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1 Chi. J. Int'l. L. 1 (2000)
Issue 1

handle is hein.journals/cjil1 and id is 9 raw text is: AR -,'ES AMERICAN HEGEMONY AND INTERNATIONAL LAW Speaking Law to Power: Popular Sovereignty, Human Rights, and the New International Order Paul W. Kahn* 'fegemony 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.' 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 * Robert W. Winner Professor of Law and the Humanities, and Director of the Orville H. Schell Center for International Human Rights, Yale Law School. The author would like to thank Rohit Khanna for his help as a research assistant. 1. Article 94 of the United Nations Charter, after setting forth an obligation to comply with decisions of the Court, does locate enforcement authority in the Security Council. UN Charter Art 94, §§ 1-2 (1945). 2. The best example of this is the case brought by Nicaragua against the United States. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), 1986 ICJ 14. 3. Currently, of the permanent members of the Security Council only the United Kingdom has accepted the compulsoryjurisdiction of the ICJ under Article 36(2) of the Statute of the Court. See Statute of the International Court ofJustice, Art 36, § 2. 4. We see a current example of this in the felt legal need by the Hague Tribunal to investigate allegations of the NATO war crimes in the Kosovo campaign.

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