'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.

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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).