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2023 Int'l J. L. Ethics Tech. 28 (2023)
The Ascendancy of Capital over Nation-States in the International Legal Arena: A Historical-Materialist Perspective on Redefining Horizontality in International Law

handle is hein.journals/ijlet2023 and id is 150 raw text is: 28 THE ASCENDANCY OF CAPITAL OVER NATION-STATES IN THE INTERNATIONAL LEGAL ARENA: A HISTORICAL-MATERIALIST PERSPECTIVE ON REDEFINING HORIZONTALITY IN INTERNATIONAL LAW Elliot Goodell Ugalde* Abstract: Orthodox international law (IL)-primarily legal positivism, assumes a horizontal legal order. In adopting a Hobbesian understanding of the international arena, legal positivists assert that no sovereign supersedes that of any individual nation state; therefore, states hold each other legally culpable in a horizontal manner' and international legal institutions derive authority from state-consent. However, this document aims to challenge the adherence of orthodox IL to a horizontal legal order by demonstrating how capital effectively acts as a de- facto sovereign in the international arena, imposing IL top-down onto states as subordinate legal actors. This claim is corroborated by Antony Anghie's postcolonial legal assertion that IL has historically served as a Trojan horse for furthering colonial ambitions.2 Additionally, the Marxian concept of primitive accumulation, which situates colonialism within a larger project of capital accumulation, provides further theoretical backing for this perspective. Thus, this paper posits that the orthodox conception of IL as a horizontal system of equal sovereign states is inadequate, and instead proposes a paradigm in which capital acts as a de-facto sovereign, enforcing a vertical hierarchy undergirding international legal relations. This scholarly analysis will blend Marxian analysis with the empirical historical examples posited by Anghie, offering an in-depth examination of the manner in which colonialism dynamically influences and continually restructures the very fabric of IL.3 Ultimately, considering the implications of nation-states being subservient to the normative prescriptions of IL, coupled with the understanding that these laws are fundamentally influenced by a larger colonial project, and acknowledging that this colonial project is inherently embedded within a broader structure of capital acquisition as per the theory of primitive accumulation; it can be posited that nation- states, through their subservience to IL, are ultimately guided by capital, thus, do not operate in a horizontal, International arena. Keywords: International Law, Legal Positivism, International Relations, Nation-State Consent, Postcolonial Legal Theory, Primitive Accumulation, Historical Materialism, International Jurisprudence * McMaster University; Acknowledgements: I wish to convey my sincere appreciation to Dr. Claire Cutler and Dr. Simon Glezos for their indispensable guidance and enduring support during my academic endeavours at the University of Victoria leading up to this publication. Their profound expertise in international jurisprudence and international political theory has been instrumental in refining and augmenting the quality of my scholarly work. 1William C Starr, Law and Morality in H.L.A. Hart's Legal Philosophy, 16 MARQUETTE LAW REVIEW 673-689 (1984). 2 Antony Anghie, The evolution of international law: Colonial and postcolonial realities, 27 THIRD WORLD QUARTERLY 739-753 (2006). 3 Antony Anghie, The evolution of international law: Colonial and postcolonial realities, 27 THIRD WORLD QUARTERLY 739 (2006).

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