The Politics of “Multipolarity”

Author(s): Umut Özsu

Source: Proceedings of the Annual Meeting (American Society of International Law) , Vol.
107, International Law in a Multipolar World (2013), pp. 371-374
Published by: Cambridge University Press on behalf of the American Society of
International Law
Stable URL: https://www.jstor.org/stable/10.5305/procannmeetasil.107.0371

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 THE COMPLEX HISTORY OF INTERNATIONAL LAW

This panel was convened at 2:15 pm, Friday, April 5, by its moderator, Steve Charnovitz
of George Washington University Law School, who introduced the panelists: Kinji Akashi
of Keio University; Umut Özsu of the University of Manitoba; Ileana Porras of the University
of Miami; and Iain Scobbie of the School of Oriental and African Studies, University of
London.

The Politics of ‘‘Multipolarity’’

By Umut Özsu*

It has become fashionable in recent years to argue that non-Western states have exerted
considerable influence over the creation and application of international law’s most fundamen-
tal rules and principles. Equally fashionable are arguments to the effect that sustained growth
in ‘‘emerging markets’’ is on the verge of destabilizing Euro-American dominance in the
international legal and economic order. These claims tend to resonate with critics of Euro-
centrism and American exceptionalism, who rely upon notions of ‘‘multipolarity’’ to develop
‘‘inclusive’’ accounts of international law’s formation and operation. Rather than conceptual-
izing international law as a system with a clearly discernible core and periphery, such scholars
typically regard international legal relations as fueled by ‘‘contributions’’ from a multitude
of states, corporations, international organizations, and other actors.
The argument I will sketch today runs counter to much—though certainly not all—of this
scholarship. I will argue that it is neither descriptively nor explanatorily inadequate to maintain
that the architecture of what we now characterize as ‘‘international law’’ has for centuries
been shaped to a significant degree by fundamentally European and American developments.
Acknowledging the critical importance of Euro-American developments to the construction
and transformation of the modern world economy, and the international legal order with which
it has always been dialectically intertwined, neither warrants nor mandates the conclusion that
non-Western experiences are unimportant or merely derivative. It simply forces us to confront
the reality that the international legal order is inseparable from a global capitalist system
with a largely Euro-American infrastructure, compelling us to craft socio-historically contex-
tualized accounts of how non-Western elites have engaged international law with a view to
negotiating prevailing configurations of power. Indeed, I will suggest, uncritical celebration
of ‘‘multipolarity’’ of the liberal-internationalist variety mystifies the actual sources and
relations of power, blinding us to the fact that much of international law continues to be
organized around dominant classes, most of which continue to identify with predominantly
Western interests.
In order to concretize this argument, I will consider three ideological formations that
have proven to be influential as modes of conceiving what might broadly be termed
‘‘semi-peripheral’’ states: the late nineteenth-century attribution of ‘‘semi-civilized’’ status
to certain extra-European states; the reliance by many Cold War jurists upon the notion
of a socialist ‘‘Second World’’ and largely non-aligned ‘‘Third World’’; and the current
preoccupation, as legal as it is political and economic, with so-called ‘‘emerging markets.’’1
It will be my contention that each of these constructs was internalized, or at least

*
Assistant Professor, University of Manitoba.
1
These formations are intended as illustrative but are in no way exhaustive.

371

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372 ASIL Proceedings, 2013

instrumentalized, by semi-peripheral elites, which have nearly always understood themselves

to operate in an interstate order characterized by highly uneven distributions of legal
authority, not to mention extra-legal power.
Let me begin with James Lorimer’s tripartite division of ‘‘humanity,’’ which offers a
classic illustration of the nineteenth-century notion of ‘‘semi-civilized’’ states. Influential
during a time of rapid codification and professional organization, Lorimer regarded
humanity as a general category, capable of being disaggregated into ‘‘three concentric
zones or spheres.’’2 In the first such ‘‘zone’’—the innermost core of humanity, as it
were—Lorimer placed the fully ‘‘civilized’’ European state, indirectly if not directly
associated with high levels of legal formalization. In another ‘‘sphere,’’ comprised of
China, Japan, Persia, Siam, the Ottoman Empire, and the ‘‘separate States of Central
Asia,’’3 were ‘‘barbarous’’ states—states that fell short of the ‘‘standard of civilization’’
exemplified by a Britain but that were nevertheless able to stand on their own, either
as independent sovereigns or as quasi-independent semi-sovereigns. The third ‘‘sphere,’’
composed of ostensibly ‘‘savage’’ peoples, rounded out the picture, encompassing what
Lorimer termed ‘‘the residue of mankind.’’4 Lorimer sought to distinguish between the
kind of political power and legal authority exercisable by members of each class. Whereas
‘‘civilized’’ states were entitled to enjoy ‘‘plenary political recognition,’’ ‘‘barbarous’’
states were extended no more than ‘‘partial political recognition.’’ For their part, peoples
deemed ‘‘savage’’ were accorded even less—‘‘natural or mere human recognition,’’ or
inclusion in the general category of humanity, but little in the way of genuine legal
personality.5
Lorimer may have been an eccentric who wrote at the height of Victorian self-
assurance.6 But it would not be accurate to claim that either his Dantesque circles or
their analogues, such as Franz von Liszt’s division of states into ‘‘civilized,’’ ‘‘semi-
civilized,’’ and ‘‘uncivilized,’’7 were byproducts of European imperialism that enjoyed
little influence in the extra-European world. Ottoman negotiators at the 1878 Congress
of Berlin and Japanese diplomats during the 1894–1895 Sino-Japanese War would not
have countenanced a demotion of their state to ‘‘semi-civilized’’ status (whatever exactly
that might have meant). But the states they represented made a point of supporting
translation of European treatises, specialized training in European international law, and,
most revealingly, socialization into or at least pragmatic reliance upon prevailing European
conceptions of statehood and sovereignty—all with a view to benefitting from the norms
of sovereign equality and non-intervention reserved to ‘‘civilized’’ states. Critical though
it was to the amplification of European power, the ‘‘standard of civilization’’ was a
device to which elites on the semi-periphery regularly felt compelled to adapt.
Turn now to the post-1945 context. Attempts to distinguish states belonging to a ‘‘First
World’’ of market liberalism from those of a ‘‘Second World’’ purportedly hobbled by
‘‘democratic deficits’’ and an ideologically contested ‘‘Third World’’ marked by widespread

2
1 James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of
Separate Political Communities 101 (1883).
3
Id. at 102.
4
Id.
5
Id. at 101–02.
6
Cf. Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870–1960, at 33 (2001).
7
Franz von Liszt, Das Völkerrecht, Systematisch Dargestellt 1–4 (1898).

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 The Complex History of International Law 373

poverty received their most naive formulations during the heyday of modernization theory
in the late 1950s and 1960s, intimately related to the first wave of full-scale American-
sponsored ‘‘law and development.’’ Far from being the passive recipient of a conceptual
construct imposed from above, this framework was appropriated, and often redeployed,
by a great many non-Western states. A well-known example is provided by the preparatory
work of Article 53 of the 1969 Vienna Convention on the Law of Treaties, drafted
against the background of disputes concerning the status of peremptory norms. While
Western states generally held firm to pacta sunt servanda while negotiating this provision,
a large number of socialist and non-aligned states were determined to employ jus cogens
as a means of nullifying substantively unjust treaties, reinforcing the normative inviolability
of self-determination, and entrenching the prohibitions against slavery, genocide, and
aggression. For every ‘‘First World’’ delegate who maintained that ‘‘States should not
be able to invoke [jus cogens] unilaterally and without any control in order to repudiate
obligations which had become irksome,’’ there was a representative from a ‘‘Second’’
or ‘‘Third World’’ state who argued that ‘‘unequal treaties obtained by coercion’’ are
‘‘in violation of jus cogens rules of international law,’’ with some going so far as to
suggest that ‘‘[r]ecognition of the existence of jus cogens was the first step towards the
establishment of an embryonic universal ‘public order.’’’8 If the logic of the dominant
Cold War vision of a stratified international order had purchase in the ‘‘First World,’’
it also found support among policymakers in the ‘‘Second’’ and ‘‘Third Worlds,’’ who
adopted it even as they sought to alter the power dynamics that made it possible. Indeed,
this was so even in the case of the project for a ‘‘new international economic order,’’
which drew upon much the same framework of differential development to advocate
debt relief, technology transfer, tighter regulation of foreign investment, permanent
sovereignty over natural resources, and the elaboration of a full-fledged right to development
and ‘‘common heritage of mankind’’ doctrine.9
Still newer frames of analysis came to the fore after 1989. The supposedly ‘‘post-
ideological age’’ was to liberate markets from the tyranny of state power—if largely
through privatization, ‘‘rule of law’’ promotion, and boilerplate structural adjustment.
Accompanied though it was with all manner of triumphalist rhetoric, it was not long
before this new order was itself subject to conceptual apportionment, fueling the proliferation
of new analytical tools with which international structures might be parsed and spliced,
broken down into smaller units and reassembled to form new composites. In 1999, the
G-7 resolved to bring together their counterparts from a number of ‘‘systemically important
countries’’ to form the G-20.10 Regular meetings with finance ministers and central bank
governors from ‘‘emerging markets’’ would, it was believed, help to service debt, control
exchange rates, maximize data transparency, set codes and standards, prevent and manage
financial crises, and secure quota increases in international financial institutions. In 2001,
a mere two years after the inaugural meeting of this rather heterogeneous forum, Goldman
Sachs took it upon itself to speculate about the rising power of what it termed the
‘‘BRIC’’ (now ‘‘BRICS’’) group, a bloc of populous states boasting rapidly expanding

8
UN Conference on the Law of Treaties, First Session (Vienna, Mar. 26–May 24, 1968), Official Records,
Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole, UN Doc. A/
CONF.39/11, at 233 (Belgium), 280 (Ukrainian S.S.R.), 297 (Lebanon).
9
For the most famous exposition, see Mohammed Bedjaoui, Towards a New International Economic
Order (1979).
10
For the official history, see G-20, The Group of Twenty: A History 8 (2008), at http://www.g20.utoronto.ca.

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374 ASIL Proceedings, 2013

markets. Not unlike PricewaterhouseCoopers, which has preferred to speak of an ‘‘E-7’’

of the ‘‘seven largest emerging market economies,’’11 Goldman Sachs generates its
classificatory scheme mainly on the basis of standard indicators of GDP growth.12
Demonstrated commitment to a market economy unfettered by protectionism typically
serves as the principal precondition for recognition as a ‘‘BRIC,’’ ‘‘E-7,’’ or similar
‘‘middle power.’’ Crucially, this association tends to be made not simply by investment
and accountancy firms with an interest in mapping shifting relations of economic power,
but also by elites in those states believed to be the beneficiaries of sound development
programs. As early as 2000, for example, one finds a South African finance minister
suggesting that involvement in the G-20 would offer his state the ‘‘opportunity to make
allies among the middle powers.’’13 Similarly, it is common for leaders of developing
states to highlight their dedication to open markets, as when Brazil’s Luiz Inácio Lula
da Silva emphasizes his allegiance to ‘‘democratic and fair global governance’’—to ‘‘the
kind of governance that makes our interdependence an inducement for self-interested
solidarity.’’14 Sentiments of this sort are shared widely among international lawyers,
particularly those prepared to adopt without question the vocabulary of market-oriented
‘‘good governance.’’
European expansion was met with resistance throughout the extra-European world, and
American power has always had its counterweights. But the frameworks that have been
developed to organize international legal relations and that have frequently found a home
in non-Western policymaking have by and large facilitated subordination to a fundamentally
Euro-American international order, one whose constituent elements may be contested but
whose loci and axes of power are unmistakable. This, I submit, should make us not a
little suspicious of those who would exaggerate the benefits of ‘‘multipolarity.’’ As
vitally important as it is to complexify a body of international legal scholarship that has
traditionally discounted extra-European experiences, it is no less important to remain
skeptical of claims that ‘‘participation’’ on the part of non-Western states is an indicator
of international law’s even-handedness.

European Origins, the Doctrine of the Providential

Function of Commerce, and International Law’s
Embrace of Economic Growth

By Ileana M. Porras*

In these remarks I will sketch out one way in which the European origin of international
law has left an indelible imprint on twenty-first-century international law. Specifically, I will

11
See, e.g., John Hawksworth, The World in 2050: How Big Will the Major Emerging Market
Economies Get and How Can the OECD Compete? (2006).
12
Jim O’Neill, Building Better Global Economic BRICs (2001), at http://www.goldmansachs.com/our-
thinking/archive/archive-pdfs/build-better-brics.pdf. For a recent restatement, see Jim O’Neill, The Growth Map:
Economic Opportunity in the BRICS and Beyond (2011).
13
Trevor Manuel, quoted in The Group of Twenty, supra note 10, at 25.
14
Luiz Inácio Lula da Silva, The G-20 Moment, 27 New Persp. Q. 33, 34 (2010).
*
Associate Dean of Academic Affairs, University of Miami School of Law.

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