Global Justice Term Paper

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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
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
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
11.
14
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
18
Jean-Marc Coicaud, Fault Lines of International Legitimacy, (New York: Cambridge University Press, 2010) 18
19
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
2010) 63-64.
21
22
23
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
66.
25
Achille Mbembe, On the Postcolony (Berkeley: University of California Press, 2001) 25-26.
26
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
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
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
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).

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