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Max Planck Encyclopedia of Public International Law [MPEPIL]

International Law and Justice

Jochen von Bernstorff, Ingo Venzke

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 01 October 2023

Subject(s):
Colonization / Decolonization — Gender — Developing countries — Climate change — Sovereignty — Ethical standards — Rule of law — States, equality

Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

Editor’s Note: A different entry, also written by Jochen von Bernstorff and Ingo Venzke but published under the title ‘Ethos, Ethics, and Morality in International Relations’, appeared at this web address (URL) as part of the online Max Planck Encyclopedia of Public International Law until the publication of this entry in 2023. The original entry was also published in the 2012 print edition of the Encyclopedia (R Wolfrum (ed) The Max Planck Encyclopedia of Public International Law (OUP Oxford 2012) vol III, 709–18).

A.  Introduction

How does international law relate to justice? We distinguish three sets of answers to this overarching question: First are those answers that are affirmative about justice, about the possibilities of establishing what justice requires, and about its progressive potential for international legal discourse and practice. They see justice as a foundation and yardstick for the law. To the contrary, the second set of answers is marked by its scepticism in this regard. It sees justice as a distraction for the law, and as a disguise for ulterior motives and for the workings of power. The third set of answers, finally, is marked less by its scepticism towards justice as such, but towards law as a form or medium to pursue justice-related concerns. It sees international law mostly as an expression of injustice and prompts questions about the possibilities of law’s progressive appropriation and transformation.

Answers invoking justice as a foundation and yardstick for international law (Section B below) have the longest pedigree, and they have a particular dominance in current debates. They date to times in which notions of law and justice were closely interrelated, if not considered conceptually identical. Natural law theories used to link international law to religious foundations and standards of reason, and then to historicism and the consciousness of ‘civilized’ nations (Natural Law and Justice; Civilized Nations). The now mainstream approach of international legal positivism locates the foundation of international law not in justice, but in a consensus of sovereign wills. It thereby claims to break with natural law and its links with justice. But the emergence of international legal positivism was historically and conceptually closely linked to 19th-century ideas about European ‘civilization’ and is, as such, infused with claims to a supposedly superior sense of justice. The question was: What does civilization require from international law and legal practice? In international legal positivism, invocations of justice have thus continued to retain an important role. This legacy can be traced in readings of the protection of human rights, the prohibition of international crimes, as well as the notions of ‘elementary considerations of humanity’, of ius cogens, and of obligations erga omnes.

Justice-based arguments in relation to international law have found further support in political theory, which has offered many accounts for understanding and evaluating international law. Sometimes, those approaches are deemed to be the only plausible ones: The question of how international law relates to justice is then reduced to the question of whether international law is just, or what justice would require from international law and legal practice. The domain to answer that question is then taken to be not legal thought, but political theory. That, however, is too narrow. The narrowness of reducing, to the domain of political theory, the question of how international law relates to justice becomes evident in the present entry. While we also present and discuss approaches in political theory (Section B.3 below), we focus primarily on how that question has been considered in international legal theory, thereby contributing to an interdisciplinary exchange.

The second set of answers to the question of how international law relates to justice is marked by scepticism about justice generally, and about its relevance for international law particularly. This set of answers also has a strong pedigree in legal theory and thought, but it is relatively marginal and hardly seen in political theory. Overall, these answers portray justice-based arguments as part of strategies of domination and disguise (Section C below). Legal realist scholars like Hans Kelsen and Carl Schmitt share a profound scepticism with regard to claims about justice and morality in international legal discourse. Their realist inclinations have influenced important 20th-century authors writing on justice, morality and international law from a sceptical perspective, including political realists such as Hans Morgenthau. With different methods and consequences, these authors carve out how claims to justice serve powerful actors in pursuing their interests often by disguising ulterior motives.

The third set of answers is drawn together in the consideration of international law as injustice (Section D below). Answers in this tradition draw attention to the legal form as an obstacle for the law to serve as a conduit of justice or, stronger still, for its arguably necessary implication in maintaining structures of injustice. The core idea is that law’s formal equality abstracts from material conditions to end up masking and legitimizing material inequality. The necessity of law’s injustice is however questioned by other approaches in that same tradition, which tease out possibilities for law’s progressive appropriation and transformation. Postcolonial and feminist approaches pursue arguments that also critique legal equality, questioning who defines what international law is, and whose positions the law privileges. Third World Approaches to International Law (‘TWAIL’) and postcolonial work have above all highlighted how claims to formal independence have glossed over, normalized, and justified material dependence in the relations between States in the Global North and South. Feminist scholars, in turn, have made analogous arguments about male privilege as it is embedded in core structures and concrete contents of international law. Scholars who are critical of law’s anthropocentrism have shifted the focus from critiques of formal equality to legal subjectivity. They have shown international law’s structural complicity in the ecological crisis, which they see rooted in the way in which the law perpetuates a mistaken hierarchy of humans over nature.

The conclusions (Section E below) revisit the many different answers about international law’s relationship with justice to ask more specifically whether, when, and how to explicate such a relationship in theory as well as practice. It develops a distinction between affirmative and apologetic effects of justice-based arguments, on the one hand, and transformative and critical effects, on the other.

The present entry thus focuses on the relationship between international law and justice in terms of theories and methods. It does not consider in any detail what may be considered institutions of justice such as international courts and tribunals. The entry’s focus also leaves aside a detailed discussion of important distinctions between different conceptions of justice as they are well known in political theory, such as distributive and corrective justice, between nationalism and cosmopolitanism, or between communitarian and individualist approaches to justice. For the present fundamental question of how international law relates to justice, we can abstract from those distinctions and discussions. They are, in any case, dealt with extensively elsewhere (eg Brooks [ed] [2020]). We do not, and in fact cannot, offer an introductory definition of what we understand by justice, or by international law, for that matter, because such definitions vary across the three sets of answers given in the literature that we have just introduced. The same holds for distinctions between justice and morality, which have shifted over time in theory and changed as points of reference in practical discourse. Generally, at present, morality broadly refers to the normative principles that indicate whether a certain behaviour is right or wrong, good or bad. Justice denotes the more specific considerations that focus on social institutions, like international law.

We note that political theory, when it turns to international or global contexts, covers common grounds when compared to international legal theory. While we pick up many of the connections that have been made between the two disciplines, we also note several drawbacks of such inter-disciplinarity (especially in Section B.3 below). A final remark on the historical sections of this entry: We note that the historical focus mainly rests on the tradition of the (European) colonizers that, in turn, has been marked over centuries by white and privileged men. We are limited in our capacity of contrasting this tradition with others. What we can do is to continue to listen and learn from others, to insist on this European tradition’s partiality, and to correct it, at the very least, with a better and more inclusive overview of contemporary approaches (especially in Section D below).

B.  Justice as Foundation and Yardstick

The first set of answers to the question of how international law relates to justice can be traced in the many historical manifestations of natural law theories in international legal thought. Those theories use ‘natural law’ with a variety of meanings: first, as ontological natural law of the Scholastic tradition; second, in the Enlightenment sense of ‘rational’ natural law; and third, by way of negative demarcation to ‘legal positivism’. What is common to all historical usages of natural law is their complex and fluid relationship with the law of nations or ius gentium.

1.  Natural Law: From Religion via Reason to Civilization

10  Since the late Middle Ages and until the 19th century, the law of nations in Europe was a part of natural law. In the scholastic Christian tradition, natural law was an expression of divine will, an ethics originating from the gospel. All law had to be in conformity with this natural law foundation, otherwise it was not law.

11  At the same time, the ius gentium, in the view of 15th- and 16th-century scholars, had to be adapted to the realities of sociable but fallen (sinful) human beings and their communities. Spanish late scholastic scholars, such as Francisco de Vitoria and Domingo de Soto, developed their teachings on the ius gentium in an ever more casuistic and concrete fashion, thereby responding to political and military conflicts and new societal and economic conditions (Koskenniemi [2021] 130–211). In the writings of these scholars, Christian ethics were transformed into rules of justice. They were expressed by the rules of the ius gentium, which had to be adhered to by faithful Christian rulers. Such Christian ethics included for instance demands of non-violence, common property of all earthly possession, and equality and freedom of all human beings.

12  At the time of the Spanish conquest, considerations of utility, necessity, and Christian superiority turned the ius gentium into an ever more flexible set of rules in the face of new economic, military, and imperial opportunities of the Spanish Crown. While politically influential scholars (as confessors of the monarch) insisted on the connection between natural law and universal justice as expressed by the ius gentium, their writings on the ius gentium solidified dynastic rule, justified forms of slavery, military violence against ‘infidels’ (just war), as well as sophisticated transnational legal protections of private property, which, in turn, facilitated the economic exploitation of the ‘New World’ (ibid).

13  After the Renaissance, the relationship and differences between natural law and the law of nations remained disputed. Several scholars, from Hugo Grotius onward, began to replace ‘justice’ with ‘reason’ as a benchmark for the ius gentium, which was then seen as a voluntary law made by humans, viz an earthly emanation of natural law (ius naturale). In this secularized notion of natural law and ius gentium, Grotius developed a negative definition of justice: ‘unjust is that which is repugnant to a society of reasonable creatures’ (Grotius [1680] I.I.III.1: ‘iniustum, quod naturae societatis ratione utentium repugnat’). In general, Grotius’ approach to the natural law foundations of the ius gentium was based on a permissive understanding of natural law (Haggenmacher [1983] 462–63) which, according to Nijman, was justified by recourse to the imago dei doctrine (Nijman [2019] 1109). The religious foundation of the ius gentium thus began to lose the guiding function it was supposed to have had in previous scholastic doctrines. Man-made law could now be affirmed and justified by broad postulates of a right to self-preservation and property, the freedom of trade and commerce deduced from man’s alleged sociability and other presumed principles of reason.

14  In the tradition of the Enlightenment, the focus on reason and rationality then superseded Christian morality to provide background assumptions about justice and the law of nations. Christian Wolff’s 18th-century theory of natural law developed a system of rational principles to assist the monarch in ruling his citizens and in conducting the State’s foreign policy. These principles were meant to be legal as well as just, and their implementation was seen to achieve a state of ‘perfection’ of the nation (Wolff [1740–48]; on Wolff see Koskenniemi [2021] 856–60). Wolff’s hyper-rationalist principles, inferred by deduction, can be considered the apex of natural law reasoning in 18th-century German international law (Schröder [1989]). Natural law principles then served as background assumptions helping to interpret positive law (treaties and custom) or to fill gaps (Schröder [1989]; Koskenniemi [2021] 860). For both Kant and Hegel, as the most prominent representatives of German idealism, any form of law, including international law, was conceptually connected to eternal principles of reason (Vischer [2017] 305–13). Even though man-made law could fall short of realizing these principles of natural justice at any given time, history would allow man to continuously approximate positive law to these underlying principles of reason.

15  In the 19th century, historicism and positivism introduced new concepts of justice into international legal discourse, portraying 18th-century rationalist natural law reasoning as outdated. It was in the context of rising nationalism and historicism that Friedrich Carl von Savigny and Georg Friedrich Puchta developed a legal theory according to which law did not originate in the abstract nature or human reason implanted by God, but instead in the concrete and historical identity of each particular people (Volk), which, united by a common cultural heritage, had a specific legal consciousness as a feature of their culture (Volksgeist). Accordingly, law was not created intentionally by human beings, nor was it implanted into human reason by God, but it was always already there as a common and organically grown consciousness. It was just because it had always existed in a particular community and therefore merely needed reconstruction as a historical fact (Puchta [1828]; further elaborated in Savigny [1840] 6–65).

16  Neither Savigny nor Puchta wrote much about the ius publicum europaeum themselves, and Puchta even denied the possibility of an international law beyond the law of individual peoples altogether (Puchta [1828] 141–42). But their theory formulated basic concepts of 19th-century legal theory that also migrated into international legal debates. Perhaps the most important and most lasting contribution of their ‘Historical School’ to international law is the novel idea of situating international law in the common legal consciousness (Rechtsbewusstsein) of the community of nation States, rather than in natural law or reason. In other words, this is the moment in the history of European international legal thought in which both natural law concepts of justice and those creatively derived by generations of scholars from Roman law in the ius gentium tradition were replaced by European customs. Customary practices, equally detected and derived by creative scholars, were no longer a reflection of just principles found elsewhere, custom was international law and it was just because it had historically evolved in a particular community of States and was deeply embedded in the consciousness of European political and legal elites (Bernstorff and Mayer [2022]).

17  One of the first appearances of this concept of ‘consciousness’ in international law is the first edition of August Heffter’s international law textbook of 1844, which obtained a leading position within the literature on international law (Ogris [1969]). For Heffter and other authors influenced by the Historical School, such as Karl von Kaltenborn-Stachau and Johann Caspar Bluntschli, it was clear that international law could not be deduced from abstract principles of reason but that it resided predominantly within the common legal spirit of the European nations which formed a cultural community. It is one of the dark legacies of the reception of the Historical School that international law could only be contemplated among nations which shared a kind of kinship and similarity, especially on the basis of a common religion or ‘civilization’, while the relationship to non-Christian (‘non-civilized’) peoples could only be governed by mores, not by the law of nations (Savigny [1840] 32–34). International law became European International Law and its intellectual foundations adapted to the broader ideologies of European nationalism and civilizational or racial superiority (Gong [1984]; Anghie [2005]).

18  Towards the end of the 19th century, assumptions about certain civilizational values and standards seated historically in Europe’s nation States merged with a European legal discipline, which increasingly embraced an explicitly positivist methodology headed by German ‘positivism of state will’ (Staatswillenspositivismus), denying any legal foundations of the law of nations outside of the sovereign will of so-called civilized States. Relying on Hegel’s notion of international law, Georg Jellinek in the 1880s considered the sovereign will of the State as the philosophical basis of obligation of a positivist theory of international law. While ostensibly sceptical towards ‘non-juridical’ natural law foundations of international law, Jellinek was strongly influenced by the notion of a particular European ‘civilization’ and its intimate relation with international legal sources and principles shaped by the reception of the Historical School (see above paras 15–17). Jellinek needed the notion of civilization in order to construct an objective principle, which confined the otherwise unlimited resort to the subjective sovereign will of individual States. This principle for him ‘is the nature of the conditions of life that require legal normativization’. This nature was based on a specific European civilization and ‘untouchable by the will of the state, as nature is by the will as such’ (Jellinek Die rechtliche Natur der Staatenverträge [Hoelder Wien 1880] at 51 [translation by the authors]). While integrating these historicist notions of common European culture as a factual foundation of international law, however, Jellinek still regarded Hegel’s notion of the sovereign will of the State as the only philosophical foundation of international law.

19  The tradition of German ‘positivism of state will’ (Staatswillenspositivismus) plus the received 19th-century theories of the Historical School regarding custom, a common legal consciousness and ‘civilization’ would be at the heart of Lassa Oppenheim’s influential international legal positivism (Oppenheim [1905] 5–20). Notions of justice are replaced by the notion of the freedom of the sovereign (and ‘civilized’) State to enter into international legal obligations with other States. The value of voluntary cooperation of an advanced group of ‘civilized’ States on the basis of a small set of conflict-regulating rules is the minimal justice emanating from this strand of international legal positivism. To date, this international legal positivism continues to mark the mainstream of international law in theory and practice.

2.  International Justice, Morality, and Constitutionalism

20  In the 20th century, Hersch Lauterpacht and Alfred Verdross were two of the most influential proponents of a renewed theoretical connection between international law and natural law. While both were influenced by Hans Kelsen at the beginning of their academic careers, they later distanced themselves from him precisely because of his agnosticism about substantive notions of justice. Lauterpacht endorsed a rationalist naturalism without relying on general principles or logical deductions inspired by religious natural law traditions (Koskenniemi [2002] 410). He conceded that natural justice is in fact frequently invoked to disguise selfish interests but maintained that this was not a reason for dispensing with natural justice altogether: ‘We would rather err in pursuit of a good life for all than glory in the secure infallibility of moral indifference’ (Lauterpacht [1975] 418–19). Lauterpacht understands natural law notions of justice as always remaining in the background of the positive legal order, even if only subconsciously playing their vital part through filling gaps and directing legal development towards an enlightened individualism.

21  Verdross, on the other hand, took direct recourse to the writings of the Spanish late-Scholastic writers Vitoria and Francisco Suárez, who had promoted a construction of international law based on Christian religious principles. To explore the nature of international law, Verdross deemed it necessary to recognize that the divine idea of ‘mankind’ (Menschheit) as a unity composed of individual States lies at the basis of the international order, and to assess the acts of States as expressions of this idea (Verdross [1931] 358). International law is a synthesis of natural law concepts with actual utterances of State representatives. Verdross was also the first modern international lawyer who advocated the concept of a constitution of the international legal order comprising its most fundamental laws (Verdross [1926]; Lange [2018]).

22  The notion of foundational legal principles of humanity or an international community has since animated a strong and heterogeneous field of international lawyers who interpret legal developments with a manifest moral dimension as signs of an increasing constitutionalization of the international legal order. Ius cogens norms, obligations erga omnes, crimes against humanity, and other elements of practice and doctrinal debate with a strong moral dimension are considered as emerging constitutional norms (Tomuschat [2001] 81–90). According to this approach, an existing moral consensus can and does influence the creation and development of international law, in particular by way of custom. At times, this reasoning finds support in international legal practice. For instance, in the Corfu Channel Case the International Court of Justice (ICJ) based its legal findings on ‘certain general and well-recognized principles, namely: elementary considerations of humanity’ (at 22). In the Barcelona Traction Case, the ICJ embraced the notion of erga omnes obligations (at 32), and in the Armed Activities on the Territory of the Congo Cases, it finally granted its imprimatur to the concept of ius cogens. The rise of international criminal law is also often considered as one of the prime manifestations of a growing legal enforcement of community values. In the words of the Rome Statute of the International Criminal Court (ICC), the contracting parties are determined to punish the most serious crimes of concern to the international community as a whole.

23  Yet another expression of the force of moral foundations may be found in Art. 53 Vienna Convention on the Law of Treaties (Vienna Convention on the Law of Treaties [1969]), which stipulates that treaties violating ius cogens norms are null and void. Verdross had already held in the 1930s that a treaty ‘binding a state to reduce its police or its organization of courts in such a way that it is no longer able to protect at all or in an adequate manner, the life, the liberty, the honor or the property of men on its territory’ (Verdross [1937] 574) was to be regarded as forbidden in international law. He expressed a central contention of constitutionalist approaches in his reasoning that some fundamental human rights norms form the basis of a hierarchical construction of the international legal order. Thriving on the notion of an international community, a set of fundamental principles are said to acquire or to have acquired a constitutional status, distinguishing them from other norms of international law (Frowein [2000]; cf Fassbender [1998]; Kadelbach and Kleinlein [2007]). Constitutionalist approaches portray the post-cold-war world order to be based on a priority of values reflecting a hierarchy of norms. They advocate a form of constitutionalism, which does not necessarily presuppose an institutional backing of the respective constitutional norms (Bianchi [2008]). Other authors construct constitutionalist principles as a scholarly yardstick derived from domestic constitutional law pointing to deficiencies in international legal institutions (Klabbers Peters and Ulfstein [2009] 153ff; for a decisively non-constitutionalist reading of the post-cold-war era see Bernstorff [2019]).

24  From the perspective of general jurisprudential theories in the 20th century, the two world wars produced renewed debates about natural law or moral foundations of law versus a strict positivist understanding of legal rules. In Germany, Gustav Radbruch looked back on inhuman Nazi laws and famously held that law which contradicted fundamental principles of humanity and human dignity was unjust and could not be termed law even if enacted in accordance with applicable legislative procedures (Radbruch [1990] 96–100). In Anglo-American legal scholarship, this issue of whether or not law is based only on social facts or also on morality and fundamental considerations of justice was the object of the famous debates between HLA Hart and Lon L Fuller (Hart [1961]; Fuller [1958] 655) and between Hart and Ronald Dworkin. While Hart had criticized Radbruch and insisted that jurisprudence should not accord justice a foundational role for modern 20th-century law, both Lon L Fuller and Ronald Dworkin insisted on the importance of justice for any jurisprudential theory of law. Until fairly recently, those jurisprudential debates were unconcerned with international law (Dworkin [2013] 22; Çali [2009] 822). Dworkin only turned to international law with his last, posthumously published text in which he links his reading of international law with considerations of justice. International lawyers, in turn, have also only more recently drawn inspiration from these debates: Jutta Brunnée and Stephen Toope for instance adopted Fuller’s idea of an inner morality of law, which presupposes that any form of law necessarily adheres to certain minimum procedural and substantive rule of law-standards (Brunnée and Toope [2017]; Rule of Law).

3.  Political Theory

25  The question of how international law relates to justice and morality has for a long time been considered at the intersections of legal and political theory, certainly, of course, before those disciplines were distinguished as such. In the present entry, we focus on how this relationship has continued to be thought of in international legal theory. Political theory, however, has made considerable contributions, too, even if they have often maintained a considerable distance to, or ambivalence towards, the law. A lot remains to be gained from further interdisciplinary engagement.

26  John Rawls’s A Theory of Justice (1971) has contributed immensely to reviving scholarly arguments about justice in the 1970s. Especially in the English-speaking discourse, his work remains a central point of reference (see also Rawls [1993]; Rawls [2001]). Rawls argues in the tradition of liberal contractualism, which is concerned with societal organization, and with a view to the US-American domestic context (see Forrester [2019]). Only with his Law of Peoples (Rawls [1999]), however, did Rawls himself turn to the international sphere. He then argued that domestic political injustices are the main causes for the great evils of unjust war, oppression, religious persecution, and slavery. He finds the cure to these injustices in enlarging the realm of liberal or decent peoples providing the basis for what he calls a ‘law of peoples’. At times, ‘outlaw States’ that violate minimal sets of rights embraced by liberal and decent States may be subjected to condemnation, sanction, or even intervention. But overall, Rawls argued for the accommodation of pluralism, largely along traditional conceptions of Westphalian order and its European, or Western biases. While Rawls set out to provide an ideal theory, a ‘realistic utopia’, that can guide the interpretation and development of international law, it ended up justifying philosophically a view of the law that favours the powerful and entrenches great power privilege.

27  Other scholars had already turned to international, global contexts, parallel to Rawls’s revival of considerations of justice in the 1970s, sometimes in close engagement with his theory, sometimes with distance. The Australian philosopher Peter Singer for instance made important contributions to considering moral duties towards foreigners (Singer [1972]). Charles Beitz already adapted Rawls’s A Theory of Justice to international relations in the late 1970s (Beitz [1979]), making similar demands with regard to the State system as Rawls had made for domestic institutions. The key concern of Beitz and several other scholars related to principles of distributive, or social justice, and to the demands that those principles would lay on the basic institutions of a society, domestic or international. That question has continued to be a central point of inquiry, extending to more specific questions such as States’ ownership over natural resources (Barry [1982]), questions of distributive justice (Miller [2007]; Follesdal [2011]), the distribution of responsibilities (Young [2007]; [2022]) and duties of assistance (Barry and Pogge [eds] [2005]), States’ rights to exclude foreigners (Carens [1987]), as well as the very legitimacy of states (Stilz [2019]).

28  In the last decades, there have been several exercises of interdisciplinary scholarship that have engaged theories of justice to analyse and evaluate international law, its core structure, institutions and many subfields (see Mégret [2019]). Some have defended the principles of sovereign equality, the equal application of the law, and the rule of law on justice grounds (Nardin [1983]; Nardin [ed] [1992]), while others have gone further into the details of specific legal regimes such as humanitarian intervention (May [2007]; Haque [2017]), trade law (Suttle [2017]), or climate change law (Shue [2014]). Some authors have argued, as Ronald Dworkin has done, that States exist to protect and enforce ‘natural rights’ of citizens. If States do not live up to their obligations, in particular of respecting human rights, a forcible intervention aimed at liberating individuals or peoples is morally and legally justified (Dworkin [2013] 25ff). This line of reasoning first asserts that morality forms part of international law, or at least that the interpretation of international law can and should be informed by ethical reflections, and, secondly, it argues in the concrete case of humanitarian intervention that it might be ethically and therefore legally justified (Tesón [2005]). The primacy of political and moral philosophy over legal formalism drives a growing number of scholarly contributions that respond to a discontent with an alleged positivist State centrism of international law. Variants of a justice-based human rights paradigm are then offered as alternative sources of legitimacy (Buchanan [2003]; Legitimacy in International Law).

29  Overall, political theory has wrestled with the well-known predicament of finding the right balance between ideal and non-ideal elements: either starting from ideal positions of justice that then risk producing arguments that are so withdrawn from legal realities that they end up saying very little about the law, or, in turn, accepting so much of the legal realities that political theory risks ending up justifying what it set out to critique in the first place. Steven Ratner, for instance, is aware of these pitfalls when he argues, in interaction with the principles of the United Nations Charter, for two standards of ‘thin’ justice—the advancement of peace and of human rights—against which concrete legal practices should be measured (Ratner [2015]). The outcome stays close to the status quo and then offers additional normative arguments in areas where the law is already subject to critique and arguably in flux—ie the law of State immunity, of secession, and, more problematic but a frequent claim in justice-based analysis, humanitarian intervention (ibid 424ff).

30  More recently, questions of distributive justice have assumed greater prominence, especially as negotiated in the economic and climate law regimes. Thomas Pogge, has prominently grounded rich countries’ obligations of justice in their contributions to poverty and in the unjust advantages they have gained through the trade regime. Rich countries, therefore, have a duty to transform the regime with a view to—in an application of Rawls—maximizing the improvement of the least-advantaged (Pogge [1989]). Pogge later advocated still stronger duties on this basis, and a stronger egalitarianism (Pogge [2008]; [2010]). Matthias Risse, conversely, has denied Pogge’s claims, first of all on a different view of the facts: the global order has not wrongfully harmed the poor, he maintains. The benchmark for comparison should be a historical one, according to Risse: ‘The progress made over the past 200 years is miraculous’ (Risse [2012] 275). While he rejects counterfactuals as a possible basis for comparison and for normative assessment, it is equally clear that the present is not the best possible word. Together with Gabriel Wollner, Risse has thus also argued for a reform of the trade regime that is guided by duties that arise from relations of trade as such, and by the concern that it proceeds without exploitation—the ‘power-induced failure of reciprocity’ (Risse and Wollner [2019] 94). Earlier, long-standing contributions on these questions, especially as advanced in the Global South, have played a remarkably small role in these mainstream debates and seem to be plainly and problematically ignored (cf. already Bedjaoui [1979]; Baxi [2009]; see Section D.3 below).

31  Whereas debates in political theory are dominated by traditions of liberalism, broadly defined, there is considerably more variety (cf. Dellavalle [2021]). Several political theories would question whether justice can serve as a yardstick for the law, let alone as a foundation. That is perhaps clearest in the philosophy of deconstruction and post-modernism, which has inspired critical legal scholarship in international law. Deconstruction—the carving out of the antinomies arguably embedded in any legal decision—is justice, Jacques Derrida once remarked (Derrida [1993] 15). Put differently, justice requires that decisions are kept open against their closure by mixes of power and ideology. With a view to international law, Derrida critiqued the United States (‘US’) hegemony and how the counterhegemonic potential of the law is in fact undermined by the hegemon’s claim to pursue justice (Derrida [1993]). Another influential tradition, that of the Frankfurt School, would similarly stress the Hegelian as well as Marxist insight that whatever justice requires must start from a critique of society because all justice-based claims reflect a socially situated consciousness and rationality. That tradition is equally sceptical about external yardsticks of justice and rather turns to an analysis of concrete practices, trying to carve out and eventually transform patterns of dependence and domination (Benhabib [1986]; Forst [2020]; Venzke [2021]).

C.  Justice as Domination and Disguise

32  A second set of views is marked by scepticism about justice as a foundation or yardstick for the law. Such scepticism informs approaches in legal theory and philosophy that defend a separation of morality and law, which is the case for most versions of legal (1) and political (2) realism.

1.  Legal Realism

33  Both Kelsen and Schmitt voiced radical critiques of legal ‘moralism’ understood as an ideological use of morality and justice-related arguments in international legal discourse. Both authors argued on the basis of radically opposed conceptions of law and politics but shared the critical intuition that justice-related arguments are often abused to conceal ulterior political motives. Kelsen radicalized the Kantian approach, proceeding from the epistemic assumption that the nature of obligations deriving from the realm of moral ‘ought’ must be categorically separated from legal obligations stemming from the realm of legal ‘ought’. Against Radbruch, Kelsen insisted on keeping legal norms that may be unjust within the definition of law. He argued that not doing so would be an uncritical scholarly belittlement of existing inhuman usages of the law by legislators and judges. In Was ist Gerechtigkeit? (What is Justice?) Kelsen moreover argued that, given the antagonistic nature of international politics, with its plurality of interests and contradicting claims to justice, no ‘objective’ insight into the nature of ‘justice’ can ever be obtained (Kelsen [1953]). The diverging values which are advocated in terms of justice in the international arena are only of a relative nature. For him, there is no such thing as an absolute and uncontested notion of universal values and justice (ibid; Kelsen [1941] 71). The Kelsenian conception of international law offers, in contrast to the moral and the realistic (Schmittian) argument, a formal understanding of the law as a neutralized medium of guidance and conflict-resolution (Bernstorff [2010] 44ff). For Kelsen, the principle of law takes the place of the principle of justice and the principle of power. The core of this legal principle is the maxim of formal equality: ‘Equality is the principle that under the same conditions States have the same duties and the same rights’ (Kelsen [1944] 209).

34  This understanding of the equality principle was to Kelsen a tautology of the legality principle, which stated that a legal norm had to be applied in those cases in which it was supposed to be according to its content (ibid). Herein lies for Kelsen the specifically formal ‘justice’ of the law, which demanded its general and predictable application independent of power resources and notions of substantive justice (on the value of formal equality in times of hegemony see Cohen [2006]; see on sovereign equality also Kingsbury [1998] and Weil’s [1983] classic piece; States, Sovereign Equality). As Kelsen saw it, the law could function as a medium for ordering the global plurality of interests only in its neutralized formality. Substantial justice within international relations thus remained a contingent utopia. A contextual approximation to this utopian goal was only possible via international law and legally supported institutions, though it could also be prevented by the concrete outcome of a given global legislative process. From this Kelsenian perspective, international law thus becomes a means for arguing about shared standards and fundamental experiences of injustice within the only available communicative medium that—by way of its ‘empty’ formality—is capable of transcending power asymmetries and idiosyncratic preferences (Bernstorff [2010] 233ff).

35  Schmitt was equally sceptical about references to justice in international legal discourse, which he specified with the example of invocations of humanity. His famous critique is epitomized in the pointed statement, which he adapts from the French socialist Pierre-Joseph Proudhon: ‘whoever invokes humanity wants to cheat’ (Schmitt [1932] 54). In Der Begriff des Politischen (The Concept of the Political), Schmitt sees a close connection between political violence and moral claims. For him, States attempt to wage wars in the name of humanity to justify political violence. Invoking terms such as ‘humanity’ turns the political opponent into an outlaw standing outside humanity and outside the law. Violence of a particularly extreme nature can be justified by drawing a moral boundary between oneself and the political ‘enemy’. Such critiques have for instance been influential in the context of the ‘War on Terror’ and in international criminal law (Scheuerman [2006]). Schmitt’s theoretical insights into the ideological nature of international political discourse neither prevented him from openly endorsing the racially motivated exclusion of German international lawyers of Jewish origin from the German academic landscape in the 1930s, nor from intensively collaborating with the Nazi government in the first years of Nazi rule in Germany. In contrast to Kelsen, who upheld the potential value of an international legal order with the capacity of pacifying and rationalizing international disputes over divergent moral claims in formal legal procedures and institutions, Schmitt dismissed the notion of an international legal order that could effectively constrain national sovereigns as a fictitious and unrealistic construction.

36  Despite their antagonistic political commitments, Kelsen and Schmitt both exposed the potentially ideological nature and abusive use of moral, justice-based arguments in international legal discourse. Their writings have been a reference point for international legal scholars ever since. Martti Koskenniemi corroborates the theoretical separation of law and justice, shares a distrust vis-à-vis claims to universal values in international legal discourse, while upholding the potential context-dependent merits of a formal legal argumentative practice (Koskenniemi [2004]; [2007]). David Kennedy, Susan Marks, and others have voiced comprehensive critiques of the humanitarian project. For them, the human rights vocabulary strengthens the tendency of international lawyers to concern themselves with constitutional questions of the regime itself rather than with questions of distribution in the broader society (Kennedy [2002]; Marks [2011]; see also Baxi [2009]; Moyn [2018]; Whyte [2019]). Kennedy highlights that human rights have been abused to legitimate war, religious oppression, and other repressive purposes and demands a ‘pragmatic reassessment of our most sacred humanitarian commitments’ (Kennedy [2004] 35) and, not unlike Koskenniemi, he draws attention to political decisions and individual responsibilities underlying international law and its practice. Like others before and after them, they have contributed to critical historical perspectives that showcase how justice claims have also contributed to European imperialism and allowed international law to play a concomitant role in legitimizing the cruellest atrocities (Anghie [1999]; Chimni ‘The Past, Present and Future of International Law’ [2007]; see also Colonialism). Those postcolonial views, like feminist and Marxist critiques, have often gone still further to critique international law as injustice (see Section D below).

2.  Political Realism

37  The controversies between Schmitt and Kelsen heavily influenced the discipline of international relations as it developed in its early stages in the United States (International Relations, Principal Theories). The life and work of the émigré Hans Morgenthau, who shaped realist international relations scholarship, provides the most fitting illustration in this regard. Edward Hallett Carr’s earlier indictment of idealism and politics based on pure normative aspiration provides another strong point of reference for the thesis of political realism that ethics and morality in international relations tend to disguise the pursuit of self-interests and to foster domination.

38  Realist approaches of the interwar period are best understood against the background of an increasing incongruence between aspirations of the League of Nations and the concept of compulsory adjudication in international law, on the one hand, and an analysis of actual events, on the other. Carr set out the strongest critique of a then-predominant liberal research agenda that rested chiefly on a belief in reason, international law, and public opinion. The dismantling of the League of Nations, he claimed, testified to the inadequacy of pure normative aspiration as the basis for a science of international politics. According to Carr ‘[t]he exposure of the real basis of the professedly abstract principles commonly invoked in international politics is the most damning and most convincing part of the realist indictment of utopianism’ (Carr [1946] 87). He does not argue that actors do not pursue normative principles, but rather, and this is a common thread of realist approaches, the principles that actors do invoke are commonly not principles at all but reflections of self-interest. Appeals to morality serve to conceal self-interested action, and an international morality is likely to be the product of dominant groups that succeed in aligning a sense of what is right and good with their interests and views. In a claim to a shared international morality, Carr saw an ‘ingenious moral device invoked, in perfect sincerity, by privileged groups to justify and maintain their dominant position’ (Carr [1946] 80). While conceding that law must appeal to a sense of right that prevails in a community, it can, according to Carr, neither be reduced to moralism nor to the mere exercise of power. Law, like politics, is a ‘meeting place’ of moral arguments and power.

39  Morgenthau endorsed a scientific conception of politics that finds the laws governing politics in human nature. He sought to redirect the discipline’s focus to rational statecraft and shared with Carr both the critique of international morality and the focus on power: ‘International Politics, like all politics, is a struggle for power’ (Morgenthau [1949] 13). Claims to international morality are but a reflection of actors’ tendency to identify particular preferences with international morality. Constraints on State action could only derive from a community of interests or from a balance of power. Where there is neither, there is no international law. In order to achieve moral aims such as peace, one has to work with the social moving force of an aspiration for power inherent in human nature and be aware of any ‘attempt to exorcise social evils by the indefatigable repetition of magic formulae’ (Morgenthau [1940] 260). Such magic formulae of international morality and law could only distract from prudent reasoning that centres on interests as the perennial standard by which political action must be judged and directed.

D.  International Law as Injustice

40  A third set of answers centres not on the relationship of international law with a substantive notion of justice, nor on the potential of legal argument as a conduit towards justice, but, to the contrary, on international law as injustice. The first set of answers, seeing justice as a foundation and yardstick for international law, could of course also see the law in its entanglements with injustice, but it would consider that as an aberration. Approaches in the third set are different because they consider international law’s contribution to injustice to be the rule rather than the exception. They invariably also entertain the question, however, whether international law’s contribution to injustice is necessary, or whether there can, too, be exceptions so that the law may be used as a tool of emancipation, as an instrument in the struggle for justice, after all. The conception of justice notably shifts with these third approaches from one that emphasizes formal equality to one that draws attention to material conditions and patterns of dependence and domination (Marx [1843]). A common thread is thus the critique of formal equality. Traditions of Marxism have specified this critique further with an emphasis on the form of law as such (1). Postcolonialism and feminism, both draw attention to the operation of formal equality to cloud and legitimize material inequality. They also draw attention to specific legal content that contributes to injustice (2). Critiques of anthropocentrism, in turn, focus on narrow conceptions of legal subjectivity as the reason for international law’s injustice (3).

1.  Marxism

41  A strong critique of international law’s relationship with justice has been articulated in Marxist approaches in ways that have, however, been challenged by that same tradition (Marxism). Soviet jurist Evgeny Pashukanis developed the Marxist proposition that law, like justice and morality, should be understood as a superstructure of a society’s economic organization. In his commodity-form theory of law, Pashukanis argued that the law stands in the service of the accumulation of capital, and thus in the interest of the capitalist class. He theorized international law in analogy to municipal law: ‘Sovereign states’, he noted, ‘coexist and are counterposed to one another in exactly the same way as are individual property owners with equal rights’ (Pashukanis ‘International Law’ [1980] 176; Knox [2009] 416). Pashukanis furthermore discarded as ‘legal fetishism’ the unquestioned belief that legal relations act on the underlying realities that they reflect (Pashukanis ‘International Law’ [1980]). He thus clearly disputed international law’s possibility to change under unchanged socio-material conditions and, even more so, law’s transformative potential. But the extent of his critique on both these points—legal change and change through law—has remained an important point of dispute.

42  Isaac D Balbus and then China Miéville have been most sceptical about the law’s progressive potential. While Balbus denies law’s relative autonomy generally (Balbus [1977] 573), Miéville turns to international law specifically and, in his Between Equal Rights, argues that injustice does not exist as a shortcoming of the rule of law, but as an expression of it: ‘the chaotic and bloody world around us is the rule of law’ (Miéville [2005] 319). Stronger still, he argues that the law’s role in that regard is necessary and irredeemable. Fusing Pashukanis’ theory with the thesis of the structural indeterminacy of international legal argument (Koskenniemi [2006]; Kennedy [1980]), Miéville argues that any specific legal claim can only be made to ‘stick’ through the use of force (Miéville [2005] 285). What justice then requires, for Miéville, is nothing less than the end of forms of law (ibid 318–19).

43  Susan Marks and Robert Knox also take their cues from Pashukanis but differ from Miéville in their assessment of the remaining potential for the progressive use of the law. Both critique Miéville’s narrow and State-centric conception of force. They argue that Pashukanis leaves room for considering, and in fact points to, the progressive potential of legal struggle (Marks [2007]; Knox [2009]; see also Özsu [2021]). They each draw attention to broader socio-political processes that stabilize interpretations under conditions of indeterminacy, and to tactics for legal struggles with a view to the law’s progressive appropriation. For Marks, the main promise lies in ideology critique, which points to ‘counter-logics that get obscured’ and to contradictions to be exploited in current arrangements so as to open them towards progressive change (Marks [2007] 208). While Knox sees similar potential in the struggle for a progressive international law, he recognizes a ‘rational kernel’ in Miéville’s argument that concerns the legal form. The legal form, Knox avers with Pashukanis, is not ‘an empty sack’ that could be filled with any new content (Pashukanis ‘Lenin and the Problem of Law’ [1980] 144; Knox [2009] 430). The possibilities of law’s progressive appropriation are limited by the form which works against considering systemic or structural causes for injustice (Knox [2009] 432). The question then arises once more whether those limitations—of narrow, arguably superficial conceptions of human rights, for instance—are due to the form of law, necessitated by it, or, rather, due to other institutional and material conditions (Marks [2011]). That question can hardly be settled in the abstract, and the historical record suggests at least some openness in that regard (Dehm [2018]).

2.  Postcolonialism and Feminism

44  Similar views on the relationship between international law and justice have emerged from postcolonialism, sometimes explicitly inspired by Marxism (Chimni [2004]; Chimni [2010]). While they add to exposing the invocation of justice in its contribution to shaping international law as an instrument of domination, they tend to be less categorical in their rejection of justice and rather seek to appropriate it in struggles to change the law. Tenets of general postcolonial theory have in particular been developed in TWAIL. Three interlinked insights stand out. First, TWAIL scholars and others have drawn attention to how international law and justice have, in tandem, worked as tools of suppression and domination across history. In their historical work, they have pointed to colonialism as a formative context of international law, if not as its origin. Second, international legal scholars have developed the argument—classically a stronghold of feminism (paras 48–49 below; Feminism, Approach to International Law)—that equal treatment can lead to drastically unequal outcomes. They have emphasized that tenets of formal sovereign equality and inclusiveness have always been paralleled by principles that materially distinguished and immediately excluded certain actors, typically those in the Global South. Third, international lawyers have followed post-colonialism’s critique of the Eurocentricity of concepts and categories.

45  Antony Anghie’s Imperialism, Sovereignty, and the Making of International Law (2005) serves to illustrate these main insights. Anghie locates international law’s origins in the context of colonialism, which shaped the law’s core concepts. He revisits the work of Vitoria and the School of Salamanca as it accompanied and shaped the law relating to the Spanish conquest in the Americas (see paras 11 and 21 above). Vitoria argued on a natural law basis and with a humanist impulse against many of the blatant cruelties of the conquest. In contrast to several of his contemporaries, Vitoria averred that the local population in the Americas was endowed with reason and should be treated like humans, rather than animals. The population should benefit from the rule of law. The ‘Indians’ were formally equal when compared with Europeans and enjoyed the same rights and duties. As subjects of the same ius gentium, however, they had to abide by it, which also meant that opposing the supposedly natural and universal right of free commerce, which the Spaniards were keen to exercise and the local population resisted, would trigger the Spaniards’ right to use force in response. In Anghie’s reconstruction, Vitoria’s humanism thus ended up legitimizing violent conquest (Anghie [2005] 37). It included the population in the Americas as formally equal under a law that immediately distinguished them, here on the basis of their actions.

46  The key ‘dynamic of difference’ (Anghie [2005] 4) among formal equals has always created a gap between the supposedly universal and civilized, on the one hand, and the particular and uncivilized, on the other. Developmentalism has then arguably perpetuated patterns according to which experiences and insights emanating from Europe or the Global North—as a political rather than geographic category—enjoy universal validity to which other particulars need to adjust but inevitably fall short (Escobar [1995]; Pahuja [2011]). The Global South invariably finds itself in the ‘waiting room of history’ (Chakrabarty [2000]). International law and its institutions, in particular the World Bank and International Monetary Fund (IMF), have played a key role in that regard, exercising power by imposing conditions on loans, by shaping local institutions, and still more pervasively by forming knowledge, eg what it means to be a well-functioning State (Orford [2011]; Sinclair [2017]). More recently, critiques inspired by postcolonialism have pointed out how the United Nations Sustainable Development Goals (‘SDGs’) stand in for express invocations of justice. They, too, have been critiqued for their Eurocentrism.

47  Postcolonial critiques of international law are indebted to political realism when they discard international law as relentless tools of trenchant domination. TWAIL scholars and others writing in a similar vein do not, however, favour a categorical rejection of international law as an instrument of emancipation. Nor do they consider invocations of justice to be inevitably flawed, subjective and biased. They rather adopt law and justice in their struggles against the continuous legacies of colonialism and its Eurocentrism (see, with further references, Bernstorff and Dann [2019]). In scholarship and overt political practice such as the New International Economic Order (NIEO), they have conceived of international law as possibly serving justice (eg Bedjaoui [1979]). ‘[T]he new international economic order is desired as a bearer of justice’, Bedjaoui wrote (ibid at 183). Not only the law but also justice needs to be freed from its Eurocentric biases. Greater emphasis should be placed on economic and social justice. This is in line with postcolonialism generally: Boaventura de Sousa Santos foregrounds Epistemologies of the South to serve, as the sub-title already makes clear, the cause of Justice against Epistemicide (Sousa Santos [2014]). BS Chimni’s highly influential TWAIL manifesto is then not directed against international law, but aimed at law’s progressive transformation through the increasing voice of the Global South, attention to economic force and private power, adjusted priorities in human rights law, and through the recognized needs of development and monetary sovereignty (Chimni [2006]).

48  Feminist scholarship has made structurally analogous arguments, critiquing the ways in which international law reflects a gendered, male point of view and how claims to formal equality mask male privilege. Also drawing parallels with Marxism, Catharine MacKinnon has shown for instance how differences in distribution, recognition, and representation in society are based on gender differences that are stabilized in law (MacKinnon [1982]; Fraser [2005]). MacKinnon further highlighted how most work on legal equality leaves unquestioned how equality and difference are socially created and defined, not considering who sets the parameters and points of reference for determining sameness or difference (MacKinnon [1991] 1286). Feminist approaches carve out these blind spots and draw attention to the workings of sexuality and gendered differences to counter domination and work towards justice. Turning their attention to international law, Hilary Charlesworth, Christine Chinkin, and Shelley Wright argued in their path-breaking contribution that the law is not only Eurocentric, but also androcentric, both in its structure and contents (Charlesworth Chinkin and Wright [1991]). In their view, ‘States are patriarchal structures not only because they exclude women from elite positions […] but also because they are based on the concentration of power […] reinforced by international legal principles of sovereign equality, political independence and territorial integrity and the legitimation of force to defend those attributes’ (ibid 622). For one, feminism has critiqued the very concept of justice as male-biased, and advocated for an ethics of care instead (Gilligan [1982]). For another, the confrontation of misogyny and the transformation of patriarchy has an emancipatory potential that comes close to considerations of justice as non-domination.

49  Many more concrete practices of international law have been subjected to feminist readings and critique, including institutions and practices that may be most closely associated with aspirations towards justice. Feminists have pushed for and welcomed increasing attention to the position of women, especially in human rights and criminal law. The Convention on the Elimination of All Forms of Discrimination against Women was adopted in 1979, the Vienna World Conference on Human Rights (1993) paid particular attention to women’s rights as human rights, and the jurisprudence of the international criminal tribunals of the 1990s fostered understandings of rape and other forms of sexual violence as weapons and war crimes (Chinkin [1994]; Dixon [2002]; Knop [2004]; Women, Rights of, International Protection; International Criminal Tribunal for Rwanda [ICTR]; International Criminal Tribunal for the Former Yugoslavia [ICTY]). At the same time, like TWAIL scholars, feminists have been wary of women’s victimization, which renders them ‘weak, vulnerable, and helpless’ (Kapur [2002] 36; Engle [2005]).

3.  Anthropocentrism

50  Often inspired and informed by studies in Marxist, postcolonial, and feminist traditions, scholars have more recently critiqued international law’s injustice linked to its role in contributing to the ecological crisis. The point here is notably not about international law’s shortcomings , or about gaps in its effectiveness and enforcement, but rather about international law’s structural complicity in the crisis (eg Kotzé Du Toit and French [2021]). The reasons for this complicity have been located above all in the ways in which neo-liberalism and neo-colonialism have shaped the law and the exploitation of natural resources through law. The main point that considerations of anthropocentrism add to understanding international law as injustice is the deeper problematization of legal subjectivity, as centred on the anthropos—Greek: ἄνθρωπος, meaning human—and, by extension in international law, centred on the States as the main legal subjects.

51  Critiques of anthropocentrism have highlighted how law carries into practice the distinction of subject and object, of human and nature, that can be traced to Kantian rationalism, to the Cartesian dualism of the realm of mind (res cogitans) and the realm of things (res extensa), and still further back to more ambivalent Judeo-Christian conceptions of achieving mastery over nature. Anna Grear has argued in this regard that the conception of legal subjectivity itself enacts in international law a mistaken hierarchy of humans over nature. ‘[T]he form of legal subjectivity’, she writes, ‘is central to understanding, not only corporate judicial advantage, but the historical and contemporaneous production of climate injustice’ (Grear [2014] 110). Whereas the law recognizes corporations as legal persons, it excludes nature, which only comes into view once it counts as a legal or natural person’s property. Then it is protected. This conception of legal subjectivity has been tied up with colonialism and patriarchy. It has been self-serving the European elite while it considered other views on the relationship with nature as expressions of barbarism and irrational superstition (ibid 113; see also Jodoin [2008]; Natarajan and Dehm [eds] [2022]). Ways of responding to this critique include the expansion of the legal subjectivity of nature (Stone [1972]), or a philosophy, then embedded in law, of corporality, which takes seriously humans’ bodily existence (Pelluchon [2020]).

52  Critical anthropocentrism has shown the injustice of international law in general structures and concrete instances over time. It has drawn attention to the fact that the use of nature has been the overriding concern in many of the conventions that are, on their face, concerned with the conservation of nature. The 1972 Stockholm Declaration is often marked as the inaugural moment of modern international environmental law. It notably concluded the United Nations Conference on the Human Environment (Stockholm Declaration [1972] and Rio Declaration [1992]). The Stockholm Declaration’s Preamble averred that ‘[m]an is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth’ (at 3). ‘Man’ is separated and elevated vis-à-vis the environment that he creates, controls, that belongs to him and that must sustain him. This attitude arguably still prevails in the 2015 Paris Agreement (Climate, International Protection) (Kotzé Du Toit and French [2021] 198; Boysen [2021]). Critical anthropocentrism has further questioned international law’s conception of State sovereignty for the way in which it mirrors once more the hierarchy of humans over nature. Not only did the principle of permanent sovereignty over natural resources (United Nations General Assembly Resolution 1803 [XVII] of 14 December 1962; Natural Resources, Permanent Sovereignty over) do little to counter the privileged access of the Global North to resources in the Global South. On the contrary, it legally corroborated that access, supported extraction licenses, and gave elites in the Global South the unfettered freedom to exploit natural resources (Pogge [2008] 118ff; Boysen [2021] 138ff).

E.  Conclusions

53  We have discussed three sets of answers to the overarching question of how international law relates to justice: first, justice serves as a foundation and yardstick for international law and legal practice; second, claims to justice in international legal discourse work as distraction and disguise; third, international law is structurally entangled with injustice. In conclusion we revisit, draw out and discuss one transversal element of these three discussions; namely, the fact that our concern has notably been with justice claims by international lawyers and what the likely, theoretically argued effects of those claims are.

54  On the one hand, relating international law to justice can have affirmative or apologetic effects. On the other hand, it can also have transformative or critical effects with regard to existing power relations. Highlighting these two dimensions of international law and justice allows us to move beyond the impasse dichotomy that has troubled international legal thinking over the past decades: Infused by the postmodern incredulity towards justice as a foundation and yardstick, scepticism and critical legal scholarship has had little to offer in terms of normative orientation. What it offered was the emphasis on individual international lawyers to exercise their discretion responsibly, once they realized (if they did not know all along) that there is nothing that takes away that responsibility, no justice, and no law as a supposed basis for their choices (Kennedy [2016]). What, if anything, should then offer orientation? We suggest instead to continue to develop the critique of power as orientation regarding the question of how international law and justice are related, and whether, when and how they should be related.

55  Approaches marked by scepticism about justice and those which refer to international law as an expression of injustice aim at revealing how references to justice can be used—and have in fact been used—in international legal thought and practice to stabilize privileges and power imbalances. They reveal or emphasize that allegedly just legal regimes have often been set up to serve powerful actors, mostly in the centre, while they have deeply unjust repercussions for less powerful actors, mostly in the periphery. It matters where an actor who invokes justice in their approach to international law is located. It is arguably a sociological constant that transformative, progressive change can hardly come from the centre and is much more likely to emerge from the peripheries (Young [2022]), in an international law from below, so to speak (Rajagopal [2003]). The centre/periphery divide here is not only a geographic one, but structures of exclusion and alienation are both global and local, and they transcend political boundaries (Chimni ‘A Just World under Law’ [2007]; Lindahl [2018]). For us, the present authors, we note that we are both situated in Europe in positions of privilege, which means, inter alia, that we must be reflective about referencing and representation, listen and yield, and keep open the space of this entry as an inclusive one.

56  It is notable that most existing international legal regimes do claim, through their preambles and legally enshrined goals, that they advance the cause of justice. International trade law and rules of property protection for instance claim to bring prosperity to all nations, human rights regimes protect vulnerable individuals, the United Nations (UN) promotes and protects international peace and security, and international criminal law claims to end impunity for war crimes. None of the approaches we discussed would take those self-proclamations at face value. Justice scepticism and critical approaches would moreover invite international legal scholars to take seriously the adverse effects of these and other claims to justice on less powerful actors, which can often be done well through a historical lens.

57  International legal theory and discourse has historically had the tendency of falling for the legitimacy narratives and self-descriptions of international law and of particular legal regimes, attempting to rationalize adverse effects, such as sustained inequality, violence, and environmental degradation (Skouteris [2010] 42). Even if the effects of the law on the ground have been nothing less than scandalous, international lawyers would often still uphold the belief in the benefits associated with the law. Evidence of the discontents of neo-liberal globalization for instance has been, if at all acknowledged, mostly treated as a passing necessity and aberration. It may indeed be the case that the ills of the world would be even more dire without international law, a point that has for instance been made well with regard to critiques of the World Trade Organization (WTO) and the reproduction of mass poverty through international economic law (Pogge [2010]; Howse and Teitel [2010]). By backing international law with justice-based arguments, however, international legal theory and discourse can have the affirmative function of legally stabilizing structural injustices (Bernstorff [2015]). In this way, a stabilized belief in the justness of legal rules helps to legitimize existing rules and their underlying hegemonic power constellations.

58  While this is a real danger, there is also considerable potential in justice-based arguments about international law. International law has been related to considerations of justice in order to destabilize the law in pursuit of its progressive transformation. As set out above, the various traditions of natural law thinking in international legal thought have oscillated between affirming existing legal rules that were developed and imposed by powerful elites, on the one hand, and proposing substantive standards of justice to change and even revolutionize societal norms, on the other. Representatives of the less prominent latter tradition would delegitimize existing rules and hegemonic power constellations by referring to justice and morality. Strategically this has been (and still is) predominantly an option for actors in the periphery who attempt to transform those international legal regimes that stabilize an unequal status quo. Transformative usages of justice can help in uphill battles fought from the periphery against a legal status quo that is established and morally cemented by actors in the centre. A historical example is the decolonization era as well as the quest for a NIEO, during which Third-World scholars were at least partially successful in delegitimizing Western colonialism and its legal and institutional manifestations. And they did so with a strong reliance on claims of (economic, social, and cultural) justice (Bedjaoui [1979]).

59  Does all of this boil down to a call for a new set of institutions and new legal rules that are able to transform structural injustices? For the Third-World scholars from the 1970s, this seemed a plausible assumption. Then as now, the old order of colonialism is discredited. Today, in times of the climate crisis, of threats of nuclear annihilation, and an extremely unjust global distribution of wealth, this question assumes new urgency.

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