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Power Shifts in International Law: Structural Realignment and Substantive Pluralism

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Power Shifts in International Law: Structural Realignment and Substantive Pluralism University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2015 Power Shifts in International Law: Structural Realignment and Substantive Pluralism William W. Burke-White University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the International Law Commons, International Relations Commons, Law and Politics Commons, Other International and Area Studies Commons, and the Policy History, Theory, and Methods Commons Repository Citation Burke-White, William W., "Power Shifts in International Law: Structural Realignment and Substantive Pluralism" (2015). Faculty Scholarship at Penn Law. 599. https://scholarship.law.upenn.edu/faculty_scholarship/599 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. \\jciprod01\productn\H\HLI\56-1\HLI101.txt unknown Seq: 1 27-APR-15 10:30 Volume 56, Number 1, Winter 2015 Power Shifts in International Law: Structural Realignment and Substantive Pluralism William W. Burke-White* For most of the past sixty years, the United States and Europe have led, independently and collectively, the international legal system. Yet, the rise of Brazil, Russia, India, and China (the BRICs) over the past decade has caused a profound transformation of global politics. This paper examines the implications of this redistribution of power for international law. While international lawyers have long debated the ability of law to constrain state behavior, this paper shifts the debate from the power of law to the role of power within international law. It first advances a structural argument that the diffusion, disaggrega- tion, and issue-specific asymmetries in the distribution of power are giving rise to a multi-hub structure for international law, distinct from past structures such as bipolarity and multipolarity. This multi-hub structure increases pluralism within the international legal system. It also creates downward pressure on international legal processes to migrate from the global level toward a number of flexible, issue-specific subsystems. The paper then proceeds to demonstrate that the anticipated pluralism is emerging at three substantive tension points as some rising powers articulate distinct preferences with respect to sovereignty, legitimacy, and the role of the state in economic development. At each of these tension points, rising powers are reasserting the preeminence of the state in international law, leading to a gradual turning away from the individualization of international law championed by the United States and Europe back toward the Westphalian origins of the international legal system. Notwithstanding this turn, the United States stands to benefit from the new multi-hub structure of international law. On September 25, 2009, in an overcrowded conference room at the David L. Lawrence Convention Center in Pittsburgh, the leaders of the Group of 20 (“G20”) declared the informal group of states to be the “premier forum for . international economic cooperation,” effectively replacing the more intimate, transatlantic-led G7/8.1 Less than two months later, at 7 p.m. on December 18, 2009, President Obama walked into a room in the Bella Con- ference Center in Copenhagen, anticipating a bilateral meeting with Chinese Premier Wen Jiabao. Instead he found himself arriving late, or perhaps without invitation, at an ongoing multilateral meeting with Premier Wen, Brazilian President Lula, Indian Prime Minister Singh, and South African * Richard Perry Professor and Inaugural Director, Perry World House at the University of Penn- sylvania and Professor of Law, University of Pennsylvania Law School. The author wishes to thank Bill Alford, Shyam Balganesh, Gabriella Blum, Michael Boyle, Christopher Brummer, Jacqes deLisle, Maggie Gardner, Jack Goldsmith, Noah Feldman, Andrew Moravcsik, Sonia Rolland, Anne-Marie Slaughter, Thomas Wright, Mark Wu, and the participants in workshops at the University of Pennsylvania, North- eastern Law School, and Fordham Law School for valuable discussion and feedback on prior drafts. The author thanks the Moscow State Institute of International Relations, where he served as Visiting Profes- sor while conducting aspects of this research, as well as all the interviewees in Russia, India, China, and Brazil. For research assistance, the author thanks Yukti Choudhary, David Donatti, Kamola Kobildja- nova, Ursina Menn, Duy-Lam Nguyen, Anya Richter, Laura Sinisterra Paez, Dean Rosenberg, Kristin Teager, and Kenta Tsuda. 1. G20 Leaders Statement: The Pittsburgh Summit para. 19 (Sept. 25, 2009), http://www.g20.u toronto.ca/2009/2009communique0925.html. \\jciprod01\productn\H\HLI\56-1\HLI101.txt unknown Seq: 2 27-APR-15 10:30 2 Harvard International Law Journal / Vol. 56 President Zuma.2 It was only in this setting, away from the remaining 188 states participating in the negotiation, that any deal—even one as thin as the Copenhagen Climate Accord—could be reached.3 These two moments are emblematic of the rapid and profound redistribu- tion of power in the international system. China has risen.4 Brazil, India, and Russia are following.5 Numerous other states, from Turkey to Mexico, Indonesia to South Africa, are quickly transitioning from secondary or even tertiary status to meaningful global actors.6 The relative power of the United States is declining. The era in which the United States and Europe together could steer the international legal system has passed. Much has been written about how this power shift will influence international politics. Yet, international lawyers have rarely examined how this changing distribu- tion of power will alter the processes and substance of international law.7 Where they have done so, they have generally assumed that the decline of American hegemony and the rise of the BRICs (Brazil, Russia, India, and China) will have a uniform and largely detrimental effect on international law.8 The reality, however, is far more nuanced, and quite possibly more positive. The reluctance of international lawyers to grapple with this redistribution of power may stem from the uneasy relationship that has long existed be- tween power and international law.9 Classical international lawyers saw their role as one of scientific inquiry into what the law was, denying any role for power. As Vattel wrote in 1760, “[p]ower or weakness does not in this respect produce any difference. A dwarf is as much a man as a giant is 2. For a transcript of the White House briefing outlining these events, see Joe Romm, White House Tells Amazing Inside Story of How the Copenhagen Accord Was Reached, ClimateProgress (Dec. 20, 2009), http://thinkprogress.org/climate/2009/12/20/205232/white-house-tells-amazing-inside-story-of-how- the-copenhagen-accord-was-reached/. 3. See United Nations Framework Convention on Climate Change, Copenhagen Climate Change Con- ference, Copenhagen, Den., Dec. 7–19, 2009, Rep. of the Conference of the Parties on its 15th Session, held in Copenhagen from 7 to 19 December, 2009, FCCC/CP/2009/11/Add.1 (Mar. 30, 2010). 4. See generally Noah Feldman, Cool War: The Future of Global Competition (2013); Aaron Friedberg, A Contest for Supremacy: China, America and the Struggle for Mastery in Asia (2011). 5. See Harold James, The Rise of the BRICs and the New Logic in International Politics, Int’l Econ., Summer 2008, at 41. 6. See generally Jim O’Neill, The Growth Map: Economic Opportunity in the BRICs and Beyond (2011). 7. On the lack of scholarship in this space, see Nico Krisch, International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order, 16 Eur. J. Int’l L. 369, 372 (2005). For a review of scholarship on power, see generally Richard H. Steinberg & Jonathan Zasloff, Power and Interna- tional Law, 100 Am. J. Int’l L. 64 (2006). 8. See, e.g., Eric Posner & John C. Yoo, International Law and the Rise of China, 7 Chi. J. Int’l L. 1, 15 (2006) (“The history of the first Cold War, the current American and Chinese attitudes toward interna- tional law, and the current state of international institutions all point to . the weakness of these institutions for managing a superpower conflict.”). 9. See Oscar Schachter, The Role of Power in International Law, 93 Amer. Soc’y Int’l L. Proc. 200, 200 (1999) (describing “power as antithetical to law”). \\jciprod01\productn\H\HLI\56-1\HLI101.txt unknown Seq: 3 27-APR-15 10:30 2015 / Power Shifts In International Law 3 . .”10 In the mid-20th century, political realists such as Carr and Morgen- thau launched an attack on international law, fundamentally shaping inter- national lawyers’ relationships with power ever since.11 They argued that law was merely an epiphenomenon of power.12 International law only exists, they claimed, due to “identical or complementary interests of states, backed by power.”13 If classical international lawyers were right that “[p]ower or weakness does not . produce any difference,” the present power redistribution should have no impact on international law.14 In contrast, if Morgenthau were correct that “prospective beneficiaries” of a redistribution of power will “try to bring about a corresponding change of the legal rules, whereas the beneficiaries of the legal status quo will resist any change of the old order,” the result would be, in his words, “a competitive contest for power” whereby “change in the existing legal order will be decided, not through a legal procedure provided for by this same legal order, but through a confla- gration of conflicting social forces which challenge the legal order as a whole.”15 Yet the reality may be more complex than either of these positions allows. Classical international lawyers ignored the fact that power does influence state behavior and, hence, international law.
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