Speaking Law to Power: Popular Sovereignty, Human Rights, and the New International Order

Abstract

Hegemony is a concept of political power. It speaks to a global order structured by asymmetries of power. Modern law, in contrast, begins with an idea of equality among subjects. For domestic law, this is an equality among individuals; for international law, it is an equality among states. Legal outcomes are determined by identifying claims of right, not by measuring assertions of power. In the domestic order, we understand law by contrasting it with politics; we speak of the courts as the nonpolitical branch of government. Similarly, international institutions with legal responsibilities distinguish themselves from political decision-makers. The Security Council may provide for a great power veto, but there is no similar reflection of political power within the International Court of Justice. Just for this reason, appeals to international law have been one of the tools available to weaker states in their battles with more powerful states. Conversely, powerful states have been wary of adjudicatory mechanisms for settling disputes.