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

ARTICLES 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.1 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.2 Conversely, powerful states have been wary of adjudicatory mechanisms for settling disputes.3 Both internationally and domestically, political power operates at the origins of law-for example, within legislatures or treaty negotiations. But, for both, the move from political disagreement to legal resolution represents a shift of norms from inequality to equality. Once the legal rules are set, outcomes should not depend on the relative power of the disputants. To identify the operation of political power within an institution of law is to discover a "defect," a site at which reform must be pursued if the values of law are to be maintained.4 Of course, we would be wrong to think that because law follows politics, law always has the last word. A state may have the power to ignore a legal decision it does not like. It may be able to boycott legal proceedings or shift the institutional locus at which a dispute is resolved from an adjudicatory setting to one of negotiation. One of the ways in which the international order differs from the domestic order is in the much diminished range of its adjudicatory mechanisms and, conversely, the greater range for the deployment of power even in the face of legal claims. When we compare the international to the domestic order, the balance between power and law tilts dramatically in favor of power-meaning the capacity to advance state ends independently of the norms and procedures of law. Many contemporary observers, however, believe that this situation is rapidly changing, as international law gains normative strength and institutional presence. This opposition of power and law-and the trade-off between them-offers too simple a view of the relationship between these concepts. This is not just because a great power may often find it in its interests to support the international legal order.5 That is no doubt true, but it still assumes that power and law can be measured against each other, i.e., on a single scale of state interests. The situation we confront, however, challenges the idea that any such scale exists. Today, we face the unique situation that the world's hegemon, the United States, understands itself as a nation under law. It understands its political power to be linked to its commitment to an internal, constitutional order of law. The traditional opposition of power to law has been transformed into a complex opposition between constitutional law and international law. This double character of law's rule-- constitutional and international-creates the deep puzzle of the relationship of the United States to the emerging global order of law. At stake is the relation of the constitutional conception of popular sovereignty to the international law concept of human rights. My ambition in this essay is not to resolve the puzzle of this relationship, but only to secure a perspective from which to better understand the troubled relationship between the United States and international law. Law does not simply impose an order on a field of activity; rather, it is constitutive of a way in which experience is organized, through the meanings that we perceive in events. …