The Gaza Conflict Within International Law

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 1 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 defacto 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.