the governed…the benefits that result for the

governed comprise a requirement that cannot be overlooked. Second, the services provided must

respond to and reasonably satisfy the key needs (of which security is one) of the governed. These

key needs are themselves associated with the sense of possibility and the values (and the

expectations they create) that are constitutive of the identity of society. As such, key needs are

crystalized in the rights of people. Third, in the process, the key needs benchmark the

responsibility and accountability of those in the position of command as well of that of political

institutions, including the procedures for exercise of power and how they oversee the general

arrangements of society. That is, political legitimacy is perceived as the distribution of power

satisfying the demands of justice, which is understood as the allocation of and access to

resources and opportunities due to each individual and, therefore, the attribution of rights and

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duties on which social cooperation rests”.12

As such, let us analyze this definition before stepping

up to the notion of legitimacy at the international level.

Legitimacy is the rationalization of the relationship between the governor and governed;

firmly establishing in its conceptualization that there is a hierarchy of power inherit in the

system. In rationalizing this hierarchy it speaks to justice through the allocation of rights and

duties. In this sense, we are then to understand rights as determining what is owed to each

individual, the portion of power that is to be given to them. Or, how much of their own

autonomy they can expect to keep and expect to sacrifice and subsequently the respecting of the

merits of that personal redistribution. However, we speak of rights in the form of a relationship.

This implies the other, or in the case of a society, „others‟, and the establishing of a system of

coexistence in this society based off of our rights and the duty to respect the rights of others; in

so far, as through a system of reciprocity we would seek the assurance and security of our own

rights in doing so.13

Thus, the political in situation or law that is created, through the lens of

legitimacy, should be understood as both the instrument and expression of right[s].14

(B) International Legitimacy

Transposed to the international, legitimacy holds up much the same,. First and foremost,

is the recognition that then when dealing with the rights of individual actors in a society, we are

dealing with international society and, as such, sovereign-States. Thus in international society we

should understand international legitimacy as, “justifying the way international order is

12

Jean-Marc Coicaud, Fault Lines of International Legitimacy, (New York: Cambridge University Press, 2010) 17-18. 13

Jean-Marc Coicaud, Legitimacy and Politics, trans. David Ames Curtis (Tokyo: United Nations University, 2002) 11. 14

Jean-Marc Coicaud, Legitimacy and Politics, trans. David Ames Curtis (Tokyo: United Nations University, 2002) 12.

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organized, including the ways power is projected beyond borders”, and when given this

definition, “unless the norms called upon to justify international order and the projection of

power beyond borers are perceived as good, the international system is likely to be seen as

illegitimate. In contemporary terms, international legitimacy refers to the international rights and

duties to actors (particularly states) have to factor in, not only to project acceptable foreign

policies, but also to contribute to an international life that aims for the rule of law.”15

As such,

we can see more of less of the same definition when transposed to the international level.

However, there are three caveats that need to be addressed when discussing international

legitimacy: the hierarchy of principles in international law, the inclusivity/exclusivity aspect of

international society, and the subsequent neutrality of justice.

(a) The Hierarchy of Principles

International law, as we have come to understand it, is dependent upon several

fundamental principles: sovereign equality of states, self-determination of peoples,

prohibition of the threat or use of force, peaceful settlement of disputes,

nonintervention in the internal or external affairs of other states, respect for human

rights, and good faith.16

We have also come to understand that these principles are not

created equal and that there is a hierarchy of principles underlining international law.

International order is set up primarily in conjunction with the hierarchy of these

principles; a hierarchy that is determined by the most strategic actors in the

15

Jean-Marc Coicaud, Beyond the National Interest: The Future of UN Peacekeeping and Multilateralism in an Era of U.S. Primacy (Washington, DC: United States Institute of Peace, 2007) 6. 16

“Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States, in Accordance with the Charter of the United Nations,” adopted by consensus in the UN General Assembly on October 24, 1970 (New York: United Nations, UN General Assembly Resolution 2625).

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international society.17

Thus, the influence of power can be found at the start in the

normative grounding of international law.

(b) The Inclusivity and Exclusivity of International Society

When we speak of rights and duties, we must reflect upon the fact that we are

speaking about the rights and duties of members of international society. This is to

say, individual actors who accepted into the community through mutual recognition

of their rights and their corresponding duties through reciprocity. The point being that

the recognition must be mutual. Rights do not exist in a vacuum but in a system of

coexistence in a greater society; exclusion from that society then implies that you are

not entitled to the rights that the values of society have given to reality, as you are

beyond the horizon of reality [the community].

(c)The Neutrality of Justice

First and foremost, we would do well when speaking about justice not to put it on

a pedestal; to not proclaim it the revenant in and of itself. The perceived „goodness‟ of

justice is a reflection of our internal perception of it. Justice, defined as the allocation of

and access to resources and opportunities due to each individual, with regards to the

giving of rights and duties18

, is quite neutral. Following from, we must then recognize

that justice alone “is not part of some automatic mechanism that would necessarily make

social facts and individuals bow to its demands.”19

All in all, how we have defined it

17

Jean-Marc Coicaud, Fault Lines of International Legitimacy, (New York: Cambridge University Press, 2010) 82-83. 18

Jean-Marc Coicaud, Fault Lines of International Legitimacy, (New York: Cambridge University Press, 2010) 18 19

Jean-Marc Coicaud, Legitimacy and Politics, trans. David Ames Curtis (Tokyo: United Nations University, 2002) 185.

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presents justice as a reflection of the values of a society. This reflection in and of itself

may not be perceived from our eyes as the „good‟ or „desirable outcome, but from the

rational of the governor or this presupposed society, it may be. This leads us then to

analyze how this is so and in turn articulate the primacy of power in international law at

the expense of a positive application and definition of justice.

V. Why and How is International Law Primarily About Power?

My last assertion was in some sense a bold one: the argument of the grounding of justice. In

doing so, I will demonstrate that the conceptualization of justice can become a tool for the

powerful to rationalize [make legitimate] the way they have organized international society, most

notably through the issue of inclusivity and exclusivity. First and foremost, we have in actuality

determined one of the primary reasons why international law is about power. As having been

previously established, this determination is two-fold: law is a reflection of the nature of things

and the nature of things is that there is an imbalance of power internationally between states.

Thus, logically, international law will in some aspect be a reflection of this imbalance even

before any other interjection takes place. Moving beyond this, I would like to discuss the

relationship of international law with regards to the perception of legitimate forms of social

organization and what this entails.

(A). Legitimate Forms of Social Organization and the Predominance of European

Power

International law as we have come to understand it is the law of international society; a

society predominantly featuring solely sovereign states for the course of its history. This

perspective, to see international society as collection of sovereign nation States was established

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and universalized by Europe, with the rise of the perception of the sovereign-State system

bemoaning the demise of the recognition of other inter-communal organizations of power as

important or respectable.20

In this sense, power becomes the benchmark and the gateway for

justice and conceptions of power and power relations will determine the scope of justice with

regards to the scope of international society and the hierarchy of right-holders in international

society.

Legitimacy is not a self-occurring phenomena and the international arena, the viewpoint

of whether or not ones domestic power ordering is legitimate is highly correlated to that of one‟s

power dominance internationally.21

As such, the predisposition of European society from their

position over the last several hundred years has been to deny the recognition and the right of

existence that to not adhere to the sovereign-State model.22

International law, in turn, became the

law of society of sovereign-States featured and dominated by the West wherein almost all the

rules, institutions and systems stood in testimony to European dominance.23

Thus when reflecting on international law, we need to reflect on how power determines

who is and actually a right-holder and as such to whom justice is owed. Justice is only owed to

members of the international society; a society that can only be entered through the sovereign-

State model. Establishing the criteria for entry into international society and determining the

illegitimacy of certain political communities, Europe was able to deny these communities of

20

Onuma, Yasuaki, A Transcivilizational Perspective on International Law. (Boston: Martinus Nijhoff, 2010) 63-64. 21

Jean-Marc Coicaud, Fault Lines of International Legitimacy, (New York: Cambridge University Press, 2010) 83. 22

Jean-Marc Coicaud, Fault Lines of International Legitimacy, (New York: Cambridge University Press, 2010) 42. 23

Onuma, Yasuaki, A Transcivilizational Perspective on International Law. (Boston: Martinus Nijhoff, 2010) 47.

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people rights in an internally justified way; they were outside of international society, outside of

international law, and outside the scope of justice.24

(B) The Colonization of Africa & the Universalization of the Particular

As such, the colonization of Africa by European powers is a reflection of this and a

reflection of the ability of power to determine justice. In imposing themselves upon the continent

of Africa through the process of colonization, “[C]olonial sovereignty…regarded itself as the

sole power to judge its laws…its supreme right was (by its capability to assume the act of

destroying) simultaneously the supreme denial of right…right was on one side…anything that

did not recognize this violence as authority, that contested its protocol was savage and outlaw”.25

Thus, from a position of power, Europe was able to make universal its particular form of

governance. In doing so they would establish the benchmark for entry into international society

and empower European powers to spread over Africa to the detriment of the African peoples.

The Europeans used their position of power, “to justify campaigns of conquest carried out at the

expense of peoples deemed backward. [Europe‟s] aggressive altruism destroyed these peoples‟

own organizational structures.”26

Aggression, destruction, and conquest are not terms that one

tends to associate with justice and, yet, here they lie.

A regime of power and a regime of legitimacy can in this sense be seen as

complimentary. Having acquired their position of power in the world through violent conquest,

Europe took care to rationalize and fortify their position of dominance; succeeding for centuries

as construing the denying of rights to the African peoples as legitimate by excluding them from

24

Jean-Marc Coicaud, Legitimacy and Politics, trans. David Ames Curtis (Tokyo: United Nations University, 2002) 66. 25

Achille Mbembe, On the Postcolony (Berkeley: University of California Press, 2001) 25-26. 26

Jean-Marc Coicaud, Legitimacy and Politics, trans. David Ames Curtis (Tokyo: United Nations University, 2002) 115

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the international society they created.27

Though the definition has changed, the sovereign-State is

still the benchmark for inclusion into international society, the mechanism through which the

concerns of the individual are presented internationally, and the holder of the responsibility to

defend and uphold human rights.

(C) The Genocide Convention: The Legal Enshrining of a Hierarchy of Right-Holders

it is established in the Convention that genocide is a crime under international law.28

In

light of genocide being made a crime under international law, the Genocide Convention is a

precarious example of the interjection of human rights into the post-Westphalian order. An

analysis of the Convention will show that it makes justice [in this case the right of an individual

not to be the victim of Genocide] the prerogative of power. The Genocide Convention is a

reflection of the competition of principle that underlay international society and in the

Convention we find that sovereign equality of States and non-intervention won out in their

primacy. In doing so they established a hierarchy of right-holders reflective of the status quo (i.e.

primacy of the State) at the expense of the individual. It does so in several ways: the lack of any

enforcement mechanisms; the monopoly on legitimate violence given to the UN Security

Council; and Article XII.

(a) The Lack of Enforcement Mechanisms

Despite making Genocide illegal, the Convention in actuality provides no legal

imperative [i.e. duty] for States to become involved.29

This is implicit of a hierarchy of

right-holders determined by the underlying hierarchy of principles, wherein those that

give primacy to the rights of the State are put atop. It establishes a governor and governed

27

Jean-Marc Coicaud, Fault Lines of International Legitimacy, (New York: Cambridge University Press, 2010) 18-19. 28

https://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78-I-1021-English.pdf 29

William A. Schabas, Genocide in International Law (New York: Cambridge University Press, 2000) 545-546.

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relationship that implies no reciprocity on the part of the governed. The sacrificing of

autonomy only takes place on the part of the individual. As such, the position of power of

the State is increased. Indeed, the lack of enforcement mechanisms is a reflection of the

primacy of power over justice in a second fashion: “[it reflects] the reluctance of major

powers to engage fully in the international realm for reasons other than conventional

international peace and security matters”.30

Thus the major powers ensured the defense of

national-sovereignty before human rights. In doing so, justice was given a clearly

demarcated order in which the individual was placed below the State. This notion was

further exemplified in Article XII of the Convention.

(b) Article XII31

Wherein the Genocide Convention was ratified in the wake of the greatest horror

to ever befall humanity; a horror predicated on the rationalizing of people as in

actuality not being considered (i.e. without any right, even that to exist), Article XII

embodies the same rationalization in many ways. In doing so, it reflect the

justification of the rational that took place in the European conquest of Africa in the

first place; Europe embodied with the prerogative to extend the gift of its sovereignty

and rights it entails.

30

Jean-Marc Coicaud, Beyond the National Interest: The Future of UN Peacekeeping and Multilateralism in an Era of U.S. Primacy (Washington, DC: United States Institute of Peace, 2007) 96. 31 https://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78-I-1021-English.pdf. The text

of Article XII reads as follows:

Any Contracting Party may at any time, by notification addressed to the Secretary-

General of the United Nations, extend the application of the present Convention to all or any of

the territories for the conduct of whose foreign relations that the Contracting Party is

responsible

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Thus, in the end, the colonized peoples do exist32

, but only insofar as the

colonizer allows them to. Whether they fall within the scope of the Convention (i.e.

international society/law) is the prerogative of the Colonize. In essence, they have

been given the power of God: the power to create, for so long as they stand outside of

the horizon of reality, they (so to speak) do not exist.

VI. Concluding Remarks: How Then Do We Elevate Justice?

In reflection, that is in many ways the world we are living: the world of the colonized;

colonized by the ideas, norms, and ideologies of the West; embodied most by the primacy and

perceived necessity of the sovereign-State. In a world where the Genocide Convention exists and

yet so do memorials to those massacred in Cambodia and Rwanda we must recognize two

complimentary points: absent a legal hierarchy that puts human rights ahead of those of the State,

international law cannot force States to go abroad and save the lives of people they perceive as

strangers. As such, it becomes a moral quandary of whether or not to do the right thing.

However, the right thing cannot and should not be counted on, as its occurrence is for the most

part is voluntary, a reflection of how compelling a particular situation is when held up to the light

of universal principles.33

How then do we rectify this situation? How then do we elevate justice so that power

stand in its reflection? The defining characteristic of international society, when juxtaposed

against domestic orders, is the lack of an absolute sovereign. As such, when we conceptualize the

Security Council, the Genocide Convention, or international law in general we are in essence

32

Jean-Marc Coicaud, Fault Lines of International Legitimacy, (New York: Cambridge University Press, 2010).44 33

Jean-Marc Coicaud, Beyond the National Interest: The Future of UN Peacekeeping and Multilateralism in an Era of U.S. Primacy (Washington, DC: United States Institute of Peace, 2007) 94-95.

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conceptualizing as close to a sovereign as we can rationally allow ourselves to. They are

supposed to in some way govern States through the sacrificing of their autonomy to these laws.

And, yet, these laws have no automatic enforcement mechanisms, which is to say they lack

actual authority beyond the strength of the prevailing logic of appropriateness and hopes of

reciprocity. Thus we are dependent upon States to do the right thing when history is a

demonstration of the failure of this dependency. So long as the State and the national interest

continue to be the final judge on legitimacy of their actions, justice will continue to be

determined by power. What is needed is a system where the horizon of reality is conceptualized

through the most universal [i.e. the primacy of human rights] way possible and power serves to

bring this reality into fruition. I cannot speak to the specifics of this system as there are as many

ways forward as there are stars in the sky. Yet, I can point to the place to begin the reform, and

that is the Security Council. As is stands, the Security Council represents the legalized inequality

of the world; a freeze-frame of the distribution of power at a specific time blanketed onto the

world in perpetuity. Wherein we have thrown off the chains of the world of perpetual anarchy, to

move forward we must begin with throwing off the chains to the past.

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References

Jose E. Alvarez, International Organizations as Law-Makers (Oxford: Oxford University Press,

2006)

Jean-Marc Coicaud, Beyond the National Interest: The Future of UN Peacekeeping and

Multilateralism in an Era of U.S. Primacy (Washington, DC: United States Institute of Peace,

2007)

Jean-Marc Coicaud, Fault Lines of International Legitimacy, (New York: Cambridge University

Press, 2010)

Jean-Marc Coicaud, Legitimacy and Politics, trans. David Ames Curtis (Tokyo: United Nations

University, 2002)

Achille Mbembe, On the Postcolony (Berkeley: University of California Press, 2001)

William A. Schabas, Genocide in International Law (New York: Cambridge University Press,

2000)

Onuma, Yasuaki, A Transcivilizational Perspective on International Law. (Boston: Martinus

Nijhoff, 2010)

http://www.un.org/en/sections/what-we-do/uphold-international-law/

https://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78-I-1021-English.pdf

“Declaration on Principles of International Law Concerning Friendly Relations and Cooperation

among States, in Accordance with the Charter of the United Nations,” adopted by consensus in

the UN General Assembly on October 24, 1970 (New York: United Nations, UN General

Assembly Resolution 2625).