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.