Power and international law
In the absence of an overarching sovereign in the international system, States are not only subject to, but also create, international law.1 States also vary greatly in their wealth, military strength, size and population, and therefore in their ability to apply the kinds of power traditionally studied by international relations scholars. Inequalities among States and their relative abilities to apply power would therefore be expected to have some effect on the development, maintenance and change of rules of international law.
Most international legal scholars, however, have deffoted little energy to considering directly the effects of State inequalities, or international relations-type power relationships, on the processes of international law creation.2 Studies of treaties, customary international law, general principles of law and the 'subsidiary' sources of international law (i.e., judicial decisions and scholarly writings) usually give short shrift to the possibility that relative power differences among States might affect the development, maintenance and change of rules.3 Many international lawyers have assumed, to varying degrees, that international law is the result of processes which are at least procedurally objective and in that sense apolitical. It is possible that this relative lack of interest in the role of power, and the associated assumption of procedural objectivity, are based, in part, on an overly broad conception of sovereign equality.
The concept of sovereign equality has been part of international legal thought for more than two centuries.4 It is representatively expressed in____________________