Kingsbury What is inequality for Kingsbury?

He tries to define it as a substantive notion of economic and social equality, but still is very abstract with his exposition. Thesis: While the reluctance formally to confront inequality has many causes it has been made posible by the centrality of sovereingty as a normative foundation of IL. The theory of sovereignty has relieved international lawyers from the need for a general theory of the legal management of inequality in three ways: 1.) The concept of sovereignty has developed a notion of formal equality. 2.) The problem of social and economic inequality has been treated by international law, based on the sovereign theory, a problem of territorial states. 3.) The theory of sovereignty provides the means by which International Law is legitimize, and all decision in the international realm, also the one that affect the equality among states, are legitimize by the consent of states. Sovereignty is the condition of possibility of consent, and consent is the condition of possibility of legitimization of IL. -There is not an univocal perspective among IL mainstream writers on sovereignty: (a) for some it is the foundation and ground of IL (b) An obstacle for deepening the rule of law, because of the normative autonomy of states. (c) a legitimitation of dubious social practices (civilization criteria) (d) a safeguard against the forces of external domination (e) Basis for identity and loyalty -Causes for a rejection of the traditional theory of sovreignt? Democratization Globalization Privatization Liberal agendas Equality as a treatment of traditional notions of sovereignty IL Axiom: Every sovereign state is equal among other sovereign states so there is an equality in the sense of having the same constrains and the same rights. A.) There is a contradiction between the markets freedom and the problems of poverty that market alone by themselves do not solve. BUT in practice these formal equality was just an aspiration and not a reality. Thats why theorist began to think that IL does not entail equality. For example in 1907 Hague Conference there was no compromise that equality meant that every state can appoint a judge in the ICC.

B.) Gatekeeping doctrines. The civilization criteria or the acceptance test was the source of other inequalities among states. There was no equality for nations or states that do not meet the criteria of acceptance imposed by the powerful nations, no equality for half-civilized states. Even the powerful states did not recognize as states some entities because they do not follow the international obligations imposed to them. The structural homology and homogeneity of Western model of state became problematic for equality among sovereign states. This structure involve: treatment of property, religious tolerance, obey the law of the sea, and so on. C.) Strategies for reconciling the sovereign equality system with existing inequalities 1. The legal positivist theorist tries to distinguish law from politics and proposes that all inequalities are in the social or political sphere and not in the legal realm. 2. From consent to consensus. 3. Separation of state equality from people equality Challenges to the traditional International Law System of Sovereignty and Equality (i) It simplifies the notion of IL as simply a normative realm to regulate the relation among states. (ii) The notion of state that underlies in this traditional notion of IL is a state that is an entity that exercise its power in non-overlapping territories, with the obligation no to harm other legitimate interests of other states and with the possibility to make claim if some illegitimately attempts against its own interests. Implications for sovereign states (i) Globalization and a turn in international regulative relations: rules promulgated by intergovernmental institutions (ii) The emergence of world law created by transnational institutions, for example, the interpretation of international commercial contracts, labour conditions. It would be reductionist to reduce those transnational norms to a consensus or consent among states, rather these norms are the effect of other relevant actors in the international sphere. (iii) Inequalities in access to the creation of those rules, the participation and accountability for its effects are issues that have not yet been discussed in international law doctrine. (iv) Democratization. a. Reinforces sovereignty b. Debilitates the notion of Unitarian sovereignty, by fragmenting the state power into various institutions with the principle of check and balances. From central and Unitarian sovereignty it becomes fragmented and decentralized sovereignty.

c. The pressures on the traditional notion of sovereignty has debunked the distinction between domestic and international realm. Implications for inequality of discarding traditional notion of sovereignty. The functional approach: What would be the effect of displacing a sovereign model of international law by substituting it for a liberal market based view? (i) Normative inhibitions associated with sovereign states moderate inexisting inequalities and provide a shield for weak states. (ii) The traditional concept of sovereignty provides an inhibition for military interventions. (iii) Diminution of State functions without alternatives: such as the locus of identity and royalty, religious or ethnic solidarity (iv) Autonomy for decision-making and the space for differences, that is to say, the space for different communities within the community. (v) Redividing world zones: those who adhere to liberal politics and economic ideas and those who are half civilized. (This notion of an identifiable other and an us. (Ethnocentrism in IL relations). Critiques to Kingsbury (i) Is not a rational process to enter into a new phase of international law. It seems as if he is viewing the transition from sovereign based system to a liberal functional system as a rational process of the relevant actor in international law. He does not distinguish his prescriptive perspective from a descriptive perspective that shows that a post-sovereignty international law is emerging right now. Instead of refraining to accept that post-sovereign turn is better to reflect on alternate ways to fight equality under, what Negri and Hardt called and Imperium Sovereignty. He is fighting against a neo-realist perspective of international law, a perspective that disregards any normative element and sees international law as the result of functional factor of liberal agendas that are trying to be implemented.

(ii)

(iii)

Negri and Hardt: (i) Empire is the new political subject that has sovereign power in a capitalist era. The economic relations in a transnational level had the effect not only of delegalize international law but also to depoliticized international law. (ii) Homo juridicus was displaced by homo politicus and now the last one is being displaced by the homo economicus, a subject that does not care for economic and social equality. (iii) THE DECLINE IN SOVEREIGNTY OF NATION STATES DOES NOT MEAN THAT SOVEREIGNTY HAS DECLINE. (iv) In contrast to imperialism, Empire does not have a territorial center, and does not have fixed boundaries, it is rather ubiquitous. It has a

new logic for exercising sovereignty, that is, as a decentralized and deterritorialized enterprise.