Enough is enough!

Six months ago, he said that those Muslims who want to stay in the country must “rip out and throw away half of the Quran ”. Today, in an opinion piece in a Dutch newspaper, he went further:

Enough is enough. Let us stop beating about the bush with political correctness. […] The core of the problem is fascistic Islam, the sick ideology of Allah and Mohammed as laid down in the Islamic Mein Kampf: the Quran. The texts from the Quran do not leave much to the imagination.

In different Suras, Muslims are called upon to suppress, persecute or kill Jews, Christians, believers of other faiths and non-believers, to hit women, and to rape, and to establish a worldwide Islamic state with violence. Suras call upon and instigate Muslims to death and destruction.

Ban that book like Mein Kampf is also banned. […]

How ashamed I am for the Dutch politicians. Their naivety and sickly strive towards the utopian moderate Islam, which will only bring our country hell and doom. How ashamed I am of those in and outside of the Cabinet and Parliament, who refuse to stop the Islamic invasion of the Netherlands. […]

The Hague is full of cowardly people. Scared people who are born cowardly and will die cowardly. Who believe and advocate that Dutch culture will be founded on a Judeo-Christian-Islamic tradition. […] Who [ignore] the interests Dutch population and cooperate in the transformation of the Netherlands into a Netherarabia as a province of the Islamic superstate of Eurabia.

I have had enough of Islam in the Netherlands: no more Muslim immigrant. I have enough with the worship of Allah and Mohammed in the Netherlands: no more mosque. I have had enough of the Quaran in the Netherlands: ban that fascistic book.

Enough is enough.

Strong words. Provocative words. Insane words from a raving Parliamentarian with a great big shock of dyed blond hair called Geert Wilders. He and his Part for Freedom (Partij voor de Vrijheid) managed to gain 9 seats in the last elections with (most notably) calls for a complete stop to immigration and the rooting out of Islamic elements in the country. To him the cause of crime and nuisance is Moroccan and Turkish “street-terrorists” who behave and think in ways that are at odds with Western ideas of liberalism democracy. Whether on the issue of treatment of women, homosexuals or fundaments of democracy, his warned that “tsuanami of Islamisation” is beginning to swamp the Netherlands and before you know it this will be a country governed by oppressive Sharia law. We must firmly reassert “the dominant Dutch culture”, he says, and no more mosques should be build, because he claims he’s “going crazy with all those mosques”.

Crazy indeed, but was he ever sane? All this preaching and threatening tones about Islamic radicalisation and creeping fundamentalism doesn’t help at all to the growing misunderstanding and divide between large segments of Dutch society. Instead, Wilders’ cheap rhetoric echoes those tried and failed populist insinuations and stereotyping that stirred the entire country when Fortuyn-fever swept through the country a few years ago. Two high profile politically motivated murders, a heightened state of alert, and a continuing wave of Islam-phobia later, and Wilders still wants to provoke and beat the already battered corpse of xenophobia and feelings of them-against-us.

Funny thing is, within the last six months the contents of the Quaran has not changed at all. If anything changed, it’s Mr. Wilders, who has become the very hardened extremist and militant raving village lunatic that he has been warning people will ‘invade’ this country and lead us all to ‘death and destruction’.

The Quran is but a book, a holy book with special meaning to over one million Muslims in the Netherlands. Admittedly, it does contain passages and words that are incongruent with this age and place, but it is not the book that kills and radicalizes. People kill and radicalise, people commit murders and rapes and incite hatred and others towards violence and revenge. It is people who hijack the Quaran, just as people have hijacked the holy Bible or Tora or any other religious text, to justify actions that defy all the teachings of love and compassion contained in the same books all in the name of ‘religion’.

Wilders’ allusion to Mein Kampf is telling. Some sixty odd years, millions of deaths and untold suffering caused by that infamous book penned by Hitler later, Wilders wants to ban a book in a free and democratic society where the freedom of press and belief are fundamental rights of every citizen regardless of race or creed. Who is the fascist now?

Thank goodness no else one in Parliament supports Wilders and his rants, and already a civil suit has been filed against Wilders for inciting hatred between racial groups.

Wilders was right about one thing though…

“Enough is enough”!

"One World, Different Dreams"

Six foreign activists unfurled a banner on the Great Wall of China today. Scribbled on it was the official slogan of the 2008 Beijing Olympics: “One world, one dream”. Celebrating the one year countdown to the greatest sporting event in the world perhaps? Underneath, the words “Free Tibet” on the same banner was less cause for celebration. The group of six has been detained, and their fates are unknown.

In 2001, there was much commotion when the Olympic Games were awarded to Beijing by the slimmest of votes by the International Olympic Committee (IOC). This self-proclaimed “non-profit organisation” decides who gets the Olympic honour in secret ballots, and has been trying hard to salvage its tainted reputation of being a corrupt club of self-serving internationalists. The Beijing decision did not help improve its image.

Critics cried foul and disbelief, when the Chinese capital triumphed over Toronto, Paris, and even Osaka—which was deemed one of the most hospitable cities in Asia. But rest assured, the IOC said. It will be a clean game, and it will bring great changes to China. To placate those critics who point to China’s poor human rights record, the IOC was adamant that the Games would bring the world to China, and China to the world, and in doing so put pressure on the regime to liberalise. Deals were struck with the regime to allow unprecedented press freedom to foreign journalists in this infamously repressive state, where news is known to be government propaganda and strictly censored.

Thus the Olympic dream began. In the past few years magnificent architecture and landscapes have been erected from the ground up. There is no doubt preparations is right on target to deliver what has been promised the most spectacular Games in history. To borrow those wise words of Chairman Mao, the opportunity to host the Olympics is perhaps the ultimate symbolism showing the rest of the world that China has finally “stood up”. The slogan “One world, one dream” is supposed to capture the spirit of “a great nation, with a long history of 5,000 years and on its way towards modernization, that is committed to peaceful development, harmonious society and people's happiness”. Applaud here.

But the nightmares of human rights and other abuses are far from having ended. A former UNICEF spokesperson and Hollywood began a campaign to dub the 2008 Games “Genocide Olympics”, in the face of China’s continuing financial and armaments support of Sudanese government:

That nightmare is Darfur, where more than 400,000 people have been killed and more than two-and-a-half million driven from flaming villages by the Chinese-backed government of Sudan.

That so many corporate sponsors want the world to look away from that atrocity during the games is bad enough. But equally disappointing is the decision of artists like director Steven Spielberg — who quietly visited China this month as he prepares to help stage the Olympic ceremonies — to sanitize Beijing's image. Is Mr. Spielberg, who in 1994 founded the Shoah Foundation to record the testimony of survivors of the holocaust, aware that China is bankrolling Darfur's genocide?

[…] Whether that opportunity goes unexploited lies in the hands of the high-profile supporters of these Olympic Games. Corporate sponsors like Johnson & Johnson, Coca-Cola, General Electric and McDonalds, and key collaborators like Mr. Spielberg, should be put on notice. For there is another slogan afoot, one that is fast becoming viral amongst advocacy groups; rather than "One World, One Dream," people are beginning to speak of the coming "Genocide Olympics."

Does Mr. Spielberg really want to go down in history as the Leni Riefenstahl of the Beijing Games? Do the various television sponsors around the world want to share in that shame? Because they will. Unless, of course, all of them add their singularly well-positioned voices to the growing calls for Chinese action to end the slaughter in Darfur.

Despite assertions by the Beijing Organizing Committee that the foreign press is being
“treated kindly”, Reporters without Borders begs to differ:

The Chinese authorities promised the IOC and international community concrete improvements in human rights in order to win the 2008 Olympics for Beijing. But they changed their tone after getting what they wanted. For example, then deputy Prime Minister Li Lanqing said, four days after the IOC vote in 2001, that “China’s Olympic victory” should encourage the country to maintain its “healthy life” by combatting such problems as the Falungong spiritual movement, which had “stirred up violent crime.” Several thousands of Falungong followers have been jailed since the movement was banned and at least 100 have died in detention.

A short while later, it was the turn of then Vice-President Hu Jintao (now president) to argue that after the Beijing “triumph,” it was “crucial to fight without equivocation against the separatist forces orchestrated by the Dalai Lama and the world’s anti-China forces.” In the west of the country, where there is a sizeable Muslim minority, the authorities in Xinjiang province executed Uyghurs for “separatism.” Finally, the police and judicial authorities were given orders to pursue the “Hit Hard” campaign against crime. Every year, several thousand Chinese are executed in public, often in stadiums, by means of a bullet in the back of the neck or lethal injection.

And so does the Committee to Protect Journalists, which warned of a

[…] yawning gap between China’s poor press freedom record and the promises made in 2001 when Beijing was awarded the Olympic Games. The International Olympic Committee awarded the 2008 Games to the Chinese capital based on assurances that authorities would allow the media “complete freedom,” and that they would apply “no restrictions” to coverage. While the government has eased some travel and interview rules that apply to foreign journalists, it continues to impose severe constraints on the domestic press. Chinese journalists are in jail. Vast censorship rules are in place. Harassment, attacks, and threats occur with impunity. China has fallen short thus far in its pledge to the international community.

To echo this, Amnesty International reports:

growing crackdown on Chinese human rights activists and journalists as well as the continued use of ‘Re-education through Labour’ (RTL) and other forms of detention without trial. Official statements suggest that the Olympics are being used to justify such repression in the name of ‘harmony’ or ‘social stability’ rather than acting as a catalyst for reform. […] the image of the Olympics continues to be being tarnished by ongoing reports of the ‘house arrest’, torture or unfair trial of Chinese activists and the extension of systems for detention without trial in Beijing as part of the city’s ‘clean-up’ ahead of August 2008. If the authorities fail to take significant action to reform such practices, reports of abuses are likely to increase as the Olympics approach with adverse publicity potentially affecting not only China, but other stakeholders in the Olympic movement, including the International Olympic Committee (IOC) and the corporate sponsors of the Games.

And so does Human Rights Watch, which wrote:

On paper, the temporary regulations appear to free foreign correspondents from a decades-old regulatory handcuff of time-consuming and rarely granted foreign ministry approval for interviews and reporting trips o[…]. However, the new latitude granted by the temporary regulations is conditioned on being “in conformity with Chinese laws and regulations.” This is problematic, as many Chinese laws and regulations limit free expression. The continuing applicability of these other laws and regulations and the lack of independence of the judiciary limit the chances that the temporary regulations will be enforced, or enforceable.

[…]In addition, foreign journalists must still apply for rarely-granted official permits for reporting visits to Tibet. Worse, many say that they are often harassed, detained, and intimidated by government and state security officials in the course of their reporting activities. More disturbingly, such treatment is increasingly being meted out by threatening and occasionally violent groups whom journalists often suspect to be plainclothes police personnel […]

Human Rights in China wrote that the Chinese regime is (ab)using the Olympics to package and advertise its strengths and overshadow its failings. Stories are being revealed of small children driven to the brink all in the name of “Honour for the Nation”. Further, news reports that have leaked out of the country report that Olympic merchandise are being produced by child labour. Whereas big multinationals stand to reap billions in profits from selling their shoes, clothes, puppets and pens at exuberant prices, workers are being forced to work long hours in poor conditions:

Yet the Olympics movement, particularly the International Olympics Committee, has refused to acknowledge that labour violations in their supply chain exist, and that they need to take responsibility to create an ethical marketing and licensing program in the face of these contraventions. […] Even though the IOC Code of Ethics stating clearly that “The Olympic parties must not be involved with firms or persons whose activity is inconsistent with the principles set out in the Olympic Charter”, the IOC refuses to accept responsibility for even the most minimum adherence to basic labour standards in the production and sportswear bearing the Olympic Games logo. […] The IOC has consistently favoured an approach of denial and rebuttal of claims that it address the need for oversight and responsibility in the production of Olympic logo goods.

And yet, despite all these well-founded criticisms and misgivings, the IOC President just yesterday praised Beijing for its “excellent work”. “One world, one dream”, indeed.

Ironic. The UK (and others) can proudly announce their intention to boycott sports competitions in Zimbabwe, yet when it comes to China, a regime perhaps just as, if not more, oppressive and obnoxious, they welcome it with open arms. What kind of signal did the IOC want to send to similarly brutal governments out there when it gave China the gift of the Olympics? That it’s alright to torture your own people, and send them into gulags where they slave away manufacturing cheap goods? That it’s alright to stifle dissent and arbitrarily detain opposition, and to censor the internet and all negative news about the country? And that’s it’s perfectly alright to invade Tibet and destroy the last vestiges of that country’s cultural and religious heritage? Or perhaps the IOC wanted to condone China with its continuous war-mongering and warnings of invading Taiwan?

Whatever the message, whatever the motivation or incentive, in a year’s time fanfare and fireworks will fly over Beijing, as the city, and the country, proudly invites the world to see. See the proud achievements and progress it has made in recent years, see the beauty and magnificence of this up-and-coming economic and political dragon that has now reawakened, and see how civilised people have become through the ‘no spitting’ campaigns.

But there are things that the regime does not want you to see… people who have been forcibly rounded up and sent away to make room for the Olympic dream, the people who spoke out too loudly and are now being persecuted in prison… and those resisting in silence of one day seeing their own country freed from occupation and intimidation.

Look.

And you will see.

More cartoons here.

"Taiwan applies for UN membership"

I've not written about politics for a while, partly because I've had so much other things to do, but this is one issue that really gets to me.

It may be boring, but this is something I'm been reading and writing about since I was young:
the issue of Taiwan! I was born there, and even though I only lived there a few years, I still few somewhat connected to that country. Basically, despite the fact it's a fully functioning country in every way possible, it is not recognised by most states in the world as a state. So it is not allowed to join the UN or any international organisation in which Statehood is a requirement.
A gross violation of international law and denial of the rights of the people of Taiwan to representation and security.

The following are things I wrote a few days ago and published elsewhere:

You may or may not (probably the latter) have seen this headline on BBC News a few days ago.

Poor little Taiwan knocking at the doors of the UN once again, and most certainly will be turned away and ignored like the international pariah it is. It's not the first time, and definitely will not be the last. With China wielding the veto power on the Security Council, and insisting that Taiwan is "an inalienable part of the motherland", chances of China ever approving Taiwan's membership is less than nihil.

By any objective standard, Taiwan is a sovereign and independent State, with a properly functioning government, 23 million inhabitants, identifiable territory, and also has the ability to engage in international relations. It is probably the most democratic and politically stable country in Asia, supported by a thriving economy and society. But, alas, it is openly shunned by the rest of the world like the plague, all because of China's propaganda and war mongering.

There are States ripped by turmoil and in which the government have ceased to exist, but they are still part of the family of States and recognised as such. Then there are oppressively authoritarian States that trample on basic human rights and intimidate its own population, but they are part of the UN. And then there are those 'evil' rogue States that flagrantly disregard international law, and even braver others that cause despicable humanitarian tragedies, and yes, they too are part of the UN. Taiwan is none of the above, but cannot even take part in the most basic international conference on matters of universal concern, like human health or the environment, because it is not recognised as a State. The irony.

One reason I study law because I was fascinated with its ability to defend the weak and restrain the strong in a world too often corrupted by the dictates of power and politics. Law’s power lies in its ability to speak back to power. Law’s authority lies in its, certainty, coherence and objectivity; in its ability to be blind and dispense justice on the scales of common morality and in the defence of human dignity.

Or at least in theory. And no where else is it more evident in the international arena. All States are equal, they say, but some more so than others. That is, if you are recognised as a State. If you are not, you are alone and isolated in this so-called international community that preaches equality, justice and universalism, but cowers in the face of hegemony and bullying tactics. Such is the sorry state of the world today.

Below is an excerpt from a paper I wrote at SOAS about the issue of recognition of States under public international law, with a special focus on the question of recognition of Taiwan:

That the proposed idea of recognition of statehood has moved from a constitutive to a declaratory view should, in the light of the Taiwan experience, be reassessed. Taiwan proves the effectiveness, legitimacy or even pragmatic tests for statehood are irrelevant. Instead, the current international order is dominated by an oligopoly of powerful states who can dictate, like the European colonial powers in the 19th Century did, who is allowed to belong and what is to be deemed a state, according to their interests and convenience.

International law revolves around states. A state may exist, and may be able and willing to shoulder all the rights and duties bound on members of the community of states, but the ultimate test of full subject-status under international law rests on its recognition by existing (superpower) states. The situation surrounding Taiwan's statehood offers an interesting overlap between the dominant realities of the ability of international politics to dictate international law, and the idealistic norms underpinned by human rights and peace that international law aims to pursue despite inhibitions from international politics.

Recognition is not a legal obligation, therefore it is often hijacked by political interests and objectively granted or withdrawn to serve certain, mostly that of big powers', status quos and realities. Taiwan’s relationship with its international counterparts is "fraught with ellipsis, indirect statements, and hidden meanings" . Though the international community has argued that the issue of Taiwan and its legal status should be up to China and Taiwan to decide, the nature of the question in straddling so many issues of international rights and duties and the potential impacts on world peace and stability, makes the issue one that is of the international community's concern and need for mediation.

The recognition of statehood is of great importance, because the existence or the lack of such recognition will dictate whether the candidate is deserving of the full protection, privileges and entitlements available in this state-centric world, regardless of whether that world is viewed through legal or political lenses. Exactly because recognition is such an important aspect of existence in the international community, it is also the most controversial, and one in which law and politics often intertwine.

And today I wrote this, after the UN rejected Taiwan's application for membership... again!

A letter was filed by President Chen Shui-bian of Taiwan on the 19th of July, directed at UN Secretary-General Ban Ki Moon. In it, Chen formally applied for Taiwan’s UN membership in accordance with the rules and procedure as laid out under the Charter.

Five days later, President Chen’s letter is returned by the UN Office of Legal Affairs, and the application for membership outrightly rejected. A short statement was issued, rejecting the application. I tried to find the original statement, but it is no where to be found, and believe me I’ve searched in all over the UN website. Like the complete and utter denial of its existence in the world, no hits contain the word ‘Taiwan’.

So, according to news reports, the application for membership was rejected on the basis of GA Resolution 2758 (XXVI), entitled ‘Restoration of the lawful rights of the People’s Republic of China in the United Nations’. That resolution was adopted in 1971, after the UN decided that:

“to restore all its rights to the People's Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-shek from the place which they unlawfully occupy at the United Nations and in all the organizations related to it”.

Here is the joke behind this resolution.

When the UN was established, the war-ally and Chinese dictator Chiang Kai-Shek was allowed to sit alongside the big powers and take China’s seat in the organisation. Years before, his regime fled China to take refuge in Taiwan when the Communists triumphed and took control of China. Cold War politics, and unquestioning US support meant that Chiang’s regime was able to illegally conquer Taiwan and oppress its inhabitants, while at the same time claim that it effectively controlled over the hundreds of millions of Chinese from the tiny island of Taiwan. This pipe-dream and fantasy was able to flourish for some 26 years, while the Communist regime in Beijing was shunned aside and treated as persona non grata.

After almost three decades of political wrangling and protests, spearheaded by the Soviet Union, the UN finally realised it was unrealistic that the Chiang regime ever represented China.

Hence Resolution 2758—an infamous resolution that effectively admitted that for so many decades the UN had been so blind and foolish, and allowed itself to be so politically manipulated and deceived to have Chiang Kai-Shek and his cronies unlawfully occupy China’s seat in the UN.

Goodbye Chiang…

But what does this have to do with Taiwan? Nothing. Nothing at all. All Resolution 2758 did was restore the rightful and legitimate seat of the People’s Republic of China, period. There was complete silence regarding the status of Taiwan and to whom the territory belonged to. And this silence has existed since the end of World War II, when Taiwan was put under temporary control of the Allied Forces. The US and UK at the time had publicly declared that the status of this one-time Japanese colony was “undetermined”. The status of the island, and future of its people, had to be decided eventually at a peace conference or within the UN system. But that was that. All talk.

When China rightfully assumed its place in the UN, it reiterated and continues to reiterate that Taiwan is part of China. It makes claims on the basis of the historical, cultural, linguistic bonds between China and Taiwan, but none of it is founded in law or reality. Any attempt to bring the issue of Taiwan to discussion is met with stiff opposition or the veto.

The truth is China does not have any legal title to claim sovereignty over the territory of Taiwan. Nor does China have any control, effective or otherwise, over the territory and its 23 million people. If it did, it would not have to constantly threaten invasion and war, because it could just legitimately march in, hoist its red flag and establish its dictatorial regime there, and no one would protest. If China did control and legitimately own Taiwan, it would not have to constantly warn of economic retaliation and other “severe consequences” whenever other States deal with Taiwan.

So why was the application for membership in the UN rejected on the basis of Resolution 2758? A completely flawed argument lacking in any basis or reason. Just like that, dismissed without any discussion or whatsoever in the General Assembly or the Security Council, as is required by law under the UN Charter (Art. 4(2)). I’d not be surprised if Mr Ban was somehow pressured (or bribed) by China to dismiss the application as soon as it was filed. And this coming directly from the UN’s Office of Legal Affairs.

States like Tuvalu, with its meagre 10,000 people, and States like North Korea, with its open defiance of international norms, can all become and stay members of the UN. Yet, a country like Taiwan, with more a larger population than two-thirds of UN members, is barred time and again due to such inexcusable manipulations of the law. Those judges in the Admissions Case, who unequivocally and overwhelming held that admission into the world’s primary universal organisation cannot “juridically” be “dependent on conditions not expressly provided by Article 4(1)” of the Charter must be spinning in their graves.

I leave you with the words from the original application filed by Mr Chen… despite the invocation of the ‘international community’ (which as you know I loathe), they speak more than I, or justice, ever could.

“The international community of today chooses to disregard the efforts of Taiwan's 23 million people in their pursuit of dignity and peace. It would rather ask a country that advocates the universal values of freedom, democracy, human rights, and peace to submissively remain silent when its identity is denied and security threatened. Whereas globalization draws nations and peoples around the world closer under shared interests and concerns, the United Nations has long excluded Taiwan from participation, erecting a wall against it and placing it in political apartheid. Such unfair treatment towards Taiwan is incomprehensible and unbearable.

The people living on the beautiful land of Taiwan desire their nation to become a member of the international community and make greater contributions to world peace and prosperity. I, as President, have been given a mandate by the people of Taiwan, and therefore have the responsibility to see realized their aspirations. Participation in the United Nations is a fundamental right of the people of Taiwan. The absence of Taiwan in the United Nations creates a gap in the global network for cooperation, goes against the ideals and notion of justice upheld by the United Nations, and moreover is ironic in light of the UN's principle of universality”.

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To find out more, read this.

And here's a video clip by the Taiwanese heavy metal group ChthoniC...
I'm not normally a fan of this type of music, but the music and lyrics does say a lot about Taiwan's international isolation in the world today...

UNlimited TAIWAN Short Film (Not Music Video)

Aan mijn Profiel Toevoegen | Meer Video's



OK!!!
I'll stop here before you fall asleep.... if you're still awake!

'International Law and Society between Civilisation and Liberalism'

Here's a paper I'm pretty proud of having written for one of my courses at uni.

Basic argument is that international law, in the past and today, is largely, whether consciously or not, a Euro-/West-centric conception. In the past international law grew out of the system of European states, aiming to regulate and facilitate relations between imperial powers as they extended their power, influence and territories to the rest of the world. Standards of civilisation were used to differentiate between those in the so-called international society, and those without. Today, similar standards are still in place, under a different label.

--

Introduction

International law undoubtedly found its roots in Europe,^[1] but is nowadays purportedly universally accepted and applicable. The expansion of international law, as a concept and institution, has commonly been traced to the age of 19^th Century colonialism, during which European powers used the standards of ‘civilisation’ as a means to ensure the international “society was built in their image”.^[2] Decolonisation ended imperialism, yet states today are increasingly subject to standards of liberal humanitarian and economic determinism, which too have their roots in Europe, if not the West. Has international law, today really departed from the past? A critical appraisal of international law, and the overarching idea behind international society, is necessary to assess whether international legal scholars(ship) have moved beyond the role of “hopeless apologists of empire”,^[3] both in the past and present.^[4]

Classical International Society

The existence of an international society, according to Gong, requires “common interests and values, commonly binding rules and common institutions”.^[5] While the existence of a society is more “a theoretical construct or explanation […] rather than [an] existent reality”,^[6] it is undoubted that in terms of political and legal history common interests and values historically have bound European states together more stronger and longer than elsewhere. Not only is there a common heritage of Christianity within Europe,^[7] the common experience of liberal Enlightenment, together with the French and Industrial Revolutions shaped the political, social, and economic foundations of European society. In terms of legal heritage, 1648 is commonly seen as the groundbreaking year in which Christian sovereigns established, and mutually recognised, the non-violability of sovereignty,^[8] to the extent that one can speak of the beginnings of a ‘droit public de l’Europe’.^[9] These principles are nowadays recognised as the cornerstones of international law.^[10]

How did a European conception of ‘international society’ upheld by a system of European public law become the tenets of international law today? The origins of this development can be paralleled to the expansion of the European state-based system of international relations into the non-European world.^[11] Colonial expansion took place simultaneously with the expansion of European political and legal influence.^[12] Certain “common interests and values”—necessary for the existence of an international society— were coined in the notion of European ‘civilisation’, and exported in “a purportedly legal way”^[13] beyond Europe’s boundaries. Civilisation was “used to distinguish those that belong to a particular society from those that do not”,^[14] with which self-perceiving ‘civilised’ states subjectively categorised non-European countries into “‘civilized’, barbarous and savage spheres”.^[15] Civilisation evolved to become a “fairly blunt legal instrument”^[16] utilised by European states to accord “international legal rights and capacities” to non-European countries deemed to have achieved the same degree of ‘civilisation’ as themselves—and there were not many.^[17] Unequal treaties and the extensive system of Capitulations were imposed on non-Europeans in what can be seen as the first globalisation of European legal standards and norms. Further, civilisation was used as a justification for intervention in non-European countries to—more often than not— forcibly impose Eurocentric conceptions of individual freedom and humanity which were products of European liberal Enlightenment.^[18]

International law thereby became an “integral factor” in securing self-proclaimed “universalist aspirations” to mask territorial and economic ambitions of European states.^[19] Thus, though the core notions of sovereignty, territorial inviolability, non-interference, and the mutual recognition of and adherence to these notions by states in the international legal order were developed by European states, they had no application vis-à-vis non-Europeans; at least not until the latter became recognised as ‘civilised’ enough to be part of the ‘international society’. Though international law spread to the rest of the world, there was no real ‘universalisation’ of the notion of international society, or international law.^[20] Instead, international law merely provided a “critical conduit” to regulate the interactions between the West and ‘the rest’ “along the lines prescribed by the Western standard of civilization”.^[21] Due to international law’s strong links with the European colonial past, it allowed “dominant states to project their visions of world order into the future”.^[22]

UN-iversalisation?

The idea of ‘civilisation’ is undoubtedly contrary to the fundamental notion of modern international law, which is posited on the mutually reinforcing notions of sovereign equality and non-independence.^[23] In the 19^th Century, it was the European powers who alone determined whether non-European countries were their equals under their characterisation of ‘international society’. From this grew the origins of constitutive recognition,^[24] which resembled a ‘christening’ procedure by which existing members of the international society selectively designated those they deem suitable to join the “exclusive club” of sovereign states.^[25]

The use of civilisation to determine who belongs in international society “softened”^[26] with the advance of international institutions like the League of Nations. The 1933 Montevideo Convention codified the declaratory recognition of statehood, which governs that states exist in fact once having satisfied certain objective criteria of statehood, ^[27] without regard to their internal organisation of government or their ‘liberal-ness’. With the inauguration of the United Nations, this trend apparently continued.^[28] The Admissions Case affirmed that admission into the world’s primary universal organisation cannot “juridically” be “dependent on conditions not expressly provided by Article 4(1)” of the Charter.^[29]

Though the World Wars altered the domination of European states in favour of the United States, the underlying norms and values of international society as projected and protected by international law did not alter. European became Western, and the League and its successor UN, as ostensibly ‘universal’ organisations continued, consciously or otherwise, the “universalizing mission of international law”^[30] began in 19^th Century. Most telling evidence of this can be found in the Mandate—later Trusteeship— System, which “did not outlaw colonialism or any of its creations”,^[31] but instead entrenched it in more formal and legalistic terms.^[32] Non-Western countries “not yet able to stand by themselves” were put under the “sacred trust of civilization”.^[33] Again, this explicit reappearance of ‘civilisation’ justified the encorachment of Western influence over non-European peoples on their progress toward eventual self-determination. Account was to be taken of the “stage of the development of the people”,^[34] reminiscent of the way European categorised the non-Europeans into different spheres of civilisation.^[35] Again, it was the European mandator/trustor who decided when this level of ‘civilisation’ had been achieved so that the non-European country could join the ‘family of nations’. Yet another telling way ‘international society’ is characterised by a Eurocentric/Westerncentric conception of ‘we-ness’ can still be found under the Statute of the International Court of Justice, which denotes the “general principles of law recognized by civilized nations” as a source of international law.^[36]

Many welcomed the decade(s) of de-colonisation was a breakthrough, as newly independent states mushroomed to truly become more representative of the historical, national, political and cultural diversities of the world.^[37] Though decolonisation seemed to have granted newly independent states “their rightful place as equal members of the international society”,^[38] in truth the victory over Western supremacy was short lived.^[39] The system of international law, with its emphasis on the state and sovereignty as originally defined and demarcated by Western states, was embraced by non-Western states “whole-heartedly”.^[40] Previous colonial boundaries were accepted, whereby the state, with its Eurocentric roots of conception and creation, was “effectively universalized […] as the only form of government that would provide equal status in the organized international community”.^[41]

Turning to the issue of statehood, the objective Montevideo criteria and Advisory Opinion regarding membership of the UN was gradually abandoned. Recent practice shows an increasing burden on the state, and the government that controls it, to prove itself worthy of fulfilling the obligations bound on states in the international community.^[42] Recognition of former Soviet Bloc states by European states required the former to respect liberal humanitarian norms of human rights and rights to self-determination.^[43] Similarly, accession agreements condition aspiring members to the European Union to subscribe to “democracy, the rule of law, human rights and respect for and protection of minorities, [and] the existence of a functioning market economy”.^[44] In external relations, non-European states are legally obliged to subscribe to similar liberal humanitarian norms.^[45] These criteria for recognition, and membership of the Union, are grounded in such liberal language and values that suggest a return to the standards of ‘civilisation’ previously espoused by European powers.

Civilisation today: Liberal International Law

Fidler draws striking parallels between the system of Capitulations in the 19^th Century and the structural adjustment programmes advocated by the World Bank and the International Monetary Fund. He argues convincingly that by the late 20^th Century a “liberal, globalized civilisation” (‘Washington Consensus’) had replaced its predecessor’s mechanism in producing a “pro-Western form of legal harmonization”.^[46] Other scholars go further, and argue that the ‘Washington Consensus’, with its conditionalities and degrees of conformity to ‘good governance’ and commitment to democracy, is “the contemporary successor of the Mandate System”.^[47] The globalisation of Eurocentric/Westerncentric legal standards and norms has thus returned.

Indeed, though notions like ‘human rights’,^[48] ‘good governance’ and ‘rule of law’, may appear neutral, and some argue universal, they are however reflective of “liberal hegemony in international legal thinking”.^[49] Prominent liberal international legal scholars like Slaughter would suggest that “liberal international relations theory”, with its emphasis on individual freedoms, free markets and acceptance of democratic values, nowadays “applies to all States”,^[50] in that nowadays international society is regulated by international law “as dictated by the ideological and structural principles of a liberal state”.^[51] She is supported by Franck who postulates that democratic governance is the sine qua non standard in the “new global climate”.^[52]

It is such a perspective of a “millenist, triumphalist, upbeat”^[53] liberal international society that again echoes concerns of a return of standards of civilisation.^[54] Indeed, a “facile universalism”^[55] of standards in the international system overshadows the political, economic, social and historical idiosyncrasies of our “multicultural (as opposed to cosmopolitan)” international society.^[56] Again, like when international law was used in the 19^th Century to differentiate between the ‘we’— who conform to European liberal standards of civilisation—and ‘others’—who do not—today we see a similarly profound notion of ‘international’ political and economic liberalism which is separating the world into a ‘zone of liberal peace’ and a ‘zone of war’.^[57] If necessary, liberal states see a duty to intervene to bring about democratic change,^[58] or protect ‘humanitarian’ values,^[59] purportedly in the name of the ‘general will’, and in flagrant violation of state sovereignty. Such an (ab)use of international law serves to perpetuate the reality that international law’s identification with certain interests and values^[60] in fact does not universalise, but instead divide, the international society of states.^[61]

Conclusion

International society posits a commonality of values and interest, but in truth has been, and is still being, promulgated as an irresistible and all-embracing reality.^[62] It is in fact an “ambiguous, euphemistic and somewhat misleading”^[63] concept that masks the way non-European states have been made to accept European/Western standards to be part of the society.^[64] International law’s self-proclaimed “intent on […] promoting global equality and justice”^[65] makes it “indissociable from the wider narrative of a liberal internationalism that thinks itself as the ‘legal conscience of the civilized world’ ”.^[66] The supremacy of European/Western powers allowed the political idea of an international society underwritten by the notion of ‘civilisation’ to be propagated around the world. International law, originally the law governing European sovereigns, was used as a mechanism to justify imperial expansion, first in the scramble for territories, and later entrenched in the ‘family of nations’ under the League and United Nations systems. Though decolonisation may have revolutionised the concept of international society by making it more inclusive, the (re)birth of inherently liberal principles like human rights, good governance and free-marketism can be said to replace the hegemony of imperial times in purportedly universal and neutral terms.^[67] International law resting on notions of sovereign equality, independence and non-interference has been advanced as something “good and desirably”.^[68] It is this same international law that is said to legitimately protect and further certain general interests of the international society.^[69] However, these basic tenets of the international legal order may, as critically set out above, be apologetic of the history of European legal and political expansion. Today, admitted in different terms but nonetheless along the same tradition of universal humanism and liberalism, the civilising mission is still alive, and actively pursued as the law that is universally welcomed and applicable.

Critiques aside, what alternative to the current international legal order, and the international society it upholds, is there? Undoubtedly, it is unrealistic, impractical, and perhaps even impossible, to dramatically overhaul the system.^[70] But as international lawyers committed to building and defending the international against scepticism,^[71] we need to be aware of, and sensitive to, international law’s flaws and its Eurocentric historical underpinnings.

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^[1] See e.g. Gerrit W. Gong, The Standards of “Civilization” in International Society, Clarendon Press: Oxford (984); James Thuo Gathii, ‘International Law and Eurocentricity’, 9 European Journal of International Law 184 (1998) [hereinafter EJIL ]; Onuma Yasuaki, ‘When Was the Law of International Society Born - An Inquiry of the History of International Law from an Intercivilizational Perspective’, 2 Journal of the History of International Law 1 (2000) [hereinafter Onuma (2000a)] ; David P. Fidler, The Return of the Standard of Civilization, 2 Chicago Journal of International Law 137 (2001); Martti Koskenniemi, The Gentle Civilizer of Nations: the Rise and Fall of International Law 1870-1960 , Cambridge University Press: Cambridge (2002); Alexander Orakhelashvili, ‘The Idea of European International Law’, 17 EJIL 315 (2006).

^[2] Fidler (2000), 403. The concept of ‘international society’ and ‘international community’ are undoubtedly interrelated, and some authors use them to mean the same concept. This paper will not attempt to go into the nuances between ‘society’ and ‘community’, but notes there are authors that do make a distinction. Barry Buzan, distinguishes the German terms ‘Gemeinschaft’ (community) and ‘Gesellschaft’ (society), arguing that the former denotes “an essentially historical conception” of “something organic and traditional, involving bonds of common sentiment, experience and identity”, whereas the latter concept perceives “society as being contractual and contracted rather than sentimental and traditional”: ‘From International System to International Society: Structural Realism and Regime Theory meet the English School’, 47 International Organization 327 (1993), 333. Georges Abi-Saab argues that “'community' is a relative concept and its existence is a question of degree”, and that “to designate a group globally as a 'community' it must first constitute a 'society': that is to say, it must first attain a certain degree or threshold of intensity and stability (or normality) in relations among its members, enabling them to be identified and distinguished from other subjects found in the same sphere” (249) [emphasis mine]: ‘Whither the International Community?’, 9 EJIL 248 (1998). It is thus clear that this mutual identification and ‘distinguishing from others’ is characteristic of the constitution of international society to be discussed below.

^[3] Koskenniemi (2002), 169.

^[4] For an in depth analysis of international law and its relationship with the colonial experience, see

Antony Anghie, ‘Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations’, 34 New York University Journal of International Law and Politics 513 (2001-2002). At 516, Anghie sums up the underlying theme of this paper succinctly:

“Given the foundational significance of the proposition that international law is universal, it follows that any comprehensive theory of the discipline needs to address the question how a single system of international law, with its explicitly European origins, became global and applicable to the societies of African, Asia, and the Pacific, with their very different cultures, belief systems and political and economic institutions”.

Koskenniemi (2002) is extremely useful in this respect.

^[5] Gong (1984), 3. Buzan, borrowing from Hedley Bull, perceives international society as “an arrangement of social life that it promotes certain goals or values” (332), and sees the “sense of we-ness” constituting a “common identity [as] central to the concept of society” (335). Onuma Yasuaki, at 135, writes that “international law embodies common or shared understandings of the members of international society in a more legitimate and explicit manner than other norms or instruments.”: ‘International Law in and with International Politics: The Functions of International Law in International Society’, 14 EJIL 105 (2003).

^[6] Abi-Saab (1998). 250.

^[7] Indeed, there has been much contention whether this heritage should be included in the Preambular text of the now (temporarily?) defunct Constitution of the European Union.

^[8] The Peace of Westphalia established a “Christian and Universal Peace” (Article I), and makes various references to the notions of sovereignty and its inviolability. Wilhelm G. Grewe provides a comprehensive historical account of how Christianity—or ‘Christendom’—“formed a unified body linked together by a common legal order”: The Epochs of International Law [translated by Michael Byers], Walter de Gruyter: New York, 2000: 287. Though admittedly international law in rudimentary forms may have existed before Westphalia. Further, due to the preoccupation of international law as a Eurocentric creation, little is known about whether some form of ‘international’ (acknowledging that the concept of ‘international’ is also European in origin) law governing relations beyond Europe existed before this period: see Onuma (2000a). Orakhelashvili (2006) also provides a brief overview of “non-European origins of international law”: 328-330.

^[9] See e.g. Simpson (2001); Koskenniemi (2002). Orakhelashvili (2006), at 337, criticises that that this ‘public law of Europe’ is in fact not more than “ambiguous political traditions”.

^[10] As Nico Krisch writes: “[t]he sovereign equality of states has, since the17th century, become a building block of the international legal system […]”: ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’, 16 EJIL 369 (2005), 377. Though he is admitted discussing the hegemony of certain states at specific times in history (Spain/16^th Century; Great Britain/19^th Century; United States/20^th Century), much of Krisch’s thesis on the manipulation of international law to project and protect the interests of powerful states can be extended to the overall European dominance in international law, then and now. Krisch’s ideas are reflected also in Onuma (2000a).

^[11] Georges Abi-Saab speaks of “prolongation of the European system”: ‘International Law and the International Community: the Long Road to Universality’, Chapter I in Ronald St. John Macdonald et al. (ed.) Essays in Honour of Wang Tieya, Nijhoff: Dordrecht (1994), 32. For more on history of the expansion of the European conception of international society, see also Hedley Bull and Adam Watson (ed.), The Expansion of International Society, Clarendon Press: Oxford (1984); Antony Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’, 40 Harvard International Law Journal 1 (1999); Anghie (2001-2002); Koskenniemi (2002) writes at 51: “Europe was a political society and international law an inextricable part of its organization”. Onuma writes at 44: “International law as we assume it to be today is the law of international society covering the globe, and it was around the end of the nineteenth century when this century came into existence” through “the subjugation of competing powers in other civilizations by European powers, European international law became the global standard”: ‘The Birth of International Law As the Law of International Society’, 94 American Society of International Law Proceedings 44 (2000) [hereinafter Onuma (2000b)]. See related comments in Onuma (2000a), at 7.

^[12] Orakhelashvili (2006) put it simply at 325: “[t]he idea of European international law was part of the ideology of colonialism”.

^[13] Gong (1984), 3; see also 14-15 for an elaboration of civilisation as defined juridically to include notions such as guarantees of basic rights, organised and efficient state machinery, adherence to “generally accepted international law”. See also Koskenniemi (2002), who at 51 writes: “the founding conception of late nineteenth-century international law was not sovereignty but a collective (European) conscience” [emphasis in original].

^[14] Gong (1984), 3. See also Anghie (1999) who argues that such a distinction was characteristic of legal positivism that prevailed in informing European imperial expansionism in the 19^th Century: “the distinction between the civilized and the uncivilized was a fundamental tenet of positivist epistemology” (23), according to which sovereignty was afforded to merely to the ‘civilised’. Koskenniemi (2002), at 130, argues the expansion of international law “was a discourse of exclusion-inclusion”. Orakhelashvili (2006) speaks of “legal exclusivity”.

^[15] Gong (1984), 55; Orakhelashvili (2006), 318-320. Koskenniemi (2002), at 134, writes that “[n]o stable standard of civilization emerged to govern entry into the “community of international law””.

^[16] Gong (1984), 21.

^[17] Ibid., 5-6. Simpson (2001) argues that this use of civilisation was an early example of ‘liberal anti-pluralism’: 546.

^[18] See generally Gong (1984); Anghie (1999); Fidler (2001) Koskenniemi (2002); Kirsch (2005); Orakhelashvili (2006). The concept of ‘Eurocenticism’ within international law, as Bull and Watson (1984) argue, comes from the “historical record” that “it was in fact Europe and not America, Asia or Africa, that first dominated and unified the world”: 2. Onuma (2000a), advocating that in fact the world has historically consisted of various civilisations, or which the European is but one of many, does not share this perspective.

^[19] Gong (1984), 5, 54. Anghie (1999), at 62-64 , analyses how trade, ‘civilising missions’ and ‘humanitarianism’ were used to justify colonialism and expansion. See also Koskenniemi (2002), at 176, arguing that international law “is indissociable from the wider narrative of a liberal internationalism that thinks of itself as the “legal conscience of the civilized world” and whose humanitarian aspirations cannot be dismissed as a set of bad-faith justifications for Western domination” [emphasis in original].

^[20] Onuma (2000a), 63-64. This is supported by Gong (1984); Anghie (1999).

^[21] Fidler (2000), 394. Anghie (2001-2002), at 518, writes that “practices of cultural subordination and economic exploitation, which were essential aspects of colonialism, are not epiphenomenal aberrations in the international system that were remedied by the project of decolonization and self-determination”.

^[22] Krisch (2005), 377. On 388, Krisch writes that international law offer power states “an excellent tool for international regulation and for the pacification and stabilization of their dominance”. Admittedly, he does outline certain constraints that international law places on powerful states.

^[23] See for example UN Charter Article 2(1) and 2(4); 1970 Declaration on Friendly Relations. See also Fidler (2000), 403; Anghie (2001-2002) suggests that sovereign equality does not in practice apply to non-European states may be “because of international law and institutions rather than despite international law and institutions” (520) [emephasis in original].

^[24] James Crawford, The Creation of States in International, Clarendon Press, Oxford, 1979: 4, 11-14. See also Nicholas Onuf, ‘The Constitution of International Society’, 5 EJIL 1 (1994), 17.

^[25] Abi-Saab (1994), 36-39. The word ‘christening’ is used here deliberately, for the idea of European civilisation before the 19^th Century was indeed Christianity: see fn. 8 above. Makau W. Mutua speaks of “juristic baptism” in the African context, and argues that constitutive recognition was “an especially convenient tool for interference in the affairs of other political societies”: ‘Why Redraw the Map of Africa of Africa: A Legal and Moral Inquiry’, 16 Michigan Journal of International Law 1113 (1995), 1123-1125.

^[26] Simpson (2001), 548.

^[27] Montevideo Convention 1933, Article 1:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

See also Article 3, which explicitly states: “The political existence of the state is independent of recognition by the other states”.

^[28] Simpson (2001), 549-553, narrates the discussion by the drafters of the UN Charter about the criterion of admission to use. Already then, it was apparent certain states were inclined to include the democratic credentials of a state as the key to membership, though eventually “the universalist, pluralist position prevailed in the end” (553).

^[29] Competence of the General Assembly for the Admission of a State to the United Nations (ICJ Advisory Opinion of 3 March 1950). Further, the Court held that existing members cannot subject their affirmative vote on an additional condition not mentioned in the Charter.

^[30] Anghie (2001-2002), 566.

^[31] Mutua (1995), 1138. Anghie (2001-2002) provides an elaborate account of the origins of the Mandate system and its conception of sovereignty, which he argues has influentially shaped the legacy of international law in general, and non-European states in particular. At 565-566, Anghie argues the universalising tendencies of 19^th Century international law “remained unchallenged by the new international law of the mandates”.

^[32] Gong (1984), 76-81. See also Charles H. Alexandrowicz , ‘The Juridical Expression of the Sacred Trust of Civilization’, 65 American Journal of International Law 149, Anghie (1999) and Koskenniemi (2002) (especially Chapter II), for an in-depth discussion of the “juridical expression of the sacred trust of civilization” originating from the 1884-1885 Berlin Conference.

^[33] Article 22 of the League of Nations Covenant.

^[34] The United Nations Trusteeship System did not distance itself from the language of “sacred trust”: see Article 73 of UN Charter. It is such a lack of departure from the previously demarcated geographical boundaries that makes the whole notion of self-determination, and the birth of “contrived state” that resulted from it, “beset by a multitude of problems”: Mutua (1995), 1137-1142.

^[35] The Mandate System created three classes of ‘readiness’ on the progress toward civilisation, based more or less on the degree of ‘civilisation’ of the mandated territory. See fn. 15 above.

^[36] Article 38(1)(c) [emphasis mine]. Though admittedly the applicability of this provision today is diluted, its symbolic wording, and the fact that it has not been, or could not be, amended to reflect the current international legal order makes this article of the ICJ a constant reminder of the past. Gong calls this, at 69, “an embarrassing anachronism”.

^[37] Anghie (1999) writes, at 74 [emphasis mine]:

“The international community of the late twentieth century appears open, cosmopolitan, accommodating, and neutral; sovereignty today is a set of powers and competencies that can be enjoyed by all states regardless of their particular cultural identities”.

^[38] Fidler (2000), 406

^[39] Mutua (1995) argues extensively that the right to self-determination, though gave granted independence of previously European colonies, was “exercised not by the victims of colonization, but their victimizers, the elites who control the international state system”: 1117.

^[40] Gong (1984), 243.

^[41] Koskenniemi (2002), 175. James Thuo Gathii suggests that the “mainstream liberal international law scholarship [which] serves to legitimize Euro-American imperial neo-colonialism” under the regime of “global economic integration” is partly attributable to the complicity of elites in the developing world: ‘International Law and Eurocentricity’, 9 EJIL 184 (1998), 210. Similar views are espoused by Mutua (1995). See also Kingsbury (1998), at 607 speaking of “structural homology among sovereign states”.

^[42] Christian Hillgruber, 'The Admission of New States to the International Community', 9 EJIL 491 (1998), pp 500-501. Anghie (1999), in reference to recognition in the 19^th Century, suggests that recognition as determined by European states did not only afford the recognised state legal status in the international society, but also “[reinforced European states’] authority […] to make sovereignty a possession that they could then proceed to dispense, deny, create, or grant partially” (66). This underlines how European states were able to make international law ‘universal’ and “that the [international] society […] in their image”: Fidler (2000), 403.

^[43] Hillgruber (1998), 509. this was done en masse under the European Communities: see e.g., the 1991 ‘European Community Declaration on the ‘Guidelines’ on the Recognition of New States in Eastern Europe and the Soviet Union’. See also Gong (1984), 91;

^[44] Bulletin No.6/1993 of The European Council, Copenhagen, 21-22 June 1993, at 13.

^[45] See also the text of Partnership Agreement between the European Union and the African, Caribbean and Pacific (ACP) States [‘Cotonou Agreement’], Preamble, Article 8, and especially Article 9:

“Respect for human rights, democratic principles and the rule of law, which underpin the ACP-EU Partnership, shall underpin the domestic and international policies of the Parties and constitute the essential elements of this Agreement”.

Article 96 provides that failure to live up to these “essential elements” will eventually result in suspension. See also Koskenniemi (2005), 115.

^[46] Fidler (2000), 391.

^[47] Anghie (2001-2002), at 624; Koskenniemi (2002), 177; Krisch (2005), 398.

^[48] On the extensive regime of human rights treaties that exist today, Onuma (2003), at 134, writes that they “embody global aspirations shared by the overwhelming majority of members of international society by “[inducing] convergence, if not strict observance” (italics in original).

^[49] Fidler (2000), 407. See also Koskenniemi (2005) urging that “we should take much more seriously those critiques of international law that point to its role as a hegemonic technique”: 115. Various other scholars concur with this notion of ‘international legal hegemony’: see Detlev Vagts, ‘Hegemonic International Law’, 95 American Journal of International Law (2001) 843, 845; David C. Hendrickson, ‘International Law and Universal Empire: A View from the Eighteenth Century’, 99 American Society of International Law Proceedings 307 (2005), 308; Fidler (2000), 397; Alvarez (2001), 192; Mac Donald (2002); and also Krisch (2005), who uses the term “legalized hegemony”, 396.

^[50] Anne-Marie Slaughter, ‘International Law in a World of Liberal States’, 6 European Journal of International Law 503 (1995), 509 [emphasis mine].

^[51] Slaughter (1995), 516. [emphasis mine]. The word ‘dictated’ conjures ideas of ‘legal hegemony’ discussed above: see fn. 49 above.

^[52] Franck (1992), 46-47; 91.

^[53] José E. Alvarez, ‘Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory’, 12 EJIL 183 (2001), 189. At 192 Alvarez talks of the “oppressive voice of neo-liberal hegemony”. Much of this ”liberal triumphalism” can be traced back to Francis Fukuyama’s seminal declaration that “with the universalization of Western liberal democracy as the final form of human government” history was at an end: Gerry Simpson, ‘Two Liberalisms’, 12 EJIL 537 (2001), 539; and also Susan Marks, ‘The End of History? Reflections on Some International Legal Theses’, 3 European Journal of International Law 449 (1997) and Gerry Simpson, ‘Democratic Liberalism in International Legal Theory’, 15 Australian Yearbook of International Law 103 (1994). See also Alex Mills and Tim Stephens, ‘Challenging the Role of Judges in Slaughter’s Liberal Theory of International Law’, 18 Leiden Journal of International Law 1 (2005), 29. Patrick Capps, warns that liberalism seems to justify “unilateral interpretations” by the Kantian proposition of a ‘league’ powerful states “of what objective morality requires when applied to a highly complex world”: ‘The Kantian Project in Modern International Legal Theory’, 12 EJIL 1003 (2001), 1020. Euan MacDonald cautions against “neo-liberal imperialism”, the foundations of which “rest on an incoherent mixture of selective positivistic analysis, highly contestable political science, and the essentially uncritical acceptance of a 200 year-old political theory”: ‘International Law, Democratic Governance and September the 11^th’, 3 German Law Journal (2002), available online at: .

^[54] Fidler (1984) speaks of “the standard of civilization [having been] reincarnated n the standard of liberal, globalized civilization”: 411.Anghie (1999), similarly writes that “the civilizing mission may be reconstructed in the contemporary vocabulary of human rights, governance and economic liberalization” (80). Simpson (2001) distinguishes between ‘classical Charter liberalism’ which emphasises “tolerance diversity and openness together with an agnosticism about moral truth” (539), and ‘liberal anti-pluralism’, which is a profound form of “illiberal conformitarianism” that views original Charter conceptions of sovereign equality as “an absurdity” (541). Koskenniemi (2002), 54-67, outlines that the origins of the ‘liberal project’, with human rights as “the fundamental objects of protection by international law”, took root at around the same time as European expansion in the late 19^th Century—as has been discussed earlier.

^[55] Thomas Carothers, ‘Empirical Perspectives on the Emerging Norm of Democracy in International Law’, 86 American Society of International Law Proceedings 261 (1992), 262-264.

^[56] Gong (1984), 244.

^[57] The idea of the ‘liberal democratic peace’ which dominates liberal international legal scholarship as advocated by Slaughter and Franck, is primarily premised on the presumption that liberal states do not go to war because they adhere to democratic principles and the rule of (international) law. Christian Reus-Smit, in analysing “the archetypal liberal state”, the United States, criticises liberal international legal theory’s assumption of liberal states adhering to international law and complying with human rights standards as “empirically dubious”: ‘The Strange Death of Liberal International Theory’, 12 EJIL 573 (2001), 588-589. In fact, the ‘liberal democratic peace’ theory wilfully neglects the aggressive engagement of liberal states against those states they deem non-liberal: see Alvarez (2001); Simpson (2001); MacDonald (2002); Krisch (2005). Buznan (1993) also speaks of divisions of the world into ‘concentric circles’, whereby the ‘core’ “pluralistic, democratic states” at times intervene at the periphery on behalf of behalf of communal values or in the protection of a common identity: 349-351.

^[58] Ann-Marie Slaughter in ‘The Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations’, (1994) 4 Transnational Law and Contemporary Problems 377, and to some extent, Franck (1992), are examples of proponents of the right to ‘democratic intervention’. Franck writes at 88: “one way to promote universal and perpetual nonaggression—probably the best and, perhaps, the only way, is to make democracy an entitlement of all peoples” [emphasis mine]. The United States-led campaigns of ‘Operation Uphold Democracy’ (Haiti 1994) and ‘Operation Iraqi Freedom’ (2003) are prime examples of such actions in practice. For more critics of this, see Capps (2001), 1015-1016; Mills and Stephens (2005), 25; and Kingsbury (1998), who writes, at 621: “The processes of colonial expansion and state formation that made the traditional sovereignty system global were themselves highly intrusive, but the system now provides a mild check on further intrusion”.

^[59] Kosovo (1999), Afghanistan (2001), and even Iraq (2003), were all justified, at one point or another, on the basis of ‘humanitarianism’: Krisch (2005). See also Nico Krisch, ‘Legality, Morality and the Dilemma of Humanitarian Intervention after Kosovo’, 13 EJIL 323 (2002).

^[60] Erika de Wet suggests that core concepts like erga omnes and jus cogens are now the “collective interest” of the international community, and forecasts the “the constitutionalization of the international legal order”: ‘The International Constitutional Order’, 55 International and Comparative Law Quarterly 51 (2006), 51. Koskenniemi (2005) is more sceptical, 117 and 122: “jus cogens and obligations erga omnes, two notions expressed in a dead European language that have no clear reference in this world but which invoke a longing for such reference and create a community out of such longing”. See also Abi-Saab (1998), 261-262.

^[61] See, e.g., Marks (1997); Krisch (2005), 386. Simpson (1994), at 127, writes: “liberalism proposes an unequal international society of outsiders and insiders”. Kingsbury (1998) argues, at 622 that this is “a continuation of recurrent patterns in the history of Western legal thought”.

^[62] See Orakhelashvili (2006), at 340, who describes “certain European projects which [emphasize] the unity of European states in pursuance of certain values and interests”, such as the European Convention on Human Rights and EU law.

^[63] Anghie (1999), 67.

^[64] As Onuma (2000b) writes, “international society came to exist only when Afro-Asian nations were forced to be members of the European international society”: 44.

^[65] Anghie (2001-2002), 627.

^[66] Koskenniemi (2002), 176 [emphasis in original]. Admittedly, Koskenniemi used these words to describe “the story of international law and formal empire in 1870-1914”, though as hopefully have been convincingly outlined above, international law’s ties with ‘liberal internationalism’ has not merely been restricted in that period, but is still very much strong and prevalent today.

^[67] Anghie (2001-2002) succinctly puts it, at 627:

“the tragedy for the Third World is that the mechanism used by international law to achieve decolonization also were the mechanism that created neocolonialism and that, furthermore, the legal structures, ideologies, and jurisprudential techniques [as embodied by the Mandate System] for furthering neo-colonialism largely were in place before Third-World states actually attained independence”.

^[68] Onuma (2000a), 61.

^[69] Onuma (2000a), 59:

“Today’s international law is perceived as a secular comprehensive legal order existing among nation states which are sovereign, independent and equal, irrespective of their size, power and influence. It is a law valid in global international society which covers all these states”.

^[70] As Krisch (2005) writes at 408:

“[i]nternational relations are marked by inequality, and if international law were simply an order of equals, its role would be weak indeed. Power relations are inevitably inscribed into international law, as they are into all forms of law, sometimes more, sometimes less visibly”.

Onuma (2000a) suggests that international law “must constantly reorganize and reconceptualize itself to rectify past wrongs and respond to the new realties of the world”: 66. Compare with David Kennedy’s statement that “the international system [needs] remodelling, updating, completion, to deal with new challenges”: ‘Speaking Law to Power: International Law and Foreign Policy Closing Remarks’, 23 Wisconsin International Law Journal 173 (2005), 180.

^[71] Here I rearrange the words of David Kennedy, who originally wrote in ‘A New World Order: Yesterday, Today, and Tomorrow’, 4 Transnational Law & Contemporary Problems 329 (1994):

“For internationalists, belief in the international and commitment to reform on its behalf lie very close together. The international must be built and defended, needs commitment, is threatened by scepticism” (338).