The Role of International Law in Serving Dominant Social Forces and International Relations

International law has always served the interests of dominant social forces and states in international relations. Discuss.

The dominant social forces and states in international relations are traditionally understood to be the capitalist western states; it has been argued that so far the development of at least the customary international law is concerned, it generally done with the dominance of the capitalist western countries. This argument is also extended to other sources of international law, including treaties and conventions. It is argued that there is a significant link between the rise, consolidation, and expansion of capitalism in Europe and the development of customary international law so that it can be said that both “traditional” and “modern” customary international law sustain the short-term and systemic interests of global capitalism. This essay critically discusses whether it can be said that international law has primarily served the interests of the dominant social forces and international relations.

There is a difference between states and social forces and while the former relates to the formal entity of state, the latter relates to a diverse range of forces within states and societies. The question is whether international law is shaped by some of these states and social forces and is not representative of the non-dominant states and social forces. One view is that the positioning of international law as a tool of the powerful states is inappropriate because it is reductionist in nature and does reduce international law to international power while the opposite approach is to posit international law as the tool for restricting the power of dominant states. The third view, which is the one that this essay argues to be the appropriate view, is that international law is both an instrument of power as well as an obstacle to exercise of power or in other words, and that international law does not always represent the interests of the dominant state or social forces. It is also important to note that international institutions, like International Court of Justice, the Security Council, General Assembly, are also to some degree, political bodies. Indeed, with respect to the International Court of Justice, it has been said that it is “a semi-legal, semi-juridical, semi-political body.” Therefore, it may not be possible to completely separate international law from international power and this may be one of the factors why hegemony of the dominant states plays a role in formation of international law.

However, the powerful states do at times play a more dominant role in the making of international law and for this purpose, it is also important to consider the role of hegemony in the making of international law. Gramsci has defined hegemony as the supremacy of a social group, which is manifested through domination or intellectual and moral leadership, the former being a way to liquidate or subjugate rivals and the latter being a way for leading kindred and allied groups. At times, the leadership is prior step to dominance where the

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1. Bhupinder S. Chimni, ‘Customary international law: A third world perspective’ (2018) 112(1) American Journal of International Law 1.
2. Ibid.
3. Ibid, 1.
4. Atul Kohli and Vivienne Shue, ‘State power and social forces: On political contention and accommodation in the Third World’ in Robert H. Bates and Ellen Comisso (eds), State power and social forces: domination and transformation in the Third World (Cambridge University Press 1994).
5. Nico Krisch, ‘International law in times of hegemony: unequal power and the shaping of the international legal order’ (2005) 16(3) European Journal of International Law 369, 371.
6. Ibid.
7. EA Posner and M. de Figueiredo, ‘Is the International Court of Justice Biased?’ (2005) 34(2) Journal of Legal Studies 600.
8. Ibid, (quoting US Ambassador to the UN, Jeanne Kirkpatrick).
9. Antonio Gramsci, ‘Selections From The Prison Notebooks Of Antonio Gramsci’in Quintin Hoare & Geoffrey Nowell Smith (eds), The Applied Theatre Reader (Routledge 1971) 57–58.

social group that manages to establish its ‘leadership’ then becomes dominant when it exercises power. At the international level, dominance or hegemony is understood as a social, economic, political structure which allows the expression of world hegemony in universal norms, institutions and mechanisms that lay down general rules of behaviour for states other forces of civil society.

The question is whether the norm setting at the international level, which leads to the formation of international law be it in the form of treaties or customary international law, as well as other sources of law, is reflective of this dominant and hegemonic position of certain states or social groups. One argument can be that at the level of international law, the formation of norms is based on deliberative reason and not just premised on the coordination between states in the matrix of dominant or hegemonic views of advanced capitalist states. This argument would posit that the norms are derived from reciprocally oriented conduct that sees the dominant or hegemonic forces and the others involved in a system of claims and counterclaims, challenges and responses. The counter argument is that the at least in the context of the customary international law, the making of the norms is determined by the practices of a minority of states. Due to this, there is an argument that even customary international law may lack legitimacy as these only reflect the consensus of few powerful states and do not reflect the consensus of the weaker states.

The view that only some dominant states or social groups are served by the international law has increasingly come under criticism, particularly in the post war and post colonial 20th century. An example can be seen in the dissenting judgment of Judge Manfred Lachs in North Sea Atlantic Shelf cases where he noted that formation of general international law is now done by states with different political, economic and legal systems, and cannot be established by the fiat of one or of a few, or by the consensus of European States alone. This censure of the previous practice of international law being formed by a western consensus is not limited to this dissenting judgment alone and is reflected in academic writings as well as UN General Assembly speeches of world leaders from time to time. However, this does not mean that the representation of the non western states is guaranteed for law making; consider the ILA Final Report, which observes that if the participation is sufficiently representative, then it is not necessary for even a majority of States to have engaged in a practice, if there is no significant dissent. The issue may be the lack of availability and accessibility of state practice of third world nations which means that there may be no record of dissent of majority of states. Therefore, it may be argued that the absence of state practice of third world nations does mean that the state practice of dominant states is more relevant to law making. It has indeed been noted that the development of international law is reactive to the actions of dominant

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10. Ibid.
11. Robert Cox, ‘Gramsci, Hegemony and International Relations: An Essay in Method’ in Stephen Gill (ed.), Gramsci, Historical Materialism And International Relations (Cambridge University Press 1993) 61.
12. GJ Postema, ‘Custom, Normative Practice, and the Law’ (2012) 62 Duke L.J. 707, 738.
13. Ibid
14. J. Patrick Kelly, ‘The Twilight of Customary International Law’ (2000) 40 Va. J. Int’l L. 449, 450.
15. Ibid.
16. North Sea Continental Shelf Cases (Ger. v. Den. & Neth.) 1969 ICJ Rep. 227 (Feb. 20), Dissenting Opinion of Judge Manfred Lachs, at 228.
17. International Law Association, London Conference, Final Report of Commission on Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law (2000) 25.
18. Bhupinder S. Chimni, ‘Customary international law: A third world perspective’ (2018) 112(1) American Journal of International Law 1, 22.

States. For this reason, it is argued that the dominant States have significant influence in shaping global policies and law and due to that need of the international community is defined by the interests of such states. The International Court of Justice may seek to limit this influence of dominant states as noted by Judge Shi and also reflected to a degree in Nicaragua where the community centric approach was adopted by the court. Nevertheless, for the International Court of Justice, as well as other international courts, there is an emphasis on dominant state practice for finding international customary law, as well as the lack of participation of newer states in the formation of such customary law, which makes it relevant to state that dominant states also influence the ICJ decisions on customary law based on state practice. The important point is that while consensus (as reflected in GA resolutions) could have been a method of identifying opinion juris, and thus involving non dominant states in the process of law making, in Nuclear Weapons Advisory Opinion, the International Court of Justice acknowledged that declarations of the General Assembly may not themselves make law.

There has been a strong argument that the international law serves the interests of the dominant states and social forces, with one commentator observing that “hegemony and international law are often regarded as irreconcilable”. It is however, argued that the international legal system distances itself from predominant power because this affects perceptions of its legitimacy because of the principle of sovereign equality. The dichotomy is that international law does not grant formal recognition to structures of superiority but this is not the case with international relations or the political realm where hegemony does play a role. Nevertheless, the important point is that there may be no formal recognition of hegemony or structures of superiority of dominant states. Does that mean that there is no predominance of dominant states and social powers in international law?

It has been argued that powerful states both use international law as a means of regulation as well as of pacification of their dominance, and also at times withdraw from it when faced with equality of international law. There are various examples that demonstrate the role played by the dominant states in law making; starting with the multilateral institution-building after World War II, including the United Nations, or the Bretton Woods institutions, United States played an important role because it was predominant at the time. Even at present time, the Security Council plays a role in making law, and also enjoys a relatively high legitimacy, but it is dominated by the five permanent members. Therefore, the law is influenced highly by the dominant states within the Security Council. At the same time, the dominance of third world countries in the General Assembly allows some scope to the other states to also influence law making. An example is seen in the Uniting for Peace Resolution in 1950, passed in the General Assembly for peacekeeping and peace enforcement

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19. Loretta Chan, ‘The Dominance of the International Court of Justice in the Creation of Customary International Law’ (2016) 6 Southampton Student L. Rev. 44.
20. BS Chimni, ‘The Past, Present and Future of International Law: A Critical Third World Approach’ (2007) 8 Melb. J. Int'l L. 499.
21. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14, [278] (Declaration of Judge Shi).
22. JP Kelly, ‘The Twilight of Customary International Law’ (2000) 40 VA. J. INT’L L. 449.
23. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, [532].
24. Nico Krisch, ‘International law in times of hegemony: unequal power and the shaping of the international legal order’ (2005) 16(3) European Journal of International Law 369, 369.
25. Ibid.
26. Ibid, 371.
27. Ibid.
28. Ibid.

operations when the Security Council failed to take any action. As the General Assembly resolutions may also demonstrate the evolution of opinio juris into a new rule of international law, it may be a way to balance the power of the weaker and dominant states with respect to the law making at the international level, however, it not an influential source of law, which means that the dominance of powerful states does continue.

To conclude, the it can be said that international law has primarily served the interests of the dominant social forces and this is due to the influence of the dominant states in the making of the international law. This allows the dominant states to intrumentalise the international law and to use it as a tool for stabilizing its dominance.

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29. D Zaum, ‘The Security Council, The General Assembly, and War : The Uniting for Peace Resolution’ in V Lowe, A Roberts, J Welsh, D Zaun (Eds.),The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford University Press 2010).

Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports, 1996, [254]-[255].

Books

Cox R, ‘Gramsci, Hegemony and International Relations: An Essay in Method’ in Stephen Gill (ed.), Gramsci, Historical Materialism And International Relations (Cambridge University Press 1993).

Gramsci A, ‘Selections From The Prison Notebooks Of Antonio Gramsci’in Quintin Hoare & Geoffrey Nowell Smith (eds), The Applied Theatre Reader (Routledge 1971).

International Law Association, London Conference, Final Report of Commission on Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law (2000).

Kohli A and Vivienne Shue, ‘State power and social forces: On political contention and accommodation in the Third World’ in Robert H. Bates and Ellen Comisso (eds), State power and social forces: domination and transformation in the Third World (Cambridge University Press 1994)

Zaum D, ‘The Security Council, The General Assembly, and War : The Uniting for Peace Resolution’ in V Lowe, A Roberts, J Welsh, D Zaun (Eds.),The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford University Press 2010).

Journals

Chan L, ‘The Dominance of the International Court of Justice in the Creation of Customary International Law’ (2016) 6 Southampton Student L. Rev. 44.

Chimni BS, ‘The Past, Present and Future of International Law: A Critical Third World Approach’ (2007) 8 Melb. J. Int'l L. 499.

Chimni BS, ‘Customary international law: A third world perspective’ (2018) 112(1) American Journal of International Law 1.

Kelly JP, ‘The Twilight of Customary International Law’ (2000) 40 Va. J. Int’l L. 449.

Krisch N, ‘International law in times of hegemony: unequal power and the shaping of the international legal order’ (2005) 16(3) European Journal of International Law 369.

Posner EA and M. de Figueiredo, ‘Is the International Court of Justice Biased?’ (2005) 34(2) Journal of Legal Studies 600.

Postema GJ, ‘Custom, Normative Practice, and the Law’ (2012) 62 Duke L.J. 707

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