Power Shifts in International Law: Structural Realignment and Substantive Pluralism

Abstract

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 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, disaggregation, 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 US 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.