Rights and civilizations : a history and philosophy of international law 9781108464017, 1108464017, 9781108565035, 1108565034, 9781108568388, 1108568386

Citation preview

PREFACE TO THIS ENGLISH TRANSLATION

This book originally appeared in Italian at the end of 2010. With this English translation comes an opportunity to reflect on the theses it sets out, to rethink the research behind its writing, and to underscore the perspectives it proposes to open. This is a work on the history and philosophy of international law, and its underlying idea has been to mine the past so as to uncover the roots of processes that propel themselves into the future. In so doing, the book highlights a significant continuity between early modernity and the tormented season of the present age. In pursuing this research programme, the book crucially describes the unfolding of two parallel histories.1 On the one hand is the history of legal and institutional relations among states, leading to the creation of international organisms. On the other hand is the history of these powers’ representations, depicting an alterity or “otherness” understood to be incompatible with their own interests as players on the international stage: this is the otherness of the Indios of the New World, of peoples who have been colonized, of peoples regarded as “underdeveloped” or “nondemocratic,” of the resistance movements that have sprung up in the Third World. For an appreciation of what is involved in this otherness we need to draw on disciplines such as ethnology and anthropology, making it possible to clarify the complex paradigm that in the history of international law has been constructed by a working together of legal and humanistic studies.2 In highlighting the need to investigate this complex 1

2

This dual-track approach owes a debt to Martti Koskenniemi, whose Gentle Civilizer of Nations (Cambridge: Cambridge University Press, 2002) has provided a constant stimulus, offering insights that inform the entire discussion. This effort to bring the humanities to bear in complementary fashion on the study of international law has happily been pursued in the literature. A fine example is Mohammad Shahabuddin’s Ethnicity and International Law: Histories, Politics and Practices, with a foreword by Antony Anghie (Cambridge: Cambridge University Press, 2016).

xv

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:20, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.001

xvi

preface t o t his e nglish translation

intersection, this book recognizes that we are advancing into a largely unexplored research area. The discussion in this book has also profited from a comparative approach that looks at the history and philosophy of Western international law next to other historical traditions (especially the Islamic one) in an effort to develop an “intercivilizational” perspective.3 This inclusive effort inevitably leads to a relativist conception that asks us to trace every history and every foundational attempt in philosophy to its own traditions, highlighting the need for an exchange of views that may translate into an enriched understanding on all sides. This research avenue has been making strides, to be sure,4 but there is still much work to be done. Ever-refreshing as a wellspring of inspiring insights in this area of investigation has been the TWAIL perspective (Third World Approaches to International Law), to which I owe an important intellectual debt. Now well underway as a line of investigation, TWAIL points out the significant role that colonialism has played in shaping the paradigm of international law in the nineteenth century, while also highlighting how the legacy of colonialism is still very much with us, continuing to shape contemporary international law. Critical in this respect, and yet still largely unaddressed, is the problem of the relation between international law and colonial law, for by analyzing this relation we can shine a light on the normative practices and discourses the colonial powers devised when they embarked on their colonial ventures establishing a system of laws under which to govern and dominate the foreign peoples they subjugated. By digging deeper into these relations, we can uncover the “underbelly” of the West – of its normative system and its accompanying conception of rights. And, importantly, we can highlight the basic contradiction at play, for just as this system of laws and rights was being propounded as an expression of universal principles, these very principles were being denied to the peoples subject to the West’s colonial domination. By analyzing different doctrines of international law and comparing different cultural traditions, the research carried out in this book brings 3

4

Significant in this regard is the innovative work that Yasuaki Onuma has done starting from her article “When was the law of international society born? An inquiry of the history of international law from an inter-civilizational perspective,” Journal of the History of International Law, 2 (2000), 1–66. Worthy of mention among the contributions by young scholars who have devoted themselves to this effort is Nahed Samour, “Is there a role for Islamic international law in the history of international law?” The European Journal of International Law, 25, no. 1 (2014), 313–19.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:20, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.001

p r e f a ce t o th i s en gl i s h t r anslation

xvii

into focus the conceit of a “Western humanity” always set in opposition to other forms of non-Western subjectivity and held up as superior to them. We would therefore all stand to gain if this conception – running continuously from early modernity to the contemporary reality – could come under closer scrutiny in a critical effort, at once deep-probing and wide-ranging, to retrace the Western history of international law and rights so as to definitively put the centrality of the West behind us and lay the foundation for an epistemology capable of making complementary the diversities by which we are otherwise divided. Spring of 2017

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:20, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.001

INTRODUCTION: THE WEST AND THE LAW OF PEOPLES

It is through a long and laborious process that this book came to completion, especially because the initial project was at one point set aside and re-envisioned from the perspective that now informs the entire work. The idea was initially to investigate the relation between the sovereignty of states and the rights of man in ius gentium and the international law that developed out of it. But this initial intent began to grow richer and richer when, through a reading of Martti Koskenniemi, I came to appreciate the Foucauldian “order of discourse” packaged into international law: the West’s hegemonic vision relative to other civilizations and cultures. And so it was that with greater and greater clarity there came into view the main thesis of this book: the thesis that from the early modern age the discourse of Western hegemony maintained a continuity with the contemporary reality. This perspective has guided my reading of the classics of ius gentium, from Francisco de Vitoria to Fernando Vázquez, Hugo Grotius, Samuel Pufendorf, Emer de Vattel, and Immanuel Kant. The same conception informs my reading of contemporary thinkers, from Carl Schmitt to Hedley Bull and John Rawls. The book thus identifies two parallel stories. On the one hand is the story of the formation of the system of states, the birth of the international society, and the development of a new world order. But this is just one aspect of reality, for on the other hand the book traces out the transformations that have taken place in the discourse of the West, moving from the trope of the superiority of the Christian peoples to the mandate of developed countries over underdeveloped peoples, to the current discourse of good governance and the instrumental use of human rights. 1. Without considering the question of whether there existed an international law in antiquity and the Middle Ages, this investigation xviii

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:33, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.002

i nt r o d u c t i o n : th e we s t a nd th e l a w of p e o p l es

xix

starts out from the age that gave rise to the modern system of states between the fifteenth and sixteenth centuries.5 From a doctrinal point of view it starts out from the School of Salamanca (or Second Scholastic) of the first half of the sixteenth century, and in particular from the work of Francisco de Vitoria and Fernando Vázquez de Menchaca. To Vitoria we owe a reinterpreted definition of ius gentium, a definition that traces back to the Corpus Juris Civilis:6 it is Vitoria who replaces its use of homines with the term gentes.7 This turning point made it possible to consider the legal link that ius gentium establishes among peoples, as well as to represent the international society the same ius gentium is a part of.8 At the foundation of ius gentium was natural law, making it so that the legal relations among states found their justification in a universalistic natural law theory from which derived the rights of men and of peoples. In Chapter 1, the work of Francisco de Vitoria is taken up in all its ambivalence: on the one hand de Vitoria recognized the rights of New World peoples, including their right of ownership over the lands they inhabited, and even though he rejected the proposition that it would be justified to wage a “just war” on account of the diversity of customs, he wound up ultimately justifying the Spanish conquest by papal mandate in the name of Christian religious propaganda. The complexity of his work can also be appreciated from the analysis through which he compared the 5

6

7

8

See Ludwig Dehio, Gleichgewicht oder Hegemonie: Betrachtungen über ein Grundproblem der neueren Staatengeschichte (Krefeld: Scherpe, 1948), pp. 24 ff. Institutiones, lib. I, tit. II, 1, Corpus Iuris Civilis, ed. Paul Krueger, I, p. 1: “Quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur vocaturque ius gentium, quasi quo iure omnes gentes utuntur.” In translation: “But the law which natural reason appoints for all mankind obtains equally among all nations, and is called the law of nations, because all nations make use of it.” Justinian, The Institutes of Justinian, trans. Thomas Collett Sandars (Chicago: Callaghan & Company, 1876), p. 70. See, in this connection, Ada Lamacchia, “Francisco de Vitoria e l’innovazione moderna del diritto delle genti,” introduction to Francisco de Vitoria, Relectio de Indis: La questione degli Indios (Bari: Levante Editori, 1996), p. LXXIX. Writes Vitoria: “Quod naturalis ratio inter omnes gentes constituit, vocatur ius gentium.” Francisco de Vitoria, “De Indis insulanis relectio prior” (1539), in Relectiones Theologicae XII, Tomus primus (Lugduni: apud Iacobum Boyerium, 1557), pp. 352–53 (the original passage is from Justinian’s Institutes, here quoted at the previous note 2). In translation: “What natural reason has established among all nations is called the jus gentium.” Franciscus de Victoria, “The first relectio of the Reverend Father, Brother Franciscus de Victoria: On the Indians lately discovered,” in Ernest Nys (ed.), De Indis et de Iure Belli Relectiones, Being Parts of Relectiones Theologicae XII by Franciscus de Victoria, trans. John Pawley Bate (New York and London: Oceana Publications, 1917), sec. 3, § 386. See J. Barthélemy, “François de Vitoria,” in A. Pillet (ed.), Les fondateurs du droit international: Leurs oeuvres, leurs doctrines (Paris: V. Giard & Brière, 1904), pp. 1–36, at 7.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:33, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.002

xx

introduction: t he west and the l aw o f peoples

Christian world with the Muslim world in the geopolitical space of the Mediterranean. Vitoria conceded the legitimacy of exterminating Muslims, regarded as perpetual hostes of the Christian faith, for the purpose of ensuring “peace” and security. The origins of the clash of civilizations can thus be traced to a much earlier time than that of the reconstruction which Samuel P. Huntington put forward in the 1990s. Even the subsequent doctrine developed by the Dutch jurist Hugo Grotius was profoundly influenced by the conception of the law of peoples expounded by the School of Salamanca. This theme is developed in Chapter 2, devoted to Grotius, by addressing the deep contrast that in his thought frames the entire relation between the rights of man and the sovereignty of states, a contrast that found its resolution with the full affirmation of the modern system of states that was formed in the wake of the Peace of Westphalia. But the development of this system of states is also examined here from the perspective of the rise of Western colonialism. This perspective emerges in particular from an analysis of Grotius’s seminal work De Jure Praedae. Following the path beaten by Vitoria, though within a frame of thought that by now had become fully secularized, Grotius observed how the push to take the property of indigenous populations would typically masquerade under the justification of civilizing the barbaric regions of the world. And even if we concede that this critical assessment was conceived solely for the purpose of mounting a defense for the Dutch in the face of Portuguese colonial expansion, we can still turn to the classics of ius gentium to find the very arguments that to this day so-called Western civilization is deploying to extend its own hegemony over other regions and civilizations around the world. These themes figure centrally in this book and are fully developed in Chapter 5, devoted to the relation between international law and Western civilization. By looking at authors like Johann Caspar Bluntschli, James Lorimer, and John Westlake, we will be analyzing the conceptions that lay at the foundation of international law in the nineteenth century and will then trace out the way these conceptions develop in the twentieth century. Nineteenth-century international law came into being as a European project: it expressed a shared European consciousness and was regarded as a product of the community of Christian and “civilized” peoples (Martti Koskenniemi). In reality, and this will be the central thesis defended in Chapter 5, until the second half of the nineteenth century, Western international

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:33, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.002

i nt r o d u c t i o n : th e we s t a nd th e l a w of p e o p l es

xxi

law was only one among a plurality of international legal systems: these include the Sino-centric system and the siyar system of international Islamic law, and just like the European legal system, they expressed a pretence to universality. A core part of this book is therefore informed by the argument that the universality claimed for the international legal system of the West was in fact relative. In this sense the book invites the reader to look at the West through the eyes of “the other.” Only in the second half of the nineteenth century did international law take shape as the expression of a “global society,” when the Ottoman Empire, China, and Japan were forced to adhere to the regional legal system that revolved around Europe. This system of relations of Western superiority and dominance lasted until the postcolonial age that came in the wake of World War II, when a world society developed out of a combination of political systems set apart by deep differences, in that they were based on conceptions rooted in profoundly different cultures. But if a legal system is to qualify as universal, it needs to rest on concepts and principles that are not just Western but also non-Western. Chapter 5 therefore discusses some proposals that introduce an intercivilizational perspective, especially in the area of international human rights law (Yasuaki Onuma, Yadh Ben Achour, and Abdullahi Ahmed An-Na‘im). 2. In analyzing the relativism of the Western legal system, this book also investigates and compares some of the most significant doctrinal traditions in the study of international law: taken into account in addition to the Grotian tradition (from Hugo Grotius to Hedley Bull) are the cosmopolitan current – inclusive of Kant (Chap. 4), Hans Kelsen (Chap. 6), John Rawls (Chap. 9), and Jürgen Habermas (Chap. 8) – and the realist current, with Ludwig Dehio, Carl Schmitt, and Hans J. Morgenthau (Chap. 7). Thus, once the analysis of Grotius’s work is fully developed, we will consider the way ius gentium has changed over time, looking in particular at some crucial turning points up to the contemporary debate. In the first place we will be addressing the “cosmopolitan law” of Kantian thought (Chap. 4), which was conceived as a way to progressively move beyond the power politics of the sovereign states of the eighteenth century and as a criticism of Western colonialism, taking a historical perspective that, in the matter of international relations, laid the groundwork for asserting human rights against the states –

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:33, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.002

xxii

introd uction: t he west and the law of p eoples

a conception that did not come to full fruition until the 1948 Universal Declaration of Human Rights.9 Kantian thinking on international law has been interpreted not as utopian but rather as stoutly realistic, this because, as much as Kant may have envisioned an unachievable ideal of peace, he also laid out a necessary path on the way to that ideal. Then, in Chapter 6, still from the vantage point of the cosmopolitan perspective, we will be addressing the problem of the crisis of the sovereignty of nation-states in the transition from the nineteenth to the twentieth century, to this end drawing on Hans Kelsen, who proceeded precisely from an awareness of that crisis to develop a monistic conception of international law relative to the states’ domestic law. In his analysis he called into question the very principles of nineteenthcentury doctrine, where international law – conceived as the highest expression of the state – was accordingly reduced to what Hegel called external public law, or the state’s external law (äußere Staatsrecht). He instead drew on a tradition of thought that traced back to Christian Wolff and his doctrine of the civitas maxima, taking it up as the institutional form of a new society of peoples. Kelsen thus developed a conception that, moving beyond the contract-theory approach, made international law into a higher-order system independent of the will of the states. Corresponding to this doctrine was an ideology of “pacifism” set against the “imperialist” ideology of nation-states. On this foundation he built the paradigm in light of which to guide the development of present-day international law, understood to rest on two main principles as follows: (a) war needs to come under the rule of law, meaning that any wartime violations of the international legal order need to be subject to sanctions set forth in law; and (b) a relation between law and morals needs to be specified under a criterion of individual criminal responsibility for any actions committed in violation of human rights and of the principles governing a system of international criminal law. But, as we will see, this Kelsenian paradigm proves impracticable in the face of a system of international relations based on the unilateral action of the great powers. In continuity with the Kantian perspective, we will also discuss John Rawls (in Chapter 9), who frames a conception of international law as 9

See Norberto Bobbio, “Kant and the French Revolution,” chap. 8 in The Age of Rights, trans. Allan Cameron (Cambridge, UK, and Malden, MA: Polity Press, 1996), p. 122. The Italian original at Norberto Bobbio, L’età dei diritti (Turin: Einaudi, 1990), p. 154.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:33, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.002

introduction: t he west and the l aw of peoples

xxiii

part of a law of peoples inclusive of the principles of positive international law. Rawls’s attempt is to identify a common foundation of international law given the plurality of states and the plural ideologies they subscribe to, ranging from those of liberal democracy to those of Islamic law. He seeks to identify the conditions of a possible coexistence within “a just political society of well-ordered peoples.”10 More to the point, Rawls’s law of peoples sees in human rights a common standard which holds good independently of one’s ideological persuasion – be it natural law or Islamic law – and which can accordingly serve as a basis for membership in a just society of peoples. With this basic idea Rawls goes back to the crucial question of war, finding that any legitimation of war must be grounded in the guarantee of security, that is, in selfdefense, or else in the exception of “supreme emergency.”11 The discussion so far will have been an attempt to outline the transformations that international law has undergone from the ius gentium of the modern age to contemporary international law, developing some specific aspects of the complex relations that have historically developed between the rights of man, the rights of peoples, and the sovereignty of states. This discussion will also key in on two broad themes in international relations: on the one hand, the Western conceptions of human rights will be looked at in comparison with Islamic declarations of human rights (Chap. 10); on the other, we will be looking at the way international law has been understood from a Third World perspective (Chap. 11). In addressing the first theme, international law will clearly reveal itself to actually consist of a plurality of international systems deeply informed by the cultural differences by which peoples are divided. This appreciation will make it possible to compare the Western and Islamic visions of human rights so as to identify any common ground: I will be suggesting that this is to be found in the scholarly attempts to interpret Islamic religious sources from a historical perspective, even though it must be conceded that such scholarly efforts have yet to come into full bloom in the Islamic world. Chapter 10 will illustrate the conflict that has existed between the West and the Islamic world from the time of the negotiating and drafting history of the 1948 Universal Declaration of Human Rights. Starting 10 11

John Rawls, “The Law of Peoples,” Critical Inquiry, 20, no. 1 (1993), 36–68, at 50. John Rawls, The Law of Peoples, with the “Idea of Public Reason Revisited” (Cambridge, MA, and London: Harvard University Press, 1999), p. 97.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:33, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.002

xxiv

i n t r o d uc t i o n : t h e we s t a n d th e l a w of p e o pl e s

from the Barcelona Declaration of 1995, however, the Mediterranean has been identified as the geopolitical area that – by reason of a long historical tradition of cross-fertilization among civilizations (Greek, Roman, Hebraic, Christian, and Islamic) – can give rise to a “meeting of civilizations,” as contrasted with the “clash of civilizations” at the core of the Atlantic North American account. Chapter 11 then develops in depth that specific stream in the analysis of modern international law which goes by the label TWAIL, short for Third World Approaches to International Law, on which, as the name suggests, Western international law is viewed from a Third World perspective. Here we will be looking at the work of scholars like R. P. Anand, Antony Anghie, James Thuo Gathii, Balakrishnan Rajagopal, Siba N’Zatioula Grovogui, and Bhupinder Chimni, focusing on two specific theses they have advanced about international law: first, that this is the source from which there developed the ideology on which basis colonialism has been justified; and, relatedly, that international law places itself at the service of the Western powers’ new colonial approaches. Chapter 12, in the fourth and final part of the book, analyzes the conditions for a possible meeting of civilizations in domestic law. On this approach, the problem of the foundation of rights will be addressed by relating rights to dignity, and in particular by comparing the Western understanding of this relation with its understanding in the Islamic tradition. This analysis will suggest the need to recognize cultural rights, so as to protect the identities embedded in different cultures and make for more-embracing democracies, moving toward a legal pluralism bound to work deep changes in them. Only if Western democracies succeed in effecting forms of integration through which “the other” is recognized and respected will they be able to present themselves as participants in an “intercivilizational dialogue” in which they are in their own turn recognized by countries belonging to other civilizations and cultures. Finally, Chapter 13 challenges what in the Western debate has been advanced as the idea of a possible “constitutionalization” of international law, an idea that we will be scrutinizing by looking at the work of contemporary authors like Jürgen Habermas, Christian Tomuschat, and Armin von Bogdandy against the backdrop of the power of empire in international relations. But we will also be considering the objection the so-called Third World has raised against the project for global governance and the claims made in favour of the “rights of peoples.” The future does seem unpredictable.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:33, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.002

1 The Rights of Peoples and Ius Gentium: Their Origins in the Modern Age

In response to the Protestant Reformation, Catholicism set out to reinforce its own doctrinal principles. This it did mainly by going back to the philosophy of Thomas Aquinas. This renewed doctrinal emphasis, sometimes referred to as Second Scholastic, developed out of the Spanish university of Salamanca. Among the leading exponents of this School of Salamanca was the Dominican friar Francisco de Vitoria (1483–1546). The historical situation he found himself grappling with was singularly complex and tormented: on the one hand it was felt necessary for Catholicism to counteract the Reformation; on the other the nascent sovereign states were bent on asserting their power over the Papacy and the Holy Roman Empire. Furthermore, two fundamental questions were confronting Christianity: there was the problem raised by the discovery of the New World, making it necessary to legitimize its conquest at the hands of the European powers; and there was the expansionist drive of Islam, which posed an existential threat to the Western world of Christianity. The analysis and solutions that Vitoria offers in addressing these crucial problems have earned him a place, next to Hugo Grotius, as one of the founding fathers of ius gentium, that is, of modern international law. We should therefore discuss the principles he laid at the foundation of the law of peoples, with a particular focus on four fundamental problems: (1) the relation between the Papacy and the Empire, (2) the rights of peoples, (3) the legitimation of the Spanish conquest, and (4) the criteria of “just war.”

1.1 The School of Salamanca and the Foundation of Power In response to the absolutist policies pursued by Charles V and Philip II of Spain, the School of Salamanca – otherwise known as Second 3

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

4

ius genti um and t he origins of international law

Scholastic, or Early Modern Scholasticism – formulated the doctrines of natural law and of limited sovereign power, all the while setting the state on a contract-theory foundation and making the argument that political power ultimately rests with the people.1 In Spain this movement was taken to extremes with equal force against the Pope and the Emperor. Wrote Vitoria: “Even if the Emperor were the lord of the world, that would not entitle him to seize the provinces of the Indian aborigines and to erect new lords and put down the former lords or to levy taxes. The Pope is not civil or temporal lord of the whole world, in the proper sense of civil lordship and power.”2 This rejection of a universal monarchy entailed two major consequences: that there is a natural law of universal scope, applying as ius gentium to the whole of humanity, and that there is a plurality of autonomous and sovereign powers.3 In the view of Fernando Vázquez, a jurist influenced by Vitoria,4 princes and peoples alike were sovereign subjects under the ius gentium. He held that when the people form into a res publica under the law, their power vests entirely in the sovereign. On this view the ius gentium encompassed both international law and the domestic law internal to each state.5 1

2

3

4

5

In this regard, see Gerhard Oestreich, Geschichte der Menschenrechte und Grundfreiheiten im Umriß (Berlin: Duncker & Humblot, 1978), p. 34. Franciscus de Victoria, “The first relectio of the Reverend Father, Brother Franciscus de Victoria: On the Indians lately discovered,” in Ernest Nys (ed.), De Indis et de Iure Belli Relectiones, Being Parts of Relectiones Theologicae XII by Franciscus de Victoria, trans. John Pawley Bate (New York and London: Oceana Publications, 1917), titles 1 and 2 of sec. 1. The Latin original: “Imperator non est totius orbis dominus. Dato quod imperator esset dominus mundi, non ideo id posset occupare provincias barbarorum, et constituere novos dominos, et veteres deponere, vel vectigalia capere. Papa non est dominus civilis, aut temporalis totius orbis, loquendo proprie de dominio et protestate civili.” Francisco de Vitoria, “De Indis insulanis relectio prior” (1539), in Relectiones Theologicae XII, Tomus Primus (Lugduni: apud Iacobum Boyerium, 1557), pp. 313, 319, 322. Ernst Reibstein, Von der Antike bis zur Aufklärung, vol. 1 of Völkerrecht: Eine Geschichte seiner Idee in der Lehre und Praxis (Freiburg: Verlag Karl Alber, 1957–58), p. 279. Reibstein observes that the Spanish theologians were heirs to the Conciliar movement, which sought to reform ecclesiastic policy by vesting the Church’s supreme authority in an ecumenical council, and whose lasting effect consisted in modernizing the medieval doctrine under which the power of the state is derived. Reibstein claims that Vasquez met Vitoria in Salamanca and from him borrowed some of the essential elements of his own doctrine. See Ernst Reibstein, Die Anfänge des neueren Natur- und Völkerrechts: Studien zu den “Controversiae illustres” des Ferdinandus Vasquius (1559) (Bern: Verlag Paul Haupt, 1949), p. 21. Wrote Vázquez: “Nos auté advertimus quod omnes homines iure naturae et gentium utimur, regimur et subiacemur a quo minime recedere fas est.” Fernando Vázquez de

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

the rights of p eoples and ius gentium

5

In the view of Vitoria, by contrast, the sovereign held power through the people, but this power ultimately derived from God, such that the power of the state was founded on a divine mandate, and under natural law it was with the people that power ultimately rested. The state’s sovereignty thus came to it by way of the political community, meaning the res publica,6 on which it depended for its foundation. In this way a close relation was established between the sovereignty of the state, which was gaining recognition in international law, and the selfdetermination of the people. Finally, the sovereignty of states was set by Vitoria within the frame of his totus orbis doctrine,7 under which all peoples form a single great community extending across the entire world. The basic feature of this community consisted in its being governed exclusively by the laws of justice and fairness.

1.2 The Rights of Man, the Rights of Peoples, and Ius Gentium in Francisco de Vitoria The totus orbis conception is clearly grounded in natural law. Indeed, Vitoria proceeds from an assumption of equality among men and peoples, whose mutual relations must accordingly stand on an equal footing.8 This conception is based on the premise that all men are endowed with the same material and spiritual nature that shapes their development as

6

7

8

Menchaca, Controversiarum illustrium aliarumque usu frequentium libri tres (Venice: Rampazetus, 1564), I, 26, § 14, p. 80. And: “Sic ergo de iure communi omnium gentium princeps non lege superior, sed potius eius minister, custos et executor est, ut iam diximus” (ibid., I, 45, § 3, p. 127). Furthermore, “ius comune à iureconsultis appellatur ius naturale vel gentium” (ibid., I, 45, § 17, p. 128). Wrote Vitoria: “[Question 1, Article 4: The material cause of civil power is the commonwealth.] / But the material cause on which this naturally and divinely appointed power rests is the commonwealth.” Francisco de Vitoria, “On civil power,” in Anthony Pagden and Jeremy Lawrance (eds.), Political Writings (Cambridge: Cambridge University Press, 1991), p. 11. The Latin original: “Constitutione ergo divina, respublica hanc potestatem habet: causa vero materialis in qua huiusmodi potestas residet iure naturali.” Vitoria, “Relectio de potestate civili” (1528), in Relectiones Theologicae (n. 2), p. 183. As Vitoria put it: “The whole world, which in a sense is a commonwealth, has the power to enact laws which are just and convenient to all men; and these make up the law of nations.” Vitoria, “On civil power” (n. 6), p. 40. The Latin original: “Habet enim totus orbis, qui aliquo modo est una respublica, potestatem ferendi leges aequas, et convenientes omnibus, quales sunt in iure gentium.” Vitoria, “Relectio de potestate civili” (n. 6), p. 208. See Josef Soder, Die Idee der Völkergemeinschaft: Francisco de Vitoria und die philosophischen Grundlagen des Völkerrechts (Frankfurt am Main: Metzner Verlag, 1955), p. 80.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

6

ius gentium and t he origins o f international law

members of a community. The approach behind this conception is Stoic,9 grounding natural law in human nature, and so in the natural equality of men: on the one hand the interests and ambitions of individuals define the structure and aims of the state, but on the other hand they find their limit in the bonum commune, or common good.10 Life alone is inviolable, and in relation to it even the common good cannot take precedence. What explains Vitoria’s interest in an investigation of international law is the necessary connection that in his doctrine obtains between the equality of men and the equality of peoples: just as human nature grounds the equality of men – for they all have that same element in common – so it also grounds the equality of peoples. And here Vitoria goes so far as to put forward the idea that just as individuals have rights, so do the peoples they belong to. In short, the community of peoples and of states is based on the same human nature “from which derive those higher legal principles that govern the man’s natural membership in the state and the states’ membership in the community of the whole of humanity.”11 In virtue of the link Vitoria found between the natural rights of man and the ius gentium, governing relations among states, he was prompted to draw some conclusions of disruptive force, especially on Spain’s policy of conquest. These are considerations that matter importantly even in the contemporary debate. The most significant sources for understanding Vitoria’s theses on the equality of peoples and states are the De Temperantia, the Relectio de Indis, and the Relectio de Iure Belli, three writings in which are contained the principles of his doctrine on the law of peoples. The problem at hand was whether the peoples of the New World could be subjugated, considering that they followed customs contrary to natural law and to nature and practiced killing. In reality, Vitoria observed, Christians themselves were tainted with a record of criminal behavior that would on the very same basis warrant a war waged by the Indios against Christian faithfuls.12 In short, Vitoria accords an equal standing 9 10

11 12

Oestreich, Geschichte der Menschenrechte (n. 1), p. 34. As Vitoria put it, “with regard to natural things the community is superior and the individual is subject or inferior.” Vitoria, “On the power of the Church,” II, in Political Writings (n. 6), p. 119. The Latin original: “Licet enim in ordine ad naturalia communitas sit superior, et quilibet homo velut subiectus et inferior in ordine.” Vitoria, “Relectio de potestate ecclesiae” (1532–1533), II, in Relectiones Theologicae (n. 2), p. 120. Soder, Die Idee der Völkergemeinschaft (n. 8), p. 82; my translation. “F O U R T H C O N C L U S I O N : Christian princes cannot wage war on unbelievers on the grounds of their crimes against nature, any more than for other crimes which are not

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

t h e ri g h t s of p e o p l es a n d ius gentium

7

to pagans and Christian peoples in what concerns the right to declare war.13 Despite this equiparation, Vitoria finds it legitimate to wage war to protect the rights of man, especially in the face of human sacrifice.14 So, if on the one hand this position posits human life as a supreme value, on the

13

14

against nature. For example, they cannot use the sin of sodomy, any more than the sin of fornication, as a pretext.” Vitoria, “On dietary laws, or self-restraint,” in Political Writings (n. 6), p. 224; italics in original. Vitoria carries this reasoning further: “Now by this argument the princes of non-Christians would have as much right to declare war on Christians who sin against nature” (ibid., p. 225). The two passages in the Latin original: “Quarta conclusio: Principes cristiani non possunt inferre bellum infidelibus ratione delictorum contra naturam plus quam propter alia delicta quae non sunt contra naturam, puta propter peccatum sodomiae plus quam propter peccatum fornicationis.” Vitoria, fragment belonging to the Relectio de Temperantia (1537), appendix I, 2, to Vicente Beltrá n de Heredia (ed.), Comentario al tratado de la ley (Madrid: Instituto Francisco de Vitoria, 1952), p. 107. “Item sequeretur quod principes infideles possunt etiam inferre bellum christianis, qui peccant contra naturam” (ibid., p. 109). In this regard, see Soder, Die Idee der Völkergemeinschaft (n. 8), p. 84. On Vitoria’s fragment belonging to the Relectio de Temperantia, see Ada Lamacchia, “Francisco de Vitoria e l’innovazione moderna del diritto delle genti,” introduction to Vitoria, Relectio de Indis: La questione degli Indios (Bari: Levante Editori, 1996), pp. LIII ff. See Lamacchia, “Francisco de Vitoria” (n. 12), p. LIV. The radical nature of these theses was probably the reason why Vitoria ended up removing the fragment from the Relectio de Temperantia. The fragment was found by Vicente Beltrán de Heredia between 1929 and 1930 in the Dominican archives in Seville. On the find, see ibid., LI. Wrote Vitoria: “Christian princes can declare war on the barbarians because they feed on human flesh and because they practice human sacrifice.” Vitoria, “On dietary laws, or selfrestraint” (n. 6), p. 225. Elsewhere he writes: “I assert also that without the Pope’s authority the Spaniards can stop all such nefarious usage and ritual among the aborigines, being entitled to rescue innocent people from an unjust death.” Victoria, “On the Indians lately discovered” (n. 2), sec. 3.15, § 403. The Latin original: “Principes christianorum possunt inferre bellum bar- baris quia vescuntur carnibus humanis et quia sacrificant homines.” Vitoria, fragment from the Relectio de Temperantia, in Comentario al tratado de la ley (n. 12), p. 107. “Dico etiam, quod sine authoritate Pontificis possunt Hispani prohibere barbaros ab omni nefaria consuetudine, et ritu, quia possunt defendere innocentes a morte iniusta.” Vitoria, “De Indis” (n. 2), p. 368. In the same vein, Vitoria found that even though the Indios were possessed of human rationality, they did not manage to develop its full potential. Indeed, taking up the Aristotelian distinction between actuality and potentiality, he asserts that “God and nature are not wanting in the supply of what is necessary in great measure for the race. Now, the most conspicuous feature of man is reason, and power is useless which is not reducible to action.” Victoria, “On the Indians lately discovered” (n. 2), sec. 1, 23rd proposition. The Latin original: “Deus et natura non deficiunt in necessariis pro magna parte speciei. Praecipuum autem in homine est ratio, et frustra est potentia, quae non reducitur ad actum.” Vitoria, “De Indis” (n. 2), p. 309. Vitoria accordingly found it

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

8

i u s g e n t i um and t he origins of international law

other it ambiguously lends itself to justifying the Spanish conquerors in waging war on the peoples of the New World. As for the rights of people, the question that comes up instead is that of recognizing the rights the New World populations have to the goods in their possession. Here Vitoria argues that the Spanish conquest is not grounds for robbing them of their riches. These ideas are further developed in the Relectio de Indis, where Vitoria, as we saw, argues that the Holy Roman Emperor is not the sovereign of the world (dominus totius orbis), and so that it would not be possible to take this route in legitimizing the subjugation of New World peoples. After all, Vitoria argues, even those who see the Emperor as having dominion over the world (dominium orbis) must concede that such dominion is exercised not by property (per proprietatem) but by jurisdiction (per iurisdictionem).15 This is consistent with the other thesis advanced by Vitoria, who asserts that the peoples of the Americas before the Spanish conquest enjoyed the status of legal persons, and that among them there accordingly existed ownership relationships. In this respect, too, their position was equal to that of Christian peoples.16 The foundation of ius gentium in natural law, a foundation in turn rooted in Stoic doctrine, thus makes it possible to construct a law of peoples predicated on the principle that all men and peoples have equal rights.

15

16

legitimate for the Spaniards to administer the “barbarian” peoples, provided that this policy not be carried out in self-interest but for the benefit of the Indios: “It might, therefore, be maintained that in their own interests the sovereigns of Spain might undertake the administration of their country, providing them with prefects and governors for their towns [. . .], so long as this was clearly for their benefit.” Victoria, “On the Indians lately discovered” (n. 2), sec. 3.18, § 407. The Latin original: “Posset ergo quis dicere, quod pro utilitate eorum possent principes Hispani accipere administrationem illorum, et constituere illis per oppida praefectos et gubernatores [. . .] cum illa limitatione, ut fiant propter bona, et utilitatem eorum, et non tantum ad quaestum Hispanorum.” Vitoria, “De Indis” (n. 2), pp. 372–73. On this point, cf. Martin van Gelderen, “Vitoria, Grotius and human rights: The early experience of colonialism in Spanish and Dutch political thought,” in Wolfgang Schmale (ed.), Human Rights and Cultural Diversity: Europe, Arabic-Islamic World, Africa, China (Goldbach: Keip Publishing, 1993), p. 221. Victoria, “On the Indians lately discovered” (n. 2), sec. 2.2, § 349: “even those who attribute lordship over the world to the Emperor do not claim that he is lord in ownership, but only in jurisdiction.” The Latin original at Vitoria, “De Indis” (n. 2), p. 320. Cf. Soder, Die Idee der Völkergemeinschaft (n. 8), p. 89. Victoria, “On the Indians lately discovered” (n. 2), sec. 1.24, § 336: “the conclusion stands sure, that the aborigines in question were true owners, before the Spaniards came among them, both from the public and the private point of view.” The Latin original: “Restat conclusio certa, quod antequam Hispani ad illos venissent, illi erant ita veri domini, et publice et privatim.” Vitoria, “De Indis” (n. 2), p. 310.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

t h e ri g ht s of p e o p l e s a n d i u s gen tiu m

9

1.3 The Legitimation of the Spanish Conquest of the New World As straightforward as Vitoria’s theses may seem in the outline just offered, there is a greater complexity to them. Indeed, in asserting the rights of the Indios, he did not rule out the legitimacy of the Spanish conquest. Even if neither the Spanish discovery of the New World nor its conquest and occupation was legal grounds for exercising sovereign power over the same lands, for these were subject to the dominion of its non-Christian peoples, the Spanish did, in his judgment, have other grounds. On top of the list he placed “natural partnership and communication,”17 giving the Spaniards the right to stay in and travel the lands of the Indios (so long as no damage was done to them). Another ground lay in the right to wage war on them if any of their sovereigns should embark on a policy of steering back to idolatry the Christian converts who were subject to their rule. Another one still was papal authority, so long as the Pope willed that converted Indios come under the rule of a Christian sovereign. And, as noted, Vitoria also mentions the imperative to protect innocent people against inhuman laws; an uncoerced decision of the Indios to accept the king of Spain as their sovereign; and a call for Spanish help by any local population engaged in conflict with another. But as Carl Schmitt observes, especially important among the grounds on which to base the Spanish conquest was the one listed as the “second title,” by papal mandate: this was held up as the true ground of legitimacy. It consisted in the Pope entrusting to the Spaniards the mission to crusade and convert the Indios to Christianity,18 from which also derived the justness of war, which could be waged on that basis, and an ensuing conquest would thereby also be legitimate. From these grounds follow 17

18

Vitoria, Political Writings (n. 6), p. xxvi. Luigi Ferrajoli underscores in this regard how the foundation on which Vitoria rested his idea of an international community as a communitas orbis lay in what he referred to as ius communicationis ac societatis, along with the bodies of law it entailed, most notably ius commercii and ius migrandi: this, in his view, provided the ground on which the Spanish conquest found its legitimation. See Luigi Ferrajoli, “Dai diritti del cittadino ai diritti della persona,” in Danilo Zolo (ed.), La cittadinanza: Appartenenza, identità, diritti (Rome and Bari: Laterza, 1994), p. 290. See Carl Schmitt, The Nomos of the Earth in the International Law of Jus Publicum Europaeum, trans. G. L. Ulmen (New York: Telos Press Publishing, 2006; orig. pub. 1950). Wrote Victoria: “Another possible title is by way of propagation of Christianity.” Victoria, “On the Indians lately discovered” (n. 2), sec. 3.9, § 397. The Latin original: “Alius titulus potest esse scilicet causa religionis christianae propagandae.” Vitoria, “De Indis” (n. 2), p. 352.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

10

i u s g e nt i u m a n d th e o r i g i n s of in t e r n a t i o n a l l a w

some implications of deep significance, some of these relating to the cultural backdrop against which to set Vitoria’s “law of peoples,” others instead relating to the criteria of “just war” and what these in turn mean, which will be the topic of the next section. In Vitoria’s worldview, “although [. . .] the Pope is not temporal lord, yet he has power in matters temporal when this would subserve.”19 This stance, according to Schmitt, locates Vitoria’s thinking within the conception of the medieval res publica Christiana, in which the Papacy and the Empire figured as two dispensations within the same unity. The Church also secured the legitimacy of any war that might be waged under its own authority, for the papal mandate would clearly set out the iusta causa of such a war. This doctrine fell out of favor only with the advent of the system of territorial states, when it would no longer be possible to reconcile it with the European international law proper to the interstatal period from the sixteenth to the twentieth century. Schmitt characterizes the transformation by noting that “the completely secularized international law now in force is based on the territorial sovereignty of states, each of which might conclude its own concordat [with the Vatican], none of which recognizes any spiritual authority with regard to international law, and all of which treat religious questions as purely internal state matters.”20 On this modern conception, the criterion for the justness of war would no longer lie in the authority of the Church but in the equal sovereignty of states within the system of jus publicum Europaeum. In this system, predicated on the balance of power among states, the criterion of just cause would no longer hold sway, and all wars waged by sovereign states would be considered just. The ecclesiastic argument would give way to the legal one, and the moral justa causa argument would be displaced by the formal-legal justus hostis one.21 However, without denying that Vitoria’s doctrine belongs in the context of the medieval res publica Christiana, it must also be underscored that this doctrine was highly innovative in recognizing the plurality of sovereign states and the equal rights of peoples (even if Vitoria managed 19

20 21

Victoria, “On the Indians lately discovered” (n. 2), sec. 3.10, § 398. The Latin original: “Probatur, quia licet [. . .] papa non sit dominus temporalis, tamen habet potestatem in temporalibus in ordine ad spiritualia.” Vitoria, “De Indis” (n. 2), p. 363. Schmitt, The Nomos of the Earth (n. 18), pt. II, chap. 2, § B, p. 111. Ibid., chap. 3, § C, pp. 133 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

t h e ri g h t s of p e o p l es a n d ius gentium

11

to inconsistently work an exception into this statement of principle, arguing for the legitimacy of the Spanish conquest). It also bears pointing out that even though Vitoria’s doctrine was couched in theologico-moral terms,22 and not in formal-legal ones, it supplied a system of arguments and counterarguments that would then be used in the subsequent debate on international law, as we will see with Hugo Grotius. As mentioned, we will now be turning to the criteria of “just war” and the consequences deriving from it in the vision introduced by Vitoria.

1.4 The Doctrine of Just War in Francisco de Vitoria Vitoria, as we have seen, thought that the Spanish conquest rested on grounds of legitimacy, or “titles,” which he proceeded to list and argue for. We therefore need to enter into the question of just war in his thought, so as to bring this contentious position under scrutiny, both in relation to the conquest of the New World and in relation to the rights of its native inhabitants. But for a proper assessment of his position we need to bring some further elements into the picture. What Vitoria understands by just war is essentially a defensive war making it necessary to counteract force with force. Thus, if the Indios should have tried to prevent the Spanish from exercising one of their basic rights under ius gentium, such as the right of commerce (ius commercii), it would have been legitimate for the Spaniards to resist such resistance by armed force, and such a war would qualify as just.23 In the same way, it would be legitimate for the Indios to forcibly drive back the Spaniards if the latter, having failed to win over the hearts and minds of the Indios despite a good-faith effort to do so, turned to coercive measures prompting the Indios to take up arms against them out of fear. In that case, the Indios would have cause to wage war on the grounds of 22 23

Ibid., chap. 2, § D, p. 124. Writes Vitoria: “But if, after this recourse to reason, the barbarians decline to agree and propose to use force, the Spaniards can defend themselves and do all that consists with their own safety, it being lawful to repel force by force.” Victoria, “On the Indians lately discovered” (n. 2), sec. 3.6, § 393. The Latin original: “Quod si reddita ratione barbari nolunt acquiescere, sed velint vi agere, Hispani possunt se difendere, et omnia agere ad securitatem suam convenientia: quia vim vi repellere licet.” Vitoria, “De Indis” (n. 2), p. 358. See in this regard the in-depth analysis offered in Giuseppe Tosi, “La teoria della guerra giusta in Francisco de Vitoria,” in Merio Scattola (ed.), Figure della guerra: La riflessione su pace, conflitto e giustizia tra Medioevo e prima età moderna (Milan: FrancoAngeli, 2003), pp. 68 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

12

ius gentium and t he origins of international law

their “invincible ignorance” (ignorantia invicibilis).24 It could thus be that war is justified on both sides, one acting to assert a right that has been infringed, the other being induced to respond out of “ignorantia invincibilis.” These considerations by Vitoria draw a distinction between “guilty” enemies and those who instead reacted with force only because innocent of the reasons the conquistadores had for their exploits, or at least because “unable” to grasp these reasons. But even here there were limits to the idea of the respect owed to innocent enemies, and it is in laying out how these limits could be overcome that Vitoria set out to justify the Spanish conquest and plunder. Indeed, he took the view that if, despite the reassurances the Spanish gave in word and deed, “the barbarians persist [. . .] in their hostility, and [. . .] try to destroy the Spaniards, the latter may make use of all the rights of war, may despoil their enemies of their goods, may reduce them to captivity and may depose their chiefs.”25 For Vitoria, then, as Carl Schmitt pointed out, it was not just that in the spread of Christianity lay the true ground of the Spanish conquest: it was also the case that if the Indios maliciously persevered (perseverarent in malitia sua) in disregarding the Spaniards’ declarations and “peaceful” conduct, they were liable to be oppressed with just cause. Here, as has been rightly observed,26 the theory of defensive war turns offensive, and the rights of a people could brutally be trampled upon. Whatever grounds the Indios might have had for rejecting the Spaniards’ own reasoning, this warranted the taking up of arms against them. The Indios’ reasons – those of “the other” – could not even fit into the same equation with the reason asserted by a Christian power. The Spanish conquerors acted under the principles of ius gentium, which Vitoria posited as universally valid. Ergo, any rejection of these principles meant, not that they needed to be assessed on their merits in an earnest exchange with others of a different persuasion, but that one’s own conquest and occupation was thereby legitimated on the ground of that very rejection: there was no room for the reasons proffered by the other. The purported universality of ius gentium ruled out any differentiation between one people and 24

25 26

Writes Vitoria: “There is no inconsistency, indeed, in holding the war to be a just war on both sides, seeing that on one side there is right and on the other side there is invincible ignorance.” Victoria, “On the Indians lately discovered” (n. 2), sec. 3.6, § 394. The Latin original: “Nec est inconveniens, quod cum ex una parte est ius, et ex altera ignorantia invicibilis, quod sit bellum iustum ex utraque parte.” Vitoria, “De Indis” (n. 2), p. 359. Ernest Nys, introduction to Victoria, “On the Indians lately discovered” (n. 2), sec. 4. Tosi, “La teoria della guerra giusta in Francisco de Vitoria” (n. 23), pp. 70–71.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

t h e ri g ht s of p e o p l e s a n d i us gen tiu m

13

another, and the rights of peoples could be recognized only under the principles of a law of peoples uniformly construed. This was the frame within which Vitoria’s thinking was bounded, and therein lie the limits of his doctrine. On this basis, Vitoria can unequivocally be described as a defender of Spain’s New World conquest. In the Relectio de Iure Belli (1539) Vitoria broadened and systematized his thinking on the law of war, a topic he had previously discussed in his Relectio de Indis (1539), and which is now broken down into four questions: (1) whether it is legitimate for Christians to make war, (2) who has the authority to declare war, (3) what are the causes of a just war, and (4) what is it legitimate for Christians to do against their enemies.27 Specifically as concerns the question of what qualifies as a just war – a question that, as just mentioned, is addressed in the Relectio de Indis and then developed in the Relectio de Iure Belli – Vitoria proceeds by invoking the authority of Augustine and Thomas Aquinas, and on this basis he argues that only in response to an offence received can a war be deemed just.28 But in turning to the fourth question, relating to what can legitimately be done in a just war, Vitoria goes significantly into deeper detail on the question of the causes that can justify a war. And indeed, in asking whether it is legitimate to kill all those who are guilty, he finds that this can indeed be done, and that there are four grounds for such a course of action: “Firstly, in defense of ourselves and what belongs to us; secondly, to recover things taken from us; thirdly, to avenge a wrong suffered by us; fourthly, to secure peace and security.”29 It was especially this last ground, security, that in his view was decisive in justifying war, for he sees it as laying the foundation on which enemies could be exterminated. Indeed, he took the view that “there are times when security cannot be got save by destroying all one’s enemies: and this is especially the case against unbelievers, from whom it is useless ever to hope for a just peace on any terms.”30 This last consideration by Vitoria bears comment, considering that in the same text Vitoria also takes into account the Christian nations’ 27

28 29 30

Franciscus de Victoria, “The second relectio of the Reverend Father, Brother Franciscus de Victoria: On the Indians, or on the law of war made by the Spaniards on the barbarians,” in Relectiones Theologicae (n. 2), § 417. For an extensive and well-sourced introduction to Vitoria’s De Iure Belli, see the one prepared for its Italian translation in Francisco de Vitoria, De Iure Belli (1539), ed. Carlo Galli (Rome and Bari: Laterza, 2005). Victoria, “On the law of war” (n. 27), § 417. Ibid., point 44, § 454. Ibid., point 48, § 457. In this regard, see Tosi, “La teoria della guerra giusta in Francisco de Vitoria” (n. 23), p. 80.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

14

i u s g e n ti um an d th e o r i gi n s of international law

relations to the Muslim world. For Vitoria, as mentioned, the criterion for determining what is legitimate in waging a just war (ius in bello) lies in security, which in turn depends on the prospect of securing peace. Considering that the infidels, meaning Muslims who reject the Christian faith, offer no possibility for there to be peace, for in relating to them “it is useless ever to hope for a just peace on any terms,” it is legitimate to carry out a policy of extermination so as to guarantee security for the Christian powers. This is a disquieting passage of extraordinary topicality, showing how far back the clash between the West and Islam goes, and how – even to a thinker like Vitoria, with his deep concern for the rights of peoples – it appears not to admit of any solution. Indeed, like the Jews, the Muslims are “persistent enemies of Christianity.”31 The problem of the Christian powers’ relation to Islam also comes up elsewhere in the Relectio de Iure Belli, in the first part of the fourth question, where Vitoria lays out what is legitimate in a just war. Here, turning to the first doubt in that regard, he considers whether a war can be made just simply on the ground “that the prince believes himself to have a just cause.” This he resolutely denies, for if that were the case, then “very many wars would be just on both sides.”32 And so it would happen that “even Turks and Saracens might wage just wars against Christians, for they think they are thus rendering God service.”33 In this way, the relation between war and justice at once finds itself hijacked by the question of religion. The problem here is no longer that of 31

32 33

Victoria, “On the Indians lately discovered” (n. 2), sec. 1, 24th proposition, § 334. This is a description that Vitoria offers in discussing the question of the Indios’ property rights over their goods: “It would be harsh to deny to those, who have never done any wrong, what we grant to Saracens and Jews, who are the persistent enemies of Christianity. We do not deny that these latter peoples are true owners of their property, if they have not seized lands elsewhere belonging to Christians.” In the fragment belonging to the Relectio de Temperantia (1537), Vitoria was instead more attuned to the need not to coerce non-Christians and to respect their religions: “If the Saracens, being in other respects free, are compelled by the Christians in a just war to accept a Christian prince on the condition that they are allowed to keep their own rituals, then, as I say, the prince could not compel them to give up their own rituals and accept ours [. . .].” Vitoria, “On dietary laws, or self-restraint,” in Political Writings (n. 6), p. 227. The Latin original: “Quod si iure belli cogant saracenos, alia iure liberos, a christianis recipere christianum principem sed ea conditione ut permittant eos vivere suis ritibus, tunc inquam non posset eos cogere ad tollendos ritus suos et nostros recipere.” Vitoria, fragment from the Relectio de Temperantia, in Comentario al tratado de la ley (n. 12), p. 109. Victoria, “On the law of war” (n. 2), point 20. Ibid.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

t h e ri g ht s of p e o p l e s a n d i us gen tiu m

15

redressing an injustice but that of any creed other than one in the God of Christianity. Once more Vitoria’s doctrine is put to the test, and in the face of the challenge it is confronted with it upholds the undoubtable truth of the Christian doctrine, finding that the “Turks and Saracens” are mistaken in their belief that they are obeying God. Western reason and the Christian doctrine thus stand tall as august monuments emblazoned with a truth that no other reason can tarnish: not that of the Indios, and not the faith of the Muslims. Vitoria thus rules out the possibility that a war might be just on both sides of the conflict. Only where both of the sides at war are Christian princes does his judgment appear more problematic. In the first place, he holds that in such cases it is not legitimate to kill all enemies, for that would be unacceptably harmful to the Christian religion. Furthermore, going back to a point previously made in the Relectio de Iure Belli (in the fifth proposition of the first part of the fourth question), Vitoria holds that a prince’s subjects are not in a position to judge the causes of war, for if in a doubtful case they refused to follow their prince they would “expose themselves to the risk of betraying their State to the enemy.”34 For even if a prince’s subjects were defeated in a war fought for an unjust cause, they would nonetheless be innocent, from which it follows, according to Vitoria, that after such a defeat it would not be legitimate to kill them.35 An elucidation is called for in order to fully appreciate these positions asserted by Vitoria. Which is to say that in drawing a distinction between infidels (perpetui hostes) and Christian princes, and arguing that they do not have the same right to kill all the guilty who have been defeated, he is reasoning within the frame of a problem that was specific to the nascent reality of the sovereign states. In the first part of the fourth question, namely, “what kind and degree of stress is lawful in a just war,” Vitoria addresses the third and fourth doubts: “what should be done when the justice of the war is doubtful, that is, when there are apparent and probable reasons on both sides” and “whether a war can be just on both sides.” Here Vitoria comes fully into modernity by observing, in the first place, that “princes are judges in their own cases, inasmuch as they 34 35

Ibid., point 31, § 442. Ibid., point 48, § 458: “And therefore after their defeat, when no further danger is present, I think that they may not be killed, not only not all of them, but not even one of them, if the presumption is that they entered on the strife in good faith.”

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

16

i u s g e n ti um an d th e o r i gi n s of i nternational law

have no superior,”36 thus recognizing the new reality of sovereign states that do not accept any higher authority and accordingly assert the right to declare war without any authorization other than their own.37 In the second place, Vitoria grants the possibility that a war may be just on both sides when one side is acting within justice and the other believes it is doing so, thus acting in good faith, even if it is demonstrably ignorant of fact or of law (posita ignorantia probabili facti aut iuris).38 There resurfaces here the element of “ignorance,” which in this case winds up legitimizing the view that a war may be just on both sides. The foregoing considerations provide a basis for an assessment of Vitoria, but what they highlight is that no such assessment can be simple or straightforward. For even though he sets out to uphold the rights of peoples, he does so on the basis of a ius gentium fully informed by the “universal” principles of Western law, while at the same time assuming the truth of the Christian faith, held up in contrast to the error of the Muslim faith, thus ultimately stating, by implication, that the clash between Islam and the West is intractable. On the other hand, he embraces modernity by recognizing the reality of the new sovereign states, no longer subject to the authority of the Pope or of the Holy Roman Emperor. In this respect, his work anticipates the thinking of the other founder of modern international law, Hugo Grotius.

1.5 Bartolomé de Las Casas and the Perspective of Cultural Relativism Whereas Francisco de Vitoria set out principles for a natural law of peoples, and in opposition to the creeds of the “infidels” set the “true” faith in God, Bartolomé de Las Casas recognized cultural diversity and accorded full legitimacy to it. Unlike Francisco de Vitoria, Las Casas was a firsthand witness to the Spanish conquest of the New World, and even participated in it for a time. In his 1552 Short Account of the Destruction of the Indies he described the cruelties the conquistadores inflicted on the natives, to this day causing us to recoil in horror at that enterprise.39 It was by 36 37 38 39

Ibid., point 29, § 440. See Tosi, “La teoria della guerra giusta in Francisco de Vitoria” (n. 23), p. 74. Victoria, “On the law of war” (n. 2), point 32, § 444. The figures giving a measure of the genocide are shocking: “At a conservative estimate, the despotic and diabolical behaviour of the Christians has, over the last forty years, led to

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

t h e ri g ht s of pe o p l e s a n d i u s gen tiu m

17

deliberately refusing to recognize “the other” as human that it became possible for the Christian conquerors to engage in such savagery. In the face of this spectacle, Las Casas resolved to cast a positive light on the nature of the Indios,40 always quick to point out what the Spanish conquest was doing to them, and what the backlash was: in relating an incident in which an indigenous chieftain refused to accept the Christian faith, Las Casas wryly commented that “this is just one example of the reputation and honour that our Lord and our Christian faith have earned as a result of the actions of those ‘Christians’ who have sailed to the Americas.”41 The defense Las Casas offered of the Indios came in full force only in the Apologia, which he wrote in objection to the theses that Juan Ginés de Sepúlveda expounded in Democrates alter, seu de iustis belli causis apud Indios.42 In an extensive treatment, Las Casas rejected what to Sepúlveda were four grounds on which it would be legitimate to make war against the Indios: first, insofar as they are barbarians; second, to punish crimes regarded as being contrary to natural law; third, to free

40

41 42

the unjust and totally unwarranted deaths of more than twelve million souls, women and children among them [. . .],” writes Bartolomé de Las Casas, A Short Account of the Destruction of the Indies (1542), ed. and trans. Nigel Griffin (London: Penguin Books, 1992), p. 12. “They are innocent and pure in mind and have a lively intelligence, all of which makes them particularly receptive to learning and understanding the truths of our Catholic faith and to being instructed in virtue” (ibid., p. 10). Even in the Apologética Historia Sumaria, Las Casas extolled the nature of the Indios, describing them as equal to many peoples in what concerns their governance, politics, and customs, and even as superior to peoples like the Greeks and the Romans in virtue of their adherence to natural reason: “porque a muchas y diversas naciones que hobo y hay hoy en el mundo, de las muy loadas y encumbradas, en gobernacion, politica y en las costumbres se igualaron, y a las muy prudentes de todo él, como eran los griegos y romanos, en seguir las reglas de la natural razon con no chico exceso sobrepujaron.” Bartolomé de Las Casas, Apologética Historia Sumaria, 1, vol. 6 of Obras Completas, ed. Vidal Abril Castellò, Jesus A. Barreda, Berta Ares Queija, and Miguel J. Abril Stoffels (Madrid: Alianza Editorial, 1992), p. 286. As to the dating of the work, Perez Fernandez estimates that it was written at the beginning of 1536. Las Casas, A Short Account of the Destruction of the Indies (n. 39), p. 29. Juan Ginés de Sepúlveda, Democrates alter, seu de iustis belli causis apud Indios, critical edition and Spanish translation by Angel Losada (Madrid: Consejo Superior de Investigaciones Cientificas, 1984). The work is thought to have been written between 1544 and 1545. It hadn’t been authorized for publication but was widely circulated in manuscript form. In 1550, Sepúlveda published in Rome an Apologia del libro sobre las causas iustas de la guerra, a work that would sometimes be confused with the Democrates alter. From 1550 to 1551, he and Las Casas engaged in a famous dispute. Only in 1892 was Sepúlveda’s Democrates alter published. See Angel Losada’s introduction to the work in Sepúlveda, Democrates alter, pp. IX ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

18

ius gentium and t he origins of international law

innocent people; and, fourth, to expand the frontiers of the Christian religion.43 Significant in Las Casas’s treatment of the issue is his complex reflection on the customs of the Indios, and in particular on human sacrifice, for he introduces an anthropological approach that ends up rejecting the alleged universalism of the Western legal and theological vision, thus clearing the way to a recognition of cultural relativism. To begin with, Las Casas observes that even the so-called barbarians have been created in God’s likeness.44 He also underscores that the Indios were properly governed and highly civilized.45 From a legal standpoint, then, it must be recognized that it would not have been possible to mete out punishments for crimes the Indios committed against natural law, for neither the Church nor the Christian princes could claim any jurisdiction over such peoples.46 Finally, turning to the issue of human sacrifice, Las Casas argues that they can be recognized as rites of an ancestral religion that needs to be respected.47 The Indios can be justified in this regard on two grounds. In the first place, they are committing a “probable error” (probabilem errorem sequuntur) owing to the fact that they are acting in accordance with a traditional practice approved by all wise men, or at least by the bulk of them, or by sages proper who have earned the highest esteem.48 The second reason why the Indios should not believe that is it wrong (nefas esse) to sacrifice men to their gods is that no evidence can be presented to them demonstrating that such practices are contrary to natural reason (ratione naturali prohibitum). Indeed, on the basis of the selfsame natural reason (per eandem naturalem rationem), they could make the contrary argument: that men should be offered in sacrifice to God. Here Las Casas puts his finger on the most significant thesis: that 43

44

45 46

47 48

Bartolomé de Las Casas, Apologia, vol. 9 of Obras Completas, ed. Angel Losada, 2nd ed. (Madrid: Alianza Editorial, 1988), pp. 72–75. The Apologia went unpublished until 1975, when the same publisher brought out its first edition. In the introduction to the work, at page 30, the editor estimates that the work was made known to the public somewhere between the middle of 1552 and the beginning of 1553. In the Latin original: “etiam si maxime barbari sint, nihilominus sunt creati ad imaginem Dei.” Las Casas, Apologia (n. 43), p. 98. Ibid., p. 105. Ibid., pp. 127 ff. For a reconstruction of the theses advanced by Las Casas, see Luca Baccelli, “Guerra e diritti: Vitoria, Las Casas e la conquista dell’America,” Quaderni Fiorentini, 37 (2008), 67–101, at 87 ff. Las Casas, Apologia (n. 43), p. 361. Ibid., p. 422. Cf. Baccelli, “Guerra e diritti” (n. 46), p. 94.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

the r ight s o f peoples and i us gen tiu m

19

there is no such thing as an absolute natural reason. Behaviors are dictated and legitimized by customs and by posited laws. Here we can see taking shape a comparative ethnography that, from a relativistic angle, grants full recognition to “nonconforming” other cultures, no matter how much they may depart from that of Western Christendom. Hence, he can conclude, the custom of offering sacrifices to divinities issues from natural instinct (naturae instinctu producta): it therefore finds its roots in the most ancient of times and is established by natural law (vetustissima res est iure naturali inducta). What must be offered in sacrifice, however, depends not on natural law but on posited human law: it pertains to the law of men.49 In this way, in recognizing the richness and peculiarity of other cultural worlds, Las Casas introduces a perspective that is extraordinarily ahead of its time, and whose full import we can appreciate only today.

1.6 Ius Gentium and Rights to Liberty in Fernando Vázquez We can now turn to Fernando Vázquez (Latinized as Fernandus Vasquius), whose outlook is similar to that of Francisco de Vitoria, and who advanced the theory of the law of peoples in ways that would also significantly influence the later conception worked out by Hugo Grotius. His theory bears the deep imprint of Stoicism, and he was explicit in that regard. In fact he rejected the Aristotelian view that some people are slaves by nature, and in its place asserted the Roman conception that men are by nature free, even when enslaved under ius gentium.50 Ius gentium, rooted in natural law, is unpacked by Vázquez on two levels. “Natural law,” in his definition of it, “is none other than correct reason that is innate in man in accordance with the will of God.”51 Ius gentium is identified as natural law but it is also conceived as developing along a historical timeline whose initial stage predates the institutional birth of states. 49

50

51

In the Latin original: “quod hoc vel illud offerre in sacrificium sit de iure humano.” Las Casas, Apologia (n. 43), p. 436. In the Latin original: “Quanto iustius et sanctius veridici ac gravissimi iureconsulti qui etiam eosmet qui iure gentium servi effecti essent, iure naturae liberos permansisse [. . .] scripserunt.” Vázquez, Controversiae illustres (n. 5), Praefatio, § 9. The Latin original: “Ius enim naturale nihil aliud esse, quam rectam rationem ab ipsa nativitate et origine humano generi a Deo innatam supra edocti sumus.” Vázquez, Controversiae illustres (n. 5), I, 27, § 11; my translation.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

20

i us ge n t i u m and t he origins of international law

We thus have a ius gentium primaevum,52 or primary law of nature and of peoples, corresponding to an original state of affairs in communities whose basic condition consists in the absence of property. Resources are available to all, not so that anyone can gain ownership of them by possession,53 but so that they can be freely enjoyed. Only with the birth of property does this original community come to an end, whereupon a new reality sets in: that of the state. With the birth of the state come laws, courts, property, and especially relations of dependence among persons. This legal makeup of the state is based on what Vázquez calls ius gentium secundarium: “The secondary law of nature and of peoples is the kind that was not original with humanity but has been developed over time by the majority of peoples.”54 So these are relations of positive law, and they hold only among people within the same state. The relations between a sovereign and all free peoples, by contrast, is governed by the primary law of nature or of peoples, not by positive law.55 The ius gentium primaevum also prevails in governing the domestic relations between a sovereign and the people. Indeed, this conceptual relation precedes positive law and exists independently of it. This is a doctrine derived from Stoicism,56 according to which the power that one person can exercise over another is legitimate only insofar as the two have entered the relation of their own accord, that is, only if the relation is based on a contract. The same doctrine also grounds the principle of the sovereignty of the people. The freedom of individuals and of peoples is inalienable and irrevocable. If this freedom were to be denied or violated, that would give rise to 52

53 54

55

56

Vázquez identifies a primeval law of peoples and a law of nature: “Nec dubium est quin naturalis obligatio ex iure gentium primaevo, quod etiam ius naturale appellatur oriatur.” Ibid., II, 53, § 2. In this regard, see Reibstein, Völkerrecht (n. 3), vol. 1, p. 305. In the Latin original: “Ius autem gentium secundarium est, quod non simul cum ipso genere humano proditum fuit, sed labentibus temporibus a plerisque earum gentium quae moribus et legibus reguntur, nec ritu aut more ferarum sylvestrem vitam agunt receptum reperitur.” Vázquez, Controversiae illustres (n. 5), II, 89, § 25. The primary law of nature and of peoples, for its part, is defined thus: “Istud ius gentium naturale appellatur, ius naturale et etiam appellatur ius gentium primaevum, hoc est, cum ipso humano genere simul proditum.” Ibid., II, 89, § 24. In the Latin original: “Sic principes inter se vel populi liberi inter se sempre et sunt et esse videntur ac fuisse [. . .] ut inter eos ius solum naturale et gentium non etiam civile in consideratione sit.” Vázquez, Controversiae illustres (n. 5), II, 51, § 30. Likewise: “Ius civile unius principis aut populi liberi alterum principem aut populum liberum non tenet, sed ius, tantum naturale et gentium inter eos servandum est.” Ibid., II, 51, § 28. See Reibstein, Völkerrecht (n. 3), vol. 1, p. 305.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

t h e ri g ht s of pe o p l e s a n d i us ge n t i u m

21

a right of resistance. The inalienability of these rights also means that once they are alienated or revoked, that would amount to the end of the state, whose only reason for being is to guarantee the rights of the governed.57 The ideas Vázquez put forward in regard to the sovereignty of the people and their rights, including their right of resistance, were highly influential in shaping Calvinism, especially among the Monarchomachs.58 The grounding of the law of peoples in natural law (as ius gentium primaevum) also enabled Vázquez to set out his thesis on the freedom of the seas. Indeed, while it has historically been possible to establish ownership of lands and rivers, the seas have not become property, for this is a sphere in which the ius gentium primaevum has never ceased to be, “nor has it ever been severed from the original community of men.”59

1.7 Excursus: The Concept of Ius Gentium Both Francisco de Vitoria and Fernando Vázquez, as we have seen, use the concept of ius gentium, translated as the law of peoples or the law of nations. But it is essential to point out what they specifically meant by this concept, not only because its use goes back to a much earlier time, but also because their understanding of it would stretch into the eighteenth century. The concept originates in Roman antiquity. It turns up in Cicero’s De Officiis,60 as well as in his Pro Balbo, in which texts it refers to the alliances, treaties, and conditions of foreign peoples and nations, as well as to the law of war and peace.61 This is also 57

58 59

60

61

In the Latin original: “Regnum non est propter regem, sed rex propter regnum, vel propter regni civiumve utilitatem.” Vázquez, Controversiae illustres (n. 5), Praefatio, § 104. See Reibstein, Völkerrecht (n. 3), vol. 1, p. 308. The Latin original: “neque umquam fuit a communione hominum separatum.” Vázquez, Controversiae illustres (n. 5), II, 89, § 39. Cicero, De Officiis, 3.17.69: “Itaque maiores aliud ius gentium, aliud ius civile esse uoluerunt.” In translation: “Therefore our ancestors recognized a distinction between the law of nations and the law of the state.” Cicero, De Officiis, trans. Andrew B. Peabody (Boston: Little, Brown, and Company, 1887), p. 210. In Cicero’s own words: “scientiam in foederibus pactionibus condicionibus populorum regum exterarum nationum, in universo denique belli iure atque pacis.” Cicero, Pro L. Cornelio Balbo Oratio, 6.15. Translated as a “thorough acquaintance with the treaties, and agreements, and conditions of other peoples, kings, and foreign nations, in short, with the entire laws of war and peace.” Cicero, The Orations of Marcus Tullius Cicero, trans. Charles Duke Yonge, vol. 3 (London: George Bell & Sons, 1913), p. 316. This brief reconstruction is based on Heinhard Steiger, “Völkerrecht,” in Otto Brunner, Werner Conze, and Reinhart Koselleck (eds.), Geschichtliche Grundbegriffe: Historisches Lexikon

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

22

i u s g e n ti um a n d th e o r i g i n s of in t e r n a t i o n a l l a w

the definition that Hugo Grotius would later take up in the seventeenth century.62 In its long lineage the concept would travel from Cicero’s texts to Justinian’s Institutes and Digest, subsequently moving into the Middle Ages through the work of the canonists and glossators. Cicero understood ius gentium as natural law, and it was this nexus between ius gentium and ius naturale that informed legal thought on the law of peoples until the Middle Ages. Thus Thomas Aquinas grounded ius gentium in natural law, even though other jurists (Bartolo da Sassoferrato) underscored the shaping influence of custom (usus) and others (William of Ockham) the role of consensus (consensus). Steiger points out that from antiquity to the Middle Ages ius gentium was always conceived as ius commune (ius commune omnium hominum) – a common “law of the land” – and not as a law of peoples understood as distinct groups, foreign to one another. Only with the gradual formation of the system of states would ius gentium take the shape of a legal order among peoples – or among the rulers by which they are governed (in the view of Vitoria or Vasquez, for example) – or among states,63 or civitates (with Grotius).

62

63

zur politisch-sozialen Sprache in Deutschland (Stuttgart: Klett-Cotta, 1992), vol. 7, pp. 97 ff. On the Roman origins of the concept, see pp. 100 ff. Also essential is Karl-Heinz Ziegler, Fata iuris gentium: Kleine Schriften zur Geschichte des europäischen Völkerrechts (Baden-Baden: Nomos, 2008). Ziegler (ibid., pp. IX ff.), in agreement with his teacher, Wolfgang Preiser, and with Wilhelm G. Grewe, accepts the thesis that ius gentium grew in a continuous line of development from antiquity to the European Middle Ages to modern international law (Völkerrecht). Steiger, by contrast, underscores the new meaning the concept of ius gentium took on beginning in the sixteenth century (see Steiger, “Völkerrecht,” pp. 97 and 100). This is also the argument that will briefly be made in this section. Wrote Grotius in De Jure Belli ac Pacis (1625): “ius illud, quod inter populos plures aut populorum rectores intercedit, attigerunt pauci [. . .] Cicero praestabilem hanc dixit scientiam, in federibus, pactionibus, conditionibus populorum, regum exterarumque nationum, in omni denique belli iure & pacis.” In translation: “International Law, that which regards the mutual relations of several Peoples, or Rulers of Peoples, [. . .] has been touched by few [. . .] rightly did Cicero call that an excellent science, which includes the alliances, treaties, and covenants of peoples, kings, and nations, and all the rights of war and peace.” Hugonis Grotii, “In tres libros De jure belli ac pacis prolegomena,” in De Jure Belli et Pacis Libri Tres, accompanied by an abridged translation by William Whewell, with the notes of the author, Barbeyrac, and others (Cambridge: Cambridge University Press, 1853), vol. 1, pp. xxxvii–xxxviii. Steiger, “Völkerrecht” (n. 61), pp. 109–11.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

t he r i g h ts of p eop l e s a n d i us gen tiu m

23

This shift is already present in Vitoria, in that ius gentium is defined by him as ius inter omnes gentes,64 that is, as the law that governs among all peoples, rather than among men (inter homines). In so defining ius gentium, Vitoria casts this concept in a markedly universalistic mould, for he grounds it in natural law – ius gentium “either is natural law or is derived from natural law”65 – and in the same breath argues that it should accordingly be extended to the Indios of the New World. Also offering a theory of the law of peoples is Vázquez, for such is his previously discussed account of a ius gentium secundarium. In envisioning this kind of law as having a historical development, he is in effect predicting a future in which a positivized law of peoples will form the basis of their interaction. Unlike Vitoria, however, Vázquez delimits its scope by arguing that it cannot be universalized, for it cannot apply to peoples who are not governed by “honest” laws and customs.66 Here we get to a crucial question, that of the status of the Western law of peoples: whether it is universal or only relative. This fundamental question will underlie the entire discussion to which this book is devoted, where the purported universalism of Western law will be called into question. 64

65

66

Writes Vitoria: “What natural reason has established among all nations is called the jus gentium.” Victoria, “On the Indians lately discovered” (n. 2), sec. 3, § 386. The Latin original: “quod naturalis ratio inter omnes gentes constituit, vocatur ius gentium.” Vitoria, Relectio de Indis (n. 12), quoting Justinian’s Institutes (Institutiones, tit. I, lib. II, 1), based on the work of the Roman jurist Gaius. Going back to a point previously made in the Introduction, it is noteworthy that Gaius speaks not of ius gentium but of ius inter omnes homines, but as Steiger warns us in “Völkerrecht” (n. 61), p. 111, it is not entirely clear whether Vitoria was deliberate in making this substitution or whether he simply misquoted Gaius. Victoria, “On the Indians lately discovered” (n. 2), sec. 3, § 386. The Latin original at Vitoria, Relectio de Indis (n. 12), pp. 78–79. In his own words: “Ius autem gentium negavit totum mundum amplexum fuisse, nam primum excepit eas gentes, quae sine legibus & moribus honestis reguntur, quas innumeras esse apparuit, postquam nos hispani novum orbem indorum reclusimus ac invenimus [. . .]. Ergo si ipsum ius gentium universum mundum non complectitur, quanto minus illum complectetur ius civile, quod est longe angustius.” Vázquez, Controversiae illustres (n. 5), I, 20, § 27. (But the law of peoples denied that the whole world could be included, for it excluded in the first place those peoples that are not governed by honest laws and customs, which peoples struck us as numerous, once we Spaniards discovered and uncovered the world of the Indios [. . .]. Ergo, if no single law of peoples can extend across the entire world, at least this can be done by the civil law, whose range is much more restricted.)

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

24

i u s g e n ti um a n d t h e o r i g i ns of in t er n a t i o n a l l a w

Indeed, in analyzing ius gentium and its successor, international law,67 in their multiple meanings, the discussion will not only be highlighting the way this law is bound up with the formation and transformation of the system of states, but will also, and more importantly, be making explicit the ideology that has underpinned the West’s ambition to establish its hegemony over other peoples and civilizations. 67

In German law, the term Völkerrecht (law of peoples) was first introduced in the sixteenth century as a rendering of the German ius gentium. As we saw, however, the latter term continued in use until the eighteenth century, albeit morphing into a much different concept in comparison with its use in the Roman tradition. In the first half of the nineteenth century there came into use the expression europäisches Völkerrecht (European law of peoples), and then the expression Völkerrecht der civilisierten Staaten (literally “the law of the peoples of civil states”). As Steiger observes in “Völkerrecht” (n. 61), p. 134, it was only around 1840 that the term internationales Recht (international law) was introduced, but not displacing the older Völkerrecht, which continues to prevail to this day. Not so outside the German-speaking world, observes Steiger (ibid., pp. 136–37), where in a parallel line of development, starting from the mid-nineteenth century, the terms law of nations, droit des gens, diritto dei popoli, and diritto delle genti, gradually came to be replaced with international law, droit international public, diritto internazionale, and diritto internazionale pubblico.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:34:53, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.003

2 Hugo Grotius and the Law of Peoples

2.1 Grotius and the Second Scholastic It was a deep influence that was exerted on Hugo Grotius by Vitoria and the other exponents of the School of Salamanca (or Second Scholastic), especially Vázquez. Grotius was Dutch, and the context in which he developed his own conception was that of the extraordinary economic growth the Netherlands experienced in the late sixteenth century and its consequent rise to a role of primacy in global trade. The country established trade relations with west Africa, the Caribbean, and the East Indies. The Low Countries were at the time under the joint rule of Spain and Portugal, the two kingdoms having been united since 1580, and the growth of Dutch commerce led Spain and Portugal to offer freedom to the Low Countries if the latter would withdraw from the East and West Indies and from Asia. But the Dutch rejected Spanish and Portuguese monopoly and asserted their right to engage in commerce under the freedom of the seas. The task of grounding these positions was entrusted to Grotius, who in 1609, in Mare Liberum,1 laid out a defense of the freedom of the seas that would go on to achieve great fame. In making his case, Grotius went back to Vitoria, and in particular to the account that in De Indis he had given of the grounds on which the Spanish were legitimized in their conquest of the Americas. Among these grounds was that of free trade: if the Indios rejected the natural liberty to peacefully trade in goods, then it became incumbent on the Spanish to 1

Hugo Grotius, Mare liberum sive de iure quod Batavis competit ad Indicana commercia dissertatio (Leiden: Elzevier, 1609).

25

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

26

i u s g e n t i um and t he origins of international law

persuade them to do so,2 and if that failed, then the Spanish were legitimized in conquering their lands. Grotius seized on this statement of principle to point out that, by the same reasoning, the Spanish and the Portuguese could not legitimately prevent the Dutch from engaging in free trade.3 The Mare Liberum (1609) was the revised version of the twelfth chapter of a larger work that Grotius wrote between 1604 and 1606 under the title De Jure Praedae Commentarius,4 and in which he set out to defend the Dutch colonial enterprises. As Richard Tuck observes, however, this work is not so much a defense of Dutch colonialism as an attempt at “a new theory of natural law which could supplant both the discredited theories of the scholastics and the anti-scientific and skeptical writings of Renaissance authors such as Montaigne and Pierre Charron.”5 Let us first look at the historical context in which Grotius, just past twenty, took on the problem of the clash among Western powers in the frame of the West’s nascent colonial expansion, and then we will key in on the legal principles of ius gentium (international law) that form the basis of his magnum opus, the De Jure Belli ac Pacis. 2

3

4

5

Writes Vitoria: “Fifth proposition: If the Indian natives wish to prevent the Spaniards from enjoying any of their above-named rights under the law of nations, for instance, trade [. . .] the Spaniards ought in the first place to use reason and persuasion in order to remove scandal and ought to show in all possible methods that they do not come to the hurt of the natives, but wish to sojourn as peaceful guests and to travel without doing the natives any harm.” Franciscus de Victoria, “The first relectio of the Reverend Father, Brother Franciscus de Victoria: On the Indians lately discovered,” in De Indis et de Iure Belli Relectiones, Being Parts of Relectiones Theologicae XII by Franciscus de Victoria, ed. Ernest Nys, trans. John Pawley Bate (New York and London: Oceana Publications, 1917), sec. 3.6, § 392. The Latin original: “Quinta propositio. Si barbari velint prohibere Hispanos in supra dictis a iure gentium, puta vel commercio, vel aliis [. . .] Hispani possunt se defendere, et omnia agere ad securitatem suam conve nientia: quia vim vi repellere licet.” Francisco de Vitoria, “De Indis insulanis relectio prior” (1539), in Relectiones Theologicae XII, Tomus primus (Lugduni: apud Iacobum Boyerium, 1557), p. 358. Cf. Martin van Gelderen, “Vitoria, Grotius and human rights: The early experience of colonialism in Spanish and Dutch political thought,” in Wolfgang Schmale (ed.), Human Rights and Cultural Diversity: Europe, Arabic-Islamic World, Africa, China (Goldbach: Keip Publishing, 1993), p. 225. Hugo Grotius, Commentary on the Law of Prize and Booty, ed. Martine Julia van Ittersum (Indianapolis: Liberty Fund, 2006), reprint of De Jure Praedae Commentarius: Commentary on the Law of Prize and Booty, trans. Gwladys L. Williams (Oxford: Clarendon Press, 1950). For a reconstruction of the writing of Mare Liberum, see Francesca Izzo’s introduction to Hugo Grotius, Mare Liberum (Naples: Liguori, 2007). Richard Tuck, “Grotius and Selden,” in J. H. Burns (ed.), The Cambridge History of Political Thought, 1450–1700, chap. 17 (Cambridge: Cambridge University Press, 1991), p. 499.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

hugo grotius and t he law of p eo ples

27

2.2 Freedom of the Seas: De Indis or De Jure Praedae In order to frame the problem of Western colonial expansion, we will need to consider the work that Grotius wrote in defense of the freedom of commerce asserted by the Dutch, namely, De Jure Praedae. The writing of this book needs to be set in its historical context. We begin not with De Jure Praedae itself (1606) but with the defense that Grotius offered of the revised version of its chapter 12, which as noted was separately published in 1609 as Mare Liberum. In fact, chapter 5 of Mare Liberum, significantly titled “Neither the Indian Ocean nor the right of navigation thereon belongs to the Portuguese by title of occupation,”6 had come under attack by William Welwod (or Welwood) (1578–1622), a Scottish professor of mathematics and then civil law at St. Andrews University who took issue with Grotius’s thesis that all nations shared an equal and common freedom to sail all the seas. Describing this “libertie comune for all of all nations” as a “ridiculous pretence,”7 Welwod advanced a thesis diametrically opposed to that of Grotius, arguing that any nation may occupy any sea, and a coastal nation may even claim an exclusive right to such occupation.8 In response to Welwod, Grotius provided some background: “A few years ago, when I saw that the commerce with that India which is called East was of great importance for the safety of our country and it was quite clear that this commerce could not be maintained without arms while the Portuguese were opposing it through violence and trickery, I gave my attention to stirring up the minds of our fellow-countrymen to guard bravely what 6

7

8

The Latin original: “Mare ad Indos aut ius eo navigandi non esse proprium Lusitanorum titulo occupationis.” Hugonis Grotii, Mare liberum sive de iure quod Batavis competit ad indicana commercia dissertatio (1609). The Latin text was republished with an English translation by the Carnegie Endowment for International Peace under the title The Freedom of the Seas, or the Right Which Belongs to the Dutch to Take Part in the East Indian Trade: A Dissertation by Hugo Grotius, trans. Ralph Van Deman Magoffin, ed. James Brown Scott (New York: Oxford University Press, 1916). William Welwod, “Of the communitie and propretie of the seas,” in Samuel Muller (ed.), Mare Clausum: Bijdrage tot de Geschiedenis der Rivaliteit van Engeland en Nederland in de Zeventiende Eeuw (Amsterdam: F. Muller, 1872), p. 324. This text is chapter XXVII of Welwod’s An Abridgement of All Sea-Lawes: Gathered Forth of All Writings and Monuments, Which Are to Be Found among Any People or Nation, upon the Coasts of the Great Ocean and Mediterranean Sea; and Specially Ordered and Disposed for the Use and Benefit of All Benevolent Sea-Farers within His Majesties Dominions of Great Brittain, Ireland, and the Adjacent Isles Thereof (London: Printed by H. Lownes for T. Man, 1613). On the dispute between Welwod and Grotius, see also Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Paris: Presses Universitaires de France, 1983), p. 390.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

28

i u s g e n t i um an d th e o r i g i n s of international law

had been felicitously begun,”9 thus recounting how, in De Jure Praedae, he had set out to defend the armed incursions the Dutch had been making into the East Indies. As noted, it was in 1604 that Grotius began working on De Jure Praedae, whose practical aim was, more to the point, to legitimize the Dutch in using force against rivals who sought to prevent them from freely engaging in commercial competition. The occasion for the book had been an incident in 1603 in which the Dutch East India Company captured a Portuguese vessel in the Strait of Malacca. Grotius always referred to the book as De Indis, and it continued to exist in manuscript form for three centuries until it resurfaced in the nineteenth century at a sale of the De Groot family papers. It was the editor of the first edition of the work, of 1868, who gave it the title De Jure Praedae.10 It then became apparent that chapter 12 of De Jure Praedae (or De Indis) was in effect the famous Mare Liberum, which at the request of the Dutch East India Company (Verenigde Oostindische Compagnie) had been prepared for publication (most likely in November 1608) in a bid to influence the negotiations leading to the 1609 Twelve Years’ Truce between Spain, Portugal, and the United Provinces, an accord under which the Dutch gained the right to freely trade in all territories that were not under direct Spanish or Portuguese control.11 In making a case for the right of the Dutch to engage in their overseas exploits, Grotius developed a complex system of natural law. At the core of this system, laid out in chapter 2 of De Jure Praedae (or De Indis), we 9

10 11

Hugo Grotius, “Defense of chapter V of the Mare Liberum: Which had been attacked by William Welwod, Professor of Civil Law, in Chapter XXVII of that book written in English to which he gave the title ‘An Abridgement of All Sea-Lawes,’” in The Free Sea, or a Disputation Concerning the Right Which the Hollanders Ought to Have to the Indian Merchandise for Trading, trans. Richard Hakluyt, with William Welwod’s critique and Grotius’s reply, ed. David Armitage (Indianapolis: Liberty Fund, 2004), p. 77. The Latin original in full: “Ante annos aliquot, cum viderem ingentis esse momenti ad patriae securitatem Indiae quae orientalis dicitur commercium, id vero commercium satis appareret obsistentibus per vim atque insidias Lusitanis sine armis retineri non posse, operam dedi ut ad tuenda fortiter, quae tam feliciter coepissent, nostrorum animos inflammarem, proposita ob oculos causae ipsius justitia et aequitate, unde nasci τὸ εὔελπι a veteribus traditum existimabam.” Hugonis Grotii, “Defensio Capitis quinti Maris liberi oppugnati a Guilielmo Welwodo Iuris Civilis professore” (1613), in Muller, Mare Clausum (n. 7), p. 331. See also Richard Tuck, Philosophy and Government, 1572–1651 (Cambridge: Cambridge University Press, 1993), p. 170. On the reconstruction of these events, see Tuck, Philosophy and Government (n. 9), p. 170. Georg Cavallar, The Rights of Strangers: Theories of International Hospitality, the Global Community, and Political Justice since Vitoria (London and New York: Routledge, 2016; first pub. Ashgate 2002), p. 145.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

h u g o gr o t i us an d th e l aw of p eoples

29

find two interlocking elements: one a principle of self-preservation, the other a theory of justice. The principle of self-preservation is in turn grounded in two precepts of natural law: “first, that It shall be permissible to defend [one’s own] life and to shun that which threatens to prove injurious; secondly, that It shall be permissible to acquire for oneself, and to retain, those things which are useful for life.”12 The principle of self-preservation as understood by Grotius is not, however, incompatible with the distinctive principles of human justice. So the first two precepts, relating to one’s own good (de bono suo), he complements with two other laws relating to the good of others (de bono alieno): “One of the two laws in question runs as follows: Let no one inflict injury upon his fellow. The other is the precept: Let no one seize possession of that which has been taken into the possession of another.”13 Lastly, from these two principles of justice Grotius extracts two basic laws of civil coexistence: “first, Individual citizens should not only refrain from injuring other citizens, but should furthermore protect them, both as a whole and as individuals; secondly, Citizens should not only refrain from seizing one another’s possessions, whether these be held privately or in common, but should furthermore contribute individually both that which is necessary to other individuals and that which is necessary to the whole.”14 These two laws form the foundation of the world community of peoples, which Grotius conceives as an entity at once moral and legal, and in which all peoples enjoy the same rights. Following both Vitoria and Vázquez, Grotius recognizes as universal the right to travel 12

13

14

Grotius, Prize and Booty (n. 4), chap. II (“Prolegomena, including nine rules and thirteen laws”), p. 23; italics in original. The Latin original: “Prior: Vitam tueri et declinare nocitura liceat. Altera: Adiungere sibi quae ad vivendum sunt utilia eaque retinere liceat.” Hugonis Grotii, De Jure Praedae Commentarius: Ex Auctoris Codice Descripsit et Vulgavit, ed. Hendrik Gerard Hamaker (The Hague: Apud Martinum Nijhoff, 1868), caput secundum (“Prolegomena, in quibus Regulae IX et Leges XIII”), p. 10; Grotius’s italics. On Grotius’s account of the relation between the principle of self-preservation and the principles of justice, see Tuck, Philosophy and Government (n. 9), pp. 171 ff. Grotius, Prize and Booty (n. 4), chap. II, p. 27; italics in original. The Latin original: “Una: Ne quis alterum laedat; altera: Ne quis occupet alteri occupata.” Grotii, De Jure Praedae (n. 12), cap. II, pp. 13–14; Grotius’s italics. Grotius, Prize and Booty (n. 4), chap. II, p. 37; italics in original. The Latin original: “Una: Ut singuli cives caeteros tum universos, tum singulos non modo non laederent, verum etiam tuerentur. Altera: Ut cives non modo alter alteri privatim aut in commune possessa non eriperent, verum etiam singuli tum quae singulis, tum quae universis necessaria conferrent.” Grotii, De Jure Praedae (n. 12), cap. II, p. 21; Grotius’s italics.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

30

i u s g e n ti um an d t h e o r i g i n s of international law

(ius peregrinandi), the right to engage in commerce, and the right to use common property. On the basis of these legal principles, he rejects the Portuguese claim to monopoly and addresses the problem of freedom of the seas and that of the rights of indigenous populations. And it is on the same basis that he frames a judgment on Western colonial expansion. On the question of freedom of trade, Grotius draws on several classical sources (Ulpian, Aristotle, Seneca) to base his claim that this freedom “springs from the primary law of nations, which has a natural and permanent cause, so that it cannot be abrogated. Moreover, even if its abrogation were possible, such a result could be achieved only with the consent of all nations.”15 And because this law is universal, Grotius continues, it cannot be limited by discovery (inventio) or occupation (occupatio), or by reason of the fact that one people (the Portuguese) has been first to establish trade relations with another (the East Indians). Not even the Pope’s authority, Grotius argues, can endow the Portuguese with an exclusive right, in that “there is no person who has the power to bestow by grant that which is not his own; and the Pope – unless he is the temporal master of the whole world, an assumption which wise men reject – cannot maintain that even the universal right of trade falls within his jurisdiction.”16 Furthermore, if the Pope wanted to grant this right only to the Portuguese, he would commit two injustices. The first of these would be an injustice done to the Indians, who fall outside the jurisdiction of the Church and so cannot in any way be subjects of the Pope; and so, if the Pope cannot deprive them of that which belongs to them, he cannot deprive them of the right to freely engage in trade with whomever they choose, either. In the second place, he would do an injustice to everyone else, Christian and non-Christian alike, for it is not within his power to deprive them of that right without cause or without having heard a defense (aut causa indicta). On the basis of these premises, it follows that the Dutch cause is all the stronger insofar as the advantage they stand to gain in this dispute is 15

16

Grotius, Prize and Booty (n. 4), chap. XII, p. 356. The Latin original: “Commercandi igitur libertas ex iure est primario gentium, quod naturalem et perpetuam causam habet, ideoque tolli non potest, et si posset nisi omnium gentium consensu.” Grotii, De Jure Praedae (n. 12), cap. XII, pp. 244–45. Grotius, Prize and Booty (n. 4), chap. XII, p. 357. The Latin original: “Nemo enim, quod suum non est concedere potest. At Pontifex, nisi totius mundi temporalis sit dominus, quod negant sapientes, ius etiam commerciorum universale sui iuris dicere non potest.” Grotii, De Jure Praedae (n. 12), cap. XII, p. 245.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

h u g o g r o t i us a n d th e l aw of p eoples

31

closely bound up with that of the whole of humanity.17 The Portuguese, by contrast, are doing injury to nature, whose fruits it makes available to all (quae in commune faecunda est). The attempt of the Portuguese and the Spanish to establish a monopoly across the seas of the East Indies should not be countenanced in the extended society of humankind (in magna illa humani generis societate), and so, Grotius concludes going back to Vitoria, “a just cause of war exists when the freedom of trade is being defended against those who would obstruct it.”18

2.3 The Civilization of the Barbarians: The Rights of Natives and Colonialism In the foregoing, we have looked at the theses Grotius put forward in support of a universal freedom of commerce within the extended society of humankind. The legal principles grounding this worldwide community translate into a recognition of equal rights for all peoples, including the indigenous peoples of the East Indies. As mentioned, Grotius reiterated the legitimacy of those rights, especially those of indigenous peoples, against any attempt to expropriate these peoples and occupy their lands, even if this were to be done under papal authority. How did Grotius argue these theses and within what limits? Going back to the arguments advanced by the School of Salamanca and making their conclusions even more forceful, Grotius took exception to the Portuguese claim that the lands of the East Indies were possessions, arguing that this claim had no basis either in fact or in law. Indeed, as far as the factual claim is concerned, discovery consists not in taking in with the gaze (oculis usurpare) but in occupying (apprehendere), and this did not describe the Portuguese situation. Furthermore, the Portuguese could not claim to have discovered the Indies if these lands were known even to the ancients, a point he made quoting Horace and observing that the Persians, Arabs, and other European peoples had discovered the East Indies before the Portuguese. 17

18

“Batavorum autem eo est iustior, quia ipsorum hac in parte utilitas cum totius umani generis utilitate coniuncta est.” Grotii, De Jure Praedae (n. 12), cap. XII, p. 248. Grotius, Prize and Booty (n. 4), chap. XII, p. 363. The Latin original: “Cum igitur supra Victoriae auctoritate et exemplis demonstratum sit iustam esse belli causam, cum libertas commerciorum vindicatur adversus prohibentes.” Grotii, De Jure Praedae (n. 12), cap. XII, p. 249.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

32

i u s g e nt i u m a n d th e o r i g i n s of in t e r n a t i o n a l l a w

As far as the legal claim was concerned, Grotius developed his argument by bringing to bear the question of the meaning and scope of European civilization. Indeed, he builds on his argument by pointing out that when the Portuguese reached the Indies, their discovery could not ground any right (inventio nihil iuris tribuit), because only if those lands belonged to no one could a right of discovery be accorded to them. “But,” as Grotius observes, “at the time when the Portuguese first came to the East Indies, the natives of that region – though they were in part idolaters, in part Mohammedans, and sunk in grievous sin – nevertheless enjoyed public and private ownership of their own property and possessions.”19 In making his case Grotius recovered the theses of both Vitoria and Aquinas, reminding us that the former had argued that non-Christians could not be deprived of their civil power and sovereignty simply because they were not Christian,20 while the latter had argued that faith cannot supress natural or human law, the bases from which ownership is derived. This conclusion was fully in agreement with Vitoria’s De Indis (I, nos. 4, 5, 6, 7, and 19): to hold that nonbelievers do not own their goods is heretical, and “the act of snatching from them, on the sole ground of their lack of faith, those goods which have been taken into their possession, is an act of thievery and rapine no less than it would be if perpetrated against Christians.”21 In the greater world community, the rights of peoples had to be guaranteed regardless of the different faiths they espoused. This was not a de facto statement but an important de jure one! It will be necessary to ponder the question of whether it would also be followed as a matter of fact. To this statement Grotius added that civilizations and cultures could not be taken as forms of irrationality or folly just because they are 19

20

21

Grotius, Prize and Booty (n. 4), chap. XII, p. 308. The Latin original: “Atqui Indi [. . .] etsi partim idolatrae, partim Mahumetani erant gravibusque peccatis involuti, nihilominus publice ac privatim rerum possessionumque suarum dominium habuerunt.” Grotii, De Jure Praedae (n. 12), cap. XII, p. 209. Here Grotius quotes a passage directly from De Potestate Civili, I, 9: “Victoria declares that ‘Christians, whether laymen or clerics, may not deprive infidels of their civil power and sovereignty merely on the ground that the latter are infidels [. . .].’” Grotius, Prize and Booty (n. 4), chap. XII, p. 308. The Latin original: “Non possunt Christiani saeculares aut ecclesiastici potestate civili et principatu privare infideles, eo dumtaxat titulo, quia infideles sunt [. . .].” Grotius, Prize and Booty (n. 4), chap. XII, p. 308. In this recognition of the rights of indigenous peoples, Rosalyn Higgins sees a forerunner to the right to a people’s selfdetermination. See Rosalyn Higgins, “Grotius and the development of international law in the United Nations period,” in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds.), Hugo Grotius and International Relations (Oxford: Clarendon Press, 1992), chap. 10, p. 278.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

hug o gr otius and t he la w o f pe op l e s

33

different from one’s own, and such diversity therefore could not serve as a reason for subjugating such other civilizations. As Grotius put it, “the Indians of the Orient are neither insane nor irrational, but clever and sagacious, so that not even in this respect can a pretext for their subjugation be found.”22 So even Grotius, like Vitoria before him, placed front and center the question of the differences between civilizations and their possible clash. Indeed, Grotius accepted and fully recognized the existence of other civilizations that did not cohere with the Western civilization, and he emphatically denounced any attempt to exploit such diversity as a means by which to advance the Western agenda. Even in antiquity, Grotius observed, “Plutarch pointed out that ἡμερῶσαι τὰ βαρβαρικά [the civilizing of barbarians] served as πρόϕασιν πλεονεξίας [a cloak for greed], or in other words, that shameless lust for another’s property was wont to take cover under the excuse of introducing civilization into barbaric regions”!23 It is quite extraordinary to find in the classics of international law the same arguments that this Western civilization deploys to extend its hegemony to other regions and civilizations of the earth! In this connection Grotius once more went back to the Spanish thinkers, and in particular to Vázquez,24 underscoring how the School of Salamanca had taken an unequivocal stance against any attempt to impose “more civilized” customs on non-Western peoples, with the hidden intent of subjecting them to Western domination, as had been done by the ancient Greeks, including Alexander the Great with his conquests in Asia and the attendant Hellenization. Having examined in detail the first of the two grounds on which the Portuguese sought to justify their monopoly over the seas and the East Indies – namely, the ground of “discovery” – Grotius took up the other two grounds. The first of these consisted in the Bulls of Donation, or Alexandrine Bulls, of 1493, by which Pope Alexander VI assigned to the Portuguese and the Spanish (the Crown of Castile and Aragon) the 22

23

24

Grotius, Prize and Booty (n. 4), chap. XII, p. 309. The Latin original: “Neque vero sunt Indi Orientis amentes aut insensati sed ingeniosi et sollertes.” Grotii, De Jure Praedae (n. 12), cap. XII, p. 209. Grotius, Prize and Booty (n. 4), chap. XII, p. 309. The Latin original: “Jam olim Plutarchus πρόϕασιν πλεονεξίας fuisse dicit ἡμερῶσαι τὰ βαρβαρικά, improbam scilicet alieni cupiditatem hoc sibi velum obtendere, quod barbariem mansuefaciat.” Grotii, De Jure Praedae (n. 12), cap. XII, p. 209. Grotius is quoting Plutarch, Pompey, lxx. 3. See D. Fernandi Vasquii Menchacensis, Controversiarum illustrium aliarumque usu frequentium libri tres (Venice: Franciscus Rampazetus, 1564), Praefatio, pp. 5–7.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

34

i u s g e n ti um a n d th e o r i g i n s of in t e r n a t i o n a l l a w

overseas territories claimed by these two powers.25 Once more Grotius returned to the thinkers of the Second Scholastic to argue – in their own words, as he pointed out – “that the Pope is not the civil or temporal lord of the whole earth,”26 and that even if the Pope had had temporal power, it could only have been exercised for spiritual ends. Therefore, the Pope had no power over non-Christian peoples, for they were not members of the Church. There remained the last ground on which to justify the Portuguese occupation of the East Indies, namely, war (titulus belli). Even this ground, Grotius argued, could not give rise to a right of property, except for the rights that attach to seizure (iure praedae). But the Portuguese were far from having seized the lands in which they engaged in commerce, in that their trading relationships had for the most part been initiated without going to war with their trading partners. Therefore, there was no right they could claim to the same lands.27 In conclusion to this argument, Grotius added that there wasn’t even any pretext on which the Portuguese could go to war. He stated that the wars against the “barbarians,” such as the ones the Spanish waged against the Indios, had been launched for two reasons: first, to remove the obstacles against free trade which the same “barbarians” were thought to pose; and second, for their refusal to accept what the Spaniards accounted to be the only true faith. In reality, as we have observed, the Portuguese freely engaged in commerce without obstacle in the East Indies, and in the second place, Grotius curtly concluded, they never made any attempt to spread their religion, since they were exclusively driven by a profit motive (cum soli lucro invigilent). As much as Grotius was deeply indebted to the Spanish Second Scholastic, the framework within which he developed his argument had by this time become fully secularized. Sensitive to the trade wars between the Western powers, he discusses the grounds on which they justified 25

26

27

Specifically, with the bull Inter Caetera of May 4, the Pope drew a longitudinal line of partition allotting the territories west of the line to the Spanish and those east of the line to the Portuguese. See Aldo Andrea Cassi, Ultramar: L’invenzione europea del Nuovo Mondo (Rome and Bari: Laterza, 2007), pp. 4–5 and 36–37. Grotius, Prize and Booty (n. 4), chap. XII, p. 310. The Latin original: “Pontificem non esse dominum civilem aut temporalem totius orbis.” Grotii, De Jure Praedae (n. 12), cap. XII, p. 210. Grotius, Prize and Booty (n. 4), chap. XII, p. 311. The Latin original: “Atqui tantum abest ut Lusitani eas terras occupaverint, ut cum plerisque gentibus, quas Batavi accesserunt, bellum eo tempore nullum haberent. Et sic igitur nullum ius illis quaeri potuit.” Grotii, De Jure Praedae (n. 12), cap. XII, p. 211.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

hug o gr otius and t he la w o f pe op l e s

35

their monopolies on trade and unmasks the profit motives that lie in concealment under the guise of Western civilization.28 The margin this framework allows for religion is shrinking to a shadow of its former self. It is also necessary, in conclusion, to assess Grotius’s view of the process of Western expansion. The systematic architecture of the De Jure Praedae (or De Indis) was certainly conceived by Grotius to defend the commercial expansion of the Dutch, and his argument for the right to property of the peoples of the East Indies was therefore instrumental to this end, for it was aimed at securing for the Dutch the ability to freely trade with these peoples without the Portuguese monopoly getting in the way. His vision – thus deeply secularized, advancing a line of reasoning that would be fully fleshed out in the De Jure Belli ac Pacis – therefore recognized the rights of peoples only in principle, that is, de iure. His doctrine, then, lent itself to the purpose of legitimizing the hegemonic expansion of the West. This is an ambivalence that has correctly been pointed out,29 and his doctrine therefore needs to be brought under scrutiny, to which end we will be looking at his more mature and developed work, the aforementioned De Jure Belli ac Pacis.

2.4 The Legitimation of Western Hegemony In the De Jure Belli ac Pacis Grotius provided arguments by which to legitimize Western colonial expansion. In book III, chapter II, § V, he claimed that if in a foreign country a judgment were to be issued contrary to law, it would be legitimate to intervene so as to re-establish the rights recognized under such law. It is evident here that Grotius was appealing to a denied right (ius denegatum) by reason of which it was legitimate for the European powers to intervene in the lands of Asia, the Americas, or Africa so as to enforce the law of the European nations.30 It is entirely 28 29 30

Cavallar, The Rights of Strangers (n. 11), p. 150. Ibid., pp. 152 ff. As Grotius puts it, “foreigners have the right of compulsion.” Hugo Grotius, On the Law of War and Peace, book III, trans. Francis W. Kelsey (Oxford: Clarendon Press, 1925), reprinted by the Carnegie Endowment for International Peace in Washington, D.C., as vol. II of De Jure Belli ac Pacis Libri Tres (1646 edition), chap. II, § V.1, p. 627. The Latin original: “exteri autem ius habent cogenti.” Hugo Grotius, De Jure Belli ac Pacis Libri Tres, in quibus Jus Naturæ & Gentium, item Juris Publici præcipua explicantur, reproduction of the 1646 edition (Washington, D.C.: Carnegie Institution of Washington, 1913; orig. pub. 1625), p. 446. In this regard, see Kasai Naoya, “The laws of war,” in Yasuaki Onuma (ed.), A Normative Approach to War: Peace, War, and Justice in Hugo Grotius (Oxford: Clarendon Press, 1993), p. 254.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

36

i u s g e n ti um a n d th e o r i g i n s of in t e r n a t i o n a l l a w

manifest that he is here setting a “just” Western law against the law of the natives. Elsewhere Grotius enounces a principle of “humanitarian” international law that, despite its humanitarian label, winds up legitimizing Western intervention in the domestic life of non-European countries. This happens when the conduct of foreign sovereigns is so egregious as to warrant foreign intervention. As Grotius argues, even granting “that Subjects ought not, even in the most pressing Necessity, to take up Arms against their Prince [. . .] we should not yet be able to conclude from thence, that others might not do it for them.”31 The obstacle preventing subjects from using armed force does not apply to those who are not subjects. For this reason Seneca, whom Grotius quotes, regards it as legitimate to wage war against foreigners who oppress their own people. He is referring in particular to “an Affair often attended with the Defense of innocent Subjects.”32 Some commentators have gone so far as to see in this argument by Grotius the first statement of the principle of humanitarian intervention.33 Other authors have instead seen in Grotius’s thought no more than an apology of European expansion and imperialism.34 Even Grotius’s reflection on the relationship among Christian and non-Christian peoples is marked by the same ambiguity. Indeed, on the 31

32

33

34

Hugo Grotius, The Rights of War and Peace, ed. Richard Tuck, from the 1720 edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005), bk. II, chap. XXV, § VIII.3, pp. 1161–62. The Latin original: “Imo etiam si daretur ne in summa quidem necessitate arma recte a subditis sumi [. . .] non tamen inde sequetur non posse pro ipsis ab aliis arma sumi.” Grotius, De Jure Belli ac Pacis (1913 ed.) (n. 30), lib. II, cap. XXV, § VIII. Grotius, The Rights of War and Peace (n. 31), bk. II, chap. XXV, § VIII.4, p. 1162. The Latin original: “quae saepe cum defensione innocentium coniuncta est.” Grotius, De Jure Belli ac Pacis (1913 ed.) (n. 30), lib. II, cap. XXV, § VIII, p. 414. Yasuaki Onuma points us to the same passage in the text, noting that Grotius was well aware of the possibility that an intervention ostensibly undertaken to protect the innocent might actually be driven by self-serving motives, but he also held that such a right could not cease to exist just because it was liable to be exploited. Onuma, “War,” in A Normative Approach to War (n. 30), p. 108. See in particular Hersch Lauterpacht, “The Grotian tradition in international law,” British Year Book of International Law, 23 (1946), 1–53, at 46, describing this as “the principle that the exclusiveness of domestic jurisdiction stops where outrage upon humanity begins,” and that it was first authoritatively set out by Grotius. See in particular B. V. A. Röling, “Are Grotius’ Ideas Obsolete in an Expanded World?” in Hedley Bull, Benedict Kingsbury, and Adam Roberts (eds.), Hugo Grotius and International Relations (Oxford: Clarendon Press, 1992), pp. 281–300, at 297. Röling, who had served as a judge on the International Military Tribunal in Tokyo, states: “In short the enormous popularity of Grotius’ doctrine becomes comprehensible when we recognize that [. . .] in practice it did not restrict in any way the endeavour to subjugate the non-European peoples to European authority.”

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

h ug o g r o t i u s a n d t he l a w of pe o p l e s

37

one hand Grotius found it illegitimate to impose the Christian religion by force,35 but on the other he thought that it was legitimate to punish and make war on those who “persecuted” Christians. Grotius does not dwell on the matter of what counts as persecution, and so as a ground of reprisal, but confines himself to declaring that “the Christian Religion [. . .] is so far from doing any Thing destructive to human Society, that in every Particular it tends to the Advantage of it.”36 Nor can any hostility against Christians by justified by the perpetrator’s fear of the new, nor can any hostility be justified against any group of honest men. In brief, Grotius concludes, there can be no doubt about the goodness of the Christian religion: “The Nature of it declares thus much [!], and those of a different Religion are forced to acknowledge the same.”37 This conception that Grotius lays out – recognizing freedom of commerce and the freedom of the seas, while subordinating the rights of nonChristian peoples to such freedoms – reflects the will of the nascent system of European states to project its own power overseas, beyond the borders of Europe itself. It is therefore to this system that we must now turn, analyzing the secularized framework within which it takes shape and the principles of law that lie at its foundation.

2.5 A Secularized Horizon in Grotius: Natural Law and the Law of Peoples Grotius distinguished natural law (ius naturae) from the law of peoples (ius gentium). In drawing this distinction he made an argument for natural law, whose existence had been denied by the Greek skeptic Carneades of Cyrene on the reasoning “that men had, as utility 35

36

37

In this connection Grotius quotes the canon of the Council of Toledo, noting that it “forbids the Use of compulsive Means, in gaining Converts to Christianity.” Grotius, The Rights of War and Peace (n. 31), bk. II, chap. XX, § XLVIII.1, pp. 1041–42. The Latin original: “Praecipit Sancta Synodus nemini deinceps ad credendum vim inferre.” Grotius, De Jure Belli ac Pacis (1913 ed.) (n. 30), lib. II, cap. XX, § XLVIII, p. 345. Grotius, The Rights of War and Peace (n. 31), bk. II, chap. XX, § XLIX.1, p. 1044. The Latin original: “nihil enim est in disciplina christiana [. . .] quod humanæ societati noceat, imo nihil quod non prosit.” Grotius, De Jure Belli ac Pacis (1913 ed.) (n. 30), lib. II, cap. XX, § XLIX, p. 345. Grotius, The Rights of War and Peace (n. 31), bk. II, chap. XX, § XLIX.1, p. 1044. The Latin original: “Res ipsa loquitur, & extranei coguntur agnoscere.” Grotius, De Jure Belli ac Pacis (1913 ed.) (n. 30), lib. II, cap. XX, § XLIX, p. 345. In a similar vein see, once more, Cavallar, The Rights of Strangers (n. 11), pp. 152 and 154, though it is denied by Cavallar that Grotius favors the Europeans, this on the reasoning that what Grotius is advancing is an argument for peace rather than one predicated on Eurocentric prejudices.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

38

i u s g en t i u m a nd th e o r i g i n s of in t e r n a t i o n a l l a w

prompted, established Rights, different as their manners differed; and even in the same society, often changed with the change of times: but Natural Law there is none: for all the creatures, men and animals alike, are impelled by nature to seek their own gratification: and thus, either there is no such thing as justice, or if it exist, it is the height of folly, since it does harm to itself in aiming at the good of others.”38 In opposition to the utilitaristic skepticism propounded by Carneades, Grotius posited a natural law that rests in the first place on “a desire for society; that is, a desire for a life spent in common with fellow-men [appetitus societatis, id est communitatis]; and not merely spent somehow, but spent tranquilly, and in a manner corresponding to the character of his intellect [communitatis pro sui intellectus modo ordinatae]. This desire the Stoics called οἰκείωσις, the domestic instinct, or feeling of kindred.”39 This principle of a natural sociality conforming to reason would gain much currency in the development of rationalistic natural law: one need only consider in this connection the influence that Grotius exerted on Samuel Pufendorf. In support of his thesis, Grotius invokes the authority of the literary sources, and specifically – in book I, chapter I, of the De Jure Belli ac Pacis – Cicero’s De Finibus. Here the claim is made that there are two principles of nature in virtue of which every animal has always been driven to aim at its own self-preservation since birth. But Cicero also adds that, on a higher plane, the law of nature prescribes the principle of action in accordance with reason.40 Humans, according to Grotius, are moved by a marked proclivity for social life, but they are also endowed with the faculty to act according to general principles (secundum generalia praecepta) – and this is proper to human nature. Grotius thus believes that he has singled out the general principles governing the use of human reason to preserve society (societatis custodia, humano intellectui conveniens). These principles form the foundation of law, and they include “the rule of abstaining from that which belongs to other persons; and if we have in our possession anything of another’s, the restitution of it, or of any gain which we have made from it; the fulfilling of promises, and the reparation of damage 38

39 40

Hugonis Grotii, “In tres libros De jure belli ac pacis prolegomena,” in De Jure Belli et Pacis Libri Tres, accompanied by an abridged translation by William Whewell, with the notes of the author, Barbeyrac, and others (Cambridge: Cambridge University Press, 1853), vol. 1, § 5, p. xli. Ibid., § 6, xli; italics in original. Grotius, De Jure Belli ac Pacis Libri Tres (1913 ed.) (n. 30), p. 51.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

hugo grotius and t he law of p eo ples

39

done by fault; and the recognition of certain things as meriting punishment among men.”41 Grotius thus outlines a rational natural law. In the De Jure Belli ac Pacis he offers a definition of it as follows: “Natural Law is the Dictate of Right Reason [rectae rationis], indicating that any act, from its agreement or disagreement with the rational [and social] nature [of man] has in it a moral turpitude or a moral necessity; and consequently that such act is forbidden or commanded by God, the author of nature.”42 It is therefore right reason, and not the will of God, that determines the principles of natural law: these are the principles of human nature, and only once human actions are judged by this standard, and determined by reason to be consistent or inconsistent with it, can they be understood to be prescribed or proscribed by God. Here we can see Grotius’s rationalism coming fully into play,43 underpinning a fully secularized understanding of natural law, and hence of the foundation on which human societies rest. This foundation appears to anticipate the transcendental conception, for it posits an inherent rationality governing the construction of social relationships. In this rational construction we find the idea that implicit in natural law is also a principle of utility, for the sociability it prescribes is also a way to make up for our respective weaknesses and shortcomings: “But Natural Law, [which impels us to society,] is reinforced by Utility. For the Author of Nature ordained that we should, as individuals, be weak, and in need of many things to make life comfortable, in order that we might be more impelled to cling to society.”44 41

42

43

44

Grotii, “In tres libros De jure belli ac pacis prolegomena,” in De Jure Belli et Pacis (n. 38), vol. 1, § 8, p. xliv. Grotii, De Jure Belli et Pacis (n. 38), vol. 1, lib. I, cap. I, § X.1, p. 10 (first pair of square brackets added; second pair added by Barbeyrac; third pair in original). There is, in this connection, the famous statement that Grotius makes in the Prolegomena: “And what we have said would still have great weight, even if we were to grant, what we cannot grant without wickedness, that there is no God [etiamsi daremus, quod sine summo scelere dari nequit, non esse Deum], or that he bestows no regard on human affairs.” Grotii, “In tres libros De jure belli ac pacis prolegomena,” in De Jure Belli et Pacis (n. 38), vol. 1, § 11, p. xlvi. Yasuaki Onuma argues that the secular approach was developed by Grotius in order to overcome the causes of the religious wars. Yasuaki Onuma, “When Was the Law of International Society Born? An Inquiry of the History of International Law from an Intercivilizational Perspective,” Journal of the History of International Law, 2 (2000), 1–66, at 26. For an analysis of the secularized perspective in Grotius, see Franco Todescan, Il problema della secolarizzazione nel pensiero giuridico di Ugo Grozio, vol. 1 of Le radici teologiche del giusnaturalismo laico (Milan: Giuffrè, 1983). Grotii, “In tres libros De jure belli ac pacis prolegomena,” in De Jure Belli et Pacis (n. 38), vol. 1, § 16, p. xlix (italics and square brackets in original).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

40

i u s g e n ti um and t he origins of international law

Natural law is distinct from but complementary to positive law: while the former, as we saw, finds its basis in “Human Nature” – its “mother” – the latter is the mother of “Obligation by mutual compact” (consensu obligatio), which in turn “derives its force from Natural Law” (consensu obligatio, quae cum ex naturali iure vim suam habeat).45 Grotius’s account of law is made complete by also distinguishing natural law from the law of peoples, or law of nations. This law is based on the consensus that forms among states, a consensus from which are derived certain rules of law that govern relations among them.46 In Grotius’s account of law, natural law is thus distinguished from both positive law – whose force derives from natural law – and the law of peoples. This distinction he explains thus: “what is affirmed by many people at different times and places to be obvious must be presumed to rest on some universal reason. In the issues we are considering, this reason can only be either a correct deduction from the principles of our nature, or some general agreement. The former means that it is a law of nature, the latter that it is a law of nations.”47 But in reality, even the law of nations appears to be grounded in natural law.48 This is a point that Grotius argues by noting that “Themistius, in an oration to Valens, eloquently urges, that kings such as the rule of wisdom requires them to be, ought not to care for the single nation only which is committed to them, but for the whole human race.”49 To this Grotius adds that war “is never to be carried on except within the limits of rights and good faith [fides]. Demosthenes well said, that war was the mode of dealing with those who could not be kept in order by judicial proceedings” (in eos qui iudiciis coerceri nequeunt).50 This relation between the law of peoples and natural law is borne out in book I, chapter II, of De Jure Belli ac Pacis, where Grotius turns to the topic of 45 46 47

48

49

50

Ibid. Ibid., § 17, p. l. Grotius, “Prolegomena to the first edition of De Jure Belli ac Pacis,” in The Rights of War and Peace (n. 31), bk. III, p. 1756. The same view is stated in Guido Fassò, Storia della filosofia del diritto (Bologna: il Mulino, 1968), vol. 2, p. 99. It should also be recalled here that among those whose work influenced Grotius was Alberico Gentili, who had clearly set out the principle that the law of peoples finds its foundation in the law of nature: “naturalis ratio, quae auctor est iuris gentium.” Alberici Gentilis, De Iure Belli Libri Tres, ed. Thomas Erskine Holland (Oxford: Clarendon Press, 1877; orig. pub. 1588–89), lib. III, cap. IX, p. 316. Grotii, “In tres libros De jure belli ac pacis prolegomena,” in De Jure Belli et Pacis (n. 38), vol. 1, § 24, p. lv. Ibid., § 25, p. lvi.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

hug o gr otius and t he la w o f pe op l e s

41

just war by discussing the question of whether ius gentium is in contrast with war. In addressing the grounds on which ius gentium might be consistent with war, Grotius quotes the jurisconsult Florentinus,51 claiming that the law of peoples legitimizes our recourse to force for the purpose of protecting our own physical integrity (ut corpus nostrum tutemur).52 This is the same argument as the one deployed to hold that a general consensus makes morally right the means used to defend ourselves when our life is in danger. On the basis of these considerations, Grotius argues that recourse to war is permissible under the law of peoples.

2.6 Just War: Grotius and Alberico Gentili Grotius’s treatment of the question of just war is extremely complex, sometimes bordering on the contradictory. Thus at some places in De Jure Belli ac Pacis, Grotius claims that under the ius belli it is permissible to kill not only your enemies but also women and children.53 At the same time, however, he adds that such gruesome acts find a limit in the highest principles of law. This is an argument he makes by going back to Seneca and drawing a distinction between law and justice, or between two senses of the word lawful: on the one hand is an external or extrinsic sense, referring to “that which is actionable in Courts of Judicature”54 (in judiciis externis viget); on the other is an internal intrinsic sense, referring to “that which is really lawful in itself,”55 in virtue of the law which all living beings have in common (commune jus animantium) – and it is on the basis of the latter standard that we need to draw the line in determining what can and what cannot legitimately be done to other human beings. 51 52 53

54 55

A Roman jurist of the second century AD, the author of twelve books of institutiones. Grotii, De Jure Belli et Pacis (n. 38), vol. 1, lib. I, cap. II, § IV.2, p. 39. Writes Grotius: “To return to the subject; how wide this allowance of doing harm to enemies extends, may be understood from this; that the slaughter of infants and women is allowed to have impunity, as comprehended in that right of war” (ibid., vol. 3, lib. III, cap. IV, § IX.1, p. 80). The Latin original: “Caeterum ut ad rem redeam quam late licentia ista se protendat vel hinc intelligitur, quod infantium quoque et feminarum caedes impune habetur, et isto belli iure comprehenditur” (ibid.). Here Grotius mentions the slaying of men, women, and children which the Israelites carried out at Heshbon during the Exodus. He references the Book of Deuteronomy: “And we took all his cities at that time, and utterly destroyed the men, and the women, and the little ones, of every city, we left none to remain” (Deut. 2:34 King James Version). Grotius, The Rights of War and Peace (n. 31), bk. III, chap. X, § I.3, pp. 1413–14. Ibid., p. 1414.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

42

i u s g e n ti um a n d t h e o r i g i ns of in t er n a t i o n a l l a w

The idea that you can kill women and children under the higher principles of the ius belli does seem contradictory, and indeed, as has been pointed out by Wilhelm G. Grewe,56 it is not such a neat distinction that can be drawn between the two levels envisioned by Grotius: that of a natural law of peoples (ius gentium naturale) as distinguished from a posited or voluntary law of peoples (ius gentium voluntarium). It was also just noted, however, that as contradictory as his position may be, it is also complex and nuanced. To appreciate as much, we need only consider his treatment of the question of just war. For on the one hand, he clearly lays out the grounds on which war can qualify as just, or “three just causes of war: defense, recovery of property, and punishment of wrong.”57 But on the other hand he invokes Aristotle to relativize the criteria of justice,58 arguing that we need to always distinguish between that which concerns the action (quae ad opus pertinet) and that which concerns the agent (quae pertinet ad operantem). This makes it possible to envision a situation of conflict in which, though it would be impossible for a moral faculty (facultas moralis) to be ascribed to both contending parties (ad contraria), neither can be said to be acting unjustly (iniuste agat). “For no Man acts unjustly, but he who is conscious that what he does is unjust; and this is what many are ignorant of.”59 In this way, the criteria by which to judge whether the waging of a war is just or unjust are made to rest on the belligerents’ consciousness: they are moral criteria more than legal ones.60 This complex question of the criteria of just war bears further investigation, for its treatment is a basis on which to judge an author’s modernity, and hence how innovative his work is. Thus Carl Schmitt held that, while Grotius may be considered the founder of modern international law, he didn’t fully develop a concept of war suited to the 56

57

58 59 60

Wilhelm G. Grewe, Epochen der Völkerrechtsgeschichte (Baden-Baden: Nomos, 1984), p. 255. Grotii, De Jure Belli et Pacis (n. 38), vol. 1, lib. II, cap. I, § II.2, p. 205. The Latin original: “Plerique bellorum tres statuunt causas justas, defensionem, recuperationem rerum, et punitionem” (ibid.). Unjustified as grounds for going to war are instead the effort to prevent a rising power from posing a potential threat (ad imminuendam potentiam crescentem: lib. II, cap. I, § XVII, p. 224); territorial expansion, or “the Desire for a better Land” (mutandae sedis amor: lib. II, cap. XXII, § VIII); and “the Desire of ruling others against their Wills, under Pretence of its being their Interest to be governed by them” (lib. II, cap. XXII, § XII) (the last two quotations from pp. 1104 and 1106, respectively, of Grotius, The Rights of War and Peace (n. 31), bk. II). Aristotle, Nicomachean Ethics, V, 10, 11. Grotius, The Rights of War and Peace (n. 31), bk. II, chap. XXIII, § XIII.2, p. 1130. Grewe, Epochen der Völkerrechtsgeschichte (n. 56), p. 255.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

hugo grotius and t he law of p eo ples

43

international law of territorial nation-states, and in large part was still bound to the medieval concept of just war ex iusta causa.61 By contrast, Schmitt argued, it is to other authors that credit is due for developing theories that could adequately take the transformations of modernity into account. This is true of Balthazar Ayala, who in De Iure et Officiis Bellicis et Disciplina Militari Libri Tres (1582) advanced the view that a war qualifies as just so long as it is declared by a sovereign power, such that the effects of war are valid regardless of whether there is any justification for the grounds of war, its material cause, and even if this cause is manifestly unjust.62 Even more significant in this regard is the example of Alberico Gentili, who in a similar vein shifted the focus from the warring parties to the notion of war itself understood as a relationship between states. Accordingly, for Gentili, war is always a clash between subjects of public law: “It is properly described as a public contention, not as a riot, battle, or enmity among private subjects.”63 From this new perspective, war is reduced to a “duel,”64 that is, to a clash between two states understood as “regular enemies” (iusti hostes). There is no more space in this vision for the problem of the “just causes” of war. In fact – and this the turning point that comes with Gentili – war can be just on both sides.65 61

62

63

64

65

See Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. G. L. Ulmen (New York: Telos Press Publishing, 2006; orig. pub. 1950), pt. III, chap. 2, § D (“Grotius on the problem of just war”), pp. 159–62. On this point and the conception that Ayala expounded in the same work, see Haggenmacher, Grotius et la doctrine de la guerre juste (n. 8), pp. 298–300. Alberico Gentili, De Iure Belli Libri Tres, translated by John C. Rolfe from the 1612 edition (Oxford: Clarendon Press; New York: Oxford University Press, 1933; orig. pub. 1588–89), vol. II, lib. I, cap. II, p. 18; my translation. The Latin original: “Porro autem & publica sit contentio oportet neque enim bellum est rixa, pugna, inimicizia privatorum.” Writes Gentili: “By war is meant that which like parties engage in for victory, and is thus termed a duel” (ibid.; my translation). The Latin original: “Etenim ex eo bellum dictum est quod inter duas partes aequales de victoria contenditur, et duellum a principio propterea nominabatur.” Haggenmacher underscores that this doctrine traces its origins to Roman law. See Peter Haggenmacher, “Il diritto della guerra e della pace di Gentili: Considerazioni sparse di un ‘groziano,’” in Il diritto della guerra e della pace di Alberico Gentili, proceedings of the conference Quarta Giornata Gentiliana, 21 Sept. 1991 (Milan: Giuffrè, 1995), p. 41. Ibid., p. 29. This is in contrast to the theory of just war, where only one of the two belligerents can be in the right. Writes Gentili in this regard: “It is in the nature of war that both parties claim they are fighting for a just cause. It can generally be true, in any type of dispute, that neither of the two contenders is unjust.” Gentili, De Iure Belli Libri Tres (n. 63), lib. I, cap. VI, p. 46; my translation. The Latin original: “Haec natura bellorum, ut pars utraq; praetendat se fovere iustam caussam. Hoc generaliter in omnibus fere statibus

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

44

i us ge n t i u m and t he origins of international law

Even Francisco de Vitoria, as noted, recognized the possibility that war could be just on both sides of the conflict, but only if the Indios persisted in their “invincible ignorance.” Similarly, as was also observed, Grotius proceeded from a moral basis to argue for the possibility that neither of the two parties in conflict is unjustly engaged in it.66 This stands in contrast to Gentili, whose theory, like that of Ayala, recognized any war as just so long as it was waged by sovereigns,67 regardless of its causes. Likewise, only if the parties engaged in a conflict are subjects of public law does their conflict qualify as war, which for Gentili accordingly excludes acts of piracy, theft, and the like.68 More complex and nuanced is the conception developed by Grotius, for he took different kinds of war into account, and three main ones in particular: “The first and most necessary partition of War is this, that War is private, public, or mixt.”69 So, therefore, the warring parties can be states, but they can also be private parties, or there can be a combination of the two (as was the case with the Dutch Revolt against King Philip II of Spain). Haggenmacher further observes that in the wake of World War I, the works of Grotius (as well as those of Vitoria) were revisited in an effort to recover the criteria of justice that from the Peace of Westphalia to World War I itself had been denied by the jus publicum europaeum. In this divergence from the principles of the jus publicum europaeum lies the reason for the criticism that Grotius received from Schmitt, who instead rejected the principles of the new international

66

67

68

69

controversiarum fieri valet, ut neutra litigantium pars sit improba.” Behind this view lies an acknowledgment of the frailty of human nature, which prevents us from understanding “that purer and truer form of justice according to which it cannot be that both parties are justly engaged in contention” (ibid., lib. I, cap. VI, p. 47). The Latin original: “purissimum illud, atque verissimum iustum ignoratur, quod non ferret duos litigare iuste.” In an extensive discussion mostly focused on De Jure Praedae, Haggenmacher considers the way Grotius shifts between the bilateral tradition in the law of war and the unilateral one, arguing that he tends to favor the latter. See Haggenmacher, Grotius et la doctrine de la guerre juste (n. 8), pp. 305–11, esp. 309. Gentili, however, is still dealing with clashes involving princes and republics, whereas Grotius and Pufendorf will be concerned with states. See Haggenmacher, “Il diritto della guerra e della pace di Gentili” (n. 64), p. 51. “With pirates and thieves there is no war.” Gentili, De Iure Belli Libri Tres (n. 63), lib. I, cap. IV, p. 32; my translation. The Latin original: “Cum piratis & latrunculis bellum non est.” Grotii, De Jure Belli et Pacis (n. 38), vol. 1, lib. I, cap. III, § I.1, p. 94. The Latin original: “Belli prima, maximeque necessaria partitio haec est, quod bellum aliud est privatum, alid publicum, aliud mixtum.”

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

hugo grotius and t he law of p eo ples

45

order established under the 1919 Treaty of Versailles and advocated for a return to the past.70

2.7 Sovereignty and Rights The complexity of Grotius’s doctrine in the matter of war needs to be carried one step further by bringing into the picture the rights of man and their bearing on international law. Grotius offers a theory in which to frame the transition from an allencompassing society of humanity to a society of states. What he describes is a new context marked by the primacy of the states’ sovereignty, and it therefore becomes a problem for him to figure out how the rights of man fit into this picture. As we will see, however, a number of commentators argue that these rights actually play a preeminent role in his thought. In this matter, too, his views prove to be controversial, for instead of conceiving rights as trumps – as limits on the state’s sovereignty – he seeks to strike a balance between these two opposite sources of claims. On the one hand, Grotius holds up as fundamental the state’s interest in ensuring its own security, and on this basis he denies that citizens have a right of resistance: “Therefore the State (civitas) may prohibit that promiscuous right of Resisting, for the sake of public peace and order (publicae pacis et ordinis causa).”71 So, too, from the premise that the governors are charged with promoting the welfare of the governed, it does not follow, for Grotius, that the latter (the people) stand above the former (the sovereign), nor does that premise entail the doctrine of popular sovereignty.72 On the other hand, however, the conception of rights he works out places some specific limits on sovereignty so construed. To see this, we need to go back to Grotius’s treatment of law and rights.73 Law, he submits, can be 70 71 72

73

Haggenmacher, “Il diritto della guerra e della pace di Gentili” (n. 64), 53. Grotii, De Jure Belli et Pacis (n. 38), vol. 1, lib. I, cap. IV, § II.1, p. 166. As Grotius states the argument: “But it does not follow, as our opponents infer, that peoples are superior to kings: for guardianship is for the sake of the ward, and yet the guardian has authority over the ward” (ibid., lib. I, cap. III, § VIII.14, p. 125). The Latin original: “Sed non ideo consequens est, quod illi inferunt, populos rege esse superiores: nam e tutela pupilli causa reperta est, et tamen tutela ius est ac potestas in pupillum” (ibid., p. 124). Cf. R. J. Vincent, “Grotius, Human Rights, and Intervention,” in Bull, Kingsbury, and Roberts (eds.), Hugo Grotius and International Relations (n. 21), chap. 8, p. 245. It will be noted that in the Latin original Grotius uses the same word, namely, jus, to refer to both concepts, that of law and that of rights. Whewell’s English translation (n. 38), as well as the translation edited by Richard Tuck (n. 31), likewise renders the two concepts

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

46

i u s g e n ti um an d t h e o r i g i n s of international law

understood in two senses. In the first sense, the word law (jus) “means only what is right, that is, just”74 – a question he treats in connection with that of war, considering both the problem of the just causes of war (jus ad bellum) and that of what is just in war (jus in bello). In a first sense, what is just is no more than that which is not unjust, which in turn is defined as that “which is contrary to the nature of a society of rational creatures.”75 But there is also a second sense in which the law can be understood, and that is in its connection with the person. Here law corresponds to the rights we have under the law, “as when we say my Right,” meaning “a moral Quality by which a person is competent to have or to do a certain thing justly.”76 Grotius further breaks down this moral quality by saying that it can be either perfect or imperfect: in the former case we have a faculty (facultas), an actual claim; in the latter case we have an aptitude (aptitudo), a potential claim.77 This faculty, Grotius further comments, is what jurists refer to as suum, meaning a right in the strict (legal) sense, or a right to claim what is one’s own.78 This can be a power “over one’s self, which is Liberty; or over another, which is Authority, for example, paternal, dominical (that of a master over a servant); Ownership; whether full, as of Property [dominium]; or less full, as of Compact [usufruct], Pledge, Credit, to which corresponds Debt on the other side.”79

74

75

76

77 78

79

using a single word, namely, Right (uppercased). Here, I will instead be distinguishing the two concepts by using two words for them (law and rights) because, while right can certainly convey the idea of what is right (justice), its former sense as “law” is more likely to confuse modern readers than to prove revealing. In the sixth edition of Black’s Law Dictionary (St. Paul, MN: West Publishing Co., 1990), this idea of right as justice is observed to correspond to “one meaning of the Latin jus, and serves to indicate law in the abstract, considered as the foundation of all rights, or the complex of underlying moral principles which impart the character of justice to all positive law,” but subsequent editions and most law dictionaries no longer carry this abstract sense of right as distinguished from its concrete sense as a power or privilege one enjoys under the law. Grotii, De Jure Belli et Pacis (n. 38), vol. 1, lib. I, cap. I, § III.1, p. 4. The Latin original: “Nam jus hic nihil aliud quam quod justum [. . .].” The Latin original: “Est autem injustum, quod naturæ societatis ratione utentium repugnat” (ibid.) Ibid., lib. I, cap. I, § IV, pp. 4–5. The Latin original: “Quo sensu ius est, qualitas moralis personae, competens ad aliquid iuste habendum vel agendum.” Ibid., p. 5. The Latin original: “Facultatem Jurisconsulti nomine sui appellant [. . .].” Ibid., lib. I, cap. I, § V, p. 5. Ibid. The Latin original: “sub quo continentur Potestas, tum in se, quae libertas dicitur, tum in alios; ut patria, dominica: Dominium, plenum sive minus pleno, ut ususfructus, jus pignoris: et creditum, cui ex adverso respondet debitum” (ibid., pp. 5–6).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

h u g o gr o t i us an d t h e l aw of p eoples

47

Grotius thus explains the rights of man (liberty, ownership, and so on) as expressions of the moral qualities of the person – but he seems to place these rights on a lower level than that of authority, or sovereignty. Indeed, he distinguishes power (facultas) into private and public, the former (inferior) being used to pursue one’s own interests, the latter (superior) being used by the entire community to promote its own welfare, the common good.80 In virtue of the common good, then, the sovereign holds a right of property that trumps the right of individuals to pursue their own good.81 In the common good lies the aim on which rests the superiority of sovereignty over the natural rights of individuals. As noted, a failure to achieve this aim would not, according to Grotius, give individuals grounds on which to resist the sovereign’s rule.82 “Life,” he comments, “is far preferable to Liberty.”83 God himself considers it a benefit granted to them, one they ought to recognize even in slavery; and, speaking through the prophet Jeremiah, he accordingly urges the Hebrews to prefer life to liberty even if it is a life of slavery under the Babylonian captivity.84 As much as Grotius recognizes the rights of man as worthy of protection, he frames them within the limits of the preeminence of the sovereignty of the state. Even so, this construction suffers from an unresolved tension between rights and sovereignty, a tension that lives in latency and flares up in specific circumstances, as when Grotius argues for the legitimacy of foreign intervention against a sovereign who oppresses his own subjects (as previously discussed in Section 2.4). 80

81 82

83

84

The Latin original: “Sed haec facultas rursum duplex est: Vulgaris scilicet quae usus particularis causa comparata est, et Eminens, quae superior est iure vulgari, utpote communitati competens in partes et res partium boni communis causa” (ibid., lib. I, cap. I, § VI, p. 5). Ibid. Grotius does, however, grant that there may be extreme cases giving grounds for exercising a right of resistance: “But still, I do not venture indiscriminately to condemn, either individuals or a minority of the people who thus have recourse to the ultimate means of necessity, provided they do not desert a respect for the common good.” Ibid., lib. I, cap. IV, § VII.4, p. 181. The Latin original: “Attamen indiscriminatim damnare aut singulos aut partem populi minorem, quae ultimo necessitatis praesidio sic olim usa sit, ut interim & communis boni respectum non deferat, vix ausim” (ibid.). Grotius, The Rights of War and Peace (n. 31), bk. II, chap. XXIV, § VI.2, p. 1143. The Latin original: “Vitam scilicet [. . .] pluris esse quam libertatem.” “Bring your necks under the yoke of the king of Babylon, and serve him and his people, and live. / Why will ye die, thou and thy people, by the sword, by the famine, and by the pestilence, as the Lord hath spoken against the nation that will not serve the king of Babylon?” (Jer. 27:12–13 King James Version).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

48

i u s g e n t i um and t he origins of international law

Even though Grotius’s theoretical construction contains this unresolved latency between rights and sovereignty, it must be recognized that his thought is deeply embedded in the system of relations among sovereign states that the 1648 Peace of Westphalia definitively put into place sometime after his De Jure Belli ac Pacis. It is to this system of relations that we must therefore now turn in wrapping up this discussion.

2.8 The International Society of States: Origins and Perspectives In reconstructing Grotius’s thought, Hedley Bull comments that his work “is cardinal because it states one of the classic paradigms that have since determined both our understanding of the facts of interstate relations and our ideas as to what constitutes right conduct therein.”85 Grotius’s significance, for Bull, lies in his having clearly laid out the idea of the international society of states which came into being with the Peace of Westphalia, and which to this day, in Bull’s opinion, forms the basis of relations among states. Grotius’s approach to the problem of interstate relations needs to be distinguished from two others from which it differs markedly. The first of these is the realism expressed by thinkers like Machiavelli before Grotius and Thomas Hobbes after him – a vision that will run through Hegel and then Carl Schmitt. The second of these approaches envisions a suprastate legal order, and in this stream of thought we can include, for example, those conceptions that sought to restore the now decadent institutions of Christianity (a Respublica Christiana), and even more so the conception of a future cosmopolitan law, like the one that in the late seventeenth century we will find in Kant (Chapter 4). Grotius, in Bull’s analysis, embraces a third kind of approach, envisioning a scenario in which, on the one hand, sovereign states exist in a state of nature where they are not subject to any supra-state institutional framework, but on the other hand, despite that fact, they recognize the need to subscribe to a common set of rules, in such a way as to form an international society of states. This concept of international society, Bull cautions us, should not be confused with the system of sovereign states that took hold in the late fifteenth century (on which see Chapter 7). Indeed, the international society Grotius describes is the one that would form around the norms and customs the European states 85

Hedley Bull, “The importance of Grotius in the study of international relations,” chap. 2 in Hugo Grotius and International Relations (n. 21), p. 71.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

h u g o g r o t i u s a nd th e l a w of p e o p l es

49

accepted after Westphalia even without any supra-state centralized government. As much as Grotius is to be credited with making this conception clear and compelling, its outlines were doubtless already in place before him, both in the theory of international relations and in its practice. Thus, for example, the material constitutional practice of the Holy Roman Empire had been founded on a system of rights and duties that neither the Emperor nor any prince or any of the estates could disregard.86 From a theoretical point of view, Grotius was strongly influenced by Vitoria’s conception of a political community of peoples (totus orbis), and especially by Cicero’s Stoic conception of a humani generis societas.87 From a practical point of view, it is in the Peace of Westphalia that the principles he outlined in De Jure Belli ac Pacis found their formal embodiment. There was no coincidence, to be sure, for in the matter of religion Grotius would have wanted an end to the schisms and religious strife, whereas Westphalia simply reiterated the cuius regio, eius religio principle previously established with the 1555 Peace of Augsburg, under which each prince in the Empire was free to establish the confession of faith that would be accepted in his own lands, and which in this sense recognized the legitimacy of the different Christian confessions. What did coincide was the principle of the supremacy of the state over the Confessions, as well as the principle that the states held sovereign power within the Empire.88 Bull neatly identifies five features that mark the international society of states formed under the Peace of Westphalia. The first of these is the centrality of a natural law resting on a rational foundation, coexisting with a voluntary law of peoples, but without any way to decide which of the two was to prevail in the event that a conflict should break out. Indeed, Grotius was writing at a time in which the practice that would give rise to an international customary law among states had not yet gained a firm footing, nor had the great compendia of treaties among states appeared. Only in the nineteenth century would positive international law fully establish itself, finally displacing the doctrine of natural law. The second of the features singled out by Bull is that the international society is not confined to Christian or European states. Here, I would 86 87

88

Ibid., p. 74. See Peter Haggenmacher, “Grotius and Gentili: A Reassessment of Thomas E. Holland’s Inaugural Lecture,” in Bull, Kingsbury, and Roberts (eds.), Hugo Grotius and International Relations (n. 21), p. 172. Bull, “The importance of Grotius” (n. 85), pp. 77–78.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

50

i u s g e n ti um an d t h e o r i g i n s of international law

argue, we run into trouble because, while Bull is certainly right to underscore that Grotius understood his vision to be universal – for it rested on natural law, and natural law must bind everyone to its principles – the universal reach claimed for this vision could only be achieved on condition of imposing the same natural law on the legal systems of nonChristian and non-Western countries. The West’s purported universalism could be so described only on condition of squeezing out the cultural and legal heritage of other peoples: only from the standpoint of Western doctrine could its own rational natural law be held up as universal. Here Grotius appears to contradict himself, for he thought that the rules governing relations among Christian states were not the same as those governing relations between Christian and non-Christian states.89 Furthermore, as Bull himself points out, Grotius, like Vitoria before him, thought it legitimate for Christian powers to resort to force to assert their freedom of commerce, and in virtue of this doctrine non-European peoples had no right to disengage from trade relations with the Europeans. Especially significant in this regard is the periodization into which Bull breaks down the transformations of the international society of states. In the eighteenth century, and even more so in the nineteenth, the idea of a universal international society was whittled down to a point where it only applied to the Western Christian powers (see Chapter 5). This process came to a head in the latter half of the nineteenth century, when Western colonialism came into full swing, restricting the scope of Western law exclusively to “civilized” peoples. Finally, beginning in the second half of the twentieth century, the society of European states grew into a global society that came to include nonEuropean states. This new reality is also described by Bull as an international society of peoples or nations,90 specifically referring to the national liberation movements that sprang up in the second half of the twentieth century. The international law of this society had to reckon with the multiplicity of the political and axiological systems comprised in it. The third feature that in Bull’s view distinguishes the international society envisioned by Grotius consists in its comprising not only states but also groups and individuals. Indeed, Grotius considers not only relations among states but also relations among private individuals and between such individuals and states.91 89

90 91

In this regard, see Martin Wight, Systems of States (Bristol: Leicester University Press, 1977), pp. 125–28. Bull, “The importance of Grotius” (n. 85), pp. 72 and 86. See the discussion in the closing paragraph of Section 2.6.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

h u g o g r o t i us a n d th e l aw of p eoples

51

The fourth feature lies in what Bull describes as the solidarism that builds up within the international society, meaning that this society comes to accept and apply the principles of “just war” on the basis of its “just causes.”92 In the eighteenth century, and especially in the nineteenth, it was instead the distinction between just and unjust causes of war within the framework of legal positivism that came undone, this until the post–World War I period, when the same distinction was revived within the framework of international law. Finally, the fifth feature of the international society lies in the absence of international organisms at the time when Grotius was writing. While Grotius identified the elements distinguishing the practice of international relations among states, he could not yet take the practice of professional diplomacy into account (which only flourished in the eighteenth century), nor could he fit international political organizations into his account, which did not come into being until the twentieth century. What did exist, even if Grotius makes no explicit mention of it, was a balance of power between France and the Habsburg House of Austria. In conclusion, Grotius’s work on the one hand reflects the great commercial and colonial expansion of the seventeenth century, while on the other it clearly outlines the traits of the international society of states that would form with the Peace of Westphalia, and which would continue in existence until World War I. In the era that came after Grotius, other orientations in the theory of international law developed taking into account the way that relations among states configured themselves under the Peace of Westphalia. It is to these orientations that we must now turn. 92

See Hedley Bull, “The Grotian conception of international society,” in Herbert Butterfield and Martin Wight (eds.), Diplomatic Investigations: Essays in the Theory of International Politics (London: George Allen & Unwin, 1966).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:07, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.004

3 Samuel Pufendorf and Emer de Vattel: Kant’s “Miserable Comforters”

3.1 Beyond Grotius The Peace of Westphalia occasioned a flurry of works devoted to ius gentium – the so-called “later classics” of the seventeenth and eighteenth centuries – where this subject was developed in ways that sometimes departed significantly from the models established by the founding fathers. Notable in this regard was Thomas Hobbes, who denied the law of peoples outright, thereby challenging the whole idea behind Grotius’s construction. In Leviathan (1651) Hobbes depicted states as existing in a state of nature, not subject to any law and lacking any independent enforcer capable of settling disputes between them. In fact Hobbes denied the existence of a law of peoples that would be in force in both wartime and peacetime,1 introducing a perspective that was destined to resonate widely. States, for Hobbes, are in a constant state of war, and otherwise find themselves always on the point of doing battle against one another.2 That is because there is no higher authority that can compel them to commit to peace – hence Hobbes’s statement that the condition of actual or potential war among states is not governed by any ius belli or ius gentium.3 Hobbes further argues that there is no difference between ius gentium (the law of nations) and the law of nature, and on the basis of the distinction between ius and lex (rendered as “right” and “law”), he 1 2

3

Antonio Truyol y Serra, Histoire du droit international public (Paris: Economica, 1995), p. 81. In Hobbes’s own words, states “live in the condition of a perpetual war, and upon the confines of battel, with their frontiers armed, and canons planted against their neighbours round about.” Thomas Hobbes, Hobbes’s Leviathan, reprinted from the 1651 ed., with an essay by W. G. Pogson Smith (Oxford: Clarendon Press, 1909), pt. 2, chap. 21, p. 165. See Marco Geuna and Paolo Giacotto, “Le relazioni fra gli Stati e il problema della pace: Alcuni modelli teorici da Hobbes a Kant,” Comunità, 187/39 (1985), 77–125, at 81.

52

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

s a m u el p u f e n d o r f an d e m e r d e v a t t e l

53

makes the claim that states are free to act as they choose, subject only to the rule of self-preservation. In this state of nature whose basic condition is that of war, whether threatened or real, some of the core tenets of the previous conception of ius gentium inevitably fall through, and none more so than the doctrine of just war: there only prevails the logic of the state seeking to secure its own existence.4 Hobbes thus advances a realist perspective in the history of international law. Other authors instead work from entirely different sets of premises. Their approaches can be sorted into three different groups depending on how they conceive the relation between natural and positive law. These groups are identified by Truyol y Serra as follows: we have (1) thinkers who foreground the role of positive law, pushing natural law into the background; (2) thinkers who instead foreground natural law; and (3) thinkers who attempt to work the two into a synthesis. But one feature these authors all have in common, regardless of how they work out the relation between natural law and positive law, is that they all move beyond the doctrine of just war and the nondiscriminating conception of war as a clash between parties that stand on an equal moral and legal footing.5 We will follow the legal-positivist direction that international law takes with these thinkers and will then turn to other conceptions, once more looking at them through the lens of Western civilization and its mode of relating to the other.

3.2 Ius Gentium as Positive Law In the first of the three groups just mentioned we find an important international lawyer by the name of Richard Zouch, who succeeded Alberico Gentili as chair of civil law at the University of Oxford. A highly laudatory assessment of Zouch’s work came from Georges Scelle, who in it saw the first textbook of international public law.6 Zouch’s main work is titled Iuris et Iudicii Fecialis, sive, Iuris inter 4 5 6

Ibid., p. 82. Truyol y Serra, Histoire du droit (n. 1), p. 82. Writes Scelle: “Si l’on peut regretter que Zouch n’ait rien innové quant aux doctrines, il faut lui savoir gré d’avoir été le premier vulgarisateur de notre science. Pour la première fois nous avons un ensemble, un tout coordonné et de dimensions abordables. C’est un manuel, mais n’est-ce pas un titre que d’avoir donné le premier manuel de droit international.” (In translation: Though it may be regrettable that Zouch has not innovated in the way of scholarship, we need to be grateful to him for having been the first popularizer of our science. For the first time we have a whole that works as a coherent, reasonably sized overview. It is a handbook, to be sure, but it is not in virtue of a title that we have the first handbook of international law.) Georges Scelle, “Zouch,” in A. Pillet (ed.), Les fondateurs du droit international: Leurs oeuvres, leurs doctrines (Paris: V. Giard & Brière, 1904), pp. 269–330, at 322.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

54

i u s g e n ti um a n d th e o r i g i n s of in t e r n a t i o n a l l a w

Gentes, et Quaestionum de Eodem Explicatio (1650), referring to the ius fetiale that governed the transition from the state of war to the reestablishment of peace.7 Ius fetiale was part of domestic law. Zouch conceived it as a law governing relations among peoples (inter gentes), and so it was that, as Truyol y Serra rightly points out, the law of peoples turned into law inter diversos principes, aut populos. A prominent role in the history of international law has been assigned to Zouch by Carl Schmitt, who placed him next to Balthazar Ayala and Alberico Gentili as thinkers who had managed to separate the question of bellum iustum from that of iusta causa in war, seeing in war among states no more than a relation among equals engaged in hostilities as iusti hostes, without any way to determine whether either of the two has a legitimate ground, or just cause, on which to act. Indeed, for Zouch and the other jurists in the same group the only basis for a state’s political decision to go to war lay exclusively in the state’s own sovereignty, meaning that there is no more room for a moral assessment of its action, and hence no way to condemn its warring as illegitimate or unjust. In short, according to Schmitt, Zouch was instrumental in helping us bring into focus the transition to the “new interstate structure of European international law: inter gentes.”8 Zouch thus arrived at a new legal positivist understanding of international law – this in contrast to the later thinking of Samuel Pufendorf, who was still proceeding on a natural-law basis. 7

8

Ius fetiale is explained by Emer de Vattel by noting that “the Romans recognized the existence of a law having force between Nations as such, and to it they refer the right of embassies. They had likewise their fetial law, which was nothing more than the Law of Nations in its relation to public treaties and particularly to war. The fetials were the interpreters, the guardians, and in a manner the priests of the public good faith.” Emer de Vattel, The Law of Nations, or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns, vol. 3 of Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite et aux Affaires des Nations et des Souverains, translated from the 1758 edition by Charles G. Fenwick (Washington, D.C.: Carnegie Institution of Washington, 1916; orig. pub. 1758), Preface, p. 4a. The French original: “Cependant ces mê mes Romains reconnoissoient une Loi, qui oblige les Nations entr’elles, & ils rapportoient à cette Loi le Droit des Ambassades. Ils avoient aussi leur Droit Fécial, le quel n’étoit autre chose que le Droit des Gens par rapport aux Traités Publics, & particulièrement à la Guerre. Les Féciaux (Fetiales) étoient les Interprétes, les Gardiens, & en quelque façon les Prêtres de la foi publique.” Emer de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite et aux Affaires des Nations et des Souverains, vol. 1 (repr. Washington, D.C.: Carnegie Institution of Washington, 1916; orig. pub. 1758), Préface, p. VIII. Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. G. L. Ulmen (New York: Telos Press Publishing, 2006; orig. pub. 1950), pt. III, chap. 2, § E, p. 163.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

s a m u el p u f e n d o r f an d e m e r d e v a t t e l

55

3.3 The Law of Peoples as Natural Law: Samuel Pufendorf Samuel Pufendorf’s conception is closely intertwined with his own life story. He was born in Saxony in 1632 to a Lutheran minister, and initially he followed in his brother’s footsteps in the service of the Swedish crown. After the Thirty Years’ War, Sweden became a state with vast holdings in the southern Baltic. Many German states turned to Sweden as a guarantor of their own liberty in the fragile balance built through the Peace of Westphalia.9 Sweden thus emerged as a great Baltic power. It forged an alliance with the Dutch, but then in 1658–59 moved to break this alliance, and it was open war between the two countries. At the time, Pufendorf was tutoring the son of a nobleman who was serving as Swedish ambassador to Denmark and was imprisoned in Copenhagen. He was later in Lund, Sweden, when in 1672 he published his chief work, De iure naturae et gentium libri octo. If we look at Pufendorf’s conception next to that of Grotius, we will see that it departs from the latter in a number of respects that turn out to have consequences of great import. In particular, Pufendorf rejects Grotius’s distinction between ius naturae and voluntary or positive ius gentium. Pufendorf took issue with Grotius’s idea of a consensus among peoples (consensus gentium)10 as the foundation of international law, and instead sought to ground the free life of states exclusively in natural law.11 It followed from this critique that Pufendorf needed to represent the state and its power in realistic terms, and this became the basis for his doctrine of the “state’s interests.” Central to Pufendorf’s thought, then, is the freedom of the state (libertas civitatis),12 entailing the primacy of the 9

10

11 12

Richard Tuck, The Rights of War and Peace (New York: Oxford University Press, 1999), p. 142. In this regard, see Maurizio Bazzoli, “La concezione pufendorfiana della politica internazionale,” in Vanda Fiorillo (ed.), Samuel Pufendorf filosofo del diritto e della politica (Naples: Edizioni La Città del Sole, 1996), pp. 47–48. The discussion in this section will by and large hew to the interpretation of Pufendorf offered by Bazzoli. Ibid. Writes Pufendorf: “In as much as the Liberty of a State, which is nothing else but the Power of finally resolving and determining, according to its own Judgment, all Matters in which its Safety is concern’d, cannot be understood, in case the state may, by virtue of the Authority held over it by some other, be compell’d to certain Performances against its will.” Samuel Pufendorf, Of the Law of Nature and Nations: Eight Books, trans. Basil Kennett, 4th ed. (London: Printed for J. Walthoe, R. Wilkin, J. and J. Bonwicke, S. Birt, T. Ward, and T. Osborne, 1729), bk. VII, chap. V, § XX, p. 684. The Latin original: “Scilicet libertas civitatis, quae nihil aliud est, quam facultas ex proprio iudicio de negotiis ad sui conservationem spectantibus ultimato statuendi, nequit intelligi, ubi ipsa pro imperio ad aliquid suscipiendum invita ab alio possit adigi.” Samuel Pufendorf, De iure naturae et gentium libri octo (1688 ed.; orig. pub. 1672), lib. VII, cap. V, § 20, p. 719.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

56

i u s g e n ti um a n d th e o r i g i n s of in t e r n a t i o n a l l a w

state’s own utility over any possible treaty obligation. In this regard, Pufendorf explicitly takes exception to the view that Grotius sets out in book III, chapter XIX, of De Jure Belli ac Pacis, claiming that all compacts entered into with an enemy are to be honoured. In contrast to that view, Pufendorf argues that this holds only for compacts whose aim is to achieve peace, whereas in the case of pacts that do nothing to change a situation of war, the problem needs to be framed differently. Which is to say that only in peacetime are states required to show loyalty (fides) toward compacts, whereas in wartime, anything is fair game: “a State of Hostility in itself gives a Man unlimited Liberty, to take all the Advantages he can against his Enemy.”13 These theses result from the central role the state takes on in Pufendorf’s theory, where, as Leibniz observes,14 the law no longer derives from God but from the absolute state, and this means that the recta ratio of natural law turns into a ratio civitatis, that is, into reason of state.15 These considerations, and the central role that Pufendorf assigns 13

14

15

Pufendorf, Of the Law of Nature and Nations (n. 12), bk. VIII, chap. VII, § II, p. 849; italics in original. The Latin original: “Nam hostilis status utique in se dat licentiam nocendi alteri in infinitum.” Pufendorf, De iure naturae et gentium (n. 12), lib. VIII, cap. VII, § 2, p. 896. Wrote Leibniz: “Pufendorf finds the sufficient foundations of law not in the imperatives of reason, which issue from divine sapience, but in the sovereign’s commands [. . .]. Pufendorf contradicts himself when, on the one hand, he derives all the obligations of law from the sovereign, while on the other he claims that in the concept of a sovereign is contained not only the power to obligate but also a just foundation for the power of the command.” My translation of Gottfried Wilhelm Leibniz, “Monita quaedam ad Samuelis Pufendorfii principia” (1709), in Opera Omnia, ed. Ludovici Dutens (Geneva: Apud Fratres de Tournes, 1768), vol. 4, pt. III, pp. 275–83, at 281. The Latin original: “Nec video, quomodo auctor, quamvis acutus, a contradictione facile excusari possit, quum omnem juris obligationem a superioris decreto derivat [. . .] et tamen mox [. . .] ad superiorem constituendum requiri ait, non tantum, ut vires cogendi habeat, sed etiam ut justas habeat causas vindicandi sibi in me potestatem. Ergo justitia causae ipso superiore anterior est, contra quam adseverabatur.” Also quoted in Ernst Reibstein, “Deutsche Grotius-Kommentatoren bis zu Christian Wolff,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 15 (1953/54), 76–103, at 87–88. Reibstein comments on Leibniz’s criticism by noting that Pufendorf had himself called Grotius out on his circular derivation of natural law from morality, so Leibniz calls attention to the fact that the same criticism applied to Pufendorf’s own account of the relation between law and the power of the state. In this regard, see the discussion devoted to Pufendorf in Friedrich Meinecke’s classic Machiavellism: The Doctrine of Raison d’État and Its Place in Modern History, ed. Werner Stark (Abingdon and New York: Routledge, 2017; 1st ed. New Haven: Yale University Press, 1957), bk. 2, chap. 9, pp. 224–43. Orig. pub. as Die Idee der Staatsräson in der neueren Geschichte (Munich and Berlin: R. Oldenbourg, 1924).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

s a m u el p u f e n d o r f an d e m e r d e v a t t e l

57

to the state of enlightened despotism, have led some to see his work as smuggling a sort of crypto-positivism into the law of peoples.16 This is certainly a realistic interpretation, on which Pufendorf is closer to Hobbes than to Grotius. As has been rightly underscored, Pufendorf alights on the idea of a dynamic balance of power informing the “perpetual confederation”17 of which the Germanic lands offered the most significant examples.18 As we will see, however, there is a greater complexity to Pufendorf’s thought, for next to an analysis of the interests of states he offers a moral analysis.

3.4 Between Utility and Justice: Pufendorf between Hobbes and Kant Central to Pufendorf’s thought is the idea of a system of sovereign states,19 a system in which each state pursues its own interests but these 16

17

18

19

See in particular Ernst Reibstein, “Pufendorfs Völkerrechtslehre,” Österreichische Zeitschrift für öffentliches Recht, 7 (1956), 43–72, at 66, commenting that “the organizational and positivist modern universalism of the law of peoples (Völkerrechtsuniversalismus) finds its first precursor in Pufendorf” (my translation). A perpetual confederation is defined by Pufendorf as a “kind of System [. . .] when several States are join’d to each other by a perpetual League or Alliance; the chief Occasion of which seems to have been, that each particular People loved to be their own Masters, and yet each was not strong enough to make Head against a common Enemy.” Pufendorf, Of the Law of Nature and Nations (n. 12), bk. VIII, chap. V, § XVIII, p. 682. The Latin original: “genus systematum [. . .], quod constat ex pluribus civitatibus foedere perpetuo inter se nexis; cui fere occasionem dedit, quod singulis quidam civitatibus [. . .] suam retinere placeret, nec tamen singulis sat virium esset communibus hostibus repellendis.” Pufendorf, De iure naturae et gentium (n. 12), lib. VII, cap. V, § 18, p. 717. See Bazzoli, “La concezione pufendorfiana della politica internazionale” (n. 10), pp. 56–58. Pufendorf argued that since the rights of majesty in the German Empire were shared between the Emperor and the estates, the empire was neither a monarchy nor a unified state. On this point see Meinecke, Machiavellism (n. 15), pp. 225–26. Seeing that the single states in the German Empire never ceased to be such, and so that no higher state had come into being, Pufendorf spoke of “states-systems” founded not on constitutional law but on international law (ibid., p. 226). Martin Wight recognizes the important role that Pufendorf played in developing the concept of a “states-system,” understood as a set of “several states that are so connected as to seem to constitute one body but whose members retain sovereignty.” Martin Wight, Systems of States (Bristol: Leicester University Press, 1977), p. 21. Wight is commenting on the collection of writings by Pufendorf titled De systematibus civitatum and published in Lund in Dissertationes academicae selectiores in 1675. This collection was subsequently reprinted in 1677, 1678, and 1679 under the title Politica inculpata, and then in 1698 under the title Analecta politica. Pufendorf’s original definition of a states-system: “Sistemata civitatum nobis appellantur plures una civitates, vinculo aliquo ita inter se connexae, ut unum corpus videantur constituere; quarum singulae tamen summum in

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

58

i u s g en t i u m a nd th e o r i g i n s of in t e r n a t i o n a l l a w

do not conflict with the principles of justice: utility does not come into conflict with morality. It is a complex position – this congruence of the good with the right – but Pufendorf gives it both a theoretical foundation and a historical illustration. In the first place, Pufendorf argues that our moral sense can translate into utility over the long course. Indeed, utility comes in two forms, he argues: there is the utility of immediate advantage, and then there is the utility whose benefits accrue over time. And this latter kind of utility we can only achieve by acting consistently with the laws of nature: the benefits it brings contribute to our happiness.20 If we intended to base every single one of our actions on our own advantage, without considering the needs of others, only the “deepest confusion” would ensue, for everybody else would do likewise in dealing with us. In short, Pufendorf concludes, it seems evident that in our mutual relations, whether as individuals or as states, “not Justice, but Injustice is really the highest Folly,”21 for although our ill conduct may give us an advantage over others in the immediate future, there is no lasting advantage to be gained from it. We can thus appreciate how nonsensical it is to measure all actions by such gains as work against justice. And here Pufendorf illustrates how the complementarity inherent in the relations that states forge by engaging in trade ultimately makes for a peaceful commercial society.22

20

21

22

sese imperium retineant.” Samuel Pufendorf, De systematibus civitatum, in Samuelis Puffendorfii, Analecta politica, in quibus multae, rarae, gravissimaeque huius disciplinae questiones variis dissertationibus explicantur et enodantur (Amstelædami: Apud Jansson van Wæsberge, 1698), § 2, p. 266. As Pufendorf frames the idea: “Actions perform’d in Conformity to the Law of Nature have a double Excellency, not being only Honest, that is, conducive to the Preservation and to the Increase of the Honour and the good Credit of Men; but likewise Useful and Profitable, promoting their Interest and Advantage, and contributing largely to their Happiness.” Pufendorf, Of the Law of Nature and Nations (n. 12), bk. II, chap. III, § X, p. 129; italics in original. The Latin original: “Habent quippe hoc actiones legi naturali congruentes, ut non solum honestae sint [. . .], sed & utiles [. . .] & ad felicitatem conferant.” Pufendorf, De iure naturae et gentium (n. 12), lib. II, cap. III, § 10, p. 134. Pufendorf, Of the Law of Nature and Nations (n. 12), bk. II, chap. III, § X, p. 130. The Latin original: “Adeoque non iustitia, sed iniustitia revera est summa stultitia.” Pufendorf, De iure naturae et gentium (n. 12), lib. II, cap. III, § 10, p. 135. In this regard, see Georg Cavallar, The Rights of Strangers: Theories of International Hospitality, the Global Community, and Political Justice since Vitoria (London and New York: Routledge, 2016; first pub. Ashgate 2002), p. 202, in large part informing the present discussion of Pufendorf’s account of relations among foreigners. As Pufendorf noted, “it is now usual, for different Nations to import from each any sort of Commodities, for Use and Pleasure; without thinking it necessary for that Purpose, to

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

s a m u e l p u f e n d o r f an d e m e r d e v a t t e l

59

The connection between the state’s utility and morality or justice is clearly set out where Pufendorf addresses the question of the “duty of humanity” (De promiscuis officiis humanitatis), particularly where relations among foreign states are concerned. These relations, he argues, certainly need to be grounded in reciprocity: “if our People are kindly receiv’d by any Nation abroad, we ought to entertain the Men of that Nation with an equal return of Civility.”23 However, a people having no interest in visiting foreign peoples cannot reasonably be expected to give hospitality to others who visit without any reason or need to do so. On this basis, Pufendorf rejected the arguments that, as we saw, Francisco de Vitoria had made in claiming that the Indios could not prevent the Spaniards from peacefully traveling and trading in their lands. In Pufendorf’s assessment, these arguments by Vitoria were in fact designed “to justify his Countrymen in their Proceedings against the Indians.”24 Pufendorf defended the right of each people to decide for itself, on the basis of its own customs, whether to grant access to incoming foreigners, and in making this argument he seems to reject the reasons of Western civilization. Indeed, Pufendorf cites a passage in which Montaigne, in his Essays, relates the answers which the Indios gave the Spaniards in defending their lands and religious traditions against the claims advanced by the king of Castile and upheld by the Pope.25

23

24

25

unite together under the same Government and Constitution.” Pufendorf, Of the Law of Nature and Nations (n. 12), bk. VII, chap. I, § VI, p. 628. The Latin original: “Sicut multae hodie civitates dantur, quae merces, necessitati aut voluptati inservientes, ab exteris petunt.” Pufendorf, De iure naturae et gentium (n. 12), lib. VII, cap. I, § 6, p. 653. Pufendorf, Of the Law of Nature and Nations (n. 12), bk. III, chap. III, § IX, p. 245. The Latin original: “Heic igitur certum videtur, si nostri cives peregrinantes ab aliqua natione comiter recipiantur, parem humanitatem eidem nos honeste denegare non posse.” Pufendorf, De iure naturae et gentium (n. 12), lib. III, cap. III, § 9, p. 247. Here Pufendorf was in disagreement with Grotius, who had argued for the right of passage across foreign territories and for a right of settlement in foreign territories when these were being left unused by their owners. The premise for Grotius’s argument lay in the rights deriving from the inherent limits on the acquisition of private property. Pufendorf, by contrast, derived rights from the mutual duties of people to come to one another’s aid in the state of nature. Cf. Tuck, The Rights of War and Peace (n. 9), p. 154. Pufendorf, Of the Law of Nature and Nations (n. 12), bk. III, chap. III, § IX, p. 245. The Latin original: “titulis, ex quibus Hispani Indos debellare potuerint.” Pufendorf, De iure naturae et gentium (n. 12), lib. III, cap. III, § 9, p. 247. Pufendorf, Of the Law of Nature and Nations (n. 12), bk. III, chap. III, § IX, p. 245, n. b. The passage cited by Pufendorf is likely to be the following: “Certain Spaniards, coasting the sea in quest of their mines, landed in a fruitful and pleasant and very well peopled country, and there made to the inhabitants their accustomed professions: ‘that they were

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

60

i u s g e n t i um and t he origins of international law

Among the basic duties of man Pufendorf finally lists that of hospitality. This duty he presents as inherent in the law of nature, so much so that, “having once admitted Strangers and foreign Guests, to turn them out again, unless by good Reason, is usually censured as some Degree at least of Inhumanity.”26 As has been rightly underscored,27 here Pufendorf seems to anticipate the duty of hospitality that Kant will posit as a founding principle of cosmopolitan law. But unlike Kant, Pufendorf does not think exclusively in moral terms. On the contrary, he is always considering the way morality is interwoven with utility, in this case showing how the duty of hospitality toward foreigners actually works out to the benefit of the state: “And thus we see many States to have risen to a great and flourishing Height, chiefly by granting Licence to Foreigners to come and settle amongst them; whereas others have been reduced to a low Condition, by refusing this Method of Improvement.”28

26

27 28

peaceable men [. . .] sent on the behalf of the King of Castile [. . .], to whom the Pope, God’s vicegerent upon earth, had given the principality of all the Indies [. . .]’; setting forth, moreover, the belief in one only God, and the truth of our religion, which they advised them to embrace, whereunto they also added some threats. To which they received this answer: ‘That as to their being peaceable, they did not seem to be such, if they were so. As to their king, since he was fain to beg, he must be necessitous and poor; [. . .]. As to one only God, the proposition had pleased them well; but that they would not change their religion, both because they had so long and happily lived in it, and that they were not wont to take advice of any but their friends [. . .]: as to their menaces, it was a sign of want of judgment to threaten those whose nature and power were to them unknown [. . .].’” And so – Montaigne concluded, appreciating the wisdom of the Indios – here we have “a fair example of the babble of these children.” Michel de Montaigne, Essays of Montaigne, trans. Charles Cotton, ed. William Carew Hazlett (New York: Edwin C. Hill, 1910), vol. 8, bk. III, chap. VII (Of coaches), pp. 162–64. Pufendorf, Of the Law of Nature and Nations (n. 12), bk. III, chap. III, § IX, p. 245; italics in original. The Latin original: “Admissos tamen semel hospites & peregrinos sine probabili causa ejicere inhumanitate & contumelia non vacat.” Pufendorf, De iure naturae et gentium (n. 12), lib. III, cap. III, § 9, p. 248. As Richard Tuck correctly argues, chapter III of book III of Pufendorf’s De iure naturae et gentium contains all the theses set out in the work. See Tuck, The Rights of War and Peace (n. 9), p. 153. See Cavallar, The Rights of Strangers (n. 22), p. 206. Pufendorf, Of the Law of Nature and Nations (n. 12), bk. III, chap. III, § X, p. 246. The Latin original: “Sicuti etiam multas civitates immensum crevisse cernimus, quod peregrinos, & exteros lubenter receperint: alias contra, quae hos aversati sunt, ad modicam conditionem redactas.” Pufendorf, De iure naturae et gentium (n. 12), lib. III, cap. III, § 10, pp. 248–49. As Cavallar observes, Pufendorf had many examples to choose from in making this point. Among these was the late sixteenth-century migration of more than 100,000 Dutch refugees from the Catholic Netherlands to the Protestant north, contributing to the economic miracle of the Dutch Golden Age. See Cavallar, The Rights of Strangers (n. 22), p. 205.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

s a m u el p u f e n d o r f an d e m e r d e v a t t e l

61

3.5 Against Western Civilization? The foregoing discussion affords a view on the full complexity of Pufendorf’s thought: he was doubtless influenced by Grotius, but kept one eye on Hobbesian realism while anticipating Kantian cosmopolitanism. His clear-sighted account of the system of states and the balance of power is constantly tempered with an ideal of human sociability and man’s duties of hospitality. In this way, he seems to have managed to consistently work together the plurality of perspectives that came onto the international scene in the intersection between the interests of states and the irresistible call to heed the duties of humanity. The same complexity can be appreciated where Pufendorf takes on the question of the relations between the Western world and non-European peoples. On the one hand, invoking the authority of the classics, he claims that lands were originally given to humanity, and that free lands belong to all.29 However, this common ownership of free lands is consistent with usucaption, arguing that it is necessary to recognize this rule for the sake of peace. At the same time, Pufendorf recognizes that the rights of peoples have primacy over the rights the West claims by conquest. This clearly emerges where Pufendorf unqualifiedly rejects what Francis “Bacon, in his Advancement of Learning,”30 offers as a “sufficient Reason for making War upon the Americans,” namely: “That they were to be look’d upon as People proscribed by the Law of Nature, inasmuch as they had a barbarous Custom of sacrificing Men, and feeding upon Man’s Flesh.”31 In this regard Pufendorf rejects the Aristotelian view that some people are slaves by nature. On the contrary, he emphatically asserts that “all Men enjoy 29

30

31

Here Pufendorf quotes Tacitus as saying “That as Heaven was possess’d by the Gods, so the Earth was given to Mankind; and what Parts were void of Inhabitants, lay in common to all the World.” Pufendorf, Of the Law of Nature and Nations (n. 12), bk. III, chap. III, § X, p. 246, n. a. The Latin original: “ita terras generi mortalium datas; quaeque vacuae, eas publicas esse.” Tacitus, Annals, bk. XIII, chap. LV, § 55. Pufendorf, Of the Law of Nature and Nations (n. 12), bk. VIII, chap. VI, § V, p. 837. Pufendorf is referring to Francis Bacon’s De Dignitate & Augmentis Scientiarum Libri IX (London, 1613). See Francis Bacon, De Dignitate & Augmentis Scientiarum Libri IX, in The Works of Francis Bacon, in four volumes, vol. 1 (London: Printed for A. Millar, 1740). Pufendorf, Of the Law of Nature and Nations (n. 12), bk. VIII, chap. VI, § V, p. 837; italics in original. The Latin original: “[. . .] quod ad bellum Americanis inferendum putat sufficere, quod isti possint intelligi velut per ipsum ius naturae proscripti, ideo quia apud illos sit consuetudo sacrificandi homines, & humanas carnes manducandi.” Pufendorf, De iure naturae et gentium (n. 12), lib. VIII, cap. VI, § 5, p. 883.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

62

i u s g e n t i um and t he origins of international law

a natural Liberty in the same Measure and Degree,”32 and if they consent to a lesser liberty, such consent needs to be certain, whether it is express or tacit or whether it is subject to interpretation. Hence Pufendorf’s unambiguous rejection of Aristotle’s thesis that it was right for the Greeks to rule the barbarians, for “if we had a mind to destroy any Nation differing from us in Customs and Manners, it were only to brand them with the reproachful Name of Barbarians, and then to invade them without farther Colour or Excuse.”33 These words have rightly been taken to suggest that Pufendorf rejects the notion of the West as having “any titles of conquest based on civilization.”34 Others, by contrast, take the view that Pufendorf sought to justify colonialism.35

3.6 Pufendorf’s Influence in the Age of Revolutions It was a huge influence that Pufendorf exerted on eighteenth-century legal culture and revolutionary action. Contra Hobbes’s theory that reduces the whole of reality to the motion of bodies and the mechanical necessity of causality, Pufendorf introduced the concept of “moral entities” (entia moralia), understood as principles whose strength lies in their “shewing Men how they ought to govern their Freedom of Actions.”36 32

33

34 35

36

Pufendorf, Of the Law of Nature and Nations (n. 12), bk. III, chap. II, § VIII, p. 231; italics in original. The Latin original: “Nam homines naturali libertate ex aequo gaudent.” Pufendorf, De iure naturae et gentium (n. 12), lib. III, cap. II, § 8, p. 232. Pufendorf, Of the Law of Nature and Nations (n. 12), bk. III, chap. II, § VIII, p. 232; italics in original. The Latin original: “Hoc modo in proclivi esset, omnes populos a moribus nostris dissidentes barbarorum convitio notare, & ex solo isthoc praetexto eosdem invadere.” Pufendorf, De iure naturae et gentium (n. 12), lib. III, cap. II, § 8, p. 233. Cavallar, The Rights of Strangers (n. 22), p. 207. See Richard Waswo, “The formation of natural law to justify colonialism, 1539–1689,” New Literary History, 27, no. 4 (1996), 753–56. Waswo points to those passages in De iure naturae et gentium where Pufendorf, analyzing the formation of colonies, observes that “there is sometimes a less invidious Way made use of in Commonwealths to remove suspected or useless Subjects; or burdensome Numbers of them, to make room for the others; and that is, by sending them abroad in Colonies.” Pufendorf, Of the Law of Nature and Nations (n. 12), bk. VIII, chap. XI, § VI, p. 872; italics in original. The Latin original: “Sed nihilominus a civitatibus usurpari medium minus odiosum amoliendi cives suspectos, aut supervacuos, & moltitudine praegraves, quo caeteris laxior locus fiat; ut nempe eos in colonias transscribant.” Pufendorf, De iure naturae et gentium (n. 12), lib. VIII, cap. XI, § 6, p. 922. Elsewhere Pufendorf (lib. VIII, cap. XII, § 5, p. 926) analyzes the relations between colonies and their motherlands. But, as Cavallar advisedly cautions, we cannot rely on these analyses alone to make the case that Pufendorf is offering a justification of Western colonialism. Pufendorf, Of the Law of Nature and Nations (n. 12), bk. I, chap. I, § IV, p. 3. The Latin original: “Unde vis operandi quae illis inest, non in hoc consistit, ut intrinseca sua

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

s a m u e l p u f en d o r f an d e m e r d e v a t t e l

63

Indeed, men are morally free beings,37 in that they are endowed with a freedom that springs from “an internal Faculty of doing and of omitting, things according to the Direction of our Judgment.”38 In this faculty of freely choosing properly lies the dignity of man,39 and since this power is inherent in every one of us, we are all by nature equal.40 Even before Kant, then, Pufendorf allotted a key role to the idea of dignity,41 positing this idea as the foundation on which rest the rights of

37

38

39

40

41

efficacia motum aliquem physicum, aut mutationem in re aliqua producant, sed tum in eo, ut pateat hominibus, qua ratione libertas actionum ipsis sit moderanda.” Pufendorf, De iure naturae et gentium (n. 12), lib. I, cap. I, § 4, p. 3. An extensive analysis of these aspects of Pufendorf’s thought is offered in Hans Welzel, Naturrecht und materiale Gerechtigkeit: Prolegomena zu einer Rechtsphilosophie (Göttingen: Vandenhoeck & Ruprecht, 1951), p. 155. Pufendorf, Of the Law of Nature and Nations (n. 12), bk. II, chap. I, § II, p. 96; italics in original. The Latin original: “Heic igitur sciendum est, libertatem in genere concipi per facultatem intrinsecam agendi aut omittendi, quod quis ipse iudicaverit.” Pufendorf, De iure naturae et gentium (n. 12), lib. II, cap. I, § 2, p. 99. Writes Pufendorf: “Hence it is his greatest Honour that he has obtain’d an immortal Soul, endu’d with the Light of Understanding, with the Faculties of judging and of choosing Things.” Pufendorf, Of the Law of Nature and Nations (n. 12), bk. II, chap. I, § V, p. 98. The Latin original: “Maxima inde homini dignatio, quod animam obtinet immortalem, lumine intellectus, facultate res diiudicandi & eligendi praeditam.” Pufendorf, De iure naturae et gentium (n. 12), lib. II, cap. I, § 5, p. 101. See Welzel, Naturrecht und materiale Gerechtigkeit (n. 37), p. 155. In this connection John Locke came out in explicit praise of Pufendorf’s work in an essay devoted to education in which he opined that, once a student “has pretty well digested Tully’s Offices, it may be seasonable to set him upon Grotius de Jure Belli & Pacis, or which I think, is the better of the two, Puffendorf de Jure naturali & Gentium; wherein he will be instructed in the natural Rights of Men, and the Original and Foundations of Society, and the Duties resulting from thence.” John Locke, Some Thoughts concerning Education (London: Printed for A. and J. Churchill, at the Black Swan in Paternoster-row, 1693), § 175, p. 221; Locke’s italics. Even more emphatic was Locke’s statement in a short essay he dictated to Samuel Bold, where he makes a short list of recommended political writings comprising three works by Richard Hooker, Algernon Sydney, and Peter Paxton, as well as his own Two Treatises of Government, whereupon he comments: “To these one may add, ‘Puffendorf ‘De Officio Hominis et Civis,’ and ‘De Jure Naturali et Gentium’; which last is the best book of that kind.” John Locke, “Some thoughts concerning reading and study for a gentleman” (1703), in vol. 2 of The Works of John Locke, in Nine Volumes, 12th ed. (London: Rivington, 1824), p. 408. This assessment is also noted by Jean Barbeyrac, for whom Pufendorf’s De iure naturae et gentium compares favourably even to Cicero’s De Officiis and Grotius’s De Jure Belli ac Pacis, judging it to be “meilleur que ces deux-là.” Jean Barbeyrac, Préface du traducteur a Samuel Pufendorf, Le Droit de la Nature et des Gens, tome premier, quatrième édition, revue & augmentée considérablement (Basle: Emmanuel & J. R. Thourneisen, 1732), § XXI, p. CXX. Welzel underscores how Pufendorf was the first thinker to ever make dignity the central concept of natural law. See Welzel, Naturrecht und materiale Gerechtigkeit (n. 37), p. 156.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

64

i u s g e n ti um an d t h e o r i g i n s of international law

man. In this way he significantly influenced the framing of the American declarations of the rights of man.42

3.7 Between Natural Law and the Politics of States: Emer de Vattel Central to Emer de Vattel’s work is the problem of reconciling the natural law of peoples with their positive law.43 In tackling this problem, he can certainly be said to have drawn a lesson from Grotius, but then developed Grotius’s conception by steering it toward the concrete practice of states. And indeed he faults his predecessors, from Grotius to Hobbes and Pufendorf, for their attempt to construct the law of peoples on the basis of abstract deductions inferred from general principles. Thus, in the preface to Le Droit des Gens ou Principes de la Loi Naturelle, Appliqués à la conduite & aux affaires des Nations & des Souverains (1758), having just praised Grotius as “that great man” who “had a glimpse of the truth,” Vattel calls attention to the fact that Grotius, at the same time, “had the task of extracting from the rude ore [. . .], and reducing into regular shape and form, a new and important subject which had been much neglected before his time,” and so “it is not surprising, that [. . .] he could not always acquire those distinct ideas so necessary in the sciences.”44 Indeed, Grotius distinguished the law of nature, “subject to the natural law,” from the law of nations, “established by the common consent of mankind.” But then he also asserted that even “nations or sovereign powers are subject to the authority of the law of nature,” and thus he “acknowledged a natural law of nations,” or “internal law of nations,” calling on sovereigns to follow this internal law in “their own consciences.” In objection to these theses advanced by Grotius, Vattel critically comments that “it is not sufficient simply to apply to nations what the law of nature decides with respect to individuals.” Ergo: “If – setting out with the idea that political societies or nations live [. . .] in a reciprocal 42

43

44

In this regard, see Hans Welzel, “Ein Kapitel aus der Geschichte der amerikanischen Erklärung der Menschenrechte (John Wise und Samuel Pufendorf),” in Rechtsprobleme in Staat und Kirche: Festgabe für Rudolf Smend zum 70. Geburtstag 15 January 1952 (Göttingen: Verlag Otto Schwartz, 1952), pp. 387–411. Antonio Truyol y Serra, Histoire du droit international public (Paris: Economica, 1995), p. 87. Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, ed. Béla Kapossy and Richard Whatmore (Indianapolis: Liberty Fund, 2008), Preface, pp. 7–8; p. 8 also for the quotations in the rest of the paragraph (all italics in original).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

s a m u e l p u f en d o r f an d e m e r d e v a t t e l

65

independence, in the state of nature, and that, as political bodies, they are subject to the natural law – Grotius had moreover considered that the law must be applied to these new subjects in a manner suitable to their nature,” he “would easily have discovered that the natural law of nations is a particular science; that it produces between nations even an external obligation wholly independent of their will.” Contra Grotius, then, Vattel asserts the existence of a law of nations that independently governs relations among states. Contra Hobbes, for whom “the law of nations is the law of nature applied to states or nations,”45 Vattel takes issue with “the idea that the law of nature does not suffer any necessary change in that application,” an idea that in turn leads Hobbes to erroneously claim that “the maxims of the law of nature and those of the law of nations are precisely the same.” In turn, Pufendorf “unreservedly subscribes to this opinion espoused by Hobbes.”46 Vattel thus moves clearly away from his predecessors by looking directly at the practice of relations among states and writing what, as Koskenniemi has observed, would go on to become the most widely used treatise of its kind in the second half of the nineteenth century.47 Vattel declares it to be his intention to write for the sovereigns of states: “The law of nations is the law of sovereigns. It is principally for them and for their ministers that it ought to be written.”48 The task he assigns his work is to work out criteria by which to interpret relations among states and offer guidance to those who are charged with governing peoples.49 45 46

47

48 49

Ibid., p. 9; all subsequent quotations in this paragraph also from the same page. Ibid. As the editors of The Law of Nations (n. 44) point out, Vattel is referring here to the statement in bk. II, chap. III, § XXIII, p. 150, of Pufendorf’s Of the Law of Nature and Nations (n. 12) that contains an explicit endorsement of the view that Hobbes sets out in De Cive, chap. XIV, § 4. In reality, as we have observed, Pufendorf develops his conception by coupling the realistic and Hobbesian account of what advances the interests and utilities of states with a moral account of their relations. Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Lakimiesliiton Kustannus, 1989), p. 89. Vattel, The Law of Nations (n. 44), Preface, p. 18. As Vattel puts it: “If the conductors of states, if all those who are employed in public affairs, condescended to apply seriously to the study of a science which ought to be their law, and, as it were, the compass by which to steer their course, what happy effects might we not expect from a good treatise on the law of nations!” Ibid. The French original: “Si les Conducteurs des Peuples, si tous ceux qui sont employés dans les affaires publiques daignoient faire une étude sérieuse d’une Science, qui devroit être leur Loi & leur boussole, quels fruits ne pourroit-on pas attendre d’un bon Traité du Droit des Gens?” Emer de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite et aux Affaires des Nations et des Souverains, vol. 1 (repr. Washington, D.C.: Carnegie Institution of Washington, 1916; orig. pub. 1758), Préface, p. XXIII.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

66

i u s g e n ti um and t he origins of internati onal law

In short, he is offering himself as counsellor to the Prince, and to his treatise he assigns the task of guiding sovereigns in managing relations with other states. It is from this practical angle that he constructs his system for the law of peoples, tying this system closely to the political logic that governs the decision-making of states and their sovereigns. He starts out in this endeavor by distinguishing what he terms the “necessary, internal, and consciential law” of nations from “the voluntary law of nations.”50 Both are grounded in natural law, but they bind in different ways: “the former as a sacred law which nations and sovereigns are bound to respect and follow in all their actions; the latter, as a rule which the general welfare and safety oblige them to admit in their transactions with each other.” Thus the law of nations is subject to two forms of natural law at once distinguished and connected, and as Vattel comments: “This double law, founded on certain and invariable principles, is susceptible of demonstration, and will constitute the principal subject of this work.” Vattel’s realism, however, does not come fully into play until he introduces “another kind of law of nations” – something that, as he puts it, is termed “arbitrary, because it proceeds from the will or consent of nations.” Its distinctive trait lies in the fact that “States, as well as individuals, may acquire rights and contract obligations, by express engagements, by compacts and treaties: hence results a conventional law of nations, peculiar to the contracting powers.”51 As these premises suggest, this conventional law will be markedly realistic, and will prove especially useful in interpreting interstate relations and diplomacy.52

3.8 The System of Sovereign States and the Balance Politique The key players in Vattel’s system are sovereign states. In the preface to his Law of Nations he tells us that by nation he means the sovereign state (état souverain), or any politically independent entity. This independence from any supra-state legal order is something that Vattel underscores. In this he moves away from the thinker he regards as his teacher and guide, Christian Wolff, the great natural lawyer whom Vattel credits as having been the first to understand that the principles of natural law need to be modified when applied by the states. 50

51 52

Vattel, The Law of Nations (n. 44), Preface, pp. 16–17; italics in original; all subsequent quotations in this paragraph are from page 17. Ibid., 17. Koskenniemi, From Apology to Utopia (n. 47), 89.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

s a m u e l p u f en d o r f an d e m e r d e v a t t e l

67

But then Vattel does not subscribe to Wolff’s “idea of a great republic (civitatis maximae) instituted by nature herself, and of which all the nations of the world are members.”53 From this idea Wolff extracted the further idea of a voluntary natural law. But “the fiction of such a republic,” Vattel holds, is not “admissible in itself,” nor does it provide “solid grounds on which to build the rules of the universal law of nations which shall necessarily claim the obedient acquiescence of sovereign states.” For there is “no other natural society between nations than that which nature has established between mankind in general.” And whereas it “is essential to every civil society (civitati) that each member have resigned a part of his right to the body of the society [. . .], nothing of this kind can be conceived or supposed to subsist between nations.” Hence Vattel’s conclusion that “each sovereign state claims and actually possesses an absolute independence on all the others.”54 Vattel thus rejects the “domestic analogy” between states and individuals, pointing out that the former act in distinctive ways relative to the latter, and highlighting the state’s recourse to treaties as a basis for their interaction. Europe, in Vattel’s eyes, is an example of a system of independent states in a condition of political balance, and what governs this political system is the interlocking of the states’ interests. “Europe,” he states, “forms a political system, an integral body, closely connected by the relations and different interests of the nations inhabiting this part of the world.”55 This system, centered on the activity of sovereigns and ministers and woven into a fabric of constant negotiations,56 forms 53

54

55

56

Vattel, The Law of Nations (n. 44), Preface, p. 14. On the idea of a civitas maxima, see Christian Wolff, “Juris gentium prolegomena,” in vol. 2 of Jus gentium methodo scientifica pertractatum (trans. by Joseph H. Drake from the 1764 ed.; orig. pub. 1749), The Classics of International Law, ed. James Brown Scott (Oxford: Clarendon Press, 1934), § 10, p. 4. Vattel, The Law of Nations (n. 44), Preface, p. 14. Andrew Hurrell sees Vattel as having contributed to developing the Western mainstream conception of international law, where states are the key players around which a pluralist international order must revolve. See Andrew Hurrell, “Vattel: Pluralism and its limits,” chap. 11 in Ian Clark and Iver B. Neumann (eds.), Classical Theories of International Relations (Houndsmills, UK: Macmillan, 1996), p. 234. Less convincing is the assessment that de Lapradelle makes in his introduction to Vattel’s Law of Nations, seeing this work as “the projection upon the plane of the Law of Nations of the great principles of legal individualism.” By the same token, while “Grotius had written the international law of absolutism, Vattel has written the international law of political liberty.” Albert de Lapradelle, Introduction (1914) to Vattel, The Law of Nations (n. 7), trans. George D. Gregory, pp. i–lv, at lv. Vattel, The Law of Nations (n. 44), bk. III, chap. III, § 47, p. 496. See also Cavallar, The Rights of Strangers (n. 22), p. 307. Koskenniemi observes that Vattel introduced a proceduralist conception of international law: if international law was to contribute to stabilizing a world order, this had to come

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

68

i us ge n t i u m and t he origins of international law

“a kind of republic, of which the members – each independent, but all linked together by the ties of common interest – unite for the maintenance of order and liberty. Hence arose that famous scheme of the political balance, or the equilibrium of power; by which is understood such a disposition of things, as that no one potentate be able absolutely to predominate, and prescribe laws to the others.”57

3.9 Sovereignty, Foreigners, and Western Civilization The system prefigured by Vattel thus rests on the complex web of diplomatic relations and interests that forms among sovereign states, referring to “every nation that governs itself, under what form soever, without dependence on any foreign power.”58 Sovereignty thus forms the political basis on which states depend for their territorial defense, trade relations, and colonial exploits. Indeed, falling within the purview of the state (within its “natural liberty”) is the power to take in or reject foreigners depending on the state’s own security interests.59 Likewise, “each nation remains at liberty to consider [. . .] whether it be convenient for her to encourage, or permit commerce; and [. . .] if one nation finds herself in such circumstances, that she thinks foreign commerce dangerous to the state, she may renounce and prohibit it.”60 Here Vattel clarifies that the “obligation of trading with other nations is [. . .] an imperfect obligation [. . .], and gives them only an imperfect right,” and on this basis he can show the Spanish claim to conquest of the Indies to have been groundless: “When the Spaniards attacked the Americans under a pretence that those people refused to traffic with them, they only endeavoured to throw a colourable veil over their own insatiable avarice.”61

57 58 59 60

61

about by way of procedures enabling states to settle their conflicts. In these legal procedures – consisting of the formal rules governing the conduct of wars and diplomatic relations – lay the distinctive trait of the system of states in the eighteenth and nineteenth centuries. See Koskenniemi, From Apology to Utopia (n. 47), p. 96. Vattel, The Law of Nations (n. 44), bk. III, chap. III, § 47, p. 496. Ibid., bk. I, chap. I, § 4, p. 83. Ibid., bk. I, chap. XIX, § 230, p. 226. Ibid., bk. I, chap. VIII, § 94, p. 135; cf. bk. II, chap. 2, § 25, p. 275, noting that a nation “may therefore either embrace or reject any commercial proposals from foreign nations.” Ibid., bk. II, chap. 2, § 25, p. 275. The French original: “Quand l’Espagnol attaquoit les Américains, sous prétexte que ces peuples refusoient de commercer avec lui, il couvroit d’une vaine couleur son insatiable cupidité.” Vattel, Le Droit des Gens (n. 49), liv. II, chap. II, § 25, p. 277.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

samuel pufend orf a nd emer de vattel

69

However, Vattel does set some specific limits on the rights of peoples. We can see this where he reflects on the right to claim property over lands. Here Vattel observes that, from a classic natural law perspective, all lands were originally the common property of all. Indeed, “nature, [. . .] having destined the whole earth to supply the wants of mankind in general, gives no nation a right to appropriate to itself a country, except for the purpose of making use of it, and not of hindering others from deriving advantage from it.”62 In this way, Vattel argues, the only way the law of nations can recognize a nation’s right to claim property of uninhabited land and exercise sovereignty over it is if the same nation has “taken actual possession” of the land, “has formed settlements” in it, or “makes actual use” of it.63 So stated, the argument winds up inevitably marginalizing nomadic peoples in favor of peoples who stably settle in lands and farm them. In book I, devoted to the “cultivation of the soil,” Vattel asserts this to be “an obligation imposed by nature on mankind.” From which it follows that “every nation is [. . .] obliged by the law of nature to cultivate the land that has fallen to its share; and it has no right to enlarge its boundaries [. . .] but in proportion as the land in its possession is incapable of furnishing it with necessaries.”64 This assertion is ambiguously stated, to be sure, for it may be taken to mean that a state is legitimized in seeking to expand its territories to obtain the resources it deems necessary. But the only criterion on which basis one people can gain ascendancy over another lies in its productive use of the land it occupies. There are indeed nomadic peoples who, for this reason, cannot claim any property right in the lands they cross, and here Vattel distinguishes three broad groups. In the first place we have “nations (such as the ancient Germans, and some modern Tartars), who inhabit fertile countries, but disdain to cultivate their lands, and chuse rather to live by plunder”: these peoples, he starkly asserts, “are wanting to themselves, are injurious to all their neighbours, and deserve to be extirpated as savage and pernicious beasts”!65 Then we have hunters and gatherers, who are peaceful but whose social organization could have made sense only in “the first ages of the world, when the earth, without cultivation, produced more than was sufficient to feed its small number of inhabitants. But at present, when the human 62 63 64

65

Vattel, The Law of Nations (n. 44), bk. I, chap. XVIII, § 208, pp. 214–15. Ibid., p. 215. Ibid., bk. I, chap. VII, § 81, p. 129. On this point and the subsequent discussion, see the accurate reconstruction in Cavallar, The Rights of Strangers (n. 22), pp. 315 ff. Vattel, The Law of Nations (n. 44), bk. I, chap. VII, § 81, p. 129.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

70

i us ge n t i u m and t he origins of international law

race, is so greatly multiplied, it could not subsist if all nations were disposed to live in that manner.”66 There clearly emerges here the conceit of the European peoples’ superiority over the “savages”67 of the primeval world. The position Vattel sets out in regard to a people’s right of occupation seems to ultimately flow from this basic argument: “Those who still pursue this idle [oisif] mode of life, usurp more extensive territories than, with a reasonable share of labour, they would have occasion for, and have therefore no reason to complain, if other nations, more industrious, and too closely confined, come to take possession of a part of those lands”68 – once more highlighting the ethnocentric viewpoint from which he is reasoning. It is through this lens that Vattel contrasts “the conquest of the civilised empires of Peru and Mexico” with “the establishment of many colonies on the continent of North America,” arriving at the conclusion that whereas the former was a “notorious usurpation” (une usurpation criante), the latter was “extremely lawful” (trè s-légitime), for the early settlers set out for the new lands “confining themselves within just bounds.”69 As has been underscored,70 packaged into this juxtaposition is Vattel’s condemnation of the Spanish conquest in contrast to his praise for the colonial settlement of the English Protestants. In fact, Vattel comments, “we cannot help praising the moderation of the English puritans who first settled in New England,” in that the land they sought to take from the Indians was land they purchased from these “savages.” And in making this point he cites the example of “William Penn and the colony of Quakers that he conducted to Pennsylvania.”71 But Vattel notes, in addition, that the “people of those extensive tracts rather ranged through than inhabited them,”72 such that “we do not therefore deviate from the views of nature in confining the Indians within narrower limits.”73 Clearly foreshadowed in this line of reasoning is the wretched fate that would befall the Indian populations of North America. 66 67 68 69

70

71 72 73

Ibid., pp. 129–30. Ibid., bk. I, chap. XVIII, § 209, p. 216. Ibid., bk. I, chap. VII, § 81, p. 130. Ibid. The French original from Vattel, Le Droit des Gens (n. 49), liv. I, chap. VII, § 81, p. 79. Cavallar, The Rights of Strangers (n. 22), p. 316, also pointing out the popularity that Vattel’s work gained among the Americans. Vattel, The Law of Nations (n. 44), bk. I, chap. XVIII, § 209, pp. 216–17. Ibid., bk. I, chap. VII, § 81, p. 130; italics added. Ibid., bk. I, chap. XVIII, § 209, p. 216.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

s a m ue l p u f e n d o r f an d e m er d e v a t t e l

71

More nuanced are the conclusions Vattel arrives at in turning to the Arab world. For, on the one hand, implicit in his discussion is the view that the Europeans are technologically superior. At the same time, however, he contrasts the “pastoral Arabs” with the “savages of North America,” observing that whereas the latter “were unable to inhabit the whole of those regions,” and so “other nations might without injustice settle in some parts of them, provided they left the natives a sufficiency of land,” the former “possess their country [and] reap from it an advantage suitable to their manner of life,” and so “no other nation has a right to narrow their boundaries, unless she be under an absolute want of land.” And so, even as he distinguishes the Arab shepherds from the more primitive Indian, Vattel wedges in the caveat whereby “in a case of pressing necessity, [. . .] people might without injustice settle in a part of that country, on teaching the Arabs the means of rendering it, by the cultivation of the earth, sufficient for their own wants and those of the new inhabitants.”74 In these words we can easily find the main tropes on which rested the argument for Western colonialism: the Western civilization’s superiority over the native “savages,” the advanced state of Western technology in comparison with the backward ways of the Arab world, and the Western states’ “pressing necessity” to expand, to clear the way for their commercial interests, and hence to establish new markets, to this end feeling justified in bending other peoples into submission on no other ground than that the ways of life in these foreign lands are different from those that prevail in the West. Taking a clear turn away from this colonialist mindset will be the cosmopolitism embraced by Kant. Kant was farsighted enough to have seen Grotius, Pufendorf, and Vattel as “miserable comforters” (leidige Tröster), in that they ultimately endeavored to provide legal justification for waging wars – and, we should add, especially with Grotius and Vattel, for carrying the West’s colonial project to completion. Not so with Kant: instead of looking for the grounds on which to justify war, he sought to identify the conditions for achieving peace. 74

Ibid., bk. II, chap. VII, § 97, pp. 310–11.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.005

4 The Rights of Man and Cosmopolitan Law: Kantian Roots in the Current Debate on Rights

In this chapter we will be looking at the abiding presence of Kantian thought in the contemporary debate on rights. The discussion will revolve around two problems: the foundation of the rights to liberty and the relation between the rights of man and cosmopolitan law.

4.1 From Private Law to Public Law: Democracy and Rights Kant clearly sets out the relation between natural law and positive law in his 1797 Metaphysics of Morals, specifically under the heading of Private Right (Part I of the Doctrine of Right). Here Kant lays out the foundation on which rests the transition from private right to public right (from private law to public law) and then turns to the function that natural law serves in a legal system so constructed. In this way we can appreciate what a radical break Kant made with the German natural law tradition and how topical his thinking is on the question of rights. The natural law theory of rights had developed from Samuel Pufendorf to Christian Thomasius and then culminated with Christian Wolff. Wolff systematized Leibniz’s metaphysics and worked them into a theory of law and the state tailored to the needs of Enlightened absolutism. Leibniz had distinguished natural law, or the just, into three degrees of perfection, namely, jus strictum, aequitas, and pietas toward the state,1 and Wolff transformed these into a system of rights and duties of the prince and his 1

Gottfried Wilhelm Leibniz, The New Method of Learning and Teaching Jurisprudence According to the Principles of the Didactic Art Premised in the General Part and in the Light of Experience, translated by Carmelo Massimo de Iuliis from the 1667 Frankfurt edition (Clark, NJ: Talbot Publishing, 2017), pt. II, § 73, p. 168. The Latin edition: Gottfried Wilhelm von Leibniz, “Nova Methodus discendae docendaeque iurisprudentiae (1667),” in Sämtliche Schriften und Briefe, edited by the Deutschen Akademie der Wissenschaften zu Berlin (Berlin: Akademie Verlag, 1971), Sechste Reihe, Philosphische Schriften, vol. 1, pp. 1663–72.

72

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the r ights of man a n d co smopolita n l aw

73

subjects for the purpose of achieving an ideal of public happiness through the achievement of wellbeing. To appreciate the sense of this transformation we can turn to Wolff’s 1750 Institutiones iuris naturae et gentium, where it is stated that “happiness demands that those who are entrusted with preserving the law of nature see to it [. . .] that their actions accord with the law of nature.”2 Wolff’s doctrine of natural law would influence the codification effort that under the ancien régime eventuated in the 1794 Allgemeines Preußisches Landrecht – a code that gave legal form to the division of Prussian society into estates. It is against the backdrop of this natural law tradition and constitutional conception that Kant’s work can be seen to break new ground in drastic fashion. Let us try to understand in what ways. In the Metaphysics of Morals, under the same heading of Private Right (Part I of the Metaphysical First Principles of the Doctrine of Right), Kant presents us with the following assertion: The highest division of natural right cannot be the division (sometimes made) into natural and social right; it must instead be the division between natural and civil right, the former of which is called private right and the latter public right. For a state of nature is not opposed to a civil condition, since there can certainly be society in a state of nature, but not civil society (which secures what is mine or yours by public laws). This is why right in a state of nature is called private right.3

Kant analyzes the formation of a civil society by looking in particular at the ways in which property is acquired. He starts out from a point of original acquisition, and in it he distinguishes three moments in which one (1) takes possession of something that previously belonged to no one (apprehensio); (2) declares one’s possession of the same object, excluding possession by anyone else (declaratio); and, finally, (3) appropriates that object (appropriatio), but this can only be “the act of a general will (in idea) giving an external law through which everyone is bound to agree with my choice.”4 Here Kant analyzes what has been 2

3

4

Christian Wolff, Institutiones iuris naturae et gentium (Venetiis, 1769; orig. pub. 1750), p. 398; my translation. Immanuel Kant, The Metaphysics of Morals, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), p. 49 (Ak. 6:242). The German original at Immanuel Kant, Die Metaphysik der Sitten, in Wilhelm Weischedel (ed.), Werke (Frankfurt am Main: Suhrkamp, 1993; orig. pub. 1797), vol. VIII, p. 350. Kant, The Metaphysics of Morals (n. 3), pt. I, § 10, p. 60 (Ak. 6:259). The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 369.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

74

i u s g e n ti um an d t h e o r i g i n s of international law

termed empirical title, by which one takes physical possession of something external, but this is only a temporary acquisition of property, for as Kant observes, a unilateral will [. . .] cannot put everyone under an obligation that is in itself contingent; this requires a will that is omnilateral, that is united not contingently but a priori and therefore necessarily, and because of this is the only will that is lawgiving. For only in accordance with this principle of the will is it possible for the free choice of each to accord with the freedom of all, and therefore possible for there to be any right, and so too possible for any external object to be mine or yours.5

Only this omnilateral or general will can make acquisition conclusive and not provisional. In this way, common possession is superseded under a law governing the freedom of all, such that everyone can have some property in the land that originally belonged to everyone in common. This law can only derive from a will that is originally and a priori collective. For Kant, public law can be understood as having the function of punishing violations of natural private law. Public law provides the “conditions under which to ‘put into effect’ the laws of reason governing the natural condition.”6 In this way Kant grounds the transition from the state of nature to the “juridical state” (der rechtliche Zustand).7 This is the Rechtsstaat form of civil society (based on the rule of law), and though it is not expressly stated, it can be clearly recognized.8 5

6

7

8

Kant, The Metaphysics of Morals (n. 3), pt. I, § 14, p. 63 (Ak. 6:263); italics in original. The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 78. Hasso Hofmann, “Zur Lehre vom Naturzustand in der Rechtsphilosophie der Aufklärung,” in Rechtsphilosophie der Aufklärung, ed. Reinhard Brandt (Berlin: Walter de Gruyter, 1982), pp. 12–46, at 26. Hofmann is referring to Kant, Die Metaphysik der Sitten (n. 3), § 44, p. 431 (p. 94 in the English translation at n. 3). Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, trans. W. Hastie (Edinburgh: T. & T. Clark, 1887), § 41, p. 155. Translated as “rightful condition” in Kant, The Metaphysics of Morals (n. 3), pt. I, § 41, p. 89. A year after Kant came out with the Metaphysics of Morals, he and his followers had come to be known as the “critical school, or school of the rule-of-law doctrine.” Johann Wilhelm Placidus, Litteratur der Staatslehre: Ein Versuch (Strasbourg, 1798), p. 73; my translation. This label that Placidus attached to the Kantian school is mentioned in Michael Stolleis, “Rechtsstaat,” in Adalbert Erler and Ekkehard Kaufmann (eds.), Handwörterbuch zur deutschen Rechtsgeschichte (Berlin: Erich Schmidt Verlag, 1990), vol. 4, p. 367. On Placidus see Georg-Christoph von Unruh, “Die ‘Schule der RechtsStaats-Lehrer’ und ihre Vorläufer in vorkonstitutioneller Zeit,” in Norbert Achterberg, Werner Krawietz, and Dieter Wyduckel (eds.), Festschrift für Hans Ulrich Scupin zum 80. Geburtstag (Berlin: Duncker & Humblot, 1983), p. 252.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the r ights of man a n d co smopolita n l aw

75

Kant so describes the juridical state: The Juridical state [Der rechtliche Zustand] is that relation of men to one another which contains the conditions, under which it is alone possible for everyone to obtain the Right that is his due. The formal Principle of the possibility of actually participating in such Right, viewed in accordance with the Idea of a universally legislative Will, is public j ustice [öffentliche Gerechtigkeit]. Public Justice may be considered in relation either to the Possibility, or Actuality, or Necessity of the Possession of objects – regarded as the matter of the activity of the Will – according to laws. It may thus be divided into Protective Justice (justitia tutatrix), Commutative Justice (justitia commutativa), and Distributive Justice (justitia distributiva).9

Kant sets out the principles of a juridical state that anticipates the season of nineteenth-century German legal positivism, in this way leaving definitively behind the worldview that underpinned the Prussian codification of the polity of estates (Ständestaat), just as Friedrich Carl von Savigny will later do.10 Law is definitively divested of any eudaemonic end: happiness, for Kant, is the province of morals. Law on the one hand defines mutual spaces of freedom according to criteria of public justice, while on the other hand it structures the form of the state, in that, as Kant clarifies, the Civil Union (Unio civilis) cannot, in the strict sense, be properly called a Society; for there is no sociality in common between the Ruler (imperans) and the Subject (subditus) under a Civil Constitution. They are not co-ordinated as Associates in a Society with each other, but the one is subordinated to the other. Those who may be co-ordinated with one another must consider themselves as mutually equal, in so far as they stand under common Laws. The Civil Union may therefore be regarded not so much as being, but rather as making a Society.11

But Kant does not just outline the legal makeup of the nascent juridical state: the view his work affords is much broader; indeed, as we will now consider, it takes in the contemporary debate on the problem of rights 9

10

11

Kant, The Philosophy of Law (n. 7), § 41, p. 155; italics and small capitals in original. The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 423. On the relation between Kant’s doctrine of law and Savigny’s, see Franz Wieacker, A History of Private Law in Europe, with Particular Reference to Germany, trans. Tony Weir (Oxford: Oxford University Press, 1995), pt. 5 (“The historical school of law, Pandectism and positivism in the nation-state”). Kant, The Philosophy of Law (n. 7), § 41, p. 157; italics in original. The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 424.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

76

i u s g e n ti um a n d t h e o r i g i ns of in t er n a t i o n a l l a w

and democracy.12 We can drill deeper into this idea by looking at a famous statement that Kant makes in his essay Perpetual Peace, two years before he wrote The Metaphysics of Morals. Wrote Kant: Now the republican constitution is the only one which is perfectly adapted to the rights of man, but it is also the most difficult to establish and still more to maintain. So generally is this recognised that people often say the members of a republican state would require to be angels, because men, with their self-seeking propensities, are not fit for a constitution of so sublime a form.13

But then Kant qualifies this statement by commenting that the “problem of the formation of the state, hard as it may sound, is not insoluble, even for a race of devils, granted that they have intelligence.”14 In analyzing this statement, Otfried Höffe has underscored how it ties in with Kant’s investigation into the origin of rights and the legitimation of law and the state, or “public coercive power.”15 Höffe distinguishes the two spheres of natural justice and political justice, the first having to do with the origin of rights in the state of nature, the second with punishments which the law imposes on those who breach the rights of others. The rational devils that Kant refers to are self-interested, even selfserving, individuals: they will not cooperate unless they can each gain an advantage for themselves, and this means that they are willing and ready to bypass cooperation where they do not see how they might stand to profit from it. But this also means that they see the point in mutually 12

13

14 15

This “democratic” interpretation of Kant’s philosophy of law was introduced in the contemporary debate by Ingeborg Maus, who argued that in this philosophy freedoms act as procedural principles framing the democratic lawmaking process. See Ingeborg Maus, Zur Aufklärung der Demokratietheorie: Rechts- und demokratietheoretische Überlegungen im Anschluß an Kant (Frankfurt am Main: Suhrkamp, 1992), p. 299. To this Maus adds that “Kant interpreted the organizational and democratic form of the lawmaking process [. . .] as the manner of realizing the freedoms and equality of the institutional political processes through which the political will is formed” (ibid., p. 303; my translation). Immanuel Kant, Perpetual Peace: A Philosophical Essay (1795), trans. Mary Campbell Smith (London: George Allen & Unwin; New York: Macmillan, 1917), first supplement, § 1, pp. 152–53. The German original at Immanuel Kant, Zum ewigen Frieden: Ein philosophischer Entwurf von Immanuel Kant (1795), in Wilhelm Weischedel (ed.), Werke (Frankfurt am Main: Suhrkamp, 1993), vol. XI, p. 224. Ibid., pp. 153–54. Otfried Höffe, “Even a nation of devils needs the state: The dilemma of natural justice,” in Howard Lloyd Williams (ed.), Essays on Kant’s Political Philosophy (Chicago: University of Chicago Press, 1992), pp. 120–42, at 121.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

t h e ri g h t s of ma n a n d co s m o p o l i t a n l a w

77

agreeing to give up their natural freedom so that they can each enjoy civil rights. This mutual renunciation of natural freedom, Kant argues, grounds civil rights. It is these rights, to which correspond duties, that ground the legitimacy of the legal system. It may, however, happen that some will not give up their natural freedom, while others will give it up unilaterally. It is to prevent that from happening that recourse needs to be made to political justice – a concept Kant calls public justice – so as to punish those who shirk their mutual duties, in such a way that, in the end, the cost of doing so is outweighed by the benefit of respecting human rights. Even a population of devils, that is, of people exclusively concerned to advance their own self-interest, will therefore need to rely on the state! It would thus appear that the state of nature is definitely superseded, replaced by a legal order legitimized and made binding through the agency of the state. But, as mentioned, this is not where Kant’s philosophical investigation of law ends, with its account of the foundation of law and the origin of rights, in which – by analyzing the relation between natural law and private and public law, and the complementary relation between natural freedom and civil rights – we are shown how the state of nature is “superseded” by the juridical state. Indeed, there is a much greater complexity to Kant’s discourse.16 In a well-known work on political theories in the natural law tradition, Otto von Gierke states that “the idea of the social contract achieved a final great victory when Immanuel Kant grounded in it his abstract state based on reason and the rule of law.” But, Gierke goes on to say, “he also, at the same time, introduced into his doctrine a series of themes that set the stage for its own eclipse.”17 Indeed, Kant states that the contract, or pactum sociale, under which all private wills are joined into a common will, does not come about as a matter of fact but is instead a simple idea of reason. This “idea of reason” is aimed, not at justifying the origin of the state, but at laying its legal foundation. In other words, it acts as a standard requiring that the law be 16

17

In this regard, see Claudio Cesa, “Diritto naturale e filosofia classica tedesca,” Giornale Critico della Filosofia Italiana, LXXVII (1998), 329–50. Otto von Gierke, Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien: Zugleich ein Beitrag zur Geschichte der Rechtssystematik (Breslau: Wilhelm Koebner, 1880), p. 121; my translation. English edition: Otto von Gierke, The Development of Political Theory, trans. Bernard Freyd (New York: W. W. Norton & Co., 1939).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

78

i u s g e n ti um a n d th e o r i g i n s of in t e r n a t i o n a l l a w

framed in such a way as to express the “common will,” thus making it possible to judge whether the law is just or unjust. In this way we can try to achieve a synthesis between fact and reason, positive law and natural law. By looking at The Metaphysics of Morals we have understood that civil rights (prominent among which is the right to property) cannot derive from any unilateral act of free will but, on the contrary, owe their existence to the law in virtue of its expressing a common will, the condition lacking which they could not be guaranteed. We have also seen that the legitimacy of law is grounded in civil rights, which need to be respected under the law itself. Finally, in light of these premises we can appreciate how the social contract can act as a basis for the law: the law derives its legitimacy from its ability to guarantee civil rights on the basis of a social contract. The question we asked at the outset of this discussion, on the way Kant conceives the relation between natural law and positive law, now finds a possible answer: natural law is not “superseded” by positive law; on the contrary, natural law is preserved – even in the state of nature – as the criterion on which basis to legitimize the law. This is a distinction that Kant sets out in bold letters: The highest division of rights, as (moral) capacities for putting others under obligations (i.e., as a lawful basis, titulum, for doing so), is the division into innate and acquired right. An innate right is that which belongs to everyone by nature, independently of any act that would establish a right; an acquired right is that for which such an act is required.18

On the basis of this breakdown, natural law can be seen to serve, for Kant, as a regulative idea in light of which to progressively work toward a republican constitution,19 the only constitution in which liberty acts as the principle on which any kind of coercion can be had by law. It is this recourse to natural law as the criterion by which to legitimize positive law that accounts for why Kant’s political thought was radical in its time and is still current today in the contemporary debate on the question of rights and democracy. 18

19

Kant, The Metaphysics of Morals (n. 3), p. 46 (Ak. 6:237); italics in original. The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 345. See Hofmann, “Zur Lehre vom Naturzustand” (n. 6), p. 29, referring to Kant, Die Metaphysik der Sitten (n. 3), § 52, p. 464; translated as “civil constitution” in Kant, The Metaphysics of Morals (n. 3), pt. I, § 52, p. 107 (Ak. 6:339).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the rights of ma n and c osmopolitan l aw

79

Indeed, whereas “the law of public justice” needs to be based on a principle of majority rule,20 human rights are inherently universal: “There is only one innate right,” namely, “freedom” (the freedom of each consistent with that of all): this “is the only original right belonging to every man by virtue of his humanity.”21 But how to reconcile the universality of rights with the principle of majority rule? Here Kant puts his finger on a problem that is central to modern-day democracies. His solution consists in positing the primacy of rights over the enactment of law: as can clearly be appreciated from his essay “On the common saying,” the emphasis falls on the “inalienable,” unrenounceable character of human rights.22

4.2 Cosmopolitan Law Kant’s reflection on the relation between universal law and civil rights carries implications for international law. To wit, the conditions for creating a law-governed civil state – a juridical state ensuring the ability of citizens to enjoy their rights in their mutual relations – coincide with the first article from which, according to Kant, it is necessary to proceed in working toward a state of “perpetual peace.” Indeed, his first article is so stated: “The civil constitution of each state shall be republican.”23 It is therefore a necessary condition that a juridical state be set up before any perpetual peace can be achieved: to this end it is essential that nations put behind them the provisional condition in which they find themselves, entering a condition in which the freedom of all is 20

21

22 23

Writes Kant: “Those who possess this right to vote must agree unanimously to the law of public justice [. . .]. An entire people cannot, however, be expected to reach unanimity, but only to show a majority of votes [. . .]. Thus the actual principle of being content with majority decisions must be accepted unanimously and embodies in a contract; and this itself must be the ultimate basis on which a civil constitution is established.” Immanuel Kant, “On the common saying: ‘This may be true in theory, but it does not apply in practice,’” in Political Writings, ed. H. S. Reiss, trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1991), pp. 61–92, at 78–79; italics in original. The German original at Immanuel Kant, “Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht für die Praxis” (1793), in Wilhelm Weischedel (ed.), Werke (Frankfurt am Main: Suhrkamp, 1993), vol. XI, p. 153. Kant, The Metaphysics of Morals (n. 3), p. 46 (Ak. 6:237); italics in original. The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 345. Kant, “On the common saying” (n. 20), p. 84. Kant, Perpetual Peace (n. 13), p. 120. The German original at Kant, Zum ewigen Frieden (n. 13), p. 204.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

80

i u s g e n ti um an d t h e o r i g i n s of international law

peremptorily guaranteed by law. The reasoning on which Kant rests this article is well known: when citizens have a say and a stake in the political decision-making process, they will be loath to launch into a war whose consequences they will have to bear. Thus, once a juridical state is established, its effects will extend to the sphere of international law. Kant’s thinking on the problem of achieving peace under a system of international law went through a complex evolution that led him to investigate (a) the institutional conditions for peace among peoples and (b) the principles of a new system of law – cosmopolitan law – understood as the end point of the march toward peace. We will therefore consider the way Kant addressed these two problems, for we will then be able to turn to the contemporary debate on international law and human rights and fully appreciate just how topical his thinking is in this regard. In the 1793 essay “On the common saying,” Kant suggests that the same reasons that have prompted individuals to “enter into a civil constitution” (staatsbürgerliche Verfassung), thus exiting the state of nature, can impel states to avert the evils of continual warfare by entering “into a cosmopolitan constitution” (weltbürgerliche Verfassung).24 The idea that states exist in a state of nature analogous to that which individuals find themselves in before establishing a civil constitution is something that Kant repeatedly goes back to and develops. It is on the basis of this analogy, for example, that in Perpetual Peace he envisions the formation of a cosmopolitan world order: For states, in their relation to one another, there can be, according to reason, no other way of advancing from that lawless condition [aus dem gesetzlosen Zustande] which unceasing war implies, than by giving up their savage lawless freedom, just as individual men have done, and yielding to the coercion of public laws. Thus they can form a State of nations (civitas gentium), one, too, which will be ever increasing and would finally embrace all the peoples of the earth.25

And in the Metaphysics of Morals Kant reiterates the point that “(1) states, considered in external relation to one another, are (like lawless savages) by nature in a non-rightful condition. (2) This non-rightful condition is 24

25

Kant, “On the common saying” (n. 20), p. 90; italics in original. The German original at Kant, “Über den Gemeinspruch” (n. 20), p. 169. Kant, Perpetual Peace (n. 13), second definitive article, p. 136. The German original at Kant, Zum ewigen Frieden (n. 13), p. 212. For a historical survey of cosmopolitanism, see Luca Scuccimarra, I confini del mondo: Storia del cosmopolitismo dall’Antichità al Settecento (Bologna: il Mulino, 2006), pp. 325 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the r ights of man a nd cos mopo lita n l aw

81

a condition of war (of the right of the stronger).”26 The unpredictability of relations among states or, more precisely, their “provisionalness,” is tantamount to a latent state of war that could break out at any time, and this should lead them to seek – no doubt progressively, to be sure – the conditions on which to build a juridical state. But what should drive states to exit their current state of lawlessness? The reason why individuals are led to abandon the provisionalness of the state of nature is that they see the risks to which their natural liberty is exposed. But what about states? Are they induced to subject themselves to coercive public laws in view of the risks to which their sovereignty is exposed in a state of war? The essential condition for individuals to collectively submit to a sovereign’s coercive laws is that they abandon the state of nature. But the analogy between individuals and states ends here,27 and Kant clearly grasps in this part of his theory the difficulty inherent in the attempt to set up an institutional framework within which to achieve peace among nations. Indeed, while Kant argues for the need to introduce laws coercively imposed on sovereign states, he recognizes the challenge of ensuring sovereign compliance with such laws. In “On the common saying,” Kant concedes that, since we face the risk that a cosmopolitan constitution “may lead to the most fearful despotism,” states will be prompted to settle on a solution “which is not a cosmopolitan commonwealth under a single ruler, but a lawful federation [Föderation] under a commonly accepted international right [Völkerrecht].”28 This institutional solution is developed in Kant’s later writings. In Perpetual Peace Kant takes up the distinction between a “federation of free states,” or peoples (Völkerbund), in which all peoples can rely on a guarantee of equal rights without having to submit to coercive norms common to all, and a “state of nations” (Völkerstaat), which, by contrast, 26

27

28

Kant, The Metaphysics of Morals (n. 3), pt. I, § 54, p. 112 (Ak. 6:344). The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 467. Contrary to that assertion, Martin Kriele claims that the freedom and equality of all states, and hence the idea that only within a framework of mutual relations can states free themselves from the arbitrary choice of any one state, “is the same principle that underpins the republican constitution, namely, the principle that all individuals are free and equal – except that now, in place of individuals, we have states. The law of men and the law of peoples are two implementations of the same basic idea.” Martin Kriele, Die demokratische Weltrevolution: Warum sich die Freiheit durchsetzen wird (Munich and Zurich: Piper, 1987), p. 154; my translation. Kant, “On the common saying” (n. 20), p. 90; italics in original. The German original at Kant, “Über den Gemeinspruch” (n. 20), p. 170.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

82

i u s g e n t i um an d th e o r i g i n s of international law

“implies the relation of one who rules to those who obey – that is to say, of lawgiver to the subject people,”29 and which is the end result of the process toward perpetual peace. Kant seems to envision a specific path toward peace: the only possibility, at first, is a federation or “alliance [. . .] which we may call a covenant of peace [Friedensbund] (foedus pacificum),”30 its purpose being to enable all states to preserve their freedom without having to submit to coercive public laws. But in this way, by rejecting the principle of a supra-state sovereign power, a federation winds up being “only the negative substitute” (negative Surrogat) for a “State of nations (civitas gentium),” or Völkerstaat, extending to all peoples across the earth and giving concrete form to “the positive idea of a world-republic” (Weltrepublik) – the necessary institutional condition for achieving a lasting peace that keeps permanently in check the human propensity for war. Under a federation, by contrast, we “may stop the current of this tendency to war [. . .]. But even then there will be a constant danger that this propensity may break out.”31 In the Metaphysics of Morals Kant is clear-eyed about the difficulty of implementing an institutional form for perpetual peace. Indeed, in this work he asserts that the lawlessness in which sovereign states find themselves in their mutual relations – essentially a warlike condition – ought to prompt them to form into a federation of peoples (Völkerbund) whose purpose is to enable each state to defend itself against foreign enemies, but which does not presuppose a common sovereign (as is the case under a civil constitution) – for this federation is “only an association [Genossenschaft] (federation) [Föderalität]; it must be an alliance 29

30

31

Kant, Perpetual Peace (n. 13), second definitive article, pp. 128–29. The German original at Kant, Zum ewigen Frieden (n. 13), p. 209. Kant, Perpetual Peace (n. 13), second definitive article, p. 134. The German original at Kant, Zum ewigen Frieden (n. 13), p. 211. As is known, this idea that Kant puts forward draws the criticism of Hegel, who argues that Kant’s Friedensbund is actually a Fürstenbund, a federation of princes, and that “the Holy Alliance was meant to be an institution more or less of this kind.” G. W. F. Hegel, Elements of the Philosophy of Right, trans. H. B. Nisbet, ed. Allen W. Wood (Cambridge: Cambridge University Press, 1991; orig. pub. 1821), addition to § 324, p. 362. The German original: “die heilige Allianz ist ungefähr so ein Institut.” Georg Wilhelm Friedrich Hegel, Vorlesungen über Rechtsphilosophie, 1818–1831, ed. von Karl-Heinz Ilting (Stuttgart: FrommannHolzboog, 1973/1974), vol. IV, p. 735. As Kriele points out, however, Hegel neglects to consider that the federation envisioned by Kant only comprised republics based on a separation of powers. See Kriele, Die demokratische Weltrevolution (n. 27), p. 161. Kant, Perpetual Peace (n. 13), second definitive article, p. 136. The German original at Kant, Zum ewigen Frieden (n. 13), p. 213.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the rights of man and co smopolita n l aw

83

[Verbündung] that can be renounced at any time and so must be renewed from time to time.”32 Kant is thus well aware of how difficult it is to bring into being a working legal framework under which the entire law of peoples (alles Recht der Völker) is conclusively guaranteed through “a universal association of states [Staatenverein] (analogous to that by which a people becomes a state).” And so he cannot avoid the conclusion that, as much as perpetual peace may be the “ultimate goal” (das letzte Ziel) of the law of peoples, it “is indeed an unachievable idea” (eine unausführbare Idee).33 Even so, this ultimate goal carries a normative force that in Kant’s opinion cannot be suppressed. In fact the project for a perpetual peace he sees as grounded in human nature, trusting that this nature “is still animated by respect for rights and duty,” and so that it is not “so deeply immersed in evil that practical moral reason will not triumph in the end, after many unsuccessful attempts, thereby showing that it is worthy of admiration.”34 Thus, in turning to human nature as the support on which rests the project for a perpetual peace, Kant makes a moral assessment of human nature. This moral assessment will be criticized as unrealistic, and in the final section of this chapter we will see that the realism advocated in this line of criticism trivially resolves itself into platitude. But more important now is the point that Kant’s moral assessment of human nature is anchored in the possibility of a progressive rise of the republican form of government, viewed as “a centre of federal union” (Mittelpunkt der föderativen Vereinigung), “which is to extend gradually over all states”35 as they become further networked under this same form of government. Kant is very clear on this point. What appears to him to be impossible (unmöglich) is the establishment of a “state made up of nations” (a Völkerstaat or federal world republic), that is, “a universal association of states [Staatenverein] (analogous to that by which a people becomes a state).” As Kant puts it, “if such a state made up of nations were to extend too far over vast regions, governing it and so too protecting each of its members would finally have to become impossible,” thus making “unachievable” the idea of perpetual 32

33

34

35

Kant, The Metaphysics of Morals (n. 3), pt. I, § 54, p. 112 (Ak. 6:344); italics in original. The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 467. Kant, The Metaphysics of Morals (n. 3), pt. I, § 61, pp. 115–16 (Ak. 6:350); italics in original. The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 474. Kant, “On the common saying” (n. 20), p. 92. The German original at Kant, “Über den Gemeinspruch” (n. 20), p. 172. Kant, Perpetual Peace (n. 13), second definitive article, p. 134. The German original at Kant, Zum ewigen Frieden (n. 13), p. 212.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

84

i u s g e n t i um and t he origins of international law

peace. But this impossibility does not rule out the ability to forge “alliances of states” (Verbindungen der Staaten) under which to progressively approximate to that goal, and this approximation (Annäherung) – “a task based on duty” – “can certainly be achieved.”36 So the march toward peace can advance through a sort of alliance among states – what Kant calls a permanent congress of states (Staatenkongress) making up “a voluntary coalition [Zusammentretung] of different states which can be dissolved [ablösliche] at any time, not a federation (like that of the American states) which is based on a constitution and can therefore not be dissolved [unauflöslich].”37 Only through this congress of states, Kant comments, will it be possible to bring into effect a system of public international law under which controversies may be settled “in a civil way, as if by a lawsuit, rather than in a barbaric way (the way of savages), namely by war.”38 There is one final aspect to the complexity of Kant’s thinking in this regard, which is to say that he introduces a cosmopolitan concept of law strikingly ahead of its time. In Kant’s political and jurisprudential writings, the analysis devoted to the law of peoples is coupled with an effort to found a cosmopolitan law (das Weltbürgerrecht), where the idea is not so much to lay out the principles of international relations among states (this is the province of the law of peoples) as to show the need to guarantee the rights that individuals have in relation to the state.39 36

37

38 39

Kant, The Metaphysics of Morals (n. 3), pt. I, § 61, pp. 115–16 (Ak. 6:350); italics in original. The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 474. Kant, The Metaphysics of Morals (n. 3), pt. I, § 61, p. 116 (Ak. 6:351). The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 475. What these words suggest to me is, once again, that while Kant thought it feasible to aim for a congress that states could join voluntarily and without any permanent commitment, and while he did ultimately envision the ideal of a federal solution based on an indissoluble supra-state constitution akin to that of the United States, he recognized that this vision would not have been attainable in his time. This contrasts with the interpretation of this complex passage offered by Giuliano Marini, who does not enter into the possibility of a historical development from an initial institutional moment to a second, more advanced one, and finds that this passage is usually, albeit erroneously, taken to mean that “Kant rejects, rather than embraces, the U.S. constitutional model.” Giuliano Marini, Tre studi sul cosmopolitismo kantiano (Pisa and Rome: Istituti Editoriali e Poligrafici Internazionali, 1998), p. 56; my translation. The congress of states and the institutional solution conceived along federalist lines are probably to be understood as two stages of Kant’s philosophy of history. Kant, The Metaphysics of Morals (n. 3), pt. I, § 61, p. 116 (Ak. 6:351). In this regard, see Norberto Bobbio, “Kant and the French Revolution,” chap. 8 in The Age of Rights, trans. Allan Cameron (Cambridge, UK, and Malden, MA: Polity Press, 1996), orig. pub. as L’età dei diritti (Turin: Einaudi, 1990).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the rights of man and co smopolita n l aw

85

Cosmopolitan law essentially sets out a duty of every state to offer hospitality to the citizens of other states, along with a right of all individuals to visit any foreign country: “This right to present themselves to society belongs to all mankind in virtue of our common right of possession on the surface of the earth.”40 The basis for this duty and corresponding right lies in the nature of relations that hold among peoples, which is to say that “they stand in a community of possible physical interaction (commercium) [Wechselwirkung], that is, in a thoroughgoing in commerce with any other.” Hence the potential development that Kant saw in relations among peoples, advancing to a stage where “each has a right to make this attempt without the other being authorized to behave toward it as an enemy because it has made this attempt.”41 This idea of a cosmopolitan law is conceived by Kant as “a complement [Ergänzung] of the unwritten code of law – constitutional as well as international law – necessary for the public rights of mankind in general,” and so is not a “fantastical, high-flown notion of right” but a legal principle.42 This means that the outbreak of violence among nations – with recourse to force on the pretext, for example, that in this way “crude peoples will become civilized” – does not in any way suspend the law by which they are all governed, their “condition of right” (Rechtsbedingung),43 and in fact the principles of cosmopolitan law are such that the “evil and violence committed in one place of our globe are felt in all.”44 It shouldn’t be too difficult to appreciate the currency of this Kantian page, especially as concerns the idea of promoting institutional forms that will progressively help humanity along a gradual course of union among states, the inclusive vision of a world stage as the proper setting within which to frame the problem of relations among peoples, and the emphasis on the rights that individuals should be able to assert in states of which they are not citizens. 40

41

42

43

44

Kant, Perpetual Peace (n. 13), third definitive article, p. 138. The German original at Kant, Zum ewigen Frieden (n. 13), p. 214. Kant, The Metaphysics of Morals (n. 3), pt. I, § 62, p. 117 (Ak. 6:352). The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 476. Kant, Perpetual Peace (n. 13), third definitive article, p. 142. The German original at Kant, Zum ewigen Frieden (n. 13), p. 216. Kant, The Metaphysics of Morals (n. 3), pt. I, § 62, pp. 117–18 (Ak. 6:353). The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 477. Kant, The Philosophy of Law (n. 7), § 62, p. 227. The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 476.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

86

i us ge n t i u m and t he origins of international law

4.3 Statism or Cosmopolitanism? Ius Pacis versus Ius Belli It is time now to size things up. For an adequate understanding of Kant’s internationalist perspective, we should enter into some further aspects of his thought. The different interpretations of Kant’s internationalist conception will highlight either its state-centrism or its cosmopolitanism, both present in that conception. Among those who highlight his reliance on the state as the linchpin of the international order he envisioned are F. H. Hinsley and W. B. Gallie, the former arguing that what Kant envisioned was not a “federalism of free states” but a league of republican (constitutional) states acting in concert for the sole purpose of preventing war,45 the latter claiming that Kant was only proposing a “bond (foedus) of mutual non-aggression.”46 Among those who instead highlight the cosmopolitanism in Kant’s thought are Martin Wight and Hedley Bull,47 who set the Kantian tradition against the Grotian tradition and the Hobbesian (a contrast further discussed later on in Chapter 8). These two different interpretations have been investigated in depth by Andrew Hurrell,48 whose conclusions are broadly accepted here. According to Hurrell, Kant’s internationalist thinking is distinguished by three main elements. The first of these “is the belief that the interstate system is of only derivative significance and international life should be viewed instead in terms of a global society of mankind.” The second “is the claim that there are no unresolvable conflicts of interest between peoples and that conflict results from a lack of enlightenment.” And the third lies in Kant’s “stress on the importance of morality in international life and, above all, on the moral imperative to move towards a more peaceful world.”49 As the previous discussion suggests, however, there is no single solution that Kant can be said to espouse in making these elements central to 45

46

47

48

49

See F. H. Hinsley, Power and the Pursuit of Peace: Theory and Practice in the History of Relations between States (Cambridge: Cambridge University Press, 1980), chap. 4. W. B. Gallie, Philosophers of War and Peace: Kant, Clausewitz, Marx, Engels and Tolstoy (Cambridge: Cambridge University Press, 1980), p. 20. See Martin Wight, International Theory: The Three Traditions, ed. Gabriele Wight and Brian Porter (Leicester: Leicester University Press, 1991), and Hedley Bull, The Anarchical Society: A Study of Order in World Politics (Houndmills, Basingstoke, UK, and New York: Palgrave Macmillan, 2012; orig. pub. 1977). Andrew Hurrell, “Kant and the Kantian paradigm in international relations,” Review of International Studies, 16 (1990), 183–205. This article will form the interpretive basis for the discussion in this section. Ibid., p. 185.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

t h e ri g h t s of ma n a n d c o s m o p o l i t a n l a w

87

his framing of an international system. More to the point, in the two earlier writings “Idea for a Universal History from a Cosmopolitan Point of View” (1784) and “On the common saying: ‘This may be true in theory, but it does not apply in practice’” (1793), Kant lays much emphasis on the cosmopolitan perspective and alights on the idea of a federation having the power to coercively enforce a set of laws. But in Perpetual Peace (1795) and The Metaphysics of Morals (1797), where his political and jurisprudential thinking is developed into greater maturity, he rejects both the idea of a world government and that of a federation having supra-state enforcement powers. In a careful analysis, Hurrell argues that Kant does not seek to move beyond the system of states, his concern being merely to perfect this system. There are three main reasons for this pivot toward a more realistic objective. In the first place, as we saw earlier, Kant recognizes the difficulty of overcoming the sovereignty of states. In the second place, as we also discussed, in analogizing the system of states to the reality of individuals exiting the state of nature by submitting to a binding system of public law, Kant sees that this analogy cannot be pushed too far. In the third place, in Perpetual Peace Kant takes a harder look at the plurality of languages and confessions across Europe and the world and comes to view them as distinguishing factors that are bound to keep states apart.50 Then, too, Kant in this same passage also stresses, in regard to states, that “the wider the sphere of their jurisdiction, the more laws lose in force.”51 And, finally, he sees the republican (constitutional) polity as the one best suited to providing a guarantee of individual freedom.52 For these reasons, Kant inevitably winds up replacing the idea of a world state or universal republic with that of a peaceful federation (in Perpetual Peace) or a community of all nations (in The Metaphysics of Morals). In this, as Hurrell rightly points out, his conception is more state-centered than cosmopolitan. This federative solution makes it possible to reject the previously mentioned interpretation offered by Wight and Bull, who construe Kant as a squarely cosmopolitan thinker, without 50

51

52

See Kant, Perpetual Peace (n. 13), first supplement, § 2, p. 156, commenting that “nature [. . .] employs two means to separate nations, and prevent them from intermixing: namely, the differences of language and of religion.” The German original at Kant, Zum ewigen Frieden (n. 13), p. 197. Kant, Perpetual Peace (n. 13), first supplement, § 2, pp. 155–56. The German original at Kant, Zum ewigen Frieden (n. 13), p. 225. See Kant, Perpetual Peace (n. 13), first definitive article, pp. 120–21, noting that the republican constitution is, “in the first place, founded in accordance with the principle of the freedom of the members of society as human beings.”

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

88

i u s g e n ti um an d t h e o r i g i n s of international law

considering the complexity of his conception, which is grounded in the continuous tension between the system of states, such as it exists, and the possibility of realizing a cosmopolitan order.53 In short, Kant is not looking to displace the system of states, but only to improve it. In fact, his argument proceeds along a dual track, on the one hand showing that it was necessary to move toward republican forms of government, while at the same time allotting a central place to the principle of non-intervention.54 Kant was thus more concerned to keep international anarchy in check than to advance to a higher stage where such anarchy would not even be possible to begin with. Even the community of states he envisions in The Metaphysics of Morals is conceived, not as a world government, but as a form of defence against external aggression. This all springs from the realism of his outlook, prompting him to consider the difficulties involved in moving beyond the system of states, and inevitably leading to the statism that informs his writing on the problem of the international order. But Kant’s original contribution to this problem lies in his attempt to also set the international system of interstate relations on an anthropological foundation. In Perpetual Peace he asserts that under a “constitution formed in accordance with cosmopolitan law, [. . .] individuals and states, standing in an external relation of mutual reaction, may be regarded as citizens of one world-state ([Menschenstaat] jus cosmopoliticum).”55 With this conception Kant takes us into a sphere that lies beyond the system of states, and hence beyond the natural liberty of nations theorized by Vattel,56 and he does so by introducing the idea of 53

54

55

56

See Hurrell, “Kant and the Kantian paradigm” (n. 48), p. 200. Hurrell argues that Kant’s conception of the international system “is in fact much closer to Bull’s and Wight’s depiction of the Grotian or international society tradition” (ibid.). This point, too, will be further discussed in Chapter 8. Kant, Perpetual Peace (n. 13), fifth preliminary article, pp. 112–14. The German original at Kant, Zum ewigen Frieden (n. 13), p. 199. The elements that, on a Kantian conception, ought to contribute to improving the system of states would probably have to include the following: bringing all nations under the republican principle of government (i.e., making them into representative democracies); forming alliances of states for the purpose of legitimate self-defense; ensuring a cosmopolitical system of law that recognizes the rights of man and in particular those of foreigners; and recognizing the rights of peoples. Kant, Perpetual Peace (n. 13), second section, p. 119 n. The German original at Kant, Zum ewigen Frieden (n. 13), p. 203. As Vattel asserted, “each Nation should be left to the peaceable enjoyment of that liberty which belongs to it by nature.” Emer de Vattel, The Law of Nations, or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns, vol. 3

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the rig hts of ma n and c osmopolitan l aw

89

the individual’s moral freedom and autonomy. It is this moral standing of the individual that forms the basis on which to work in advancing toward peace, rejecting the very premise of war, with the destruction it brings, thus gradually proceeding along a path of moral and legal progress of humankind. On this basis Kant rejects the system of the European balance of power,57 along with the law of peoples envisioned by Grotius, Pufendorf, and Vattel.58 This aspect is especially significant, for it enables us to appreciate Kant’s originality in full. Which is to say that in his view the law of peoples, such as it existed in his time, did not afford an inadequate basis on which to proceed in working toward peace. Indeed, this law appeared to him to be a law of war (ius belli),59 whereas Kant was

57

58

59

of Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite et aux Affaires des Nations et des Souverains, translated from the 1758 edition by Charles G. Fenwick (Washington, D.C.: Carnegie Institution of Washington, 1916; orig. pub. 1758), Introduction, § 15, p. 6. The French original: “chaque Nation doit être laissée dans la paisible jouissance de cette Liberté, qu’ellé tient de la Nature.” Emer de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite et aux Affaires des Nations et des Souverains, vol. 1 (repr. Washington, D.C.: Carnegie Institution of Washington, 1916; orig. pub. 1758), “Preliminaires,” § 15, p. 9. Kant pointed out the irony in this conceit by commenting that “a permanent universal peace by means of a so-called European balance of power [Balance der Mächte] is a pure illusion, like Swift’s story of the house which the builder had constructed in such perfect harmony with all the laws of equilibrium that it collapsed as soon as a sparrow alighted on it.” Kant, “On the common saying” (n. 20), p. 92; italics in original. The German original at Kant, “Über den Gemeinspruch” (n. 20), p. 172. As much as Kant certainly moves beyond Vattel’s vision, there is significant overlap to be found in their treatment of a state’s right to wage war on another by which it feels “wronged,” as well as in their view of a state’s “right of prevention (ius praeventionis)” in response to its being “threatened,” which may even include “just the menacing increase in another state’s power (by its acquisition of territory) (potentia tremenda).” Kant, The Metaphysics of Morals (n. 3), pt. I, § 56, p. 114 (Ak. 6:346); all italics in original. The German original at Kant, Die Metaphysik der Sitten (n. 3), pp. 469–70. In this regard, cf. Hurrell, “Kant and the Kantian paradigm” (n. 48), p. 188. As Kant poignantly comments in this regard: “There is no intelligible meaning in the idea of the law of nations as giving a right to make war; for that must be a right to decide what is just, not in accordance with universal, external laws limiting the freedom of each individual, but by means of one-sided maxims applied by force. We must then understand by this that men of such ways of thinking are quite justly served, when they destroy one another, and thus find perpetual peace in the wide grave which covers all the abominations of acts of violence as well as the authors of such deeds.” Kant, Perpetual Peace (n. 13), second definitive article, pp. 135–36; italics added. The German original at Kant, Zum ewigen Frieden (n. 13), p. 212. In this regard, see the insightful reconstruction offered in Giuliano Marini, La filosofia cosmopolitica di Kant (Rome and Bari: Laterza, 2007), pp. 151–54.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

90

i u s g e n ti um and t he origins of international law

seeking a law of peace (ius pacis).60 And for this reason, as mentioned, Grotius, Pufendorf, and Vattel are to him the “miserable comforters” (leidige Tröster) who have legitimated war.61 Kant’s two-pronged conception makes a clean break with the ius gentium tradition. It does so by realistically recognizing the inevitability 60

61

In this regard, see Georg Cavallar, The Rights of Strangers: Theories of International Hospitality, the Global Community, and Political Justice since Vitoria (London and New York: Routledge, 2016; first pub. Ashgate 2002), pp. 339 ff. A convincing reconstruction of the process that Kant went through in setting out a law of peace has been offered by Knut Ipsen. In Perpetual Peace, Ipsen points out, Kant observes that the lack of externally binding laws in the state of nature makes war inevitable in such a state, from which it follows that inherent in the very idea of a “right of war” is a contradiction, for the law of peoples (Völkerrecht) is meant to supersede that natural condition by establishing a legal framework constraining the action of otherwise warring nations. But two years later, in the Metaphysics of Morals, Kant asserted that “the right to go to war (to engage in hostilities) is the way in which a state is permitted to prosecute its right against another state, namely by its own force, when it believes it has been wronged by the other state.” Kant, The Metaphysics of Morals (n. 3), pt. I, § 56, p. 113 (Ak. 6:346); italics in original. Ipsen accordingly takes the view that what Kant developed is a two-tier model (ZweiEbenen-Modell): as much as war is certainly part of the state of nature, there is a higher set of principles by which the conduct of states at war is constrained and made lawful. See Knut Ipsen, “Ius gentium – ius pacis? Zur Antizipation grundlegender Völkerrechtsstrukturen der Friedenssicherung in Kants Traktat Zum ewigen Frieden,” in Reinhard Merkel and Roland Wittmann (eds.), Zum ewigen Frieden: Grundlagen, Aktualität und Aussichten einer Idee von Immanuel Kant (Frankfurt am Main: Suhrkamp, 1996), pp. 290–308, at 306. In so doing Kant, according to Ipsen, anticipated international law in its current avatar (and in making this argument Ipsen points specifically to the well-known Article 2.4 of the 1945 UN Charter, under which all UN “Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”). We can thus appreciate Kant’s two-tier conception of the law of peoples, stipulating that the “rights of states consist [. . .] partly of their right to go to war, partly of their right in war, and partly of their right to constrain each other to leave this condition of war and so form a constitution that will establish lasting peace, that is, its right after war.” Kant, The Metaphysics of Morals (n. 3), pt. I, § 53, p. 112 (Ak. 6:343); italics in original. In this last part lies the practical import of the law of peace which Kant envisioned, and which in conclusion to the metaphysical first principles of the doctrine of right he describes as follows: “It can be said that establishing universal and lasting peace constitutes not merely a part of the doctrine of right but rather the entire final end of the doctrine of right within the limits of reason alone.” Kant, The Metaphysics of Morals (n. 3), conclusion to pt. I, p. 112 (Ak. 6:355). See Hugo Grotius, De Jure Belli ac Pacis, lib. II, cap. I, § 11, and lib. III, cap. III, § 1; Samuel Pufendorf, Die Verfassung des deutschen Reiches (Stuttgart: Philipp Reclam, 1976; orig. pub. 1667), pp. 71–72 (the work’s first edition, the basis for the German edition, appeared pseudonymously under the title Severini de Monzambano Veronensis, De statu imperii Germanici ad Laelium fratrem, dominum Trezolani, liber unus (Genevae: Apud Petrum Columesium, 1667)); and Vattel, Le Droit des Gens (n. 56), lib. III, cap. III, §§ 24–26.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the r ights of man a n d cos mopolita n l aw

91

of the system of states (state-centrism), while at the same time acknowledging the unarrestable drive toward peace demanded by the moral nature of man. Kant is well aware that a cosmopolitan society is an impracticable proposition, and it is precisely in recognition of this difficulty that he presents this polity as a regulative standard, an ideal in light of which to guide our striving toward peace.62 As Hurrell notes, even if this ideal can hardly be attained, it will “help us discern the principles on which our more limited efforts towards a more peaceful world should be based.”63 Indeed, as Kant wrote, “the political principles directed toward perpetual peace, of entering into such alliances of states, which serve for continual approximation to it, are not unachievable. Instead, since continual approximation to it is a task based on duty and therefore on the right of human beings and of states, this can certainly be achieved [ausführbar].”64 In other words, in recognizing the unvarnished reality of the system of states, Kant understood the limits of this system and thus found himself in a position where he could feasibly lay out a law of peace to be set against the law of war that in his time existed as the de facto standard governing the law of peoples. This unresolved tension between state-centrism and cosmopolitanism certainly remains a significant legacy of Kant’s internationalist thinking, and stands as a “central challenge to the creation of a viable international order.”65

4.4 Kant against Western Colonialism: In Defense of the Rights of Peoples Kant’s radical criticism of the Western tradition in the law of peoples goes hand in hand with his criticism of Western colonialism. The foundation of his criticism lies in the principles of cosmopolitan law, which, as noted, serves as the regulative standard in light of which to 62

63 64

65

As Giuliano Marini comments, this is a standard in virtue of which “humans, conceived as rational and hence moral beings, are called on to effect change in the republic they find themselves living in: the imperfection of this republic suggests for it, in a Kantian sense, the name respublica phaenomenon, and the effort will therefore be to shape it into an increasingly perfect republic, working toward an idea that, while unachievable in praxi, can be termed respublica noumenon.” Marini, La filosofia cosmopolitica di Kant (n. 59), p. 147; my translation; see also ibid., p. 31. Hurrell, “Kant and the Kantian paradigm” (n. 48), p. 192; italics added. Kant, The Metaphysics of Morals (n. 3), pt. I, § 61, p. 116 (Ak. 6:350); italics in original. The German original at Kant, Die Metaphysik der Sitten (n. 3), 474. Hurrell, “Kant and the Kantian paradigm” (n. 48) p. 205.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

92

i u s g e n ti um a n d t h e o r i g i ns of in t er n a t i o n a l l a w

properly judge both the law of peoples and non-European peoples as seen through that body of law. We can thus appreciate all the implications of this regulative standard, which sets the conditions for a law of peace among the peoples of the earth. Indeed, implicit in this standard is the recognition that all men and all peoples enjoy equal dignity as a “common right of possession on the surface of the earth.”66 Only on the basis of this recognition is it possible to achieve “a right of visitation” and, correlatively, a duty of hospitality. It is the violent denial of that right, with the refusal to uphold the correlative duty, that most aptly describes the behavior of Western peoples in their engagement with other peoples of the earth – and the explanation for it lies in the Western judgment of non-Western peoples as different and inferior, and in the conclusion that the conquest of such peoples is thereby legitimate. The pages that Kant devotes to Western colonialism are trenchantly critical, for it is their intent to unapologetically unmask the violence of the West by revealing it for what it is. Kant’s criticisms consist, in the first place, in bringing to light the underlying premise behind the untenable legitimation of the conquest of the West undertaken by the civilized states (gesitteten Staaten): “America, the negro countries, the Spice Islands, the Cape etc. were, on being discovered, looked upon as countries which belonged to nobody; for the native inhabitants were reckoned as nothing [die Einwohner rechneten sie für nichts].”67 In the second place, he shows how the devaluation of the other translates into a logic of conquest carried forward in the name of civilization. Having just sketched out an idea of what peaceful relations should look like under a “cosmopolitan constitution,” he asks us to consider, by comparison, “the inhospitable behaviour of the civilised nations, especially the commercial states of our continent. The injustice which they exhibit on visiting foreign lands and races – this being equivalent in their eyes to conquest [Erobern] – is such as to fill us with horror [Erschrecken].”68 Kant’s arraignment of Western expansionism is all the more blistering considering that it lays bare the hypocrisy of the European states engaged in campaigns of conquest pursued in the name of religion: “And this has 66

67

68

Kant, Perpetual Peace (n. 13), third definitive article, p. 138. The German original at Kant, Zum ewigen Frieden (n. 13), p. 214. Kant, Perpetual Peace (n. 13), third definitive article, p. 139. The German original at Kant, Zum ewigen Frieden (n. 13), pp. 214–15. Kant, Perpetual Peace (n. 13), third definitive article, p. 139; italics added. The German original at Kant, Zum ewigen Frieden (n. 13), p. 214.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

t h e ri g h t s of ma n a n d c o s m o p o l i t a n l a w

93

been done by nations who make a great ado about their piety, and who, while they are quite ready to commit injustice, would like, in their orthodoxy [Rechtgläubigkeit], to be considered among the elect [Auserwählte].”69 This unforgiving indictment of colonialism can also be found in Metaphysics of Morals, in chapter III of the Doctrine of Right, devoted to cosmopolitan right (cosmopolitan law), where the argument takes on new elements. Kant recognizes “the right of citizens of the world to try to establish community with all and, to this end, to visit all regions of the earth. This is not, however, a right to make a settlement [Ansiedlung] on the land of another nation (ius incolatus); for this, a specific contract is required.”70 For these reasons he rejects violence and the instrumental use of another people’s perceived ignorance, asserting that “if these peoples are shepherds or hunters (like the Hottentots, the Tungusi, or most of the American Indian nations) who depend for their sustenance on great open regions, this settlement may not take place by force but only by contract, and indeed by a contract that does not take advantage of the ignorance of those inhabitants with respect to ceding their lands.”71 Finally, Kant rules out the notion that the violence visited on foreign peoples may be justified on the ground that it has worked “to the world’s advantage, partly because these crude peoples will become civilized” (durch Kultur roher Völker). In fact, he writes, “all these supposedly good intentions cannot wash away the stain of injustice in the means used for them.”72 These unambiguously progressive stances stand in sharp contrast to others, quite disconcerting to us today, that were published posthumously in 1831 in a text that collects some of Kant’s lectures on philosophical anthropology. Here Kant asks the question: “Should one assume different human races (human kinds) that have different phyla [verschiedene Stämme]?” To which he replies: “If this were the case, then God must have created different first human beings, a specific pair for each race.” But, he argues, “we have no reason to assume this.” He therefore 69

70

71

72

Kant, Perpetual Peace (n. 13), third definitive article, p. 142. The German original at Kant, Zum ewigen Frieden (n. 13), p. 216. Kant, The Metaphysics of Morals (n. 3), pt. I, § 62, p. 117 (Ak. 6:352); all italics in original. The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 476. Kant, The Metaphysics of Morals (n. 3), pt. I, § 62, p. 117 (Ak. 6:353). The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 477. Kant, The Metaphysics of Morals (n. 3), pt. I, § 62, p. 118 (Ak. 6:353). The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 477.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

94

i us ge n t i u m and t he origins of international law

correctly finds that “a [single] human phylum [Stamm] can [. . .] have populated the entire earth.” From which it follows that the variety of races is ascribable to “incidental causes” (gelegentlich).73 These causes essentially come down to the cultural environment, and it is to them that racial differences are to be ascribed. So far, so good. But then, in describing these differences he inadvertently falls back on stereotype and prejudice. He sets the tone of his account with a remarkable overarching statement: “There are Four Races on Earth.” And then, in the same generalizing classificatory vein, he proceeds to vignette their characteristics. First we have (1) the “American people,” who “acquires no culture” (nimmit keine Bildungen) and “has no incentives” (keine Triebfedern), “because affect and passion are absent in it. [. . .] They hardly speak at all [. . .], and also do not care for anything, and are lazy, they paint their faces in an ugly manner.” Next we have (2) the “Negro race,” which “is exactly the opposite of the American; they are full of affect and passion, very lively, talkative and vain. They acquire culture, but only a culture of slaves [Knechte]; that is, they allow themselves to be trained. They have many incentives, are also sensitive [. . .], and also do many things out of honor.” In the third group are (3) the Hindus: “It is true that the Hindus have incentives, but they have a strong degree of composure [Gelassenheit], and they all look like philosophers.” Even so, they are “very much inclined toward anger and love. As a result they acquire culture in the highest degree, but only in the arts and not in the sciences.” Also: “The Hindus always remain as they are, they never bring culture further.” That entire description provides the canvas against which to set (4) the “white race,” which, by contrast, “contains all incentives and talents in 73

Immanuel Kant, “Menschenkunde,” trans. Robert B. Louden, in Lectures on Anthropology, ed. Allen W. Wood and Robert B. Louden (Cambridge: Cambridge University Press, 2012), pp. 281–334, at 320 (Ak. 25:1187). The German original at Immanuel Kant, Immanuel Kants Menschenkunde oder philosophische Anthropologie: Nach handschriftlichen Vorlesungen, ed. Friedrich Christian Starke (Leipzig, 1831), p. 352. Michel Foucault cites another source, a collection of lectures based on notes taken by the audience, also edited by Friedrich Christian Starke (the pseudonymous name assumed by Johann Adam Bergk), published under the title Immanuel Kants Anweisung zur Menschen- und Weltkenntnis: Nach dessen Vorlesungen im Winterhalbjahre von 1790–1791 (Leipzig, 1831), but he cautions that “neither of these works [. . .] can be relied upon; it is hard to have confidence in notes that were published thirty-five years after Kant’s death.” Michel Foucault, Introduction to Kant’s Anthropology, trans. Kate Briggs and Robert Nigro, originally written as a dissertation under the title “Introduction à l’‘Anthropologie’ de Kant” (1961) (Los Angeles: Semiotext(e), 2008), p. 18.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

t h e ri g h t s of ma n a n d c o s m o p o l i t a n l a w

95

itself.” This so-called white race is in turn broken down into two components – a Western one and an Eastern one – and in the latter Kant includes “the Turks, and the Kalmucks.” The whole discussion is thus framed from the standpoint of the white race’s capacity for innovation and progress, and as evidence of this capacity he presses history into service, with a special rendition of it: “Whenever revolutions have occurred, they have always been brought about by the whites, and Hindus, Americans, Indians, Negroes have never participated in them.”74 The contradiction couldn’t be more conspicuous between these judgments in Kant’s lectures on anthropology and the outlook embraced in his mature political writings. As has been convincingly argued, the anthropological writings belong to Kant’s precritical period,75 and no trace of the mindset reflected in them is to be found in the political writings of his critical phase.76 It is therefore Perpetual Peace and The Metaphysics of Morals, and the radical criticism of Western colonialism offered in these works, that we have to take as our basic frame of reference in reconstructing Kant’s view of what lawful relations among peoples ought to look like. The foundation for the law of peace envisioned by Kant lies in the principles of cosmopolitan law. These principles enable him to move away from the previous tradition of the ius gentium, which, as we have seen, is judged by him to be essentially a law of war, and, accordingly, they unmistakably distinguish his views on colonialism from those of Vitoria, Grotius, and Vattel.77 Indeed, only the idea of a cosmopolitan 74

75

76

77

Kant, “Menschenkunde” (n. 73), pp. 320–21 (Ak. 25:1187–88); all italics and capitalization in original. The German original at Kant, Immanuel Kants Menschenkunde oder philosophische Anthropologie (n. 73), p. 353. The editor of the 1831 collection of anthropological writings is clear in this regard, commenting that “we are here publishing the lectures that Kant is thought to have delivered in the second half of the last [eighteenth] century because their content reveals that the Critique of Pure Judgment (1781) had not yet appeared in print.” Friedrich Christian Starke, foreword to Immanuel Kants Menschenkunde oder philosophische Anthropologie (n. 73), p. XII; my translation. On this dating of Kant’s anthropological lectures, see Cavallar, The Rights of Strangers (n. 60), p. 349. As Pauline Kleingeld points out, for example, by the time we get to the 1790s, the view Kant subscribed to in some of his writings of the 1780s is no more, having been displaced by a cosmopolitan and egalitarian conception of races. See Pauline Kleingeld, “Kant’s second thoughts on race,” The Philosophical Quarterly, 57, no. 229 (2007), 537–92, at 586 ff. A different matter is Pufendorf. Kant’s assessment of him as an apologist for war cannot be endorsed, especially as concerns Pufendorf’s conception of the dignity of man and his stance in favor of a duty of hospitality (both questions previously discussed in Chapter 3).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

96

i u s g e n ti um an d t h e o r i g i n s of international law

law, conceived as a guidepost on the road to peace, enabled Kant, unlike the other internationalists, to come out strongly in rebuke of Western colonialism. Having dissected Kant’s thought, we now have to consider (a) how the elements distilled from it might apply the contemporary reality (Section 4.5); (b) what shape cosmopolitan law could now take (Section 4.6); (c) what the foundation of the rights of man is in foreign states (Section 4.7); and (d) what weight ought to be accorded to the “realistic” criticisms leveled at Kant’s conception (Section 4.8).

4.5 The Topicality of Perpetual Peace In a study devoted to the account of international law that Kant offers in Perpetual Peace, Jürgen Habermas argues that Kant is working within the conceptual horizon of his own time: that of sovereign states engaged in power politics. This, in Habermas’s view, made it impossible for Kant to envision the institutional solution of states governed by a supra-state sovereignty,78 and with it also “the idea of a public right of nations [. . .] for deciding their disputes in a civil way, as if by a lawsuit, rather than in a barbaric way (the way of savages), namely by war.”79 According to Habermas, this impossibility led Kant to embrace a philosophy of history that alone could enable politics to come into agreement with morality in pursuing the project of perpetual peace. Habermas argues that the conditions for creating a supra-state political order instead issue from the “breakdown in civilization” that came in the wake of the “total war instigated by Hitler,” as a result of which it became possible to “incriminate war itself as a crime,” and which made it necessary to extend the scope of criminal law to the previously unrecognized offence of “crimes against humanity.”80

78

79

80

Jürgen Habermas, “Kant’s idea of perpetual peace: At two hundred years’ historical remove,” in Ciaran Cronin and Pablo De Greiff (eds.), The Inclusion of the Other: Studies in Political Theory, chap. 7, pp. 165–202 (Cambridge: The MIT Press, 1998), p. 171. First published in German as Die Einbeziehung des anderen: Studien zur politischen Theorie (Frankfurt am Main: Suhrkamp, 1996). An abridged version of this essay appeared in German under the title “Kants Idee des Ewigen Friedens: Aus dem historischen Abstand von 200 Jahren,” Information Philosophie 5 (1995), 5–19; also in Kritische Justiz, 28, no. 3 (1995), 293–319. Kant, The Metaphysics of Morals (n. 3), pt. I, § 61, p. 116 (Ak. 6:351). The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 475. Habermas, “Kant’s idea of perpetual peace” (n. 78), p. 178.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the rights of ma n and c osmopolitan l aw

97

The first institutional solution for dealing with the upheaval of that breakdown came in the form of the United Nations. This solution, however, is still ineffective. For even though the United Nations Charter, under Article 2(4), requires all member states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state,” while authorizing the Security Council to “take such action [. . .] as may be necessary to maintain or restore international peace and security” (Art. 42), it also establishes that the United Nations may not “intervene in matters which are essentially within the domestic jurisdiction of any state” (Art. 2(7)), and that the charter itself may not “impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security” (Art. 51). Even so, in Habermas’s view, as much as the institutional solutions set forth in the UN Charter may prove inadequate, they do mark the start of a process that should lead to the establishment of a supra-state legal framework under which the sovereign action of individual states may be kept in check – and Kant was well aware of this need, while bearing in mind the historical conditions that made it impossible to carry such a scheme into execution.

4.6 The Citizen of the World We still haven’t done with the institutional solutions under which Kant’s perpetual peace may be achieved, for we also have to consider the way Kant envisioned the development of international law, specifically as concerns (a) the concept of cosmopolitan law and (b) the question of rights under such a system. As noted earlier, cosmopolitan law is designed to complement both the states’ domestic law and the law of peoples, and it seeks to do so by establishing among states a system of mutual relations founded on the rights that each person enjoys relative to the state. This complementing function can be ascribed to cosmopolitan law in virtue of the way it fits into the scheme of the project for a perpetual peace, where it figures as the development of the first two articles, requiring a republican (constitutional) form of government for each state and a federalism of free states as the platform on which to erect a law of peoples. It is in cosmopolitan law that we find the content of this development. This content, as discussed, includes a “right of visitation” that “belongs to all mankind in virtue of

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

98

i u s g e n t i um and t he origins of international law

our common right of possession on the surface of the earth.”81 So, next to the inalienable right of possession the individual enjoys under the system of domestic law, Kant introduces the idea of a common right to possess the earth, and the key player in this extraordinary conception is what he calls the world citizen (Weltbürger). In “On the common saying,” Kant famously frames his discussion by stating that the relation of theory to practice will be investigated by him from three points of view: (i) that of “the private individual or man of affairs”; (ii) that of “the statesman”; and, finally, (iii) that of “the man of the world [Weltbürger] or cosmopolitan.” What makes this third point of view cosmopolitan, Kant explains, lies in its focus on “the welfare of the human race as a whole, in so far as the welfare of mankind is increasing within a series of developments extending into all future ages.”82 Here Kant is envisioning a universal history, and its subjects are not just individuals but humankind as a whole,83 whose path is conceived as an endless line of progression along which humanity can realize its full potential. Indeed, only in totality, in his judgment, can the value of human existence manifest itself. The vantage point from which to observe this endless process, according to Hannah Arendt, is that of the “world citizen.”84 The Weltbürger attitude is that of those who can transcend their own egoism,85 and who are accordingly receptive to the prospect of pluralism. 81 82

83

84

85

Kant, Perpetual Peace (n. 13), third definitive article, p. 138. Kant, “On the common saying” (n. 20), p. 63; all italics in original. The German original at Kant, “Über den Gemeinspruch” (n. 20), p. 130. Writes Kant: “But if ‘the human species’ signifies the whole of a series of generations going (indeterminably) into the infinite (as this meaning is entirely customary), and it is assumed that this series ceaselessly approximates the line of its destiny [Bestimmung] running alongside it, then it is not to utter a contradiction to say that in all its parts it is asymptotic to this line and yet on the whole that it will coincide with it, in other words, that no member of all the generations of humankind, but only the species will fully reach its destiny.” Immanuel Kant, “Review of J. G. Herder’s Ideas for the philosophy of the history of humanity. Parts 1 and 2 (1785),” trans. Allen W. Wood, in Anthropology, History, and Education, ed. Günter Zöller and Robert B. Louden (Cambridge: Cambridge University Press, 2007), pp. 121–42, at 142 (Ak. 8:65); italics in original. The German original at Immanuel Kant, “Zu Johann Gottfried Herder, Ideen zur Philosophie der Geschichte der Menschheit. Zweiter Teil” (1785), in Werke (n. 20), vol. XII, p. 805. Hannah Arendt, Lectures on Kant’s Political Philosophy, ed. Ronald Beiner (Chicago: University of Chicago Press, 1992), p. 39 ff. See Nestore Pirillo, L’uomo di mondo fra morale e ceto: Kant e le trasformazioni del moderno (Bologna: il Mulino, 1987), pp. 227 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the rig hts of man and c osmopolitan l aw

99

The pluralism of the world citizen consists in “the attitude of not being occupied with oneself as the whole world.” In espousing this attitude “I, as a thinking being, have reason to admit the existence of a whole of other beings beyond my existence, forming a community with me (called the world).”86 As can be appreciated from Kant’s definition of the pluralism that informs a cosmopolitan society (cosmopolitismus) of Weltbürger, this is a moral disposition, not an anthropological description of humanity. If we ask whether humankind is a good race or a bad one, there is no cheering news to be had, Kant comments, since we cannot escape the fact that, collectively as a species, we are “a multitude of persons, existing successively and side by side, who cannot do without associating peacefully and yet cannot avoid constantly offending one another.”87 But precisely this predicament, or rather our recognition of it, “reveals a moral predisposition in us, an innate demand of reason to counteract this tendency” toward evil. This judgment of self-condemnation therefore “presents the human species, not as evil, but as a species of rational beings that strives [. . .] to rise out of evil in constant progress toward the good.” But since this end cannot be “attained by the free accord of individuals,” we must proceed by “a progressive organization of citizens of the earth [. . .] as a system held together by cosmopolitan bonds.”88 This cosmopolitan society acts as a standard in light of which humankind can move forward: this is a society of republics based on the legal guarantee that human rights will be protected – a guarantee extending to foreigners, who accordingly enjoy a right not to be treated with hostility.89 The guiding standard of a cosmopolitan society has shown the way in the progress of humankind up to the institutional framework set up in the wake of World War II, a framework that according to Habermas 86

87

88

89

Immanuel Kant, Anthropology from a Pragmatic Point of View, trans. and ed. Mary J. Gregor (The Hague: Martinus Nijhoff, 1974), pt. I, bk. I, “On egoism,” p. 12 (Ak. 130). The German original at Immanuel Kant, Anthropologie in pragmatischer Hinsicht (1798), in Werke (n. 20), vol. XII, p. 411. Kant, Anthropology from a Pragmatic Point of View (n. 86), p. 191 (Ak. 331); italics in original. The German original at Kant, Anthropologie in pragmatischer Hinsicht (n. 86), p. 687. Kant, Anthropology from a Pragmatic Point of View (n. 86), pp. 192–93; italics in original. The German original at Kant, Anthropologie in pragmatischer Hinsicht (n. 86), p. 689. Norberto Bobbio argues that the 1948 Universal Declaration of Human Rights sets the stage for recognizing not only states but also individuals as legal persons enjoying the protection of international law. See Bobbio, The Age of Rights (n. 39), p. 122. The Italian original at Bobbio, L’età dei diritti (n. 39), p. 154.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

100 i u s g e nt i um an d th e o r i g i n s of i nternational law

corresponds to a transitional phase from the law of peoples to cosmopolitan law. But the end goal of cosmopolitanism has yet to be achieved. For on the one hand the United Nations has expanded its membership to include states that lack a republican constitution based on the separation of powers, and under which rights are protected by law, and yet, on the other hand, the 1945 UN Charter (in the Preamble and at Art. 1(2)) obligates member states to protect equal human rights as a condition for ensuring peace. This scheme is therefore strained by a basic tension, since the legal systems of states that cannot be counted on to protect human rights are inconsistent with the cosmopolitan vision that underpins the UN Charter and the 1948 Universal Declaration of Human Rights. In this transitional phase, the failure to fully achieve the goals set in the Kantian guiding standard – and in particular the failure to extend across the globe a system of representative democracies guaranteeing the protection of human rights – gives rise to two closely connected problems: on the one hand is the problem of setting human rights on an international foundation; on the other is the consequent problem of resolving the conflict between the cosmopolitan principle and the national interest of sovereign states. Let us see if we can adequately analyze the first problem in its complexity.

4.7 International Law and the Foundation of Human Rights The problem of providing a foundation for human rights exists in three separate spheres: (a) one is domestic, pertaining to the states’ national law, and two are international, pertaining to the relation that holds (b) among states that share a common culture, and (c) among those that do not. Once we have an argument stating what foundation human rights rest on in each of these spheres, we can critically respond to the arguments raised against the Kantian conception and the tradition that has derived from it, that of so-called legal pacifism. The human rights proclaimed in the declarations of the late eighteenth century were moral rights grounded in natural law: they were thus placed beyond the reach of the legislature and were accordingly inalienable.90 But they were later enacted into law as legal rights proper. As Habermas 90

Writes Siegfried König: “Human rights find their foundation in that which constitutes [ausmacht] a human’s being human, in that which distinguishes [auszeichnet] humans as humans: in the essence [Wesen], or nature, of man, in the dignity that is specific to humans.” Siegfried König, Zur Begründung der Menschenrechte: Hobbes – Locke – Kant (Freiburg and Munich: Alber, 1994), p. 27; my translation.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the rights of ma n and c osmopolitan l aw

101

points out, “human rights belong structurally to a positive and coercive legal order which founds actionable individual legal claims.”91 Not so in the view of Ronald Dworkin, who does conceive human rights as moral rights,92 arguing that they consist in the right to do what we conscientiously understand to be the right thing to do, and that as such they need to be universally ascribed to everyone. This moral content has been fully positivized into law, and in virtue of this transformation human rights therefore reflect a normative principle,93 forming the basis for the claim that everyone must be recognized as having these rights regardless of race, language, creed, and so on. More problematic is the attempt to set human rights on a solid international foundation, for even though they have increasingly gained recognition – beginning with the 1948 Universal Declaration of Human Rights, continuing through the 1950 European Convention on Human Rights and the two United Nations covenants of 1966 (the International Covenant on Civil and Political Rights, on the one hand, and the International Covenant on Economic, Social and Cultural Rights, on the other), and including several other international instruments as well – there has yet to develop an adequate system of protections for these rights. This is not to say that they have not been recognized as rights: it rather means that they lack the legislative backing on which basis they can actually be enforced. As has been commented, this lack of protections represents “an unjustified gap that public powers, domestic as well as international, have an obligation to fill.”94 While, on the one side, human rights lack the protections needed to make them effective in the face of the robust sovereignty that Western states still enjoy, on the other side the Asian and African countries reject their universal status, conceiving human rights in a variety of different ways. Since human rights are conceived in different ways in different societies, they cannot be made to rest on any single philosophical conception 91 92

93

94

Habermas, “Kant’s idea of perpetual peace” (n. 78), p. 192. Ronald Dworkin, Taking Rights Seriously (London and New York: Bloomsbury Academic, 1997; orig. pub. 1977), 186 ff. In this connection, Luigi Ferrajoli correctly conceives the universality of basic rights not in an axiological sense but in a logical one, for they are conferred on everyone independently of the distinctions that may set people apart. The universal scope of rights is thus consistent with multiculturalism, and in fact in this feature lies the main foundation of multiculturalism. See Luigi Ferrajoli, Principia iuris: Teoria del diritto e della democrazia (Rome and Bari: Laterza, 2007), vol. II, p. 58. Luigi Ferrajoli, “Diritti fondamentali,” Teoria Politica, 14, no. 2 (1998), 3–33, at 25; my translation.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

102 ius gentium and t he origins o f international law

of human nature. John Rawls accordingly charts an alternative course, stating “that basic human rights are to express a minimum standard of well-ordered political institutions for all peoples who belong, as members in good standing, to a just political society of peoples.”95 This is a conclusion he arrives at by recognizing that “many societies have political traditions that are different from Western individualism in its many forms.”96 If human rights internationally can at best be framed as expressing a “minimum standard,” the criteria of their fulfillment must inevitably be watered down. Surely, however, this outcome is unsatisfactory! So far – given the persistent sovereignty of nation-states, coupled with the nonWestern states’ rejection of the universal status of human rights – a weak foundation for these rights is the furthest milestone that international law has been able to reach. The risk of a weak foundation is, above all, that human rights may be exploited by states seeking to advance their national interests. However, as Kant hoped, this risk can be mitigated under the pressure exerted by the people’s critical scrutiny of the state, provided that this scrutiny is allowed to be heard, or gain publicity (Publizität),97 and so long as it can, on the one hand, unmask the exploitative uses made of human rights and, on the other, parry the attacks that human rights come under at the hands of “realistic” antihumanism. Such, for example, were the criticisms made by Carl Schmitt.

4.8 Schmitt versus Kant Kant observes that the law of peoples (ius gentium) confers on states a right to resort to war (under the ius ad bellum) and a set of rights and 95

96 97

John Rawls, “The law of peoples,” Critical Inquiry, 10, no. 1 (1993), 36–68, at 57; italics added. Compare this later statement of the same idea: “Human rights set a necessary, though not sufficient, standard for the decency of domestic political and social institutions.” John Rawls, The Law of Peoples, with “The Idea of Public Reason Revisited” (Cambridge, MA: Harvard University Press, 1999), § 10.2 (“Role of human rights in the law of peoples”), p. 80; italics added. See also, more broadly, Chapter 9 in this book. Rawls, “The law of peoples” (n. 95), 57. Immanuel Kant, “An old question raised again: Is the human race constantly progressing?” in Religion and Rational Theology, trans. and ed. Allen W. Wood and George Di Giovanni (Cambridge: Cambridge University Press), § 8 (“Concerning the difficulty of the maxims applying to world progress with regard to their publicity”), pp. 305–6 (Ak. 7. 89–91). The German original at Immanuel Kant, Der Streit der Fakultäten. Zweiter Abschnitt. Erneuerte Frage: Ob das menschliche Geschlecht im beständigen Fortschreiten zum Besseren sei? (1798), in Werke (n. 3), vol. XI, p. 363.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the ri ghts o f man and c osmopolitan l a w

103

rules in the conduct of war (under the ius in bello). The cosmopolitan law he is expounding, by contrast, is concerned with the conduct of states after war (jus post bellum) with a view to establishing a lasting peace.98 This legal condition therefore becomes the foundation legitimizing recourse to war (under the ius ad bellum) against anyone who should seek to undermine the peace so established.99 In response to this Kantian perspective, Carl Schmitt fleshed out what appeared to him to be a more “realistic” alternative, namely, the balance of powers on which was premised the law of peoples, or rather, an understanding of it whereby the ius ad bellum, recognizing states as sovereign entities, thereby endowed them with a right to initiate war regardless of the reasons for going to war, whether they be offensive or defensive. In the twentieth century, however, with war taking on the form of “total war,”100 it was no longer feasible to appeal to reason, or to the reasonableness of sovereign states, as a means by which to prevent such wars. More credible in this context, as Jürgen Habermas has suggested, is the idea that the forces of destruction “are still more likely to be tamed through the sanctions and interventions of an organized community of nations than through the legally ineffective appeal to sovereign governments to conduct themselves in a reasonable manner.”101 98

99

100

101

In Kant’s own words: “The rights of states consist [. . .] partly of their right to go to war, partly of their right in war, and partly of their right to constrain each other to leave this condition of war and so form a constitution that will establish lasting peace, that is, its right after war.” Kant, The Metaphysics of Morals (n. 3), pt. I, § 53, p. 112 (Ak. 6:343); italics in original. The German original at Kant, Die Metaphysik der Sitten (n. 3), p. 467. This Kantian understanding of international relations would later be developed by Hans Kelsen, who defined peace as “a condition in which there is no use of force.” Hans Kelsen, Law and Peace in International Relations (Cambridge, MA: Harvard University Press, 1948; 1st ed. 1942), p. 12. For a critical discussion of the theses advanced by Kelsen, Habermas, and Bobbio in the matter of global peace, see Danilo Zolo, I signori della pace: Una critica del globalismo giuridico (Rome: Carocci, 1998). This Kantian perspective has been developed by Kelsen, who has distinguished war as an offence from war as a sanction. On Kelsen’s account of just war theory, war is accordingly recognized as a sanction, and law is understood as “an order according to which the use of force is generally forbidden but exceptionally, under certain circumstances and for certain individuals, permitted as a sanction.” Hans Kelsen, General Theory of Law and State, trans. Anders Wedberg (Cambridge, MA: Harvard University Press, 1945), pt. I, chap. I, § B.g, p. 22. On several occasions Norberto Bobbio analyzed the changing forms of war in the twentieth century, highlighting the crisis the ius belli went through in the face of the increasing capability for destruction afforded by the advancements made in weaponry. See Norberto Bobbio, “La guerra, la pace e il diritto” (1966), chap. 10, sec. III, in Teoria generale della politica, ed. Michelangelo Bovero (Turin: Einaudi, 1999), p. 523. Habermas, “Kant’s idea of perpetual peace” (n. 78), p. 194.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

104 ius gentium and t he origins of international law

As Habermas rightly underscores, Schmitt is concerned with the moral foundation of cosmopolitan law in its concrete forms, still in their infancy, such as we can now see in the United Nations. And herein lies the crux of the current debate on human rights. Schmitt points out that “crimes against humanity” cannot be described with any accuracy,102 and even more importantly that this category offers an all-purpose clause under which to justify getting rid of one’s enemies.103 In other words, a moral interpretation of human rights – amounting to a moralization of law – would remove the legal protections that legal persons ought to be always accorded. Schmitt’s criticism hits the nail on the head because it brings to light a certain fundamentalism about human rights that could take hold if the politics of human rights should be used to provide a moral justification, embellished with a veneer of legality, for authorizing an armed intervention to protect a state’s national interest. As Habermas correctly points out, cosmopolitan law – an international law founded on human rights – can only be had as an extension of a democratic rule of law.104 This means redefining the power relations that hold within the United Nations, in turn requiring an international criminal code and an effective international system for protecting human rights, among other things.105 Only by fully positivizing human rights on an international level is it possible to prevent such rights from being weaponized. Otherwise, as Schmitt provokingly observes, the “concept of humanity” would turn 102

103

104 105

Schmitt asks: “What distinctive trait remains extant once crimes against humanity are emptied of the familiar criminal offenses – homicide, robbery, rape? Crimes evincing ‘a strong resolve to extinguish,’ and hence crimes that, on the subjective side, have something particular to them, something of the anti-human (das Gegen-Menschliche). What do they express? Nothing real: only animus. They are, in their negative aspect, crimes of sentiment (Gesinnungs-Verbrechen).” Carl Schmitt, Glossarium: Aufzeichnungen der Jahre 1947–1951, ed. Eberhard Freiherr von Medem (Berlin: Duncker & Humblot, 1991), p. 145; my translation. Ibid., p. 146. Cf. Habermas, “Kant’s idea of perpetual peace” (n. 78), p. 194 ff. Schmitt rejects the notion that wars can be waged on “humanitarian” grounds, and instead rests his conception on the distinction between friend and enemy. So-called humanitarian war, by contrast, overlays this distinction with the dichotomy between good and bad, and in this way it “degrades into moral and other categories and is forced to make of him a monster that must not only be defeated but also utterly destroyed.” Carl Schmitt, The Concept of the Political, expanded ed., trans. and intro. George Schwab, foreword Tracy B. Strong, notes Leo Strauss (Chicago and London: The University of Chicago Press, 1996; based on the 1932 edition of Der Begriff des Politischen), p. 36. Habermas, “Kant’s idea of perpetual peace” (n. 78), p. 199. See Ferrajoli, “Diritti fondamentali” (n. 94), p. 26.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

the ri ghts o f man and c osmopolitan l a w

105

into “an especially useful ideological instrument of imperialist expansion,” which in turn may lead to “incalculable effects, such denying the enemy the quality of being human and declaring him to be an outlaw of humanity; and a war can thereby be driven to the most extreme inhumanity.”106 As is known, Schmitt frames the political within the friend/enemy oppositional couplet: these two foundational concepts of the political he conceives as devoid of any moral connotation, thereby making the prospect of war inevitable and rejecting any peacemaking attempt. In this way, Schmitt winds up legitimizing the right to go to war, denying that there can be any concept by which to distinguish different kinds of war. As the previous discussion should make clear, this conception comes into contrast with the Kantian conception, the latter standing as the absolute negation of the former. 106

Schmitt, The Concept of the Political (n. 103), 54.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:48, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.006

5 International Law and Western Civilization

5.1 International Law in the Nineteenth Century: The Civilization of International Law In the mid-1860s it became apparent among liberal-minded intellectuals that something had to be done to address the shortcomings of an international system dominated by monarchies determined to push back against any attempt to move toward representative forms of government. In 1862, in Brussels an association was established called Association Internationale pour le Progrès des Sciences Sociales, and among its founders were Gustave Rolin-Jaequemyns (a lawyer) and John Westlake, a jurist who had written a treatise on private international law and sat on the board of a British association of the same name that had been founded five years earlier. The association in Brussels sought to advance liberal principles and toleration. In 1868, the same ideas led to the founding of the Revue de Droit International et de Législation Comparée,1 which served as a forum through which to push for liberal reforms. Subsequently, in 1872, the liberal intellectuals gained a new voice with Johann Caspar Bluntschli, who drafted a statute he offered as the 1

See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge: Cambridge University Press, 2002), p. 14. Koskenniemi reconstructs the history of international law from the mid-nineteenth to the midtwentieth century proceeding from the relation that Michel Foucault found to exist between the discourse of international law and the underlying power relations (ibid., p. 9). On this premise, Koskenniemi argues that international law as a modern construct originates, not out of Westphalia, but out of the liberal movements that took hold in the mid-nineteenth century. And in this connection he underscores how international law is colored by an oppressive Eurocentrism and has been essential in advancing a specific colonial project.

109

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

110

internatio nal l aw and western civilization

basis for an Institut de Droit International. Especially useful for insights into the spirit of the period is Bluntschli’s 1868 Das moderne Völkerrecht. Bluntschli took a historicist approach he developed through his study of Friedrich Carl von Savigny. On this approach law was not to be conceived as a rationalistic structure, for it was rooted in history and grew with the consciousness of peoples. Jurists and their science were thus entrusted with the task of setting out the law such as it existed in the collective mind, and this was also the aim of the Institut de Droit International. The novelty of this conception lay in its thesis that law was to be construed not as the issue of a sovereign will, but as an expression of the popular consciousness.2 International law was understood by him to paradigmatically extend across all European states,3 but in its compass he also included countries outside the European space.4 There clearly emerge here the defining traits of international law in the second half of the nineteenth century: this law was the outgrowth of a common European consciousness formed against the background of a shared European culture. Koskenniemi can thus significantly conclude that “the founding conception of late nineteenth-century international law was not sovereignty but a collective (European) conscience – understood always as ambivalently either consciousness or conscience, that is, in alternatively rationalistic or ethical ways.”5 2

3

4

5

From the very outset in Das moderne Völkerrecht – in its 1867 preface, which in reality is a letter to Prof. Dr. Franz Lieber – Bluntschli states that jurisprudence had to devote itself to the task of expressing the legal conviction (Rechtsüberzeugung) of the present, thereby helping it to gain recognition and validity. See Johann Caspar Bluntschli, “Anstatt des Vorworts, ein Brief an Professor Dr. Franz Lieber in New-York,” in Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt (Nördlingen: Drück und Verlag der C. H. Beck’schen Buchhandlung, 1868), p. VII. Other authors, like John Westlake, held that international law extended to a family of nations comprising Europe and the Americas, along with some Christian nations like Hawaii, Liberia, and the Orange Free State. See John Westlake, Chapters in the Principles of International Law (Cambridge: Cambridge University Press, 1894), p. 81. In this regard, see Koskenniemi, The Gentle Civilizer (n. 1), p. 49. In reality, Bluntschli was referring to Western imperialism, which he took to express the progress of international law. Thus he mentioned the Treaty of Nanjing, under which the United Kingdom coerced the Chinese Empire into opening its ports to the West. See Bluntschli, Das moderne Völkerrecht (n. 2), p. 25. Koskenniemi, The Gentle Civilizer (n. 1), p. 51. As Koskenniemi further clarifies, consciousness was understood to refer to the general principles of jurisprudence, which resolved themselves into the thesis that the law is organic to society, whereas conscience referred to the moral sentiments (and biases) of European societies. Cf. ibid., p. 96.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

i n t e r n a t i o n al l aw an d wes t er n c ivilization

111

5.2 International Law as “European” Law The jurists at the Institut de Droit International, founded in Ghent in 1873, developed an essentially sociological approach to international law. For, as noted, they considered the law an expression of a popular legal consciousness in which international law found its own foundation, and on this premise these jurists conceived the legal profession as an organ of this legal consciousness. The geographic boundaries of this consciousness were those of the community of European peoples, that is, of all civil peoples. Ergo: in the legal consciousness that formed and grew in the community of European peoples lay the foundation of international law, which essentially consisted of an “international European law.” But even though European law was the product of the consciousness of Christian European peoples, its reach was universal,6 and so could be made to also include non-Christian peoples within its purview. With the spread of colonialism in the 1860s and 1870s, Europeans came into contact with the cultures of different peoples they regarded as “noncivilized.” And yet the purported universality of an “international European law” could not be squared with its application to nonChristian, and hence noncivilized, populations. It was therefore proclaimed that the culture of European international law could be extended beyond Europe, but on condition that the secular Aryan-European state was understood to be superior to Oriental forms of social and political organization.7 That gives us a measure of the ambiguity inherent in the nineteenthcentury liberal project to set international law on a solid foundation: in the law was embodied the popular consciousness of European society, but also packaged into the law was a complex of unawaredly embraced moral sentiments (conscience)8 reflecting the prejudices of the Old World.

6 7

8

Bluntschli, Das moderne Völkerrecht (n. 2), p. 59. In this regard, see Johann Caspar Bluntschli, “Arische Völker und arische Rechte,” in Gesammelte kleine Schriften (Nördlingen: Verlag der C. H. Beck’schen Buchhandlung, 1879), vol. 1, p. 89. Wrote Bluntschli: “If the Aryans are to be regarded as peoples, and if the entire civilization of states is derived from them, then even the science of the state is a tree (Baum) of Aryan knowledge” (ibid.; my translation). On this point see, once more, the insightful analysis offered in Koskenniemi, The Gentle Civilizer (n. 1), p. 96.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

112

i n t er n a t i o n a l l a w a n d we s t e r n c i v i l i z a t i o n

5.3 The International Law of Aryan Peoples and the Natural Law of the Rights of Man The colonial ventures of the European countries impressed themselves on the science of international law by bringing some specific issues to the fore, most notably that of how best to govern relations with communities regarded as noncivilized. The solutions offered were elaborate, but at bottom they all invoked the “Europeanness” of international law and its superiority over that of other civilizations. It is once more Koskenniemi who can walk us through this landscape. The alleged superiority of international law would occasionally take on racist overtones. Thus, for example, Bluntschli asserted the superiority of Aryan peoples and law: in a comparison between Aryan and Semitic populations, he concluded that the Aryans were possessed of “a greater self-awareness (Selbstgefühl), with greater trust placed in the spirit of man.” The Semites, by contrast, were “fervently prone to abandon themselves to God, with an unconditional submission to, and dependence on, God.”9 Furthermore, the Aryan peoples had known to institutionally develop the idea of a constitutional monarchy,10 and it could therefore be claimed that with these peoples the sovereign was a “king subject to the law” (Rechtskönig), a ruler who recognized and protected rights, whereas other peoples had only known “despots who at their feet only see a wretched horde of barbaric slaves.”11 The same attitude can be found in the work of other authors, too, such as the Scottish internationalist James Lorimer, who argued that it was impossible for there to be any mutual recognition between the European and Muslim communities. Thus Lorimer came to the conclusion that the “Turks, as a race, are probably incapable of the political development which would render their adoption of constitutional government possible.” And he went on to comment that “had the purpose with which Turkish constitutions were promulgated in 1856 and in 1876 been as honest as they were the reverse – nay, had they even come into actual operation, the international character of Turkey would not have been improved. The Korân would still have stood between it and the

9 10

11

Bluntschli, “Arische Völker” (n. 7), p. 66; my translation. Writes Bluntschli: “Not absolute monarchy but constitutional monarchy (verfassungsmäßige Monarchie) is in accord with Arian nature (dem arischen Wesen)” (ibid., p. 87). Ibid.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

internati onal l aw and western civilization

113

world without, and contradicted its constitutional professions of reciprocating will.”12

5.4 The Janus Face of Liberal Thought: Alexis de Tocqueville’s “Heart of Darkness” These sentiments about the superiority of Western civilization can also be found in the classics of political thought whose authors have been celebrated as champions of liberalism and theorists of democracy – a case in point being Alexis de Tocqueville. This attitude comes through clearly in his reflections on the French conquest of Algeria in 1830 and on the ensuing consolidation of French colonial domination. We can see this, in the first place, in his reliance on Western categories to interpret the Muslim world. Thus in his second letter on Algeria, of 1837, he marks the difference between the French people – “powerful and civilized” (puissant et civilisé) – and the Arab peoples, who in his assessment were “fairly barbarous” (à peu près barbares), and who needed to be gradually integrated into French civilization so as to forge a single people out of two races. It is necessary to “force these peoples to incorporate themselves into us,” and to this end, he thought, “it is enough to establish durable ties with them”13 – a transformation that would have been achieved in the course of governing the colony under the Western conception of the administrative state. This is a line of thinking that Tocqueville developed in his later work, particularly in his 1841 “Essay on Algeria.” Here the state of the French colony is likened to that of the “infancy of societies” (petite enfance des sociétés), which can still be governed without having to rely on the “great political institutions” of France: “the electoral system, freedom of the 12

13

James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities, 2 vols. (Edinburgh: William Blackwood and Sons, 1883), vol. I, bk. II, chap, VII, p. 123; italics added. Also in James Lorimer, “La doctrine de la reconnaissance: Fondement du droit international,” Revue de Droit International et de Législation Comparée, 16 (1884), 333–59, at 343. Alexis de Tocqueville, “Second letter on Algeria (22 August 1837),” in Writings on Empire and Slavery, ed. and trans. Jennifer Pitts (Baltimore and London: Johns Hopkins University Press, 2001), p. 22; italics added. The French original: Alexis de Tocqueville, “Seconde lettre sur l’Algérie (22 aout 1837),” in vol. 1 of Écrits et Discours Politiques, ed. André Jardin, tome III of Œuvres Complètes (Paris: Gallimard, 1962), p. 148. In this regard, see the insightful Domenico Letterio, Tocqueville ad Algeri: Il filosofo e l’ordine coloniale (Bologna: il Mulino, 2011), chap. 2 (“La spedizione di Algeri e le due ‘Lettres sur l’Algérie’ (1830–1837)”).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

114

i n t er n a t i o n a l l a w a nd we s t e r n c i v i l i z a t i o n

press, the jury.”14 These institutions, he comments, can be introduced only when the “barbarous” populations of Algeria will reach a more advanced stage of development. Clearly at work in Tocqueville’s thought, then, is a unilinear conception of history on which the development of Western civilization acts as the gold standard by which to measure progress, and anything that should stray from this course was labeled uncouth. This colonial vision predicated on a relation of superior to inferior also informs Tocqueville’s assessment of the French army’s conduct of war against the Arab tribes united under the leadership of Abd-el-Kader. The clash between Western “civilization” and the “backward ways” of the Muslim populations winds up legitimizing several exceptions to the ius in bello, a body of law that according to Tocqueville could be made consistent with plunder and the destruction of harvests, while also including the right “to ravage the country” at large.15 These violations of the ius in bello can be explained as a consequence of the kind of war that was being waged in Algeria: not a war between governments but one between a government and a people. Also quite telling is the way Tocqueville envisioned the French colony’s institutional makeup, which was to be based on “three maxims of government.” First: “Everywhere, political power, that which gives the primary impulse to affairs [qui donne la première impulsion aux affaires], should be in the hands of the French. Such an initiative can in no part be securely relinquished to the indigenous leaders.” Second: “most of the secondary powers of the government should, by contrast, be exercised by the inhabitants of the country.” And third: “our power must seek to rely on already existing influences,” and in particular on the “religious or military aristocracy of the country.”16 And, finally, under this institutional framework, the “guarantees of security and liberty that can be found more or less in all European 14

15

16

Tocqueville, “Essay on Algeria (October 1841),” in Writings on Empire and Slavery (n. 13), p. 111. The French original: Tocqueville, “Travail sur l’Algérie (octobre 1841),” in vol. 1 of Écrits et Discours Politiques (n. 13), p. 276. See also, once more, Letterio, Tocqueville ad Algeri (n. 14), chap. 4 (“Il ‘Travail sur l’Algérie’ e il rapporto di Beaumont (1841)”). Tocqueville, “Essay on Algeria” (n. 14), p. 71. The French original at Tocqueville, “Travail sur l’Algérie” (n. 14), p. 228. Tocqueville, “First report on Algeria (1847): Report by M. De Tocqueville on the bill on special funding requested for Algeria,” in Writings on Empire and Slavery (n. 13), pp. 138–39. The French original at Tocqueville, “Rapport fait par M. De Tocqueville sur le projet de loi relatif aux crédits extraordinaires demandés pour l’Algérie,” in vol. 1 of Écrits et Discours Politiques (n. 13), p. 320.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

internati onal l aw and western civilization

115

countries” should be extended to the French colonists in Algeria – but not to the indigenous people!17 Going back to our analysis of international law, we can easily appreciate that the nineteenth-century internationalists were at one in proclaiming the superiority of European civilization and its international law. For they were all in favour of colonial expansion and the domination exercised over noncivilized peoples, however much highlighting different concerns in the positions they stated. Also interesting are the arguments deployed to justify Europe’s colonial conquests. It was argued, in particular, that since the property rights of noncivilized populations were grounded in the concept of occupation, they could not trump the claims the European states asserted, for these were grounded in the stronger concept of sovereignty.18 It was therefore the idea of sovereignty that uniquely identified European international law, serving as the basis on which to define relations among Western states, while legitimizing their domination over the lands they gained by colonial expansion. There are two specific consequences that came out of the Western states’ engagement with the “otherness” of the peoples they colonized. (1) On the one hand, international law, understood as an embodiment of the Western states’ science, was confined to this system of states and was accordingly distinguished from other systems of law (thus international law was said to belong to Christian nations and could not be extended and applied to Mohammedan nations).19 (2) On the other hand, the proclaimed superiority of this European – Christian and Aryan – international law based on 17

18

19

Tocqueville, “Essay on Algeria” (n. 14), pp. 97 ff. The French original at Tocqueville, “Travail sur l’Algérie” (n. 14), pp. 263–64. See Westlake, Chapters (n. 3), pp. 129–33. Cf. Koskenniemi, The Gentle Civilizer (n. 1), p. 114. See Henry Wheaton, Elements of International Law: With a Sketch of the History of the Science (Philadelphia: Carey, Lea & Blanchard, 1836), p. 45. Wheaton, an American diplomat and minister plenipotentiary, quoted some of the classic writers in the history of international law – such as Grotius, Bynkershoek, and Montesquieu – showing that they did not understand there to be any “universal, immutable law of nations, binding upon the whole human race – which all mankind in all ages and countries, ancient and modern, savage and civilized, have recognized in theory or in practice” (ibid., p. 44). “The ordinary jus gentium,” he went on to argue, “is only a particular law, applicable to a distinct set or family of nations, varying at different times with the change in religion, manners, government, and other institutions, among every class of nations. Hence the international law of the civilized, Christian nations of Europe and America is one thing; and that which governs the intercourse of the Mohammedan nations of the East with each other, and with Christians, is another and a very different thing” (ibid., pp. 44–45).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

116

international l aw and western civilization

the concept of the sovereignty of the state came with a recognition that noncivilized peoples needed to be treated “humanely,” and natives were thus recognized as having the rights of man. The rights of man that in the early modern age Vitoria had set in opposition to the claims of Spanish imperial absolutism, and that until Grotius had threatened to challenge the state’s sovereignty, were now being proclaimed only as a matter of principle under the proposition that non-European peoples ought to be treated humanely in virtue of the common humanity to which they belong. The idea of the rights of man therefore resurfaced over the course of the nineteenth and early twentieth centuries, but only as a way to complement the primacy of the states’ sovereignty, and almost as a way to legitimize that primacy. Thus Pasquale Fiore asserted that savage peoples (populations sauvages) had rights of their own grounded in a principle of “respect for personhood.”20 That these rights had been proclaimed meant that international law – “entrusted with studying the complex problem of colonial expansion” – should also awake to the need to set out the legal principles “that must govern the way the colonizing civilized states are to relate to indigenous and barbarian races.”21 In short, it fell to the science of international law to identify the principles that would serve as the basis on which to regulate relations between civil peoples, on the one hand, and indigenous races, on the other, so as to protect the latter from despoilment, as happens with every arbitrary form of conquest. Finally, these considerations made it possible to clearly set out the purpose of international law, which was entrusted not only with establishing the rights of states in their relations to one another, but also with “identifying and formulating the legal rules on which basis to regulate relations among all the beings (êtres) that form part of the international community, whether they be states, individuals, or groups.”22 20

21 22

Pasquale Fiore, “La science du droit international: Horizons nouveaux,” Révue Générale de Droit International Public, XVI (1909), 463–81, at 478; my translation. In a previous work Fiore recognized the international rights of man, defining them as follows: “International rights are those rights that belong to everyone, not as a citizen of any given state, but as a man. These, according to international law, are the rights of human personality.” Pasquale Fiore, Il diritto internazionale codificato e la sua sanzione giuridica (Turin: Unione Tipografico-Editrice, 1898), p. 88; my translation. Fiore also recognized the international rights of peoples and of nations: “Every people has the right to enact and modify its own political constitution, and set up the government it shall deem best suited to protect the rights of fellow citizens, and it may demand that the government established by the people themselves relate to other governments on the basis of international law” (ibid., p. 89). Fiore, “La science du droit international” (n. 20), p. 479. Ibid. Cf. Koskenniemi, The Gentle Civilizer (n. 1), p. 128.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

i n t er n a t i o n a l l a w a nd we s t e r n c i v i l i z a t i o n

117

Other writers underscored the need to protect “noncivilized” peoples against colonial powers. Thus Robert Adam asserted that the morality of peoples (Völkermoral) “protects the inferior races (die niedrigen Rassen) from the violence of the superior ones.”23 More to the point, in a study devoted to German colonial public law, he argued that relations between civil and “noncivil” peoples “fall subject to the tenets of natural law, that is, to a set of principles that issue from the ethical nature (aus der sittlichen Natur) and reason of man.”24 Specifically, “noncivilized” peoples had to be recognized as having a property right to the lands they occupied.

5.5 Natural Law and the Universalism of Positive International Law It is particularly important to look at the relation between natural law and international positive law, for in this relation some authors have located the foundation on which rests the claim to universality asserted by Western international law. It was on this basis, for example, that Bluntschli set out to define the relation between Western civilization and non-European peoples. As previously observed, he drew a distinction between civil and noncivilized peoples, but he found that international law could be extended to all the peoples of the earth,25 this without their having to renounce their own culture. Indeed, at the basis of international law, according to Bluntschli, was natural law, whose scope was universal and not contingent on cultural differences.26 If international law was to be extended to all non-Christian nations, it was “necessary for all peoples to respect its legal principles,” but this extension was compatible with the existence of different religions, whether these peoples “worshipped God as Christians or as Buddhists, as Muhammadans or as Confucians.” Indeed, Bluntschli pointed out that “the boundaries of Christianity 23

24 25

26

Robert Adam, “Völkerrechtliche Okkupation und deutsches Kolonialstaatsrecht,” Archiv für Öffentliches Recht, 6 (1891), 193–310, at 234; my translation. Ibid. Compare, here too, Koskenniemi, The Gentle Civilizer (n. 1), p. 128. In this regard, see Betsy Röben, Johann Caspar Bluntschli, Francis Lieber und das moderne Völkerrecht 1861–1881 (Baden-Baden: Nomos, 2003), pp. 174–75. Bluntschli made the argument that since international law took human nature as its foundation, it could serve as “the universal law binding on Christians and Muhammadans, Brahmans and Confucians, those who venerated the constellations, believers and nonbelievers.” Bluntschli, Das moderne Völkerrecht (n. 2), p. 55; my translation.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

118

i n t er n a t i o n a l l a w a nd we s t e r n c i v i l i z a t i o n

were not coterminous with those of international law,” in that “religious thought can neither ground nor obstruct legal obligation (Rechtspflicht).”27 In this way he sought to demonstrate that the universality of (Western) international law was consistent with the relativism of cultures and religions. In arguing these theses about the ability of international law to take different cultures within its fold, Bluntschli drew on Pufendorf,28 who, in resting international law on natural law, had extended the latter to all confessions, be they Christian, Mohammedan, or of any other persuasion. However, as much as international law could be construed to be universal in its scope, its lineage, as discussed, was clearly Western, for it “issued from the family of Christian and European peoples, among which, of course, we are to reckon the American colonies,” and it bore the unmistakable imprint of the “Germanic and Roman race.”29 This international law could certainly be extended to the whole of humankind, but at the same time it served as a criterion by which to mark the distinction between civil and “noncivilized” peoples – the former recognizing themselves in this law, the latter still foreign to it.30 In short, the boundaries of international law represented the boundaries of civilization. At the same time, as noted, international law – being grounded in natural law – also served as the basis for the claim that those outside its boundaries were nonetheless owed humanitarian protection. This line of reasoning led Bluntschli to embrace some particularly significant positions, notably in favor of the American Indians, whose extermination at the hands of the Americans he condemned.31 Even so, his vision of 27 28

29 30

31

Ibid., p. 17. In volume 8 of the Deutsches Staats-Wörterbuch (Stuttgart and Leipzig: Expedition des Staats-Wörterbuchs, 1864), edited by Bluntschli with Karl Brater, it was Bluntschli himself who contributed the entry on Pufendorf (see esp. p. 438). Bluntschli, Das moderne Völkerrecht (n. 2), p. 56; my translation. In an 1866 work, Bluntschli commended that “only in the great continents of Asia, and especially of Africa, where civilization has not yet penetrated with force (Macht), does resistance to foreign law (Fremdenrechtes) still linger, but this will certainly not last much longer.” Johann Caspar Bluntschli, “Die Bedeutung und die Fortschritte des modernen Völkerrechts,” in Rudolf Virchow and Franz von Holtzendorff (eds.), Sammlung gemeinverständlicher wissenschaftlicher Vorträge (Berlin: Lüderitz’sche Verlagsbuchhandlung, 1866), p. 36; my translation. See Bluntschli, Das moderne Völkerrecht (n. 2), p. 66. Cf. Röben, Johann Caspar Bluntschli (n. 25), p. 176.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

i n t e r n a t i o n a l l a w a n d we s t e r n c i v i l i z a t i o n

119

international law as Western law did not prevent him from defending the power politics and colonial designs of the white race.32 Positive international law and natural law were thus welded together so as to form a system that celebrated the superiority of Western civilization and legitimized its colonial expansion. As Koskenniemi concludes, the colonial discourse of international law in the second half of the nineteenth century and the early decades of the twentieth resolved itself into a discourse of inclusion and exclusion: exclusion in terms of a cultural argument about the otherness of the nonEuropeans that made it impossible to extend European rights to the native, inclusion in terms of the native’s similarity to with the European, the native’s otherness having been erased by universal humanitarianism under which international lawyers sought to replace native institutions by European sovereignty.33

5.6 A Lawless Space Much writing has gone into teasing out the legal implications of colonialism. As noted, the boundaries of international law (European and Christian) were the boundaries of civilization. This meant that beyond these boundaries was a lawless space where colonial powers could freely exercise their sovereignty. The peace treaties signed from the sixteenth and seventeenth centuries onward were binding only in Europe. The overseas lands, by contrast, were mired in a state of constant warfare.34 This spatial divide was underscored by Carl Schmitt, arguing that colonial expansion shifted conflict away from Europe, thus making for an environment conducive to the creation of a European international law. The “European land- and sea-appropriations of the New World,”35 in other words, made it possible to draw “amity lines” (Freundschaftslinien) marking off a nonbelligerent European space within which international law was binding, and beyond which the 32

33 34

35

In this regard, see Wilhelm G. Grewe, Epochen der Völkerrechtsgeschichte (Baden-Baden: Nomos, 1984), p. 532. Koskenniemi, The Gentle Civilizer (n. 1), p. 130. See Jörg Fisch, Die europäische Expansion und das Völkerrecht (Stuttgart: Steiner, 1984), p. 25. Even more importantly, see Gustav Adolf Rein, Der Kampf Westeuropas um Nordamerika im 15. und 16. Jahrhundert (Stuttgart: Gotha, 1925), p. 212. Carl Schmitt, The Nomos of the Earth in the International Law of Jus Publicum Europaeum, trans. G. L. Ulmen (New York: Telos Press Publishing, 2006; orig. pub. 1950), pt. II, chap. 1, § C (“Amity lines”), p. 92.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

120

i nternational l aw and western civi lizatio n

colonial powers could vie for resources in a legal vacuum of lawlessness where conflict could take any form whatsoever. In the nineteenth century, the European and American states formed a community of international law based on a common body of law and a single legal consciousness.36 Overseas states, by contrast, were denied the status that would give them the benefit of international law. In this new vision, there was no longer any space for the religious considerations that had been introduced in the sixteenth century. Thus, for example, customs and usages deemed contrary to humanity, such as the killing of children, no longer counted as grounds on which to intervene, and the colonial powers did not come under any obligation to put an end to such practices. So, as much as religion may have been an influence in the nineteenth century, it was not religion but the West’s firm belief in the superiority of its own civilization that became key in driving the action of its powers.37 As noted, the use of international law as a tool with which to define legal relations among colonial powers also became the basis on which to legitimize “humanitarian” intervention aimed at peoples regarded as noncivilized: international law became the measure of a people’s civility, and any form or degree of civility below its standard became grounds on which a Western power could exercise its sovereignty and intervene. But the concept of humanitarian intervention also proved useful in justifying the designs by which the Western powers sought to expand their spheres of influence. Thus, for example, the power to intervene on humanitarian grounds was written into the 1827 Treaty of London and the 1878 Treaty of Berlin:38 under the first treaty, France, the United Kingdom, and Russia gained the right to intervene in Greece; under the second, the signatory powers gained the right to intervene in response to any breach of the rights of the populations of European Turkey.39 In this way, a systematic framework of international law was established defining relations among Western powers in such a way as to prevent these powers from engaging in hostilities within the territories of Western civilization itself, all the while legitimizing their right of “humanitarian” intervention in the territories within their spheres of influence. 36 37 38

39

Fisch, Die europäische Expansion (n. 34), p. 285. Ibid., p. 291. In this regard, see Yadh Ben Achour, Le rôle des civilisations dans le système international (Brussels: Bruylant, 2003), pp. 127 ff. See the discussion of these treaties in Fiore, “La science du droit international” (n. 20), pp. XC and CXXII ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

i n t er n a t i o n a l l a w a nd we s t e r n c i v i l i z a t i o n

121

5.7 The Concept of a Civilized Nation The concept of civilization calls for further elaboration in order to better appreciate its criteria of inclusion and exclusion. If we look at the sources, we will see that over the course of the nineteenth century they often mention the ideas of a “civilized nation” and of the “civilized world.”40 However, these terms are not used consistently, and their meanings therefore need to be clarified. In the Western world, the French term nation civilisée and the English term civilized nation have no equivalent in the German language, in which they are rendered as Kulturstaat. So, too, the French civilisée and the English civilized do not correspond to the German zivilisiert. German instead draws a basic distinction between Kultur and Zivilisation. By this latter term is meant the broad horizon of meaning under which people are led to behave in uniform or predictable ways according to custom, whereas Kultur refers to the different folkways that distinguish one people from another as having its own unique culture and civilization: Zivilisation governs overarchingly from the outside; Kultur, by contrast, acts and originates from within. The French terms civilisation and civilisée, like their English equivalents civilization and civilized, can be said to cover jointly as one broad concept the ground the two German terms Zivilisation and Kultur cover separately in different ways.41 Furthermore, clearly encapsulated in all these terms – nation civilisée, civilized nation, and Kulturstaat – is a value judgment by which the realm of civilization is distinguished from its opposite, namely, from nations that are not recognized as having this status, and that this judgment will vary depending on the moral, historical, and legal context in which we happen to be situated. In law, the term nation civilisée simply referred to a state that belonged to the community of international law, and that in virtue of this membership could be distinguished from noncivilized states or nations. This meaning solidified as the final outcome of a process where the criterion of judgment gradually transitioned from cultural to legal. Starting from the mid-eighteenth century, the Ottoman Empire was admitted into the international community.42 Subsequently, Japan and 40

41 42

See Josef L. Kunz, “Zum Begriff der ‘nation civilisée’ im modernen Völkerrecht,” Zeitschrift für Öffentliches Recht, VII (1927/28), 86–99, at 87. Ibid., p. 89. Article VII of the Treaty of Paris of 30 March 1856, ending the Crimean War, reads as follows: “Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, His Majesty the Emperor of Austria, His Majesty the Emperor of the French, His Majesty the King of Prussia, His Majesty the Emperor of All the Russias, and His Majesty the King of

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

122

international l aw and western ci vilization

China were also taken into the fold. International law can thus be said to have remained European and Christian until 1856, after which time it was extended to other religions and civilizations. And so, as Dionisio Anzilotti commented, the general rules of international law “need to be adapted to social groups [. . .] belonging to profoundly different civilizations.”43 This meant that every religious or cultural criterion had been definitively set aside, and that only a legal positivist criterion stood. In short, while international law, from an ideological standpoint, was the law of “civilized” peoples, Christian and Aryan, on which basis the European powers sought to legitimize their colonial domination, when it came to the actual international political relations formed under its framework, it extended beyond colonial relations so as to also include non-European, non-Christian political entities like the Ottoman Empire. When a state joined the community of international law, this only meant that it could observe the rules of international law in keeping with its own constitution. Indeed, it was understood that instead of upholding Christianity as a criterion for gaining membership in the family of civilized nations, a state had to be able to protect the life, liberty, and property of foreigners in its own territory. Foreigners, in other words, had to be treated in conformity with the rule of law, as this idea was conceived in the West.44

5.8 Excursus: The Concept of Civilization Having discussed the concept of a civilized nation and the use of this concept in framing the relation between the Western world and the nonEuropean worlds under international law, we should now enter more deeply into the meaning of the term civilization itself.

43 44

Sardinia, declare the Sublime Porte admitted to participate in the advantages of the Public Law and System (Concert) of Europe.” Much literature has been devoted to this question. One useful source is Eliana Augusti, “La Sublime Porta e il Trattato di Parigi: Le ragioni di una partecipazione,” Le Carte e la Storia: Rivista di Storia delle Istituzioni, 1 (2008), 151–59. Dionisio Anzilotti, Corso di diritto internazionale (Rome: Athenaeum, 1923), p. 49. See Georg Schwarzenberger and E. D. Brown, A Manual of International Law, 6th ed. (Milton, UK: Professional Books, 1976), p. 84. Of course, as Gerrit W. Gong has observed, it was also understood that as long as non-European countries failed to meet the standard imposed on them, they “remained outside the law’s pale and protection.” Gerrit W. Gong, The Standard of “Civilization” in International Society (Oxford: Clarendon Press, 1984), p. 6. The European powers cited inadequate forms of legal protection as grounds for demanding “that ‘unequal treaty,’ ‘capitulation,’ and ‘protectorate’ systems, all with extraterritorial provisions, be maintained” in the overseas territories of Africa and Asia (ibid., p. 8).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

international l aw and w estern civilization

123

In a wonderful essay on the history of concepts, Lucien Febvre traces out the history of the concept of civilization. Its origin cannot be traced to any source in the French language before the second half of the eighteenth century: it was first introduced in 1776,45 and it took on the twofold meaning of an ascent toward reason and of a moral idea of justice. The term gained currency during the French Revolution and became central to a philosophy of progress. In the first half of the nineteenth century, François Guizot made this link explicit: “It seems to me that the first idea comprised in the word civilization [. . .] is the notion of progress, of development.”46 He specified the meaning of progress by noting that it was not limited to “the improvement of civil life,” to the “melioration of the social state,” but also included the idea of the “full development” of man at large.47 But then, in the late eighteenth century and the first half of the nineteenth, with the development of the natural and ethnographic sciences, and with the great voyages and accounts of famous explorers, the idea of civilization was relativized, and in its place came the idea of civilizations, in the plural. As Febvre explains, this new awareness marked “the beginning of the long specialization process and the great relativist development of the ‘universelles’ ideas of the eighteenth century, which was to take place, in parallel fashion, in the fields of history, ethnography and linguistics.”48 The German world gave rise to the term Kultur, which Febvre equates with the French term civilisation, and which took on the meaning of “refinement of all the spiritual and moral powers of a man or a people.”49 In the German language, a clear distinction emerged between the term 45

46

47

48 49

Febvre is referring to Nicolas-Antoine Boulanger’s 1776 L’Antiquité dévoilée par ses usages, but it would appear that the person actually responsible for introducing the term is Paul-Henri Thiry, Baron d’Holbach, who completed Boulanger’s manuscript. Lucien Febvre, “Civilisation: Evolution of a word and a group of ideas” (1930), in Peter Burke (ed.), A New Kind of History: From the Writings of Febvre, trans. K. Folca (London: Routledge and Kegan Paul, 1973), pp. 219–57, at 222. François Guizot, General History of Civilization in Europe (1828), ed. George Wells Knight (New York: D. Appleton and Company, 1896), p. 11. Ibid. Guizot expands on this point as follows: “It appears evident, then, that all that we understand by this term is not comprised in the simple idea of social well-being and happiness; and, if we look a little deeper, we discover that, besides the progress and melioration of social life, another development is comprised in our notion of civilization: namely, the development of individual life, the development of the human mind and its faculties – the development of man himself” (pp. 12–13). Febvre, “Civilisation” (n. 45), p. 237. Ibid., p. 243.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

124

i n t e r n at i o n al l aw an d wes tern c ivilization

Kultur, referring to a process of cultural and moral formation, and Zivilisation, which instead referred to the civilization or civilizing of customs.50 Over time, the oppositive relation between the two terms grew stronger.51 Finally, the concept of civilization in turn developed along two distinct lines under a pragmatic interpretation and a scientific one: according to the former, every human group had its own civilization; according to the latter, the white peoples of Western Europe and North America were the embodiment of a superior civilization. This development clearly parallels what we found to be the case in the history of international law in the nineteenth century. We can thus resume the analysis previously devoted to international law. In the late eighteenth century, Robert Ward stressed “that what is commonly called the Law of Nations, falls very far short of universality; and that, therefore, the Law is not the Law of all nations, but only of particular classes of them; and thus there may be a different Law of Nations for different parts of the globe.”52 But “different,” in reality, was not an inert term. As Edward Keene shows in a broad reconstruction of nineteenth-century legal and political thought in connection with the colonialism and worldwide political arrangements of the period, the diversity that characterized the legal traditions and regimes of different peoples would be dealt with either by ignoring it, under an international system of law entirely derived from treaties formed among European states, or by positing some specific qualities by which to explain why the law of European (and hence civilized) peoples differed from the legal orders of non-European (and hence noncivilized) peoples, and why the former was more advanced than the latter. 50

51

52

In drawing this distinction, Febvre (ibid., p. 244) points in particular to a study on the Kawi language to which Wilhelm von Humboldt devoted his Über die Kawi-Sprache auf der Insel Java (Berlin: Druckerei der Königlichen Akademie der Wissenschaften, 1836), vol. 1. On this point see, in particular, Oswald Spengler, The Decline of the West, ed. and trans. Charles Francis Atkinson (New York: Alfred A. Knopf, 1926), who in the matter of culture versus civilization notes: “For Western existence the distinction lies at about the year 1800” (vol. 1, chap. X, p. 353). The book was originally published in German under the title Der Untergang des Abendlandes (Munich: C. H. Beck’sche Verlagsbuchhandlung, 1922). Robert Ward, An Enquiry into the Foundation and History of the Law of Nations in Europe, from the Time of the Greeks and Romans, to the Age of Grotius (London: J. Butterworth, 1795), vol. I, Preface, p. xiv; italics in original. This work is discussed in Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge: Cambridge University Press, 2002), p. 110.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

international l aw and w estern civilization

125

Thus, for example, John Stuart Mill thought he could clearly identify the qualities by which to distinguish civilized peoples from savage ones: “a dense population [. . .] dwelling in fixed habitations, and largely collected together in towns and villages, we term civilized.” So, too, “a country rich in the fruits of agriculture, commerce, and manufactures, we call civilized,” whereas in “savage life there is no commerce, no manufactures, no agriculture, or next to none.” Furthermore, he observed: In savage life there is little or no law, or administration of justice; no systematic employment of the collective strength of society, to protect individuals against injury from one another: every one trusts to his own strength or cunning, and where that fails, he is generally without resource. We accordingly call a people civilized, where the arrangements of society, for protecting the persons and property of its members, are sufficiently perfect to maintain peace among them.53

These were the characteristics of Western civilization. It was felt necessary to extend them to other peoples beyond Europe, and to offer a justification for such an extension. In this connection, a recurrent theme in political and legal thinking on the problem of civilization lay in the distinction between civilization as an event, that is, a condition already achieved, and civilization as a process toward an objective yet to be achieved.54 According to this narrative, the event of civilization had already taken place in the countries of Europe and in the North American states, and they were therefore fully in a position to bring good government to peoples who had yet to be civilized, and to promote commerce as the foundation on which to achieve economic and technological advancement. In short, it was held to be in the interests of world civilization to make universally widespread the order, freedoms, and legal principles distinctive to the Western world and its civilization.55

5.9 The Eurocentric Vision of International Law and Islamic International Law Having considered the concept of civilization and its use as a standard of international law, we can now turn to the problem of the Ottoman 53

54 55

John Stuart Mill, “Civilization” (1836), in Essays on Politics and Society, ed. J. M. Robson (London: Routledge & Kegan Paul, 1977), p. 120. In this regard, see also Keene, Beyond the Anarchical Society (n. 53), pp. 112 ff. Keene, Beyond the Anarchical Society (n. 53), p. 114. Ibid.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

126

interna tional l aw and wester n civ ilizati on

Empire’s admittance into the “family of nations.” To this end we need to look critically at some issues relating to the purportedly European origins of international law. What existed between the Ottoman Empire and the European nations before the 1856 Treaty of Paris was a web of trade and diplomatic relations that each party interpreted according to its own worldview and legal system.56 On the European conception of ius gentium, as we saw, this body of law was grounded in natural law, and so, in the period from the sixteenth to the eighteenth century, it was understood to be universal in its scope. But from the perspective of the Ottoman Empire, the treaties in force with the European states were no more than unilateral acts brought into effect by the empire itself. In short, what the Europeans advanced – namely, a universalistic vision of the law of peoples having its foundation in natural law – did not fit the reality of international law. At work, then, were two conceptions that both made a claim to universality, but on entirely different grounds. The Ottoman Empire’s Islamic vision of relations among states had nothing to do with the ius gentium or with the law of nature: it was instead based on the siyar, that is, on the set of norms governing external relations between Muslims and non-Muslims.57 The siyar can be characterized as a body of rules extending the šarīʿa to relations between Muslims and non-Muslims.58 The term siyar referred to the whole set of principles, rules, and practices that governed relations between Islam and other nations.59 Its sources were mainly those of custom, or Sunna, coupled with reason, in the form of analogical reasoning. From the perspective of the siyar the world was divided into two parts: dār al-islām, where “Islamic peace” reigned, and the rest of the world 56

57 58

59

See Yasuaki Onuma, “When was the law of international society born? An inquiry of the history of international law from an inter-civilizational perspective,” Journal of the History of International Law, 2 (2000), 1–66, at 36. Ibid., p. 19. The essential source for the siyar in Islam is the treatise devoted to it by Shaybani (749/ 750–805). It is titled ’Abwābussiyar fī ardilharb (Chapters on the siyar in the territory of war) and is part of a larger work he wrote on˙ Islamic law titled Al Kitābul ’Asl (also known ˙ as Al Kitābul Mabsut). See Majid Khadduri, The Islamic Law of Nations: Shaybānī’s Siyar ˙ Johns Hopkins Press, 1966), p. 70. Shaybani is often referred to by (Baltimore, MD: The Western scholars as the “Islamic Grotius.” See Christoph A. Stumpf, “Christian and Islamic traditions of public international law,” Journal of the History of International Law, 7, no. 1 (2005), 69–80, at 77. See also Hans Kruse, “The foundation of Islamic international jurisprudence: Muhammad al-Shaybani – Hugo Grotius of the Muslims,” Journal of the Pakistan Historical Society, III (1955), 231–67. See Khadduri, The Islamic Law of Nations (n. 59), p. 8.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

international l aw and western civili za tio n

127

(dār al-harb), that is, the land of war. The dār al-harb was the world that ˙ needed ˙to be placed under the sovereignty of Islam. Relations between the two parts were governed by the Islamic law of war, but Muslims needed to respect the rights of non-Muslims, and if they entered into the dār al-harb, they were bound to respect their laws. The ˙siyar was the Islamic law of nations and applied to the members of the umma,60 whereas in maintaining relations with other communities, Muslims respected the principle pacta sunt servanda. The main feature of the siyar lay in its being, not a territorial system of law, but a personal one,61 meaning that the Islamic law of nations governed relations among groups and among individuals. Beginning in the sixteenth century, the dār al-islām began to be divided into a system of Islamic states. There emerged, then, the problem of governing relations with other Muslim states, and also with the sovereigns of non-Muslims. In the West, the 1555 Peace of Augsburg established the principle cuius regio, eius religio, under which each territory would have its own religion, but at the discretion of its prince. This principle was upheld in the 1648 Peace of Westphalia, but the state asserted its own sovereignty on the basis of a secularized foundation, and sovereigns could grant rights of religious freedom to their subjects on condition that they acted in compliance with the law, and this became the basis of the European system of Christian states. In the Muslim world, by contrast, at the outset of the sixteenth century, there first came the conflict between the Ottoman Empire and Persia. This conflict gave rise to forms of religious repression against people who adhered to different confessions of faith: in the Ottoman Empire, this repression was directed against adherents of Shia Islam; in Persia, against adherents of Sunni Islam. These wars of religion, however, did not set in train a process eventuating in the secularization of the state. In what followed, these states, “from their contacts with European nations, began to learn the principle of individual allegiance based on territorial rather than religious affiliation.” And Islam adopted “the principle of peaceful relations among nations of different religions, 60

61

“In contrast with the modern law of nations, which presupposes the existence of a family of nations composed of states enjoying sovereign rights and equality of status, the law of Islam recognizes no other nation than its own.” Majid Khadduri, “Islam and the modern law of nations,” The American Journal of International Law, 50, no. 2 (1956), 358–72, at 358. Khadduri, The Islamic Law of Nations (n. 59), p. 48.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

128

i n t e r n at i o n al l aw an d wes tern c ivilization

replacing the classical principle of the permanent state of war between Islamic and non-Islamic territories.”62 It was just such a system of relations that was set up with the treaty signed in 1535 between Suleiman the Magnificent and Francis I of France. These transformations meant that the ecumenical nature of Islamic sovereignty gradually gave way to “the principle of territorial sovereignty and territorial law necessitated by territorial segregation.”63 This principle of territorial sovereignty and law in turn gave rise to problems relating to the movement of national citizens across borders, and in addressing these problems the Muslim states looked to the experience of Western nations. Despite these transformations, the Ottoman Empire never came to be considered part of the European system of states, for the differences between Islamic customs and European traditions were too deep. Only in the second half of the nineteenth century, as noted, did the European powers admit the Ottoman Empire into the European community of states, even if it was held by some that this admission could not bear on the relations established under international law.64 Until the second half of the nineteenth century, then, there was a plurality of legal systems, and the European system “was just one of numerous historical types of regional units, which existed in a diversely structured form all over the world.”65 The Europeans held up the universal validity of their international law, but the scope of its validity was restricted to Europe itself. Different peoples in the non-European world had different images of the world and different systems based on those images.66 Indeed, ever since the seventeenth century, a vast system of trade relations had been in place, along with an established practice of forming treaties between European and non-European nations.67 But while the 62 63 64

65 66 67

Ibid., p. 62. Ibid., p. 65. See Hugh McKinnon Wood, “The Treaty of Paris and Turkey’s status in international law,” American Journal of International Law, 37, no. 2 (1943), 262–74. Onuma, “When was the law of international society born?” (n. 57), p. 55. Ibid., p. 62. As can be appreciated from the writings of Alberico Gentili and Hugo Grotius, this reality surely contributed to the rise of a secularized conception of law. In the words of Charles Henry Alexandrowicz, a scholar who has devoted close study to the relations between Western and non-Western nations: “Moreover at the same time when the Portuguese and the Dutch engaged in extensive treaty making with Asian powers, the rigour of canon law had started giving way to considerations of expediency and anyhow had lost its universal

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

i n t e r n a t i o n al l aw an d wes t er n c ivilization

129

classic writers of Western nations, like Alberico Gentili and Hugo Grotius, held that these relations and treaties could be interpreted through the lens of ius gentium as a universal construct, the European nations entered into a system of relations in which they could be placed in an inferior condition or even be treated as barbarian peoples!68 This happened, for example, in the relations the West had with the Chinese Empire. In the late eighteenth century, when the British sought to establish trade relations with China, they were regarded as “barbarians”69 and had to submit to a system of duties. Only after the Second Opium War, from 1857 to 1860, could the Chinese dynasty be compelled to accept the rules and principles of Western international law.

5.10 The International Law of Civilized Nations We have looked at the problems and contradictions inherent in the conception that equated civilized nations with the Christian states of Europe and North America. And yet this conception lasted into the second half of the nineteenth century. This can be seen in the work of the previously discussed Scottish international lawyer James Lorimer,70 as well as in the work of M. Joseph Hornung,71 who in framing the contrast between civilized and barbarian peoples was still pitting the Christian states of the West against the empires of the East. But once the Ottoman Empire joined the community of international law, this mindset could no longer be maintained. And indeed the developments that took place in the first decades of the twentieth century

68

69

70 71

application after the spread of the Reformation. At the same time the natural law conception had undergone a definite process of secularization as particularly evidenced by the writings of Gentili and Grotius. If the rapidly growing volume of commercial treaties between European and Asian powers is allowed to speak its impact on the secularization of the law of nations can hardly be ignored.” Charles Henry Alexandrowicz, “Treaty and diplomatic relations between European and South Asian powers in the seventeenth and eighteenth centuries,” in Académie de Droit International de La Haye, Recueil des Cours, 1960, II, tome 100 (Leiden: A. W. Sijthoff, 1961), p. 235; italics in original. See Alexandrowicz, “Treaty and diplomatic relations” (n. 67), pp. 213–14. Alexandrowicz refers to the treatment accorded to the English embassy that King James I sent to the Mughal court in the early seventeenth century. This happened with the Macartney Embassy that King George III sent to China in 1793. Furthermore, the Chinese emperor Ch’ien-lung sent to King George III was felt to be so offensive to British pride that in translation it was doctored. See Onuma, “When was the law of international society born?” (n. 57), pp. 17 and 29. Lorimer, “La doctrine de la reconnaissance” (n. 12). M. Joseph Hornung, “Civilisés et barbares,” Revue de droit international et de législation comparée, XVII (1885), pp. 5 ff., 447 ff., 539ff., and XVIII (1886), 188 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

130

i n t e r n at i o n al l aw an d wes tern c ivilization

showed that international law clearly moved on, doing away with the idea of a Christian and European foundation.72 Thus in the preamble to the Hague Convention of 1907, the parties declare their commitment to “recognizing the solidarity uniting the members of the society of civilized nations” (la solidarité qui unit les membres de la société des nations civilisées),73 and the convention certainly did not exclude nations like China, Japan, Persia, Siam, and Turkey. The same goes for Article 38 of the 1920 Statute of the Permanent Court of International Justice (provided for under Article 14 of the Covenant of the League of Nations), stating that the court would apply the “general principles of law recognized by civilized nations” (les principes généraux de droit reconnus par les nations civilisées).74 And, finally, under Article 9 of the same statute, the court was to ensure “representation of the main forms of civilization and of the principal legal systems of the world.” Extending international law to the Ottoman Empire thus meant that international law could no longer be characterized as Christian. Furthermore, because the enlargement went beyond the Ottoman Empire to include Oriental states like China and Japan, international law came to encompass non-European areas, too. In this way, as will be discussed in Chapter 6, international law in the early decades of the twentieth century increasingly came under the sway of a legal positivist conception,75 and on this basis the idea was put forward of a society of states governed by international law.

5.11 The Birth of the International Society and the Developed Nations The developments discussed in the previous sections can be broken down into two as follows. 72

73

74

75

In order to gain recognition under the system of international law, in other words, a nation no longer needed to be Christian but had to show its credentials as a “civilized” nation. On the transition to this new paradigm, see R. P. Anand, Development of Modern International Law and India (Baden-Baden: Nomos, 2005), p. 73. The Hague Convention for the Pacific Settlement of International Disputes (Hague I), October 18, 1907. Cf. “ Statut de la Cour Permanente de Justice Internationale visé par l’Article 14 du Pacte de la Société des Nations,” in Walther Schücking and Hans Wehberg (eds.), Die Satzung des Völkerbundes (Berlin: Verlag von Franz Vahlen, 1924), p. 543. One statement of this conception can be found in Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer reinen Rechtslehre (Tübingen: J. C. B. Mohr, 1920).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

internati onal l aw and western civilization

131

(1) From the sixteenth to the eighteenth century, what most Western internationalists defined as international law was in fact only the European normative system,76 a system that existed next to a range of other systems, most notably the Sinocentric one of the Chinese Empire and that of the Muslim world, whose external relations with non-Muslim countries were regulated under the siyar system. No less than the European system, these other systems also made their own claims to universality. (2) The nineteenth century saw the rise of the international law of the international global society.77 This development took place late in the century, when the Ottoman Empire, China, and Japan were coerced into entering the regional international society centered around Europe.78 Even Africa fell under the domination of the 76

77

78

A different perspective on the classification of international law has been offered by Heinhard Steiger, arguing that international law was forged in the Latin-Christian medieval Europe of the thirteenth century, when sovereigns gained political independence from the Emperor and the Pope, and through this autonomy they managed to give shape to socioeconomic structures that functioned as sovereign governments. See Heinhard Steiger, “From the international law of Christianity to the international law of the world citizen: Reflections on the formation of the epochs of the history of international law,” Journal of the History of International Law, 3 (2001), 183–93. Cf. Heinhard Steiger, “Völkerrecht,” in Otto Brunner, Werner Conze, and Reinhart Koselleck (eds.), Geschichtliche Grundbegriffe: Historisches Lexikon zur politischsozialen Sprache in Deutschland, vol. 7 (Stuttgart: Klett-Cotta, 1992), pp. 97–140, at 106 ff. Steiger distinguishes three epochs: (1) the international law of Christianity, from the thirteenth to the eighteenth century; (2) the international law that after the French Revolution developed as the law of civil nations, lasting until World War I; and (3) the public international law of mankind, after World War I, which took shape in response to problems understood to be common to all of mankind, including the need to guarantee peace, security, and human rights, and the development of faster and more widespread communications. This third epoch also gave rise to international bodies (notably the League of Nations and later the United Nations), entrusting them with the task of securing world peace, on the increasingly firm conviction that this could no longer be achieved through the operation of law alone. And, finally, there are also signs that we may be about to enter a new epoch, one marked by an international law of citizens of the world – a world in which society becomes increasingly differentiated, and international public law correspondingly sheds its centrality. In parallel, nongovernmental associations will gain a greater role, and more and more people across the globe will be recognized as having human rights. See Steiger, “From the international law of Christianity to the international law of the world citizen,” p. 193. On the concept of the international society as a system of states bound by a set of common rules, see Hedley Bull, The Anarchical Society: A Study of Order in World Politics (Houndmills, Basingstoke, UK, and New York: Palgrave Macmillan, 2012; orig. pub. 1977), pp. 8 ff. See Onuma, “When was the law of international society born?” (n. 57), 64.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

132

internatio nal l aw and western civilization

European powers, which brought the continent into their system of international law. There was no international society to speak of before the end of the nineteenth century, and hence no associated system of international law. Only when the Western powers’ imperial and colonial policies went into full swing did an international society come into shape. Even then, relations among the states that formed this society were not on a level playing field, for they were heavily influenced by the system of colonial domination. As Yasuaki Onuma points out, this was a society where the overwhelming majority of human beings were under the system of colonies, protectorates, protected nations, or were formally independent nations but substantially suffering from the consequences of unequal treaties with the imperial powers. European international law played a critical role for creating this unequal international society.79

In the early twentieth century, when it was felt necessary to justify the domination of the colonial empires, an alternative distinction was introduced by which to assert the purported superiority of the West: that between developed and developing (or backward) nations. Indeed, even after World War I, the distinction between “superior” and “inferior” peoples persisted and took hold under the mandate system, which the colonial states maintained in the name of the League of Nations. But as Yadh Ben Achour observes, the underlying premise was no longer that of different levels of civilization but that of the aforementioned distinction between developed and developing nations: “The value judgment implicit in this idea no longer concerns the cultural, spiritual, religious, or artistic elements by which a nation is defined, but rather concerns its economic, technological, industrial, administrative, or military elements [. . .]. We are about to witness the birth of the ideas of development and underdevelopment.”80 79 80

Ibid. Yadh Ben Achour, Le rôle des civilisations dans le système international: Droit et relations internationales (Brussels: Editions Bruylant, 2003), p. 136; my translation. Article 22 of the Covenant of the League of Nations opens with the following words: “To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization and that security for the performance of this trust should be embodied in this Covenant. / The best method of giving practical effect to

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

i n t er n a t i o n a l l a w a n d we s t e r n c i v i l i z a t i o n

133

The mandate marked a turning point relative to the protectorate system it replaced: the basis for this system was that of a treaty between an administering power and a protected state. The mandate, by contrast, was a mission set up in the name of the League of Nations and under its control: its premise lay in the idea of the colonized nation’s inability to provide for itself, coupled with the need for it to receive the tutelage of a mandatory power; and the arrangement was that these powers (the Western colonial states) would act in this administering role until the nations under tutelage could, in the language of the Covenant, “stand by themselves.”81

5.12 Civilization, Multiculturalism, and International Law After World War II international law no longer confined its scope to the European countries, “by whose consent it exists, and for the settlement of whose differences it is applied, or at least invoked.”82 International law now included other peoples as well, whose consent was required. Many of these countries had come out of a colonial past, and their contribution was twofold: on the one hand, they helped along the process of developing and universalizing international law; on the other hand, they helped to diversify this law. In 1955, an important conference was held in Bandung, Indonesia, that emphatically underscored the need for cooperation among the countries of Asia and Africa. The main achievement toward this goal consisted in the establishment of the Asian Legal Consultative Committee under the leadership of India.83 The purpose of the committee was to promote cooperation among the states of Asia and Africa so that they could play a more active part in the development and codification of international

81 82

83

this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility [. . .].” See Ben Achour, Le rôle des civilisations (n. 80), p. 135. John Westlake, “The native states of India,” The Law Quarterly Review, XXVI, no. CIV (1910), 312–19, at 313. See Manohar L. Sarin, “The Asian-African states and the development of international law,” in René-Jean Dupuy (ed.), L’Avenir du Droit International dans un Monde Multiculturel / The Future of International Law in a Multicultural World, workshop held in The Hague, 17–19 Nov. 1983 (The Hague, Boston, London: Martinus Nijhoff Publishers, 1984), p. 128. In 1958, when the committee expanded its membership to the African states, it changed its name and became the Asian-African Legal Consultative Committee.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

134

international l aw and western ci vilization

law. In 1961, the committee took part in the Vienna Convention on Diplomatic Relations, where it addressed the question of the rights of refugees, making a set of recommendations that would become the substance of the United Nations Declaration on Territorial Asylum, of 1967.84 This can certainly be considered a contribution the countries of Asia and Africa have made to the development of international law in view of its universalization.85 In other cases, international law instead grew with the contribution of elements and doctrines that underdeveloped countries worked out in order to respond to the pressure of militarily and economically more powerful countries. A case in point was the nonintervention doctrine that came out of the Bogotà Conference of 1948.86 Here the approach the developing countries took in working through many of the issues they were concerned about in international law was not based on historical values and traditions but was rather driven by considerations about the different countries’ unequal levels of political and economic development.87 Other scholars have instead underscored the weight of cultural factors, and in doing so have pointed out that whereas in the second half of the nineteenth century there was nothing the Asian and African countries could do to shape the development of international law in any way, after World War II the international society expanded into a community of states exhibiting a high degree of cultural diversity. International law – a product of the European powers – is bound to be profoundly influenced by society’s new sociological makeup: if this law is “to command respect of all the States, it must extend from a European national law to a common law of mankind.”88 This transformation is taking place both within and outside the United Nations in virtue of the influence that different civilizations (and the multiple cultures they are made up of) are exerting on international law. Various interpretations have been offered in trying to understand this influence and work out its implications for international law. Thus, in the philosophy of law, the argument has been made that it is 84

85 86

87 88

Article 1 of the declaration reads as follows: “Asylum granted by a State, in the exercise of its sovereignty, to persons entitled to invoke Art. 14 of the Universal Declaration of Human Rights, including persons struggling against colonialism, shall be respected by all other States.” Sarin, “The Asian-African states” (n. 83), p. 132. See Manfred Lachs, The Teacher in International Law (The Hague: Martinus Nijhoff Publishers, 1982), pp. 86–87. This is the assessment made in Sarin, “The Asian-African states” (n. 83), p. 137. R. P. Anand, “The role of Asian states in the development of international law,” in L’Avenir du Droit International (n. 83), p. 114.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

i n t er n a t i o n a l l a w a n d we s t e r n c i v i l i z a t i o n

135

essential to find shared principles that different civilizations can agree to as a foundation of international law,89 and elsewhere the distinction has been underscored between the making of law and its application: whereas in the former sphere international law moves from heterogeneity to homogeneity – proceeding from the variety of cultures in shaping the rule into unity – when it comes to applying international law to domestic law, the movement goes in the opposite direction, for in this case the means and procedures by which to implement the commitments made under international law need to reflect and be adjusted to the different national cultures.90 The world society is made up of a plurality of political systems marked by profound differences rooted in their distinctive cultures. From the midnineteenth century to the mid-twentieth century, many of these political systems in areas outside the West formed ties with the West with a view to establishing a political order the Western governments came to refer to as the “modern states-system.”91 In reality, the attempt to internationalize this project proved unsuccessful. Asia and Japan assimilated only those elements of the Western tradition that could be functionally integrated into their system of values. As to Islam, there is a widespread conviction that Euro-American constitutional and criminal law is contrary to the welfare of Islamic society.92 If a system is to aspire to universality, it must draw not only on Western systems but also on non-Western ones. Indeed, as Majid Khadduri observes, “what we should look for in nonWestern societies is not specific precedents or parallels, but fundamental concepts of law and principle which might provide guidance for the future development of international law in a multinational world.”93 Two areas of law can be useful in adequately illustrating the potential for a meeting of civilizations: international human rights law and international private law.94 89

90

91

92 93

94

John Rawls, The Law of Peoples, with “The Idea of Public Reason Revisited” (Cambridge, MA: Harvard University Press, 1999). Guy de Lacharrière, “Le point de vue du juriste: La production et l’application du droit international dans un monde multiculturel,” in L’Avenir du Droit International (n. 83), p. 74. Adda Bozeman, “The international order in a multicultural world,” chap. 26 in Hedley Bull and Adam Watson (eds.), The Expansion of International Society (Oxford: Clarendon Press, 1984), p. 404. Ibid., 401. Majid Khadduri, “Islamic law and international law,” in L’Avenir du Droit International (n. 83), p. 157. See Yadh Ben Achour, “La civiltà islamica e il diritto internazionale,” in Gustavo Gozzi and Giorgio Bongiovanni (eds.), Popoli e civiltà: Per una storia e filosofia del diritto internazionale (Bologna: il Mulino, 2006), pp. 60 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

136

international l aw and western ci vilization

Many peoples of Asia and Africa consider international law an expression of the Western powers. As Yasuaki Onuma argues, in order for international law to be accepted by all peoples, it will have to be reframed on an intercivilizational approach,95 especially when it comes to human rights. Human rights are a fundamental part of the contemporary discourse that engages us intellectually all over the world. Many developing countries, however, are rooted in civilizations that make human rights discourse alien to them.96 It follows that no adequate solution to the question of human rights can be arrived at on a strictly theoretical basis: as Onuma argues, we need a theory that will take different aspects into account – from logical reasoning, to historical legacies, to emotional responses.97 There is no basis on which to argue that human rights apply universally – or at least the historical record does not support that claim: until a fairly recent past, there has been a whole range of human rights – including gender and racial equality and freedom of speech and of religion – that in the majority of civilizations were neither recognized nor protected. Even the Western civilization, despite the universality it claims for human rights, is punctuated with racial, gender, and economic discrimination.98 The rights of man have had a role in shaping Western history ever since the early modern age. Three generations of rights have been identified in this regard: (i) civil rights and liberties; (ii) social rights; and (iii) the rights of peoples to self-determination, development, peace, and a healthy environment. And then we have new-generation rights, inclusive of genetic rights and the right to the integrity of the person. But in our day human rights are set in an international society that either does not espouse or only partly espouses the underlying principles. It is therefore necessary to identify an intercivilizational standard on which to base such rights, which will “have to be constantly reconceptualized to adapt themselves to various regions with diverse civilizational backgrounds.”99 On this approach, then, the universality sought for human rights rests on the ability to find principles that everyone can 95 96

97 98 99

Onuma, “When was the law of international society born?” (n. 57), p. 66. Yasuaki Onuma, “In quest of intercivilizational human rights: Universal vs. relative human rights viewed from an Asian perspective,” in Daniel Warner (ed.), Human Rights and Humanitarian Law: The Quest for Universality (The Hague: Martinus Nijhoff Publishers, 1997), p. 46. Ibid., p. 61. Ibid., p. 62. Ibid., pp. 74–78.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

international law and western civilization

137

accept, but these principles will then have to be plied into the different cultures of existing civilizations and adapted accordingly. The problem of how plural civilizations and cultures can meet and adapt to one another emerges as well in private international law. To accept a foreign law into a state is also to accept some of the principles of another civilization. This can be appreciated particularly in matters relating to personal status, for it is in this area, more so than in others, that a people’s distinctiveness is apt to show its force. To illustrate, let us take up again the comparison between Islam and the West: we can see in private law – and particularly in family law – that a sharp difference and conflict becomes manifest between the secularized law of the West and the revelation-based law of Muslim countries (Muslim personal law). This explains, for example, why the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) failed to win the unqualified support of the Muslim countries, which requested that all egalitarian provisions in favor of women be struck out. As Ben Achour points out, this is a case in which the law erects and maintains a wall of separation between different civilizations.100 In fact, the legal status a person enjoys is tied to the customs, culture, and mentality of the people and the civilization of which that person is a member.101 Thus, for a Muslim to assert a personal status is to assert a personal identity. We can see, then, how conflicting provisions of law reflect deeper clashes between cultures and civilizations.102 And it should be observed, with regard to the example at hand, that Islam and the West are divided by a fundamental difference consisting in the territoriality of Western systems of law (based on territorial jurisdiction), as against the system of personal law that Islam has preserved from times past, a system under which applicable law is determined for different persons according 100 101

102

Ben Achour, Le rôle des civilisations (n. 80), p. 293. See Jean Déprez, “Droit international privé et conflits de civilisations: Aspects méthodologiques; les relations entre systèmes d’Europe occidentale et systèmes islamiques en matière de statut personnel,” in Académie de Droit International de La Haye, Recueil des Cours, 1988-IV, tome 211 (Dordrecht: Martinus Nijhoff Publishers, 1990), pp. 9–372, at 35. Déprez underscores in this sense the need for a comparative approach to private international law, arguing that the international lawyer must proceed from a basic awareness not only of different rights but also of the diversity among the civilizations in which these rights exist (ibid., 37). This comparative approach – attentive to the role that culture clashes have in international private law – had previously been taken up by Mercier. See Pierre Mercier, Conflits de civilisations et droit international privé: Polygamie et répudiation (Geneva: Librairie Droz, 1972).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

138

internatio na l l aw and western civilization

to their group membership or to some other personal characteristic, loyalty, or affiliation.103 The first obstacle that different legal systems face in relating to one another under the framework of private international law comes in the form of confessional laws claiming personal jurisdiction over foreign or nonresident persons, who would thereby come under the laws and government of the confessional community they belong to at home. Another kind of obstacle a rule of private law may face upon entering a foreign system consists in the concerns the rule may raise with regard to public order. Thus, authorities in France may cite public order as grounds for objecting to polygamous marriage, even when the ceremony is performed at a foreign consulate. In cases such as this one, an appeal to public order is in effect saying that there will be no further legal dialogue between the two civilizations.104 The same inability to find common ground is in the matter of marriage: one country may refuse to apply a foreign legal provision that makes marriage subject to conditions it deems unacceptable, examples being a law setting forth unequal terms between husband and wife or barring marriage between persons adhering to different religions (as between a Muslim woman and a non-Muslim man). Ben Achour mentions in this connection a case the French Court of Cassation heard in 1997 involving the divorce of a Moroccan couple living in France: under the Franco-Moroccan Convention of 1981, the couple was subject to Moroccan marriage and family law, giving the husband the right to unilaterally repudiate his wife, and yet the French court refused to recognize this right in France, arguing that the husband’s repudiation of his wife, and the convention that formed its legal basis, went contrary to the French legal principle establishing equal rights and responsibilities for both spouses, and that it also violated the European Convention on Human Rights, understood to express a European public order.105 In other cases, communication between legal systems breaks down by enforcement of an internal law, as if the conflict in question 103

104 105

Déprez, Droit international privé et conflits de civilisations (n. 101). It also bears mentioning here that the Islamic legal system rests on a confessional foundation, whereas the international society takes exclusively into account the political reality of member nations. Indeed, the Islamic state views the international system as grounded not only in the bare principle of nationality, but also in the different nations’ conceptions of tradition as these relate to Islam itself (ibid., 347–48). Ben Achour, Le rôle des civilisations (n. 80), p. 295. Ibid., p. 298.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

international l aw and western civili za tio n

139

were entirely a domestic matter. We can see this in the example of Tunisian, Moroccan, or Algerian judges applying local law in cases involving the personal status of foreign persons, thus disregarding choice-of-law rules, which would require in these cases that the court apply instead the law of the foreign person’s country of origin. To do otherwise is to openly assert a doctrine of national pre-emption.106 In short, in the confessional basis of internal laws, the concern with public order, and the doctrine of national primacy we have three sources of conflict among civilizations, and we just saw that they become especially apparent in the interchange between different legal systems. It should also be observed, however, that even when a foreign law raises concerns or doubts, it need not be rejected in full: it can receive partial application by distinguishing its formal validity from the actual enjoyment of the rights it confers. An example of this happening is the ruling the French Court of Cassation issued on 28 January 1958 in the divorce case Chemouni v. Chemouni, finding that a polygamous marriage was valid under French law specifically for the purpose of entitling the woman to alimony. This meant that inheritance, alimony, and indemnity for widowhood could all be enforced under French law – they could be made to produce a legal effect – even between persons whose marriage had been performed abroad under a polygamous license. In other words, a claim for relief could be satisfied even between persons who could not, strictly speaking, be brought under the national scheme of rights and duties in matters relating to marriage and divorce. As Ben Achour has commented, in a world marked by cultural relativism, tolerance for a legal system growing out of a different civilization need not be an-all-or-nothing affair but is rather susceptible of gradation.107 Different ways of thinking circulate among different civilizations: they are constantly being reworked in an ongoing process of mutual influence, and legal systems are integral to this process, at once reflecting and embracing the change it brings about. In fact, in modern history, 106

107

There are cases, too, in which a local jurisdiction might even assert its trumping power on foreign soil. Thus, Tunisian courts have on several occasions upheld the primacy of Tunisian law by finding that the country’s Code on Personal Status extends its purview so as to also cover Tunisian citizens abroad. However, this “privilege of national origin” should be understood as defending not the particular interest of so many separate persons, but a general political interest, for it expresses an allegiance to the home country’s legacy and tradition. See Déprez, Droit international privé et conflits de civilisations (n. 101), p. 120. Ben Achour, Le rôle des civilisations (n. 80), p. 305.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

140

international law and western civilization

international legal systems have shown themselves more inclined toward dynamism than toward fixedness: since the self-proclaimed superiority of Western international law in the nineteenth century we have moved on, in the interwar period, to embrace in law the idea of the equal dignity of cultures and civilizations. That has been so far the march of modernity.108 Where will it take us? Perhaps toward a synthesis of civilizations forming an extended web for interchange and dialogue across cultures. Having analyzed the discourse of ius gentium and the subsequent international law – covering an arc of time that spans from the early modern age to the nineteenth century, and where the effort was to bring out the ideology by which these systems of law were underpinned – we can now move on and look at the parallel story of the relation between international law and the system of states. We will do so using three interpretive lenses – the normative conception, derived from Kantian cosmopolitanism; the realistic conception; and the Grotian conception – all of which developed after Western international law had firmly established itself in the nineteenth century, and they are still engaged in dialogue. After that, in Parts Three and Four, we will turn to the discourse of international law in the contemporary age, with a focus on nonWestern peoples. 108

Ibid., p. 312.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:36:56, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.007

6 International Law, Peace, and Justice: Hans Kelsen’s Normativism

6.1 Framing the Problem, and Questions of Method In the wake of World War I, Hans Kelsen took up the problem of the sovereignty of the state and laid the foundation for a monistic theory of international law centered on the primacy of international law over the states’ domestic law. This was in 1920, in Das Problem der Souveränität und die Theorie des Völkerrechts,1 which came out in a second edition in 1927. But before this second edition, in 1926, he wrote an essay titled “Les rapports de système entre le droit interne et le droit international public”: in it he set out the methodological premises for his conception of sovereignty by introducing the concept of a system,2 and he made explicit the political underpinnings of his conception by taking a pacifist stance against any imperialist approach. In Kelsen’s thought, the methodological principles are functional to his twofold aim of deconstructing what was then the dominant dualistic theory of the relation between domestic and international law, and replacing it with his own monistic theory. The dualistic theory he criticized formed the basis of the argument for the proclaimed superiority of the nation-state. Kelsen took the opposite view: he looked at the system of sovereign states that had been in place since the 1648 Peace of Westphalia and saw in it an irreversible crisis that was bound to put an end to it. 1

2

Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer reinen Rechtslehre (Tübingen: J. C. B. Mohr (Paul Siebeck), 1920). Hans Kelsen, “Les rapports de système entre le droit interne et le droit international public,” in Académie de Droit International de La Haye, Recueil des cours, 1926-IV, tome 14 (Paris: Librairie Hachette, 1927), pp. 227–329. The key role the concept of a system plays in Kelsen is underscored in Mario G. Losano, “Pace, guerra e diritto internazionale: Una controversia fra Kelsen e Campagnolo,” in Materiali per una storia della cultura giuridica, XXXI, no. 1, (2001), 111–30, esp. 119 ff.

141

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

142

i n t e r n at i o n al l aw an d wes tern c ivilization

World War I marked the end of power relations among states (the concert of Europe), making it necessary to lay the foundation on which to build a new international order that would be superimposed on the states. It was this problem that Kelsen set out to solve, and the theory he devised in taking on this challenge stands out for its depth and coherence. From a methodological point of view, Kelsen clarifies straightaway that the concept of sovereignty is not just epistemological, serving to provide a proper understanding of sovereignty, but also practical: indeed it has primarily been used to advance specific political objectives.3 Thus, for example, the main theorist of sovereignty, Jean Bodin, was essentially interested in wresting France from its political dependence on the imperium of the German emperors. Kelsen, however, rejects the historicist approach to sovereignty, believing instead that beneath its historical manifestations lies a unitary concept that needs to be identified. It is in view of this objective that we can clearly appreciate the principles underpinning his pure theory of law. Proceeding from the observation that sovereignty does not consist in subordinating some individuals to others in what amounts to a coercive, and hence causal, relationship among them, he rejects any inductive approach to sovereignty as being off the mark. Instead, he argues, we need a normative understanding of sovereignty, for what is essential to it is the relation of obligation between individuals on the basis of a norm: “Only the norm is sovereign, and the sovereign is this man who can command only to the extent that a norm is presupposed to be supreme.”4 These methodological premises are developed by Kelsen in his 1926 article on the relation between normative systems. Here Kelsen argues that sovereignty is an attribute of the state understood as a legal order,5 and this means that the principle on which rests the validity of the legal order lies in a basic norm that functions as the foundation of the system of positive law. But more importantly, he notes, “what we want to know is not whether the state in general or any given state ‘is’ sovereign, but whether the theory of the state can or must recognize [. . .] the 3

4 5

As Kelsen observes, “the concept of sovereignty has been used not only for the purpose of scientific knowledge but also [. . .] to achieve aims of state policy.” Kelsen, Das Problem der Souveränität (n. 1), p. 5; my translation. Ibid., p. 15. More to the point, “if the state is sovereign as a legal order, sovereignty is an attribute of the state in virtue of its being an attribute of law.” Kelsen, “Les rapports de système” (n. 2), p. 255; my translation.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

international l aw, peace, a nd justice

143

sovereignty of the state’s legal order or, on the contrary, only the sovereignty of the international legal order.”6 The logic of Kelsen’s argument is carefully laid out. To recognize the sovereignty of the state is to hold that the state will not be subordinate to other states but will instead stand on an equal footing with them and be entirely independent from them. As Kelsen observes, however, the states’ mutual independence can be had only within a system that sets out the mutual relations among states, in such a way that each state has its own place under a single scheme. We can therefore appreciate that behind the problem of sovereignty is, at source, the problem of the relation between domestic and international law. And this problem, or this relation, is worked out by Kelsen through the paradigm of the relation between two systems of norms. A set of norms gives rise to a system when these norms derive from a basic norm, and so two systems can be distinguished from each other only when they are based on two different basic norms. As Kelsen points out, however, reasoning from the postulate of the unity of knowledge, no more than one system can be obligatory: it cannot be that two different systems of norms are both simultaneously recognized as valid.7 This can be appreciated by considering the reasoning of the natural scientist, who in formulating a natural law will not bring any moral judgment to bear on it. In short, there is no logical contradiction that can be found between two systems if they belong to different kinds. Even if the system of obligatory rules that forms the object of the science of law is subject to the effect of natural causes or psychological forces, none of these causes or forces can have any effect on its unity or its validity. The same individual may be torn between the law, which may in certain circumstances require the killing of other human beings, and morality, which may well prohibit that very act, but even if these two systems make opposite prescriptions, and can accordingly cause us to act in contradictory ways, this should not affect their validity: they can both be valid without contradiction, for they are derived from different basic norms. In conclusion, Kelsen proceeds from the unity of knowledge to argue for the unity and oneness of any system of norms. This means that between any two systems of norms there can only be a relation of coordination and subordination. This is the relation on which basis Kelsen explains obligation, for it shows how one system of norms can 6 7

Ibid.; italics added. Ibid., p. 268.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

144

i nternational l aw and western civi lizatio n

draw its binding force from a system understood to be superior to it.8 And this is also the paradigm that Kelsen uses to define the relation between domestic and international law, in which regard there are three options: (a) the relation between the two systems can be dualistic, or it can be a monistic one in which primacy is accorded to either (b) domestic law or (c) international law.

6.2 Kelsen’s Criticisms of the Dualistic View of the Relation between International Law and Domestic Law In rejecting the dualism between international and domestic law, Kelsen takes issue with the main proponent of this conception, Heinrich Triepel.9 As Kelsen points out, Triepel’s dualism posits the primacy of domestic law, for it reflects the nineteenth-century view of the supremacy of the nation-state, denying the possibility of any international legal system. Kelsen observes how, on Triepel’s dualistic conception, the distinction between the national system and the international one ultimately derives from the distinction between their normative sources. But there is a contradiction here, Kelsen argues, for this derivation is inconsistent with the principle of the unity of law that Triepel takes as his explicit premise.10 Indeed, at the foundation of international law, Triepel places the international treaty, that is, the agreement made between two states; and at the foundation of domestic law he places the will of the state. But, as Kelsen argues, this means that it is always “the same will of the state which is presupposed as the source of the state’s law and which is also found in the agreement understood as the source of international law.”11 If that is the case, it inevitably follows that it is impossible for there to be a conflict of norms in virtue of the unity of law. And indeed this is precisely the conclusion Triepel arrives at, making the contradictory claim that, on a dualistic conception, the system of 8 9

10

11

Ibid., p. 270. His dualistic account is expounded in Heinrich Triepel, Völkerrecht und Landesrecht (Aalen: Scientia Antiquariat, 1958; orig. pub. 1899). This is an assertion that Triepel makes from the outset: “The whole of the law is in itself rigorously inseparable: no part of it can sustain any neat separation” (ibid., p. 2; my translation). The German original: “Alles Recht hängt unter sich eng zusammen, kein Theil verträgt strenge Absonderung.” Kelsen, Das Problem der Souveränität (n. 1), p. 202; my translation.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

international l aw, peace, a nd justice

145

international law revolves around the centrality of the sovereign state – a claim based on the doctrine that the sovereign state is by definition its own (self-authenticating) source of obligation, coupled with the doctrine that only the nation-state is in a position to recognize the international system of laws. In making this argument, Triepel lays bare the political premises of his own conception, from which follows the primacy of the state’s legal system, and which rules out the possibility “that a norm of international law brought into being through an agreement between states can bind any states that had no part in making the agreement.”12 To be sure, there was nothing logically impossible about the dualistic claim that the national and international legal orders are mutually independent, but it was necessary to spell out all its implications and assumptions. In particular, Kelsen argued, it was necessary to make explicit the political ideology behind the dualistic thesis. This thesis, in other words, was functional to the view of sovereignty requiring that we “accept the single state’s legal order as the supreme normative system, one that is not susceptible of derivation”13 from any other system. This relation, according to the dualistic conception, captures the essence of sovereignty, and it was by critically scrutinizing this thesis, along with the accompanying political view, that Kelsen wound up taking the opposite view.

6.3 The Hegelian Roots of the Supremacy of the State: International Law as the External Law of the State (Äußere Staatsrecht) The thesis of the state’s supremacy went back to Hegel’s nineteenthcentury philosophy of law. Hegel depicted a landscape in which states exist in a sort of state of nature governed by contractual relationships implying a mutual recognition among states.14 12

13 14

Triepel, Völkerrecht und Landesrecht (n. 9), p. 83. The same view is also stated in the work of another of the authors discussed by Kelsen, namely, Paul Heilborn, who makes the following claim: “International law [. . .] needs to be traced directly to the will of those states for which it is authoritative (maßgebend).” Paul Heilborn, Grundbegriffe und Geschichte des Völkerrechts (Berlin: Kohlhammer, 1912), p. 33; my translation. Kelsen, Das Problem der Souveränität (n. 1), p. 220; my translation. Hegel wrote that “since the sovereignty of states is the principle governing their mutual relations, they exist to that extent in a state of nature in relation to one another.” G. W. F. Hegel, Elements of the Philosophy of Right, trans. H. B. Nisbet, ed. Allen W. Wood (Cambridge: Cambridge University Press, 1991; orig. pub. 1821), § 333, p. 368.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

146

international l aw and western civili za tio n

The foundation of the contractual relationships among states lay in their sovereignty, and hence “not in a universal will with constitutional powers over them, but in their own particular wills.”15 This conception went in exactly the opposite direction from that of Kant’s perpetual peace. In fact Hegel explicitly moves away from it, rejecting the notion that states can find any agreement, “whether based on moral, religious, or other grounds and considerations.”16 On the contrary, the centrality of sovereignty reduces international law to an extension of the state’s internal law: Hegel calls it external public law (äußere Staatsrecht), and it only contemplates war as an instrument for settling conflicts.17 So, what Hegel saw when he looked at international relations was no more than the accidentality incident to the interchange and confrontation between the states’ particular wills. Rejecting any possibility of a supra-state architecture, Hegel went so far as to claim that not only a real injury but also a perceived or threatened one could be a legitimate cause of war, from which followed a view of international relations as a locus of unrestrained arbitrariness. The only constraints on war consisted in the twofold condition that the warring states “should preserve the possibility of peace” and that war remain external, meaning that “war should on no account be waged either on internal institutions and the peace of private and family life, or on private individuals.”18 There was no space, in Hegel’s conception, for any “opposition between morality and politics and the demand that the latter should conform to the former,” so much so that the “allegation that, within this alleged opposition, politics is always wrong is in fact based on superficial notions [Vorstellungen] of morality, the nature of the state, and the state’s relation to the moral point of view.”19 Indeed, the state’s “ethical substance, i.e. its right,” lies not in any abstract existence but in its “concrete existence,” which alone stands as “the principle of its action and behaviour” relative to other states, whose relation to one another has no basis other than the intercourse between their sovereignties. On that basis, Hegel’s conception of the primacy of the state can be described as monistic. So when his philosophy, following a period of 15 16 17 18 19

Ibid. Ibid. Ibid., § 334, p. 369. Ibid., § 338, p. 370. Ibid., § 337, p. 370.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

internati onal l aw, peace, and justice

147

decline in the mid-nineteenth century, came back into prominence in the jurisprudence that was being developed toward the end of the century (especially through the work of authors like Heinrich von Treitschke and Albert Zorn), Kelsen aimed his criticism not only at the dualistic conception but also at the monistic conception of the primacy of the state. Here his criticism was essentially focused on one aspect, namely, the doctrine of selfauthenticating obligation advanced by several authors, among them Franz von Liszt and Georg Jellinek. Kelsen showed that this doctrine was based on individualistic premises, and critically observed that the will of the selfobligating state is different from the will of states through which international law is founded. In short, the doctrine of the state’s self-authenticating obligation could serve as a basis on which to justify a relation of reciprocity among states, and so it is not on this basis that an objective international law could be found to exist as a framework under which to govern relations among nation-states. In this way, Kelsen could frame the contrast between the primacy of the state and that of international law as a contrast between individualism and objectivism. Indeed, under the doctrine of the state’s self-authenticating obligation and that of the state as the sole agent capable of recognizing international law, the international order can only be understood as a legal order operating under the delegated authority of the state itself. On this basis, therefore, only the sovereignty of a state’s own legal system, and so only a single order, can be acknowledged to exist.20 In this way, Kelsen believes he can arrive at the kernel of the state’s sovereignty: it lies in the “oneness and exclusivity of the legal system.”21 The oneness of a single-state system means that a state “recognized” as such must be understood as having been “delegated,” and hence as subordinate to the state by which it is recognized. (Elsewhere, this conception of sovereignty as something that can only belong to a single state is analogized by Kelsen to the theological conception of the oneness of God: “Therein, finally, lies the theoretical foundation of the theological dogma that must necessarily declare God to be a one and only being.”)22 20 21 22

Kelsen, Das Problem der Souveränität (n. 1), p. 275. Ibid., p. 276. Kelsen, “Les rapports de système” (n. 2), p. 268; my translation. The French original: “Tel est enfin le fondement théorique du dogme théologique qui doit nécessairement déclarer Dieu à la fois un et unique.” Similarly, in Das Problem der Souveränität (n. 1), the monistic conception is likened to the “theological personification of the universal order in the guise of the one and only God who in the Decalogue anthropomorphically proclaims his own sovereignty” (ibid., p. 277; my translation).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

148

interna tional l aw and wester n civ ilizati on

But, asks Kelsen, does not the negation of international law entail the loss of important values, and in particular of a society of persons having the same rights? In the end, the choice between two theories – that of the sovereignty of the state and that which posits a higher international order – comes down to a choice between their underlying systems of values. But how to choose between two such systems? Here the pure theory of law needs to abandon its own formalism and take historical developments into account, especially after World War II.

6.4 Christian Wolff’s Political Myth of the Civitas Maxima In working out the problem of relations among states, Kelsen looked to the interpretive model of Christian Wolff’s civitas maxima, in which he found the principles of an international order that could stand above that of the sovereign states. Wolff, Kelsen thought, needs to be credited with having been the first author to recognize the primacy of the international legal order “from the standpoint of a pure theory of law.”23 Indeed, Wolff, according to Kelsen, introduced an approach that made it possible to clearly see the principles that form the basis of international law. Central to Wolff’s conception of ius gentium is the distinction between natural law and positive law, and specifically that branch of positive law that Wolff calls ius gentium voluntarium. This comes through clearly in the preface to his Jus Gentium, where Wolff clarifies that “the voluntary law of nations does not depend upon the free will of nations, but natural law itself prescribes the method by which the voluntary law is to be made out of natural law, so that only that may be admitted which necessity [necessitas] demands.”24 At the foundation of ius gentium, then, Wolff places natural law. Indeed, it was his contention that the law of peoples could not take the reality of human affairs as its premise (non ex factis gentium probandum):25 it was instead to be deduced from the aim of the society of 23 24

25

Kelsen, Das Problem der Souveränität (n. 1), p. 366; my translation. Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum, translated by Joseph H. Drake from the 1764 edition (Oxford: Clarendon Press; London: Humphrey Milford, 1934; orig. pub. 1749), vol. II, Preface, p. 6. This view of ius gentium as grounded in ius naturale can also be found in Grotius, who marked the distinction between the two on the basis of their different objects: “the difference between these two is not to be collected from the testimonies themselves, (for writers everywhere confound the Law of Nature and the Law of Nations) but from the quality of the matter.” Hugonis Grotii, “In tres libros De jure belli ac pacis prolegomena,” in De Jure Belli et Pacis Libri Tres, accompanied by an abridged translation by William

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

i n t e r n a t i o n a l l a w , p e a c e , an d j u s t i c e

149

peoples, or civitas maxima – an aim that nature itself establishes among men (ex fine civitatis maximæ, quam [. . .] inter omnes homines instituit ipsa natura).26 In analogy to the account of the origin of the state, the society of peoples is likewise understood to originate by necessity out of nature itself. In the prolegomena to the Jus Gentium, Wolff elaborates on this thesis by arguing that peoples are like free individuals (personæ liberæ) living in a state of nature: just as, in this natural condition, men are subject to the law of nature (non utuntur nisi jure naturali), so the peoples of the world are subject to a law of nature governing their mutual relations as peoples – a natural law of peoples that Wolff calls jus gentium necessarium.27 However, when the law of nature is applied to the condition of peoples, a different condition from that of human nature as such, it can be changed voluntarily: “For the principles of the law of nature are one thing, but the application of them to nations another.”28 From this application there emerges the voluntary law of peoples (jus gentium voluntarium), whose content, as noted, derives directly from the prescriptions set forth in the law of nature. This voluntary law Kelsen equates with what in the theory of international law is referred to as “common” international law, meaning the international law that holds good independently of the consent of states. The passage from natural law to positive law is key to Kelsen’s account, constructing which Kelsen points out that Wolff’s theory addresses both the problem of the origin of international law and that of its validity. Indeed, according to Kelsen, the natural law in which Wolff grounds the jus gentium voluntarium corresponds to the idea of “a basic norm from whose hypothetical presupposed validity derive those norms of common

26

27

28

Whewell, with the notes of the author, Barbeyrac, and others (Cambridge: Cambridge University Press, 1853), vol. 1, § 40, p. lxvi. The Latin original: “quorum discrimen non quidem ex ipsis testimoniis, (passim enim scriptores voces juris naturæ et gentium premiscent), sed ex materiae qualitatæ intelligendum est.” See Wolff, Jus Gentium (n. 24), vol. II, Preface, p. 6. The Latin original at Christiano L. B. de Wolff, Jus Gentium Methodo Scientifica Pertractatum (Halae Magdeburgicae: Officina Libraria Rengeriana, 1749), Præfatio, fifth page. In this regard see also Wilhelm G. Grewe, Epochen der Völkerrechtsgeschichte (Baden-Baden: Nomos, 1984), p. 418. “We call that jus gentium necessarium the necessary law of nations which consists in the law of nature applied to nations.” Wolff, Jus Gentium (n. 24), vol. II, Prolegomena, § 4, p. 10. Wolff, Jus Gentium (n. 24), vol. II, Prolegomena, § 3, p. 9. The Latin original: “Alia enim sunt principia Juris naturæ, alia vero est ad Gentes.” Wolff, Jus Gentium (n. 26), Prolegomena, § 3, pp. 2–3.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

150

i n t e r n at i o n al l aw an d wes tern c ivilization

international law”29 which must necessarily govern relations among states, and which must therefore be distinguished from treaty-based international law as well as from customary international law.30 In short, the thesis that ius gentium finds its foundation in natural law amounts to a legal thesis, making it possible to hypothesize an international legal order governing relations among subjects recognized as having equal rights.31 On these premises, Wolff constructs the institutional form of the civitas maxima, arguing that “nature herself has established society among all nations and compels them to preserve it, for the purpose of promoting the common good by their combined powers.”32 The institutional form envisioned for this society of peoples is that of the civitas maxima.33 It is made up of peoples who recognize one another as equals, that is, as having the same rights and duties. There is no special prerogative a people gains in virtue of its power (potentia), for 29 30

31

32

33

Kelsen, Das Problem der Souveränität (n. 1), p. 369; my translation. Wolff, too, draws a threefold distinction among (i) the jus gentium voluntarium (§ 22); (ii) the jus gentium pactitium, i.e., the stipulative law which is based on treaties among peoples and thus can only bind those peoples who are signatories (§ 23); and (iii) the jus gentium consuetudinarium, based on custom (§ 24). They share the characteristic that all three are based on consent, be it tacit or express. Together they form the jus gentium positivum. Wolff, Jus Gentium (n. 24), vol. II, Prolegomena, § 25, p. 19. Kelsen, Das Problem der Souveränität (n. 1), p. 371. Here Kelsen takes issue with an author like Carl von Kaltenborn, who in recognizing the significance of Wolff’s theory, nonetheless denied the logical necessity of grounding international law in a legal hypothesis, and instead pursued the idea of a positive law devoid of any presuppositions. Kaltenborn rejected the view of international law as “the ultimate and highest part of natural law, as [. . .] the application of the natural law of individuals to the life of states in their mutual relations.” Carl Baron Kaltenborn von Stachau, Kritik des Völkerrechts: Nach dem jetzigen Standpunkte der Wissenschaft (Leipzig: Verlag von Gustav Mayer, 1847), p. 28; my translation. Indeed, in Kaltenborn’s assessment, to subscribe to this view was to embrace a philosophical international law (“das philosophische Völkerrecht zu bearbeiten”), rather than to construct the positive international law that needed to be derived from the actual practice of international relations. Kelsen took the opposite view, arguing that if we take account of the logical underpinnings of international law, we will easily appreciate that the science of international law originated in philosophical speculation. Kelsen, Das Problem der Souveränität (n. 1), p. 372. Wolff, Jus Gentium (n. 24), vol. II, Prolegomena, § 9, p. 12. The Latin original: “Ipsa enim natura instituit inter omnes gentes societatem & ad eam colendam eas obligat communis boni coniunctis viribus promovendo causa.” Wolff, Jus Gentium (n. 26), Prolegomena, § 9, p. 7. In Wolff’s own words: “Civitas, in quam Gentes coivisse intelliguntur, & cuius ipsæ sunt membra, seu cives, vocatur Civitas maxima.” Wolff, Jus Gentium (n. 26), Prolegomena, § 10, p. 8; italics in original. In translation: “The state, into which nations are understood to have combined, and of which they are members or citizens, is called the supreme state.” Wolff, Jus Gentium (n. 24), vol. II, Prolegomena, § 10, p. 13.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

i n t e r n a t i o n a l l a w , p e a c e , an d j u s t i c e

151

in the civitas maxima sovereignty belongs to all peoples equally.34 In this sense, the civitas maxima can be understood as a “democratic form of government.”35 The necessity of ensuring the common good of peoples – a standard the law of peoples acquires through its foundation in natural law – thus translates into a concrete institutional framework that extends across a whole plurality of peoples: it is thus superimposed on them and is equipped with a sovereignty enabling it to coerce any peoples that should fail to fulfill their duties under the framework itself.36 Finally, the democratic form of the civitas maxima operates on a majoritarian principle,37 which governs the decision-making processes through which different peoples express their will. In this civitas maxima, empowered to exercise sovereignty over the peoples who make it up, the laws are framed in light of the natural law that serves as its foundation, and their purpose is accordingly to promote the common good of all peoples. In this way, Kelsen found in Wolff the model for an international legal order layered on top of the states’ domestic law. But Wolff’s model proceeds from the premise of a natural equality among states and of the need to establish an international society among them. Kelsen translated Wolff’s natural law foundation into the legal hypothesis of the basic norm (or Grundnorm), but he had to concede that domestic law and international law had an equal claim to primacy. Only history could decide between these two alternatives, in facing the necessity of hammering out the principles on which basis to frame the supra-state international order that would govern relations among the peoples whose action had led to the upheaval and destruction of World War II. But the later course of history appears, so far, to have shown this to be an impossible feat. 34

35

36

37

As Wolff argues (ibid., § 19, p. 16), “since it is evident of itself that nations by common consent have not bestowed the sovereignty which belongs to the whole as against the individual nations, upon one or more particular nations, [. . .] sovereignty is understood to have been reserved for nations as a whole.” The Latin original: “Quoniam [. . .] per se patet Gentes communi consensu imperium, quod universis in singulas competit, in unam quandam gentem, aut plures non contulisse [. . .]; imperium istud universis reservatum intelligitur.” Wolff, Jus Gentium (n. 26), Prolegomena, § 19, p. 14. Wolff, Jus Gentium (n. 24), vol. II, Prolegomena, § 19, p. 16. The Latin original: “civitas maxima status quidam popularis est.” Wolff, Jus Gentium (n. 26), Prolegomena, § 19, p. 14; italics added. In Wolff’s own words, “universis quoque Gentibus in civitate maxima competit jus cogendi singulas, si obligationi suæ: satisfacere nolint, aut in eo negligentes se præbeant” (ibid., § 13, p. 11). As Wolff puts it, “in civitate quoque maxima pro voluntate omnium gentium habendum erat, quod majori earum parti visum fuerit” (ibid., § 20, pp. 14–15; Wolff’s italics).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

152

internatio nal l aw and western civilization

6.5 The Primacy of the International Legal Order Essential to Kelsen’s argument for the primacy of the international legal order was the natural law foundation of ius gentium he found in Wolff. It was not only Wolff but also Grotius who saw the ius gentium voluntarium as grounded in the ius gentium naturale,38 understood to be immutable, for it had not been posited by any state, nor could any state escape its binding force. This foundational law that consists in the “natural law of peoples” is fashioned by Kelsen into the idea of a community of states endowed with equal rights. This legal equality is understood by Kelsen as an ethical idea,39 an idea that grounds a universal legal order of which the single states are members and from which they derive rights and obligations independently of their will.40 The thesis of the superiority of the state’s legal system, by contrast, proceeds from the premise that only one system is supreme: that of one’s own state. The conflict between these two conceptions resolves itself into the irreducible opposition between the states’ legal equality and the sovereignty that each state claims for itself. From the former perspective, law becomes an “organization of humanity, and is thus at one with the supreme ethical idea.”41 This ethical idea is Kelsen’s reformulation of the natural law of peoples set out by Grotius and Wolff: “It is inevitable to assume such a ‘natural’ law, that is, a law independent of the will and discretion of the single states.”42 This natural law Kelsen identifies with the basic norm pacta sunt servanda, which as a norm of international law 38

39

40

41 42

See Grotii, De Jure Belli et Pacis (n. 25), vol. 1, lib. I, cap. II, § IV, pp. 38 ff. In this regard, see Grewe, Epochen der Völkerrechtsgeschichte (n. 26), p. 255. Kelsen, Das Problem der Souveränität (n. 1), p. 299. See in this regard the excellent reconstruction of Kelsen’s work in Giorgio Bongiovanni, “Presupposti giuridici e culturali del primato del diritto internazionale in Hans Kelsen,” in Gustavo Gozzi and Giorgio Bongiovanni (eds.), Popoli e civiltà: Per una storia e filosofia del diritto internazionale (Bologna: il Mulino, 2006), esp. 243 ff. The evolution of international law, however, contradicts Kelsen’s monist solution. Indeed, what has developed since the establishment of the United States and the European Union is a multiplicity of international organisms making for a plurality of international orders. As one writer has commented, right now “the image of international law expressed in the pluralism of the orders which make it up is [. . .] that of a complex and variously integrated web of organisms and legal systems interacting on various normative levels.” Luigi Ferrajoli, Teoria della democrazia, vol. 2 of Principia iuris: Teoria del diritto e della democrazia (Rome and Bari: Laterza, 2007), p. 486; my translation. Kelsen, Das Problem der Souveränität (n. 1), p. 300; my translation. Ibid., p. 302.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

international l aw, p eace, and justice

153

requires that international treaties be honoured:43 it forms the foundation of positive international law. From Kelsen’s perspective, this also means that international law is to be understood not as a contract but as a law, that is, as a rule that stands independently of the states’ will. In this regard, Kelsen set his conception against that of authors like Franz von Liszt, on whose contract theory the binding force of norms derives from the states’ self-binding will,44 from which there ultimately derived as well a principle of cooperation that translated into a de facto power above each single state. In this way the clash between the two conceptions ultimately translates into the conflict between the objective validity of the basic norm and the effective power of states. In pointing out this contrast, Kelsen thought he had reached “the farthest reach of the law.” Indeed, what comes clearly into view here is the “weakness of international law relative to de facto power,” or, stated otherwise, “in this propensity of international law to capitulate before facts, its true weakness as law becomes apparent.”45 This was the disheartening conclusion that Kelsen reached through his reflection on international law: that its underlying premise – of a universal community of states having equal rights that they can assert against the power of any single state – was no more than an ethical idea. Here the normative perspective had to realistically come to terms with the unstoppable might of “de facto power,” and thus could only bring to bear the intangible power of a compelling aspiration. There only remains now the task of unpacking the politico-ideological implications of the two alternative solutions to the problem of international law.

6.6 The Assumptions behind Two Models: Pacifism versus Imperialism In the era when Kelsen was writing, after World War I, the unsatisfactory state of international law depended, in his judgment, on the fact that the 43 44

45

Ibid., pp. 302, 326, and passim. Franz von Liszt, Das Völkerrecht: Systematisch dargestellt, 11th ed., 2nd unaltered reprint (Berlin: Springer, 1921), p. 6. Writes Liszt: “Die verbindende Kraft schöpfen die völkerrechtlichen Normen mithin aus dem sich selbst bindenden Willen der Staaten, nicht aus dem Willen einer diesen übergeordneten Macht. Das Völkerrecht ist Vertrag, nicht Gesetz; aber gerade als Vertrag positives Recht.” (Binding force therefore derives international norms from the self-binding will of the state, not from the will of a power superimposed on it. International law is a treaty, not a statute – just like a contract is not positive law.) Kelsen, Das Problem der Souveränität (n. 1), p. 353; my translation.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

154

international l aw and western ci vilization

social consciousness had yet to tear down the barriers among nations and had not yet moved beyond the notion of the nation-state so as to embrace a consciousness of humanity. Only then would the way be cleared for a universal state – a civitas maxima made up of states no longer conceived as sovereign subjects but as coordinated ones endowed with equal rights. And only then would it be possible to see that expansionistic invasions and occupations dictated by power politics are unlawful. We can appreciate here how Kelsen’s evocative thinking couples theory and history by setting the analysis of legal concepts in the context of historical development. As Kelsen remarks, the organization of humanity into a more or less haphazard assemblage of sovereign states was bound to be temporary: the international legal order could transition from a primitive community to an organized one endowed with a coercive power to determine violations of the law and to apply the corresponding penalties. This idea, Kelsen observed, was key to the principle of imperium romanum that had been kept in place throughout the Middle Ages and advanced into the modern age. In the wake of World War I, the science of international law began to refashion the same idea into that of a universal legal order or state. This project was informed by an ideology of pacifism, as opposed to the imperialist ideology underpinning the doctrine of the sovereignty of nation-states.46 To assert the primacy of the state’s sovereignty was to claim that a foreign state could exist only if recognized by one’s own nation-state. But also entailed in this assertion was the view that there were no legal limits to the state’s territorial expansion or to its ability to claim any other resource or power: this was the imperialist conception. Opposite to it was the conception of legal pacifism,47 predicated on the thesis that all states 46 47

Kelsen, “Les rapports de système” (n. 2), p. 323. For a discussion of legal pacifism, see Norberto Bobbio, “La guerra, la pace e il diritto” (1966), chap. 10, § III, in Teoria generale della politica, ed. Michelangelo Bovero (Turin: Einaudi, 1999), pp. 520 ff. A stance critical of legal pacifism can instead be found in Danilo Zolo, I signori della pace: Una critica del globalismo giuridico (Rome: Carocci, 1998). Bobbio calls his approach “institutional pacifism,” describing it as relative, in distinction to religious pacifism, which, by contrast, is absolute and pretends to know the “reasons of violence.” See Norberto Bobbio, letter to Danilo Zolo, 1 April 1996, in Danilo Zolo, L’alito della libertà: Su Bobbio (Milan: Feltrinelli, 2008), p. 168. Institutional pacifism, by contrast, does not claim any knowledge in this regard, but it does claim to be an effective approach, at least to some extent, as happened in the First Gulf War of 1991, when military intervention prevented the war from spilling over across the entire Middle East. In this regard, Bobbio asks Zolo, almost in provocation, which of their two differing points of view is more “realistic” (ibid., p. 169). In a letter of 7 April 1996, Zolo offers in response what seems to me a well-structured and compelling argument to the effect that

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

international l aw, p eace, and justice

155

are equally subject to a higher law constraining their range of action to what is legitimate (i.e., lawful), thereby ruling out recourse to war simply as a means by which to advance a state’s own interests. These two doctrines express the two opposite political ideologies behind the primacy of the state, on the one hand, and of the international order, on the other. Kelsen had to recognize that, as legal conceptions, they were equally legitimate – for as theories of the reality they were interpreting they were both correct. Only from a moral standpoint could a distinction be drawn between them in such a way as to enable an argument to be made showing one to be superior to the other. Indeed, the two legal conceptions were based on two different theories of knowledge: one subjectivist (underpinning the primacy of the state), the other objectivist (underpinning the primacy of the international legal order). The subjectivist theory reduced the world of values to the principles of the nation-state, and in this way it wound up asserting the brute force of power politics. But, as Kelsen objected, this meant denying the very existence of law, for “law does not exist if not in virtue of its objective validity.”48 On the contrary, the objectivist theory recognized the legal equality of states understood as “collectives that are identical in nature and equal in law.” On this basis, Kelsen concluded in 1927, “the notion of law can be understood to be identical to that of international law, and this also makes it a moral notion.”49 It was this understanding of law as a moral notion, finally, that enabled him to proclaim it to have a higher standing. Only from a moral standpoint, then, was it possible to assert the primacy of the international legal order. Kelsen even went through the effort of outlining an institutional makeup for the future universal state he envisioned on this basis: it was to have an international court of justice with jurisdiction over all states, a world parliament, and special organs entrusted with applying a set of internationally governed sanctions that would replace recourse to war. Kelsen would return to this institutional design after 1927,

48 49

we should reject the notion of an “international police” ready to militarily intervene to quash conflicts, in that their causes have deep roots, and it is therefore essential to engage the local populations not only in resolving the conflict but also, and especially, in working out peace terms that everyone is comfortable with. Zolo also underscores the need to provide international aid in such a way as to take account of the economic, social, and cultural specificities of peoples in the developing world (ibid., p. 169). Kelsen, “Les rapports de système” (n. 2), p. 323; my translation. Ibid., p. 325; italics added.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

156

international l aw and western ci vilization

looking to perfect it by also refining the conception on which it was based.50

6.7 War and Peace In reflecting on the institutional design for a future world state, Kelsen increasingly turned his attention to the conditions that would make peace possible on the basis of international law. Thus, in his well-known book Peace through Law, he laid out the idea of a world federal state.51 In doing so, however, he cautioned that this could be achieved only as the end result of a long process that would crucially make it necessary to overcome cultural differences between states. And the initial step in this process could only be an international union of states. This state-form was only the institutional component of a legal order established to guarantee a lasting peace. Whereas in the late eighteenth century, looking at the impossibility of breaking through the wall of the states’ sovereignty, Kant had characterized the idea of a perpetual peace as “unachievable,” in the first half of the twentieth century, Kelsen saw the possibility of establishing a federal system of institutions having the power to coerce nation-states – even though, in working toward this system, it was necessary to go through imperfect intermediate forms consisting of unions of states. These institutional forms would also mould the handling of war and peace by informing the way they ought to be understood. The problem of war and peace as central to international law is a recurrent theme in Kelsen’s thought. The problem of war is addressed by him from the standpoint of the thesis of the superiority of the international legal order. Indeed, ever since his 1920 book on the problem of 50

51

It bears pointing out, however, that his construction has come under criticism by a variety of authors who have pointed out its shortcomings. Thus, Francois Rigaux, “Hans Kelsen e il diritto internazionale, Ragion Pratica, IV, no. 6” (1996), 79–103, at 103, observes that Kelsen’s architecture is ill-equipped to deal with the practical issues of international law, especially as concerns the competition among different legal systems setting forth conflicting obligations. And Bobbio, for his part, rightly points out that “already inherent in the practice of contemporary states is their tendency to devolve part of their power to supranational organisms.” Norberto Bobbio, “La teoria del diritto e il diritto internazionale: Un dialogo con Norberto Bobbio,” chap. 7 in Zolo, L’alito della libertà (n. 47), p. 118; my translation. Bobbio is thinking in particular of the creation of the UN International Criminal Tribunal for the former Yugoslavia and the UN International Criminal Tribunal for Rwanda. Hans Kelsen, Peace through Law (Chapel Hill: The University of North Carolina Press, 1944), p. 9.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

international l aw, p eace, a nd justice

157

sovereignty, war is understood by him as a coercive tool with which to deal with states that should act in violation of the international legal order.52 This relationship between the international legal order and the condition of war and peace was later specified with greater accuracy in his 1944 book on the idea of peace through law. Here peace among states is defined as the default condition or standard of international relations: “Peace is a state characterized by the absence of force.”53 And only when this standard is violated, therefore, is it legitimate to use force, that is, to have recourse to war: “The employment of force, in general forbidden as a delict, is exceptionally permitted as a reaction against the delict, that is, as a sanction.”54 War is thus understood in two senses: (a) as a violation of the international order and (b) as a sanction imposed in response to any such violation.55 With this conception we have a full juridification of the traditional theory of “just war.”56 This is a problem that Kelsen returned to in his subsequent writings, in which he traced the development of the bellum iustum doctrine from antiquity to the modern age, considering its persistence in the twentieth century. Kelsen was receptive to the just war theory, holding that it enables us to “conceive of general international law as an order turning the employment of force into a monopoly of the community.”57 This theory “holds that according to general international law war is forbidden in principle. War is permitted only as a reaction against an illegal act, a delict, that is to say, a reaction against a definite conduct of states.”58 Kelsen reconstructed the doctrines expounded by a range of thinkers from Cicero to 52 53 54 55

56

57 58

Kelsen, Das Problem der Souveränität (n. 1), p. 388. Kelsen, Peace through Law (n. 51), p. 3. Ibid. This is a position that Kelsen will reiterate constantly. Thus he will write that “forcible interference in the sphere of interests of another constitutes on the one hand an illegal act, the delict, and on the other hand, a sanction.” Hans Kelsen, General Theory of Law and State, trans. Anders Wedberg (Cambridge, MA: Harvard University Press, 1945), pt. 1, chap. I, § B.g, p. 22. Likewise: “In order to understand international law, a differentiation must also be made between war as a delict and war as a sanction” (ibid., pt. 2, chap. VI, § A.g, p. 339). See in this regard the accurate observations made in Luigi Ciaurro, “Un diritto internazionale per la pace,” introduction to Hans Kelsen, La pace attraverso il diritto (Turin: Giappichelli, 1990; orig. pub. 1944), p. 8. Kelsen, General Theory of Law and State (n. 55), pt. 2, chap. VI, § A.g, p. 340. Hans Kelsen, Principles of International Law (New York: Rinehart & Company, 1952), chap. I, § B.6, p. 33.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

158

internatio na l l aw and western civilization

Thomas Aquinas and later, including Grotius and Vattel, looking in particular at Grotius’s well-known argument that there can be no just war except to redress an injury,59 and scrutinizing Vattel’s definition of war as a state of affairs making it necessary to resort to force in order to protect our own rights.60 This doctrine was well entrenched from the Middle Ages to the eighteenth century. It faded into oblivion over the course of the nineteenth century, but after World War I it revived. Kelsen found its principles stated in several documents, most notably the 1919 Treaty of Versailles, the 1919 Covenant of the League of Nations, the 1928 Kellogg-Briand Pact, and the 1945 Charter of the United Nations. Certainly, Kelsen conceded, there was some weight to the objections raised against just war theory, especially in view of the fact that no authoritative body had yet been established that could determine whether, on any given occasion, it was legal for one state to go to war against another on the basis of that theory.61 This situation was owed to 59

60

61

Writes Grotius: “A just cause of War is injury done us, and nothing else.” Grotii, De Jure Belli et Pacis (n. 25), vol. 1, lib. II, cap. I, § I.4, p. 204. The Latin original: “Causa justa belli suscipiendi nulla esse alia potest nisi iniuria.” This is Vattel’s definition: “War is that state in which we prosecute our rights by force.” Emer de Vattel, The Law of Nations, or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns, vol. 3 of Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite et aux Affaires des Nations et des Souverains, translated from the 1758 edition by Charles G. Fenwick (Washington, DC: Carnegie Institution of Washington, 1916; orig. pub. 1758), bk. III, chap. I, § 1, p. 235. Likewise, “we have shown that nature gives men the right to use force when it is needed for the defense and preservation of their rights” (ibid., § 3, p. 235). The French original: “La guerre est cet état, dans lequel on poursuit son droit par la force.” Emer de Vattel, Emer de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite et aux Affaires des Nations et des Souverains (Paris: Librairie Diplomatique, Française et Étrangère, de J. P. Aillaud, 1835), tome II, liv. III, chap. I, § 1, p. 75. The second passage, at § 3 of the same page: “nous avons montré que la nature donne aux hommes le droit d’user de force, quand cela est nécessaire, pour leur défense et pour la conservation de leurs droits.” Kelsen, Principles of International Law (n. 58), p. 35. Here Kelsen makes an argument in favor of what he calls the United Nations model, as against the older Westphalian model: on this latter model, states could act from a principle of national sovereignty giving them the right to resort to war on their own discretion; on the United Nations model, by contrast, states are subject to the international legal order, whose principles hold good as ius cogens overriding any other international treaty and customary norm, and only selfdefense stands as a legitimate cause of war. In this regard, see Antonio Cassese, Il diritto internazionale nel mondo contemporaneo (Bologna: Il Mulino, 1984), pp. 455–76, agreeing with Richard Falk that the two basic models can be observed to coexist in the international legal order. See also the accurate reconstruction in Danilo Zolo, Cosmopolis: La prospettiva del governo mondiale (Milan: Feltrinelli, 1995), pp. 117 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

international l aw, peace, a nd justice

159

the decentralized structure of the international system, a structure in virtue of which this system still existed as primitive law.62 And yet clearly present in the documents Kelsen was looking at were the principles of bellum iustum.63 We can see its principles expressed in the 62 63

Kelsen, Principles of International Law (n. 58), p. 36. This question of just war has engaged Norberto Bobbio and Danilo Zolo in a significant debate. The documents cited by Kelsen (the 1919 Treaty of Versailles, the 1919 Covenant of the League of Nations, the 1928 Kellogg-Briand Pact, and the 1945 Charter of the United Nations) could certainly be regarded as the first statements of a supra-state international legal order. In the era that followed, however, the changes that intervened in international relations, coupled with the new awareness of the destructive potential of nuclear weapons, called for different interpretations of the concept of war. Indeed, Bobbio recalls having had to criticize the concept of just war in a series of lectures he gave in the 1960s now collected in Il problema della guerra e le vie della pace (Turin: Cooperativa Libraria Universitaria Editrice, 1965), which also includes “Diritto e guerra,” Rivista di Filosofia, 56, no. 1 (1965), 3–18. This was the time of the Cold War and the so-called balance of terror. Bobbio was thinking of the threat of nuclear war, which led him to reconsider the concept of war as “an event, like a natural disaster, lying outside any legal or moral valuation” (from an interview that Bobbio gave to Zolo in Turin on 1 July 1997, translated by Iain L. Frazer in Norberto Bobbio and Danilo Zolo, “Hans Kelsen, the theory of law and the international legal system: A talk,” European Journal of International Law, 9, no. 2 (1998), 355–67, at 366; compare what Bobbio remarks in “La teoria del diritto e il diritto internazionale,” chap. 7 in Zolo, L’alito della libertà (n. 47), p. 122). In a 1966 essay, Bobbio went back to the problem of war, noting that in the theory of war a distinction needs to be drawn between bellum iustum, relating to the problem of justifying war, and ius belli, which instead concerns the rules governing the conduct of war. He notes that our understanding of these two concepts has changed profoundly over time: on the one hand, the whole idea of bellum iustum came under attack by legal positivism, arguing that the distinction between just war and unjust war is irrelevant, the only criterion in this regard being whether a state has followed its own proper and legitimate procedure for going to war; on the other hand, ius belli has had to be fully reconceptualized in grappling with the new scenario involving the increasingly destructive potential afforded by weapons not amenable to any limit on their use. See Bobbio, “Guerra e diritto” (modified title of “Per una teoria dei rapporti tra guerra e diritto,” orig. pub. 1966), in Teoria generale della politica, ed. Michelangelo Bovero (Turin: Einaudi, 1999), p. 523. As Zolo argues, however, Bobbio subsequently contradicted his own view of just war when he took the position that the US military intervention in the First Gulf War of 1991 was lawful insofar as it had been authorized by the UN Security Council. Indeed, the idea of just war entailed by this position fits the description of what Bobbio had earlier qualified as “legal war,” even though, contrary to what the UN Charter provides under Article 46, “the application of armed force” had not been the work of the Security Council itself (see Zolo, L’alito della libertà (n. 47), p. 95). Be that as it may, Bobbio’s argument for the legality of the First Gulf War can certainly be seen to reprise Kelsen’s conception on international law, for in the build-up to the military intervention Bobbio saw the start of the process that Kelsen had previously envisioned as “leading to the formation of a common power above the states” (Norberto Bobbio, Una guerra giusta? Sul conflitto del Golfo (Venice: Marsilio, 1991), p. 23; my

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

160

international l aw and w estern civilization

1919 Treaty of Versailles, whose war reparations clause (Article 231)64 presupposed a clear criterion by which to identify violations of international law, and the same goes for Article 2(3) of the United Nations Charter: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered,” which essentially amounts to the “just war” principle that international law punishes recourse to war in the interests of peace. This principle is reiterated in Article 42 of the charter, making it permissible to resort to war to “maintain or restore international peace and security” when other measures fail (specifically referring to the measures stated in the previous Art. 41, providing that the “Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions”). As Kelsen argues, “enforcement measures involving the use of force have technically the character of war”65 and are provided for as a way to guarantee the existence and functioning of the international order. Kelsen nonetheless had to concede that there was not much bite to the measures contemplated in Article 42 of the UN Charter, especially in view of the practical difficulty of mustering the unanimous Security Council vote needed to pass them. Even more importantly, however,

64

65

translation). In this regard Bobbio had earlier called for a distinction to be drawn between the “first” violence of the party that initiates hostilities and the “second” violence of the party that is acting in self-defense (see Bobbio, “La teoria del diritto e il diritto internazionale,” chap. 7 in Zolo, L’alito della libertà (n. 47), p. 122). As Zolo observes in I signori della pace (n. 47), p. 78, Bobbio’s line of reasoning in regard to the grounds for the First Gulf War doubtless tones down his earlier opposition to any justification, whether moral or legal, for recourse to war in the nuclear age. It is also true, however, as Zolo reminds us, that in the face of the death and destruction caused by the First Gulf War, Bobbio later expressed strong doubts about its alleged inevitability and advisability. As can be appreciated, Bobbio’s position on the legality of the war proves to be extremely problematic in an international landscape devoid of any solid institutional framework, that is, absent an international order providing legal criteria on which basis to determine when the international legal order itself has been violated and what sanctions ought to be enforced in response to such violations. Article 231, better known as the War Guilt Clause, reads as follows: “The Allied and Associated Governments affirm and Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies.” Apart from the political repercussions that grew out of this clause, regarded as partly responsible for setting in motion the process that led to World War II, its theoretical import consists in its having reconfigured the German role in the war as an illegal act, or delict. See Kelsen, Principles of International Law (n. 58), p. 38. Ibid., p. 47.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

international l aw, p eace, a nd justice

161

there was the concern that the task of maintaining international peace and security could not legitimately be entrusted to an organization like the United Nations: nondemocratic and difficult to reform.66 In Kelsen’s analysis, then, there was still a long distance to cover before the international legal order could complete its transition from a “primitive community” to a “World state.” As a matter of practical reality, the “just war” principle can be realized only against the background of a supra-state legal order universally recognized as valid and effective – which certainly does not describe the current state of international relations under the sway of the unilateral action of the great powers. There is a conclusion to be drawn here in regard to the question of just war. In the age of natural law, Grotius could proclaim to have found the criteria of just war in a natural illusory law held up as universal (in view of the existence of other legal systems making the same claim to universality). In the contemporary era, by contrast, this (illusorily) universal foundation has given way, making it difficult to define any just-war criteria on the basis of what came in its place, namely, the nondemocratic framework of the United Nations. It follows that the only war that can have any legitimacy is a war undertaken in self-defense, and even though such wars may have a “humanitarian” upside, the only other option is that of war being waged for power. Hence the lesson that Kelsen teaches us: while he can lay out a path that international law is inevitably bound to follow in light of the logical and normative principles he shows it to be undeniably based on, he also cautions us about the persistent de facto power of sovereign states with which these principles are constantly confronted. What, then, are we to make of the idea of justice in international relations?

6.8 Peace and Justice Kelsen did not equate peace with justice, for it was too often the case that treaties were imposed by the victors,67 such that change in the status quo only ended up providing a cover of legitimacy for the existing power 66

67

A compelling argument to this effect is made in Danilo Zolo, “Riformare le Nazioni Unite?” in Gustavo Gozzi and Giorgio Bongiovanni (eds.), Popoli e civiltà: Per una storia e filosofia del diritto internazionale (Bologna: il Mulino, 2006), pp. 157–82. On victor’s justice, see Danilo Zolo, La giustizia dei vincitori: Da Norimberga a Baghdad (Rome and Bari: Laterza, 2006).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

162

interna tional l aw and wester n civ ilizati on

situation. He thus critically observed that such “change hardly corresponds to an idea of justice, even if by justice nothing more is understood than an order which guarantees a durable peace.”68 These are considerations that Kelsen had previously developed in his essay on the Nuremberg trials, which we will turn to briefly. This critical positivism – the theory of law that Kelsen champions in opposition to any approach based on natural law – “recognizes every positive legal order as an order of peace,”69 and cannot but do so. But a legal order so conceived will never be able to embody the idea of absolute justice that natural law aspires to. It will only be able to express a “compromise of conflicting interests, which leaves none of them wholly satisfied or dissatisfied.”70 Thus, far from coinciding with justice, peace can even coincide with the highest injustice. A weaker group can find an unjust condition of peace convenient in view of the minimal protection an unjust legal order will afford. Kelsen sets out a thesis that is extreme in its provocative thrust: “The longing for peace means, as a rule, a renunciation of the original ideal of justice.”71 Despite this, legal science will never give up in its effort to answer the question of justice. In the essay on the problem of justice, Kelsen reasons from the plurality of possible legal orders to the conclusion that justice needs to be recognized as a relative concept. He cannot but point out the multiplicity of ways in which justice has been understood over the course of history, from Aristotle to the Christian vision, to Marxist doctrine, to the liberal conception and the democratic one. But he also emphatically underscores the moral responsibility that comes with this recognition of the relativity of justice. Our answer to the question as to what is just and what is unjust will depend on the standard of justice we take to be the basis of our value judgment. Our answers could therefore range quite widely. This also means that only we can make this choice, and no other person or entity: not God, nor the nation, nor reason understood as an objective authority. Therein lies the true meaning of the autonomy of morality.72 68 69 70 71 72

Kelsen, Principles of International Law (n. 58), p. 37; italics added. Kelsen, General Theory of Law and State (n. 55), appendix, chap. IV, § B.d, p. 439. Ibid. Ibid., appendix, chap. IV, § B.e, p. 441. Hans Kelsen, “Das Problem der Gerechtigkeit,” in Reine Rechtslehre. Mit einem Anhang: Das Problem der Gerechtigkeit, 2nd ed. (Vienna: Franz Deuticke, 1960), p. 442; my translation.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

international l aw, peace, a nd justice

163

In this constant and never resolved tension between peace and justice lies the problem that Kelsen clearly identifies in his theory of law. This is the problem that emerges out of his investigation into the transformations of the international legal order, bringing into focus the need to achieve a satisfactory balance and coherence between these two ideas of peace and justice. The central question he assigns to legal theory can thus be clearly stated as follows: what conception of justice should guide the development of the international legal order in the contemporary age? The question of justice was also central to the analysis that Kelsen offered of the Nuremberg trials.

6.9 Nuremberg: Law and Morals In the 1947 article devoted to the Nuremberg trials and international law, Kelsen brought the question of morality to bear on that of law, thus calling his own formalist-normative approach to law into question. Indeed, he noted that under the Nuremberg Charter, annexed to the 1945 London Agreement between Great Britain, the United States, France, and the Soviet Union, individuals could be held criminally responsible for violating the rules of international law that prohibited recourse to war. The charter thus introduced the concept of individual criminal responsibility for crimes against peace, defined as “preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.”73 The problem was that this concept was nowhere to be found in any of the treaties taken into account in the London Agreement, among them the 1928 Kellogg-Briand Pact, and so a retroactive rule of international law had to be introduced.74 Because this rule was retroactive, introducing a new criminal offence only after the fact, it amounted to an ex post facto law in violation of the traditional principle nullum crimen sine lege, for the rules of international law only provided for collective war-crimes responsibility, not for any individual responsibility. The new principle established under the London Agreement therefore stood in contrast to 73

74

United Nations, Charter of the International Military Tribunal – Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement), 8 August 1945, Article 6. Hans Kelsen, “Will the judgment in the Nuremberg Trial constitute a precedent in international law?” The International Law Quarterly, 1, no. 2 (1947), pp. 153–71, at 155.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

164

international l aw and western civili za tio n

the positive international law then in force. Kelsen realized that the normative component of law comes into conflict with its positive existence, the latter completely alien to the former. This is a conflict he sets out with utmost clarity: Since the internationally illegal acts for which the London Agreement established individual criminal responsibility were certainly also morally most objectionable, and the persons who committed these acts were certainly aware of their immoral character, the retroactivity of the law applied to them can hardly be considered as absolutely incompatible with justice. Justice required the punishment of these men, in spite of the fact that under positive law they were not punishable at the time they performed the acts made punishable with retroactive force.75

What comes into full view here is the crisis of positive law. In taking up the matter of the Nuremberg trials, Kelsen pursued a line of thinking that until that time had been completely foreign to him. In fact, as he observes, the “rule against retroactive legislation is a principle of justice,” but it comes up against the “higher degree of justice” ascribed to the principle of how individual criminal responsibility operates. In this way, Kelsen alights on a new postulate of justice that the dramatic reality of the war made it necessary to reckon with. But he also addressed the problem of the institutional structure that would have had to embody the higher degree of justice at stake, and here he observed that the principle of criminal responsibility for war crimes had never been applied to individuals: as a general rule of law, it could only apply to vanquished states. Hence the view he took that the Nuremberg principles should not gain the binding force of precedent. These reflections certainly marked, for Kelsen, the beginning of a vitally important investigation on the criteria by which international criminal justice must necessarily be underpinned.

6.10 Conclusions The analysis just offered of Kelsen’s thinking on international law has made it possible to highlight two key points. In the first place, Kelsen has clearly shown that peace can only be secured within the framework of a supra-state legal system universally recognized as valid and effective. In making this argument, however, he also lucidly recognized the insuperable limits that come with the de facto power of sovereign states. As a 75

Ibid., p. 165; italics added.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

international l aw, peace, a nd justice

165

result, he took a Kantian line in recognizing that peace needs to be framed not as a straight objective but as an ideal, something that is unlikely to be achieved in the short term, but which should nonetheless serve as a guide in endeavoring to gradually improve on an institutional system that still proves inadequate to the task. In the second place, Kelsen strenuously underscored the need to set up a system of international criminal justice that is not a function of victor’s justice. In this long and difficult journey, however, we cannot content ourselves with the establishment of international organisms like the International Criminal Court (this cannot be counted as a milestone, for the court is severely limited in its jurisdiction, and in its powers it is also constrained by the United Nations Security Council).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:27, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.008

7 Realist Perspectives: Historiography, International Law, International Relations

7.1 Balance or Hegemony: An Unfolding Dynamic Leading into World War II The normative approach we looked at in the last chapter marks an important tradition in the analysis of international law. Its origin, as noted, is Kantian, and it can be set in stark opposition to the realist approach, which, by contrast, rules out the possibility of establishing a supra-state legal system operating on top of the reality of the system of states. We can look to history to understand the political and legal logic that undergirds the system of states. Essential to this end is Ludwig Dehio’s 1948 Precarious Balance,1 a historical reconstruction, still unsurpassed, illustrating the struggles for hegemony that in the fifteenth century gave rise to the European system of states and then accompanied the gradual expansion of Europe, both across the oceans and into the immense Asian continent, a process that climaxed in the conflagration of the First and Second World Wars and then segued into what has by now become the unstoppable trend toward unification. The two world wars, according to Dehio, were the last two attempts at hegemony, and at the same time they set in motion the irreversible crisis of the nation-state. In the immediate postwar climate in which Dehio published his work, it seemed almost inevitable that the European states were bound to unite into a legal and political system committed to peace. 1

Ludwig Dehio, The Precarious Balance: Four Centuries of the European Power Struggle, trans. Charles Fullman (New York: Alfred Knopf, 1962). Originally published in German under the title Gleichgewicht oder Hegemonie: Betrachtungen über ein Grundproblem der neueren Staatengeschichte (Krefeld: Scherpe, 1948).

166

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

r eal i s t p er s p ect i ves

167

In outlining this historical dynamic, Dehio looked to the idea of unity expounded in the work of Leopold von Ranke:2 this was the idea of the West’s politico-cultural unity, central to which was the state as the cultural driving force of history.3 The European system of states arose after the breakup of the medieval formation based on the coupling of imperium and sacerdotium. This breakup, in Dehio’s analysis, can specifically be traced to 1494, when the great European powers of France, Spain, England, and the House of Habsburg began to vie for control of Italy. To be sure, the newly forged system of balance among states was immediately put to the test by the hegemonic ambitions of Charles V, elected Holy Roman Emperor in 1519. As Dehio points out, however, until the contemporary age this push for hegemony always found an outlet through the conquest of new spaces and the entry of new protagonists who had been external to the system of states. The conceptual couplet of balance and hegemony thus gives Dehio a vantage point from which to make sense of the complex political power play in which states played a key role in Western history. France’s opening toward the Ottoman Empire under the FrancoTurkish alliance forged in 1535 between Francis I of France and Suleiman the Magnificent was aimed at containing the hegemonic aspirations of the Habsburg Empire, in much the same way as England’s later overseas expansion kept in check the hegemonic aspirations of Philip II of Spain and the vast Russian Empire managed to drive back the expanding power of the Napoleonic Empire.4 In Dehio’s historical reconstruction, two factors are seen as playing a key role in maintaining the system of balance among states: on the one hand are the oceanic waters conquered by England, on the other the vast continental expanses of Russia. Louis XIV’s defeat to England at the Battle of La Hougue in 1692 was the defeat of a continental power to a maritime one that from the seas drew its force. As Dehio comments: “The freedom of the system and overseas expansion bear a causal relationship to each other.”5

2

3 4 5

See Leopold von Ranke, Über die Epochen der neueren Geschichte: Historisch-kritische Ausgabe, ed. Theodor Schieder and Helmut Berding (Munich: R. Oldenbourg Verlag, 1971; orig. pub. 1854). Dehio, The Precarious Balance (n. 1), Introduction, pp. 7 ff. Ibid., chap. I, pp. 41–42. Ibid., chap. III, p. 90.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

168

international l aw and western civ ilizati on

In the early eighteenth century, the European system of states found a stable form. Dehio identifies two lines of development: on the one hand was the enduring conflict between France and England, on the other was Russia’s westward expansion under Peter the Great.6 It is in this context that we are to set the frustration of Napoleon’s attempt at hegemony. This attempt was stopped short by England and Russia, but France’s defeat at the hands of England meant the annihilation of French power, which in England’s designs was to act as a counterweight to Russia’s expansionist aims. The end of Napoleon in 1815 also meant the rise of the two remaining European powers, namely, Russia and England – and in the background was the growing power of the United States, giving shape to an international stage that was no longer just European but global. And, finally, there were the hegemonic ambitions of Germany, which in building up its imperial navy caused Britain to feel threatened in her command of the seas. As a result, Britain worked diplomatically to manoeuvre three countries against Germany: Russia, which disliked German policy toward Turkey; the United States; and Japan. In this way alone, Britain managed to defeat Germany in four years. The humiliation that Germany suffered at Versailles in 1919 – with the loss of territory along its own borders, the loss of its colonial holdings, and the sheer amount of war reparations it was forced to pay – set the stage in which it sought to reflourish within a broader setting of general European decadence. Symptomatic of this decadence, according to Dehio, was Hitler, under whose leadership Germany sought to remake itself by shifting its focus from domestic to foreign policy. Nazism also marked a break with all the traditional values of Western history, and the great powers managed to overcome all ideological differences so as to confront the new danger. And so, Dehio observes, “the world once more witnessed a Continental power’s desperate attempt to offset and outmaneuver the naval power, unshakable in its command of the seas, by extending its own continental position.”7 And once more a Continental power came out of this conflict in defeat. Even so, it was a radically different situation that emerged in the wake of World War II, for “the losers lost their political existence and saw their 6

7

As Dehio explains it: “A progressive leveling of the Continental states was taking place as the natural result of the balance of power created by Britain. Russia, the flanking power, was contributing her share to this process. By her very nature, she, like Britain, acted as a check to any bid for supremacy, in this case that of France.” Ibid., chap. III, p. 111. Ibid., chap. IV, p. 263.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

r e a l i s t pe r s p e c t i v es

169

physical existence imperiled.” Even more significantly, however, the complex relation between balance and hegemony that had been in place since the late fifteenth century came to an end,8 for after World War II, the balance-of-power system extended across the entire world, and thenceforth it could only be maintained through the action of nonEuropean powers. It is on these external powers that the West’s balance now depends. According to the analysis offered by Dehio, writing in 1948, the upshot of the division of the world into two blocs was that the European states, with the single exception of Great Britain, lost their independence. The questions raised after World War II revolved around a problem that to this day has not been solved: would the new world order be an order of peace? Or, more to the point: what shape would this order take in the unarrestable trend toward unification increasingly extending across the entire globe? To be sure, the end of the system of sovereign states competing for hegemony and unfailingly pushed back into a balance of power spelled the end of the continuity of the West envisioned in Leopold Ranke’s reconstruction of the course of history. But did it also spell the end of the West’s system of values? And, if so, what new values would underpin the new world order?

7.2 The Crisis of the Jus Publicum Europaeum In 1950, in his seminal work The Nomos of the Earth, Carl Schmitt traced a history of international law analyzing the transformations the system of states went through. He singled out three broadly defined stages in this evolution. First came the Medieval jus gentium of the respublica Christiana, in which the Pope and the Emperor formed a unity. This first stage waned with the rise of sovereign territorial states whose relations were governed by the jus publicum Europaeum. With this second phase, the medieval just-war tradition gave way to a system marked by the centrality of sovereign states that recognized one another as just and equal enemies (justi et aequaes hostes). This notion of justus hostis displaced that of justa causa, making irrelevant what the reasons or grounds of war might be: one only needed to be recognized as a sovereign 8

“Today it seems to us that the great game of the modern era, which kept Europe, and ultimately the world, breathless with suspense, has been played to a finish” (ibid.).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

170

international l aw and western civ ilizati on

entity to qualify as an enemy – this was a necessary and sufficient condition for undertaking a war against such an entity. What took hold, then, was a frame of thought predicated on a logic of law and statecraft that, no longer resting on a theological or moral foundation, took any sense out of the idea of criminalizing war.9 This was termed by Schmitt “the epoch of interstate international law, which lasted from the 16th to the end of the 19th century,”10 and it corresponds to what Dehio describes as the phase of balance among states. With the demise of this specifically European system of international law came the third stage, ushered in by a new conception of space that led to the breakup of the jus publicum Europaeum in a process that began in the late eighteenth century, culminated with the Paris Peace Conference of 1919, and lasted until 1939. Indeed, this was the outbreak of World War II, as a result of which Europe wound up losing its central role on the world stage. Unlike previous peace conferences (such as Westphalia in 1648 and Vienna in 1814–15), the Paris Peace Conference of 1918–19 was not entirely or even predominantly European, with countries from several continents taking part in the peace talks. Even more significantly, however, there was no longer a common conception of space at work: the European spatial conception of international law faded into the background as the United States moved upstage, driving the Western hemisphere’s ascendancy over Europe. The United States did not sign the Treaty of Versailles, to be sure, but it nonetheless played a major role in shaping the postwar landscape. The League of Nations envisioned by the US wartime president, Woodrow Wilson, was established in Geneva, but it lacked any clear conception on which to base the legal order for the new international space that had emerged out of the war. Indeed, two avenues were being pursued that went in different directions resulting in an incoherent dual purpose: on the one hand the League was European in its conception, reflecting the victors’ intention to lay a hefty penalty on the European powers they had defeated in World War I, namely, Germany and Austria-Hungary; but at the same time the League was conceived as 9

10

“As long as the concept of justus hostis is in effect, war between states cannot be criminalized.” Carl Schmitt, The Nomos of the Earth in the International Law of Jus Publicum Europaeum, trans. G. L. Ulmen (New York: Telos Press Publishing, 2006; orig. pub. 1950), pt. IV, chap. 4, § B, p. 261. Ibid., pt. III, chap. 1, p. 140.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

r ea l ist pe r sp ec t ive s

171

an organ through which to guarantee world peace, thereby reflecting a universalistic vision.11 In this sense, the League of Nations marked a phase of transition from the old European legal order to the construction of a new global order under a single world power. Indeed, as Schmitt observes, while the United States were formally absent, they were effectively present, considering that many of the League’s member states, such as Cuba and Panama, were bound to the United States by treaties that placed them within the spatial compass of the United States itself as the world’s dominant power. There was, then, a plurality of states that fell under direct US influence. So, too, Article 21 of the Covenant of the League of Nations explicitly bound the League to the Monroe Doctrine of 1823.12 As Schmitt concludes, the League “did not even have a clear concept of a definite status quo. Moreover, by recognizing the Monroe Doctrine, the League had subjected itself to ideas of spatial order emanating from the Western Hemisphere.”13

7.3 A New Concept of War What also brought on the crisis of the jus publicum Europaeum was the refashioned meaning of war that went into the 1919 Treaty of Versailles, which under Article 227 introduced a provision criminalizing wars of aggression.14 Under traditional jus publicum Europaeum, it would not have been possible to lay such charges on anyone, the only recognized crimes being those carried out in bello, that is, in the course of war, as by violating the rights of prisoners of war: there was no way, under the jus publicum Europaeum, to criminalize wars of aggression, nor was it possible for one state to exercise jurisdiction over another through the creation of an ad hoc tribunal, as the Treaty of Versailles provided for under Article 227. But the Treaty of Versailles did not express a clear position in this regard, for it contained other provisions that reprised the traditional jus 11 12

13 14

Ibid., pt. IV, chap. 3, § I (“The spatial chaos of the League of Nations”), 257 ff. Article 21: “Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings like the Monroe doctrine, for securing the maintenance of peace.” Schmitt, The Nomos of the Earth (n. 9), pt. IV, chap. 3, § I, p. 258. Article 227: “The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. / A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence.”

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

172

international l aw and western ci vilization

publicum Europaeum. A case in point is the subsequent Article 228, which makes no mention of states in setting forth “the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war.” So, while some delegates looked mainly to Article 227, others firmly held on to the traditional principles of the jus publicum Europaeum. But it was the latter that ultimately prevailed, as is evidenced, for example, by the peace treaty the United States signed with Germany on August 25, 1921, where no mention is made of war crimes. “At Versailles,” Schmitt accordingly concludes, “in no sense was anyone predisposed to create a new crime in international law.”15 Indeed, the whole matter of war guilt “was not placed under ‘Penalties,’ but under ‘Reparations.’”16 The breakthrough came later, with the 1928 Kellogg-Briand Pact, which made it a crime to resort to war as a tool of national politics (though it continued to make responsibility ascribable only to the state). And then, finally, as we saw in the last chapter, in August of 1945, the victors of World War II, namely, Great Britain, the United States, France, and Russia, introduced the concept of individual criminal responsibility for war crimes (though Schmitt makes no mention of such individual imputability in this connection). The Paris Peace Conference dealt the final blow to the jus publicum Europaeum, for out of the conference there emerged two new powers – the Soviet Union to the east of Europe and the United States to the west – that were thrust into a role of prominence and expanded the European space across the globe. In Schmitt’s assessment, the transformation and demise of European public law cannot be ascribed only to Europe’s diminished role but is also tied to the technological innovations that radically changed the way war was conceived. Particularly, the development of military aviation dissolved the distinction between land and sea and brought into being what is “purely a war of destruction,”17 making air war an entirely different beast from land war, and different as well from sea war. It must finally be underscored, Schmitt points out, that from the development of military means of destruction there inevitably follows a need to enhance the justification for the use of such means,18 15 16 17 18

Schmitt, The Nomos of the Earth (n. 9), pt. IV, chap. 4, § D, p. 268. Ibid., p. 267. Ibid., pt. IV, chap. 7, § C, p. 317. As Schmitt puts it, “one needs a just war to justify the use of such means of destruction.” Ibid. pt. IV, chap. 7, § D, p. 322.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

r eal i s t p er s p ect i ves

173

a justification that resolves itself into a criminalization of one’s enemy. In the jus publicum Europaeum, by contrast, the principle of aequalitas hostium, under which all enemies are understood to stand on an equal footing, meant that the enemy held the status of justus hostis and thus could not be criminalized.19 In the important and original reconstruction just summarized, Schmitt walks us through four centuries of European public law, illustrating the full breadth of its complexity from its birth to its crisis and demise. This crisis is essentially imputed by Schmitt to the forces that transform the European spatial order and the power relations that unfold within it. And importantly at work in driving this change is the advance of technology and industry, making available the means without which it would not have been possible to prosecute the modern wars of destruction. In reality, however, the crisis of European public law needs to also be traced to the toilsome journey the law made in developing the new suprastate legal order that first came into form at the end of World War I, and which found a fuller embodiment at the end of World War II, when it rejected the use of force as a tool of international relations and provided for the international protection of human rights as a limit on the states’ sovereign power (even if the basis for extending such protection was problematically cast in the language of natural law).20 So, as insightful as Schmitt’s account of the crisis of European public law may be, it proves inadequate as a basis on which to explain the new stage of international law (what in his own reconstruction is the third stage). Before we move 19

20

The term just enemy (justus hostis) is quite problematic and bears comment. The concepts of just enemy and unjust enemy in the law of peoples are treated in The Metaphysics of Morals, where Kant ultimately concludes that it “is redundant [. . .] to speak of an unjust enemy in a state of nature; for a state of nature is itself a condition of injustice. A just enemy,” on the other hand, “would be one that I would be doing wrong by resisting; but then he would also not be my enemy.” Immanuel Kant, The Metaphysics of Morals, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), § 61, p. 49 (Ak. 6:350). The German original at Immanuel Kant, Die Metaphysik der Sitten, in Wilhelm Weischedel (ed.), Werke (Frankfurt am Main: Suhrkamp, 1993; orig. pub. 1797), vol. VIII, p. 474. Schmitt takes quite a different view: a just enemy is simply one who is justified in waging war in virtue of the sovereignty this entity can claim. Schmitt, then, is framing the question in terms of the enemy’s right to wage war – an enemy whose being “just” therefore lies not in his justness but in his rightful waging of war! The antithesis between the two thinkers could not be any more direct: Schmitt is reasoning from a presumption of the inevitability of war, and law is accordingly the form imparted to this reality; Kant, by contrast, is interested in the prospect of peace, and law therefore comes in as a limit by which to constrain war. The problematic nature of this foundation for human rights will be further discussed in Chapter 12.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

174

i n t e r n at i o n al l aw an d wes tern c ivilization

on, however, we need to look at a few other aspects of Schmitt’s thought so as to fully understand his conception of international law.

7.4 The Birth of the “Discriminating Concept of War” The discriminating concept of war means that a distinction can be drawn between just war and unjust war. Thus, in rejecting this concept, Schmitt was arguing against the possibility of criminalizing the enemy as the party that bears responsibility for a war. This is clearly the thinking of an author who is still anchored to the past, refusing to consider the possibility that a new legal order might come into being. In a 1937 essay,21 Schmitt perceptively described how the transformations of international relations led to a radical change in the concept of war. This was essentially the result of the new federal forms of organization that had emerged. This is a development that Schmitt investigated by drawing on the work of some internationalists,22 and especially on the analysis that Georges Scelle offered of the “federative phenomenon,” which he recognized in polities such as the British Empire, the United States, the Soviet Union, and the League of Nations. It was the last of these that Scelle was particularly interested in. The League of Nations, in Scelle’s analysis, was certainly a supra-state organization.23 As a collective entity existing apart from those it was made up of, it was the largest federative system ever to have appeared in history. This made it universalist in its calling, and such that it could broadly be identified with the community of the law of peoples (communauté du Droit des gens).24 21

22

23

24

Carl Schmitt, “The turn to the discriminating concept of war” (1937), in Writings on War, ed. and trans. Timothy Nunan (Cambridge, UK: Polity Press, 2011), pp. 30–74. On the discriminating concept of war, see Stefano Pietropaoli, Abolire o limitare la guerra? Una ricerca di filosofia del diritto internazionale (Florence: Edizioni Polistampa, 2008), esp. pp. 139–74. Schmitt looked in particular at Georges Scelle, Précis de droit des gens: Principes et systématique, 2 vols. (Paris: Librairie du Recueil Sirey, 1932 (Première partie) and 1934 (Deuxième partie)), and Hersch Lauterpacht, The Function of Law in the International Community (New York: Garland Publishing, 1973; orig. pub. 1933), as well as at Sir John Fischer Williams, “Sanctions under the Covenant,” The British Year Book of International Law, 17 (1936), 130–49, and Arnold D. McNair, “Collective security,” The British Year Book of International Law, 17 (1936), 150–64. “La Société des Nations est-elle un super-État? Autre question oiseuse. Elle est certainement une organisation sociale super-étatique.” Scelle, Première partie of Précis de droit des gens (n. 22), p. 250. Ibid.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

r eal i s t p er s p ect i ves

175

Within a federative system of this kind, military intervention becomes a normal and fundamental institution. As Scelle makes clear, however, such military intervention is legitimate only if it equally protects the interests of all subjects of international law, its “purpose being to maintain international public order and ensure that the law is upheld. A typical case is humanitarian intervention (intervention d’humanité).”25 On Scelle’s supra-state federalist conception, this kind of intervention works as a policing operation.26 In the same way, on this conception, a war of aggression (guerre d’agression) can clearly be identified as an international crime.27 It is this criminalization of war that Schmitt objects to. And in his analysis it is the “federative phenomenon,” precipitating the crisis of the system of states, that acts as the main factor involved in bringing about this shift to a new concept of war. As Schmitt comments, “the concept of war stands at the center of all debates and has become the touchstone of all international law,”28 and in making his argument against transforming this concept into a new one according to which war can be criminalized, he goes back over the history of Europe showing how the formation of the system of states suppressed the new, discriminating concept of war.29 As Schmitt points out, however, in any attempt to move beyond the nondiscriminating concept of war and draw a distinction between two belligerents, singling one out as responsible for a war, “the claim is implicitly made that one acts not only in one’s own name but also in that of a higher (in other words: trans-state) order and community.”30 But Schmitt observes that the League of Nations is not an authentic federation, for it cannot give rise to “a true community of European nations,” which in turn “is the precondition of a genuine and effective international law” (eines wirklichen und wirksamen Völkerrechts).31 Federalism, in his view, cannot be coupled with universalism, and what we get, absent this outcome, is “war and yet no war at the same time; anarchy; and chaos in international law.”32 25 26 27 28 29

30 31 32

Scelle, Deuxième partie of Précis de droit des gens (n. 22), p. 31; my translation. Schmitt, “The turn to the discriminating concept of war” (n. 21), p. 62. Scelle, Deuxième partie of Précis de droit des gens (n. 22), p. 47. Schmitt, “The turn to the discriminating concept of war” (n. 21), p. 62; italics in original. In support of this thesis, Schmitt notes in particular that in “the eighteenth century, this non-discriminating concept of war was defended by Vattel in his Droit des gens (1758)” (ibid., p. 64). Ibid., p. 65. Ibid., p. 74. Ibid., p. 73.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

176

i n t e r n at i o n al l aw an d wes tern c ivilization

But what is Schmitt’s practical aim? In conclusion to his essay, he concedes that it is no longer feasible to preserve the concept of war that was current in the eighteenth and nineteenth centuries, and so, as an alternative, he offers the solution of realizing the “true community of European nations” just mentioned (the community lacking which there can be no “genuine and effective international law”). However, Schmitt does not comment on the way such a community might affect the concept of war: would he be willing to accept a discriminating concept of war? In reality, Schmitt prefers to aim his criticism at the League of Nations as an entity that is not “a real federation,” for in this way he can illustrate all that is dubious about the proposition of establishing a universal federative organization. He thus assesses that the incomplete federalism of the League of Nations only resulted in its having gutted the old concept of war – without alighting on any new concept that could plausibly replace the old. Once more, despite the concessions made in recognizing that the old can no longer be preserved as such, Schmitt seems to reassert the validity of the old international order – with the nondiscriminating concept of war that is central to it – thereby ruling out the possibility of criminalizing wars of aggression.

7.5 Excursus: Beyond the Friend/Enemy Dualism With the discussion just concluded, we have an opportunity to offer a quick snapshot of Schmitt’s conception of war. At the core of this conception we find the well-known dualism between friend and enemy. This dualism governs the unarrestable logic of war: the reality of human interaction will always consist of friends, on the one hand, and enemies to be fought, on the other. Schmitt’s paradigm can thus be understood to be made up of four elements as follows: (1) the system of states, set within (2) a legal order that legitimizes the right to war (ius ad bellum) on the basis of (3) the distinction between friend and enemy, with the possible consequence that (4) offensive wars may not be criminalized. At the other end of the spectrum is the conception developed in previous chapters from a Kantian and Kelsenian perspective. At its core is the idea of a law of peace, and it, too, can be understood as made up of four elements: (1) a system of states transitioning toward recognition of a supra-state legal order; (2) a system of international law conceived as a law of peace, thereby ruling out the legitimacy of the ius ad bellum, and based on (3) the ability to distinguish between those who legitimize

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

realist p erspectives

177

offensive wars and those who rule out such a legitimation; and (4) the view that only defensive wars can be legitimized, while offensive wars are subject to criminal prosecution.

7.6 The System of Postclassical International Law We can now pick up from where we left off and go deeper into the realist conception of international law. There is no shortage of authors who, while pursuing Schmitt’s line of reasoning, have nonetheless underscored the profound innovations that developed in international law after World War II. Among them is Wilhelm G. Grewe, who in an important book of wide scope has built on Schmitt’s conception so as to trace the birth of what he terms postclassical international law (nachklassische Völkerrecht). The watershed marked by the Paris Peace Conference of 1919 was no less significant than those which came with the 1948 Peace of Westphalia and the 1815 Congress of Vienna. As happened on those two previous occasions, so here international law was refashioned in response to the changes that had taken place in relations among states.33 At the origin of this transformation was an unfolding sequence of events. The first of these was the failure of the US president Woodrow Wilson to secure domestic support for his international vision of a new world order. This meant that the League of Nations he championed was doomed to be weak and powerless. This ineffectiveness of the system of international relations became glaringly apparent with the Italian invasion of Ethiopia in 1935, only to find further confirmation with the Munich Agreement of 1938, under which Great Britain and France allowed Nazi Germany to annex the Sudetenland in Czechoslovakia in exchange for a promise of peace. The Sudeten Crisis alerted the United States to the British inability to wield any significant power, ultimately prompting it to step into a new role in which it would sustain a new world order by defending the Western hemisphere.34 The new international law was no longer based on British policy alone but on British and American power combined. This was the postclassic international law of the interwar period (from 1919 to 1939), and it emerged out of three concurrent developments. 33

34

Wilhelm G. Grewe, Epochen der Völkerrechtsgeschichte (Baden-Baden: Nomos, 1984), p. 679. On the notion of a new world order backed by the power of the United States, see Grewe, Epochen (n. 33), p. 683.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

178

international l aw and western ci vilization

First, increasingly strong limits began to be placed on the sovereignty of states, with new protections for minorities, a more robust protection of human rights, and so on. Second, starting with the 1928 Kellogg-Briand Pact, as we saw, a shift took place toward criminalizing wars of aggression, while placing moral as well as legal constraints on the conduct of war itself. And third, increasingly the idea took hold that it would be possible to work toward a worldwide society of all nations without regard to differences of race, culture, or geographic location, and hence without drawing a distinction between civilized and noncivilized nations. In short, international law moved away from the notion of civilization (Zivilisation) and placed all nations and states on an equal footing.35 It is in this third development that Grewe sees the most distinctive trait of the new postclassical international law, meaning that with this new system comes the end of the homogeneous system of values that formed the basis of “classical” international law, the jus publicum Europaeum. However, it was not until after World War II that the ideas behind these developments began to carry their true weight, becoming distinctive elements of modern international law. And the consequences can be appreciated in several ways. For one thing, there is no homogeneity in the current makeup of the community of states, for in this community we find superpowers, traditional powers, small powers, and so on. In the second place, it is becoming increasingly apparent that there is not going to be a homogeneous community based on shared values common to the East and the West.36 Third, we are witnessing a coexistence between supra-state forms of integration (most notably, perhaps, with the construction of the European Union) and a renewed push to assert national sovereignty, especially with young nationalist movements. And, finally, there has been a sustained effort to bring human rights under the protection of international law.37 Grewe’s conception is cast in the same mould as Schmitt’s, in that both take a realist approach to international law,38 explaining its transformations in terms of the changing dynamics in the balance of power that has 35 36 37 38

Ibid., pp. 689–90. Ibid., p. 762. Ibid., p. 765. In a book review of the English translation of Grewe’s Epochen der Völkerrechtsgeschichte (n. 33), Martti Koskenniemi takes Grewe to task for glossing over the German role in World War II: Grewe confines himself to observing that wars simply “break out,” thus presenting the responsibilities of the Allied Powers as comparable to those of Germany. See Martti Koskenniemi, review of Wilhelm Grewe, The Epochs of International Law (Berlin: De Gruyter, 2001), Buchbesprechungen, Kritische Justiz, 2 (2002), 277–81, at 279.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

r eal i s t p er s p ect i v es

179

shaped the course of European history. His analysis clearly identifies the constitutive elements of international law that developed in the wake of World War II, and unlike Schmitt he appreciates the innovation they introduce. Having looked at the realist approach to international law, we will finally, if briefly, consider how it differs from its approach to international relations. Here, too, the discussion will shed new light on Schmitt’s realist conception.

7.7 Realism and International Relations In this chapter we first considered the transformations that accompanied the system of states over the course of its history, trying to explain the crisis of the Eurocentric model it was based on, to this end drawing on the work of Ludwig Dehio. And then, turning to Carl Schmitt and Wilhelm G. Grewe, we considered the realist account of international law as a merely formal expression of the states’ political decisions. In order to fully appreciate the import of the realist approach to international law, it will be useful look at Schmitt’s conception of it in comparison with the realist approach to international relations. Martti Koskenniemi has examined Schmitt’s work and that of Hans J. Morgenthau,39 looking at both in light of the anti-formalist stance they share. Both authors also took a strong stance against the parliamentarianism of the Weimar Republic, regarding it as a venue of endless discussion without an ability to make any concrete decision. The criticism the two authors directed at parliamentary formalism they also extended to international law. Thus, the 1919 Treaty of Versailles was analyzed by Schmitt as an expression of Anglo-American hegemony, and Morgenthau, for his part, looking at the power relations that emerged out of World War II, took the view that the two empires the war had launched into prominence, namely, the American empire and the Soviet, would honour the Yalta declaration of 1945 (especially as concerned nonintervention) only to the extent that the points of agreement were consistent with the two powers’ political aims and interests. The criticism Morgenthau devoted to formalism, in domestic and international law alike, was initially intended to lay the groundwork for an anti-formalist theory of law. But he eventually abandoned this project 39

Hans J. Morgenthau, Scientific Man vs. Power Politics (Chicago: University of Chicago Press, 1946; orig. pub. 1946).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

180

international l aw and western civili za tio n

and is now recognized as the father of realism in the analysis of international relations.40 Morgenthau’s realism differs from Schmitt’s in a way that bears importantly on the study of international phenomena, for if we look closely enough at this difference we can gain some insights that can be put to use in the analysis of international law.41 At the heart of this difference is the understanding of the relation between law and politics. Indeed, while Schmitt understands law as no more than the form of political decision-making, Morgenthau understands it as placing a limit on such decision-making.42 Schmitt clearsightedly made the case for the end of jus publicum Europaeum, but he looked for a new nomos that could express the very power relations the jus publicum Europaeum was meant to support. Morgenthau was also interested in power relations, but primarily as the system that forms the warp and woof of international relations,43 and, contra Schmitt, he acknowledged the possibility that law should act to constrain power. Even so, there are significant points of contact between the two authors: aside from rejecting legal formalism, they both recognized Europe’s loss of centrality; and, likewise, they saw the international 40

41

42 43

Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge: Cambridge University Press, 2002), p. 460. Much has been written about the intellectual debt that Schmitt may have owed to Morgenthau, and about the strained relationship between the two. At issue was the concept of the “political,” which of course is the subject of Schmitt’s seminal 1932 article of the same title. As Morgenthau claims, this was not the same concept as the one found in the 1927 article that formed the basis of the 1932 article, and what happened in between is that Schmitt reframed the concept by drawing on the analysis that Morgenthau had devoted to it in 1929. On this question, see Koskenniemi, The Gentle Civilizer (n. 40), pp. 436 ff. See also the more recent and extensive analysis in Alessandro Campi, “Hans J. Morgenthau e Carl Schmitt: Un bilancio critico-bibliografico,” in Hans J. Morgenthau, Il concetto del politico: “Contra” Schmitt, ed. Alessandro Campi and Luigi Cimmino (Soveria Mannelli: Rubbettino, 2009), pp. LXXXIV ff. The contention is that Schmitt drew on Morgenthau’s work to replace his substantivist conception of the “political” with a relational one, on which the “political” describes the “degree of intensity” ascribable to a relationship of association or dissociation. On Morgenthau’s conception, in other words, the “political” is not defined by any set content fixed once and for all but is rather understood as a quality that can apply to any object. And Schmitt, according to Morgenthau, used this conception to shape his own distinction between friend and enemy. Finally, Morgenthau stressed that the “political” is not insulated from a moral assessment of the aims built into it, and on this basis he faulted Schmitt for embracing a strictly instrumental conception of the political cleansed of any values (ibid., p. CXI). Koskenniemi, The Gentle Civilizer (n. 40), p. 464. Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 4th ed. (New York: Knopf, 1967; orig. pub. 1948), pp. 161ff. On political realism more broadly, see Pier Paolo Portinaro, Il realismo politico (Rome and Bari: Laterza, 1999).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

r e al ist p er sp e ct ive s

181

system as the seat of an uneven balance of power, and they denounced the risks of “discriminating wars” that distinguish belligerents on the basis of whether they are morally and legally legitimized in their warring. Beyond this common ground, however, they had different conceptions of law and its relation to power. Indeed, as Koskenniemi observes, whereas Schmitt saw “in law merely a ratification of the concrete order,”44 and hence of power relations, Morgenthau problematized this statement of fact by observing that “the very threat of a world where power reigns not only supreme, but also without rival, engenders that revolt against power which is as universal as the aspiration for power itself.” For this reason, that is, in order to “stave off this revolt, to pacify the resentment and opposition that arise when the drive for power is recognized for what it is, those who seek power employ [. . .] ideologies for the concealment of their aims.” These are “the ideologies of international politics,” designed to be “in harmony with the demands of reason, morality, and justice” that we see reflected “in the normative orders of morality, mores, and law.” Unlike Schmitt, then, Morgenthau is suggesting that, as much as the ideology of law and international power relations may have a mystifying purpose, its ultimate effect, and indeed its “main function” in shaping normative orders over the course of history, has been to constrain such “aspirations for power within socially tolerable bounds.”45 44 45

Koskenniemi, The Gentle Civilizer of Nations (n. 40), 464. Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace, brief ed., rev. Kenneth W. Thomson (New York: McGraw-Hill, 1993), chap. 14, p. 219.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:22, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.009

8 Order and Anarchy: The Grotian Tradition

Having discussed the realist approach to international law – and before that the normative one, rooted in Kantian cosmopolitanism, and here analyzed by looking at its development in Kelsen’s work – we can now turn to the third approach: the one we are referring to as Grotian. This is a current of thought that we will be examining primarily by drawing on the work of Hedley Bull. Bull’s discussion of Grotius will be analyzed here by focusing on four questions in particular: the methodological presuppositions of Grotius’s thought, the concept of an international society, the function of international law, and the West’s relation to other civilizations.

8.1 Law and Morals Let us start out with the methodological considerations. Bull is very careful to set Grotius’s work in its historical context, and in this he is methodologically quite close to authors like J. G. A. Pocock, Quentin Skinner, and Richard Tuck. But at the same time he is also interested in identifying those elements of Grotius’s thought that continue to be relevant to the theory of international law.1 Bull thus draws a clear distinction between that which belongs solely to the age of Grotius and that which can instead be retained in making of the current system of international relations. Essential to an understanding of the present, in Bull’s assessment, are the elements and criteria on which basis Grotius frames the idea of order and justice in the international society, while his normative conception of law 1

See Benedict Kingsbury, “Grotius, law and moral scepticism: Theory and practice in the thought of Hedley Bull,” in Ian Clark and Iver B. Neumann (eds.), Classical Theories of International Relations (Houndmills, UK: Macmillan, 1996), chap. 3, p. 45.

182

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

o rd e r an d a na rc hy : th e gr o tia n tr adi t i o n

183

and his rejection of moral skepticism reflect the historical context of the seventeenth century. In short, the Grotian tradition, according Bull, rests on three main pillars that consist in (i), as discussed in Chapter 2, identifying the unifying solidarist forces that act within the international system; (ii) expanding the scope of international law so as to include nonstate actors among the subjects it recognizes; and (iii) recognizing in war the claims of the parties who can legitimately assert a just cause of war. In recognizing this tradition, however, Bull also moved away from Grotius, rejecting his understanding of law and morality as forming a single system, when in fact, according to Bull, they belong in two separate spheres. Grotius set out his conception in response to the moral relativism and skeptical challenge of Michel de Montaigne and Pierre Charron. In framing this response, Grotius significantly embraced a secular approach to international law, but he did not venture so far as to recognize the moral pluralism this approach could have been understood to entail: in fact his universalist conception of natural law was specifically aimed at denying any form of relativism. For this reason Grotius cannot, in this respect, be considered a topical thinker, and this sets him apart from Montaigne and Charron, whose work still very much resonates with us to this day.2 In the prefatory discourse to the French translation of Pufendorf’s De iure naturae et gentium, Jean Barbeyrac assesses the significance of both Pufendorf and Grotius, stressing that their achievement consists in their having given birth to a science of morality.3 In this way, having set morality on a scientific foundation, they put us in a position to refute the skepticism 2

3

In this regard see the instructive Anna Maria Battista, Alle origini del pensiero politico libertino: Montaigne e Charron, rev. ed. (Milan: Giuffrè, 1989). This is the interpretation of Barbeyrac offered in Kingsbury, “Grotius, law and moral scepticism” (n. 1), p. 53. Specifically, Barbeyrac explains Grotius by having him say that in “a System of the Law of Nature, an Author ought [. . .] to begin with instructing his Reader in the Nature of moral Entities or Beings; in the Principles and different Qualities of humane Actions; and what it is that makes ’em imputable either as good or evil.” Jean Barbeyrac, “An historical and critical account of the science of morality” (trans. Thomas Carew), prefatory discourse to Samuel Pufendorf, Of the Law of Nature and Nations: Eight Books, trans. Basil Kennett, 4th ed. (London: Printed for J. Walthoe, R. Wilkin, J. and J. Bonwicke, S. Birt, T. Ward, and T. Osborne, 1729; 1st Latin ed. 1672), sec. XXXI, p. 84. However, Barbeyrac also qualifies his praise of Grotius by stating that “when he handles any Matter particularly, he does not always shew the Connection it has with its first principles” (ibid.). Not so Pufendorf, who “establishes, and distinctly explains the fundamental Maxims of the Law of Nature; and from thence deduces, by a Regular Train of Consequences, the principal Duties of Men and Subjects” (ibid.). For this reason, among others listed, Barbeyrac concludes in regard to Grotius that “his Work is very much inferior to that of Mr. Pufendorf” (ibid.; italics in original).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

184

interna tional l aw and wester n civ ilizati on

of Montaigne and Charron. The skeptical argument essentially consisted in reasoning from the premise that there is no shared system of moral beliefs to the conclusion that there is no universal morality, or at least none that can be identified. Grotius took the opposite view, proposing to identify a universal natural law based on principles expressing an international morality. This is precisely the attempt that Bull views as belonging to a historical past, arguing that while there certainly exists an international society of states, its foundation lies not in a universal system of ethical norms, as Grotius thought, but in consensus. Bull thus developed the idea of an international society understood as a pluralist but not yet solidarist society, taking caution not to paint solidarism as anything more than an idea to aspire to in the future. In short, the international society of states, on his conception, forms a pluralist system held together by a minimal solidarism.4 Let us now delve deeper into Bull’s treatment of these questions in his main work, The Anarchical Society.

8.2 The International Society In The Anarchical Society Bull offers a clear statement of his position by explicitly referring to Martin Wight’s distinction among three traditions in the interpretation of international politics. Wight identifies a Hobbesian, or realist, tradition; a Kantian, or universalist, one; and a Grotian, or internationalist, one.5 Bull subscribes to the Grotian tradition, which he distinguishes from the Hobbesian one by noting that “the Grotians contend that states are not engaged in simple struggle, like gladiators in an arena, but are limited in their conflicts with one another by common rules and institutions.”6 In embracing this idea of a limit on what states can do, however, Bull also steers clear of the Kantian tradition, which on the one hand similarly envisions “moral imperatives in the field of international relations limiting the action of states” but, on the other, also comes with the view “that 4 5

6

Kingsbury, “Grotius, law and moral scepticism” (n. 1), p. 55. Martin Wight, “Western values in international relations,” in Herbert Butterfield and Martin Wight (eds.), Diplomatic Investigations: Essays in the Theory of International Politics (London: George Allen & Unwin, 1966), pp. 89–131. On Wight’s work, see the careful analysis in Michele Chiaruzzi, Politica di potenza nell’età del Leviatano (Bologna: il Mulino, 2008). Hedley Bull, The Anarchical Society: A Study of Order in World Politics, 3rd ed. (Basingstoke, UK: Palgrave, 2002; 1st ed. 1977), chap. 2, p. 25.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

o rd e r an d a na rc hy : th e gr o tia n tr adi t i o n

185

these imperatives enjoin not coexistence and cooperation among states but rather the overthrow of the system of states and its replacement by a cosmopolitan society.”7 This stands in contrast to the Grotian tradition, which accepts “the Hobbesian premise that sovereigns or states are the principal realities in international politics.” So, in continuity with the Grotian and the Hobbesian tradition alike, Bull takes it as given that the international system essentially exists as a plurality of states, but “coexistence and cooperation among states” is not rooted in any set of moral or legal imperatives, as Kant and Grotius would have it, but is rather functional to their trade relations. In this lies the international society: it is commerce that, on Bull’s conception, essentially gives shape to and grounds what solidarist relations there may be among states. Reasoning within this framework, Bull observes that the constitutive elements of the international society have never ceased to be. Which is to say that, in one form or another, solidarist forces have been in continuous operation even in the critical junctures in the history of the states-system: there was transnational solidarity among Protestant parties during the religious wars up to the Peace of Westphalia, among republicans who supported the French Revolution, and among the Communist Internationals. In outlining the contemporary phase, Bull looks at both its institutions and its ideology. As concerns the institutional makeup in the contemporary international landscape, he observes that the system includes not only states but also international organizations and even individuals. As concerns the underlying ideology, he takes issue with the tendency to discount “the evidence of cooperation in the actual behaviour of states” so as to rest the international society “on principles purporting to show how they should behave.”8 This emphasis on principles, like those enshrined in the United Nations Charter, engendered an approach to international relations that sought to replace diplomacy and the statessystem with international administration, especially in the wake of World War I. This approach was sometimes explicitly articulated, as in the case of the “Wilsonian rejection of the balance of power,” and it also brought back “the tendency that prevailed in the Grotian era to confuse international law with international morality.”9 7 8 9

Ibid. Ibid., p. 38; italics added. Ibid.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

186

international l aw and western civ ilizati on

Finally, Bull clear-sightedly singles out the constitutive elements of the international society of the twentieth century. These are the elements that distinguish the three previously mentioned traditions. Thus we have the element of war, marking out the Hobbesian tradition; the attempts made at establishing an international cosmopolitan organization, as called for in the Kantian tradition; and finally the cooperation among states that belongs to the Grotian tradition. It is the solidarist drive that seems dominant to Bull, who underscores the economic interdependence among states that holds them together even without a universal government.10 This combination of elements makes for a system of international anarchy, to be sure, but it does not exclude solidarist and cooperative arrangements among states. In this way – and this is a significant conclusion that Bull arrives at – we can appreciate that neither the League of Nations nor its successor, the United Nations, have ever been central players of international politics: as Bull repeatedly underscores, it is instead the state that plays a central role, for we are essentially looking at the persistence of the states-system. Not long after The Anarchical Society came out, Bull forcefully defended this role of the state against those who argued that the development of transnational relations had deprived interstate politics of its autonomy.11 Quite to the contrary, he observed, there was a trend toward a growing role of the state in regulating and sustaining commerce, controlling migratory flows, funding science, and promoting culture – a trend that ultimately led to the demise of transnational relations.12 10 11

12

Ibid., p. 46. Bull was mainly referring to Robert O. Keohane and Joseph S. Nye, Jr. (eds.), Transnational Relations and World Politics (Cambridge, MA: Harvard University Press, 1973), where it was observed that the study of international politics was mostly concerned with relations among states, and the argument was made that a different approach was needed, highlighting the role that intersocietal interactions played in shaping international affairs, as well as the role of transnational actors such as the Arabian-American Oil Company and other nonstate entities (ibid., p. x). In stressing transnational relations – consisting of cross-border contacts, transgovernmental coalitions, and interactions among entities whose activity is not subject to government control – Keohane and Nye looked in particular at transnational phenomena that included “multinational business enterprises and revolutionary movements; trade unions and scientific networks; international air transport cartels and communications activities in outer space” (ibid., p. xi). It was in opposition to this approach that Bull asserted his state-centric conception of international relations. Hedley Bull, “The state’s positive role in world affairs,” Dædalus, 108, no. 4 (1979), 111–23.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

or der and a n arc hy : the gr otia n tr adit ion

187

Even the birth of regional unions, such as the European Economic Community, had not, in his judgment, called the sovereignty of states into question. What Bull saw shaping up in the 1970s was the European continent moving toward a United States of Europe, but in his eyes this project only served as more evidence that his state-centric analysis was well grounded, or at least that the state’s role was in no way diminished. Finally, Bull noted that even Third World countries, no longer under colonial domination, looked to the sovereignty of the state as key to the protection they needed from Western hegemony: “The barriers of state sovereignty that are to be swept away, they suspect, are the barriers that they, the weaker countries, have set up against Western penetration.”13 In short, the essential outcome of the states-system lies in its having helped to create a “minimum world order,”14 an order that has translated into a set of shared rules of conduct: the rules of international law, of 13 14

Ibid., p. 120. Ibid., p. 119. This is certainly one of Bull’s most significant insights – the observation that there can be a world order even without a central government, or that states can cooperate without having to rely on a central authority. Proceeding from this observation, Bull approached interstate relations in such a way as to move beyond the traditional dichotomies between hegemony and conflict and between hierarchical centralization and anarchy, and this is also the approach behind the idea of “international regimes” developed by authors like Robert O. Keohane, Joseph S. Nye, and Stephen D. Krasner. Thus in Power and Interdependence: World Politics in Transition (Boston: Little, Brown and Company, 1977), Keohane and Nye “refer to the sets of governing arrangements that affect relationships of interdependence as international regimes” (p. 19), while describing international regimes as “intermediate factors between the power structure of an international system and the political and economic bargaining that takes place within it” (p. 21). Such, for example, was the agreement on the Bretton Woods system in 1944. In very much the same way, Krasner defines international regimes as “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations.” And he goes on to clarify that “principles are beliefs of fact, causation, and rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision-making procedures are prevailing practices for making an implementing collective choice.” Stephen D. Krasner, “Structural causes and regime consequences: regimes as intervening variables,” in International Regimes (Ithaca, NY: Cornell University Press, 1984), p. 2. On this approach to interstate relations, see Danilo Zolo, Cosmopolis: La prospettiva del governo mondiale (Milan: Feltrinelli, 1995), pp. 129 ff. While Bull used a different terminology, the conception he developed was essentially the same, highlighting the role that rules and institutions play in maintaining the structure of the international society, where rules are understood as “general imperative principles which require or authorise prescribed classes of persons or groups to behave in prescribed ways.” Bull, The Anarchical Society (n. 6), chap. 3, p. 52. However, in making the point that no order could be maintained in world politics without a foundation of rules, principles, and procedures, the greater emphasis in Bull’s discussion always falls on the role played by the state.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

188

i n t e r n at i o n al l aw an d wes tern c ivilization

diplomacy, and of war. However, even as Bull defended a state-centric conception, he progressively developed a keen awareness of the elements that would contribute to transforming the states-system in significant ways.

8.3 The Nature of International Law Bull’s analysis of international law follows from the picture he paints of the “international society.” He initially worked in a theoretical tradition that traces back to the work of John Austin. Austin equated law with the commands issued by a sovereign, and reasoned that since there are no sovereigns in the international society, international law is not strictly law but only “positive international morality.”15 In Bull’s judgment, this is a view that even Kelsen embraced in making the observation that sanctions in the international society are not applied by any central authority but only by its individual members. But here Bull took the opportunity to argue against Kelsen’s claim that when an international matter comes up, a consensus can be reached on who the transgressor is and who instead is to be recognized as standing with the international community.16 In an anarchical society – in which solidarist and cooperative relations can form even without a supra-state authority – the “importance of international law does not rest on the willingness of states to abide by its principles to the detriment of their interests, but in the fact that they so often judge it in their interests to conform to it.”17 What can be extracted from this observation is the instrumental nature of international law, or even its irrelevance, considering that history gives us examples of societies, such as the Greek city-states, not governed by any international law. Stated otherwise: international law cannot set forth the governing criteria of the international society unless the latter is already existent. Only on this condition can international law perform its essential function of making for consensus about the rules of the international society. 15

16

17

John Austin, The Province of Jurisprudence Determined (London: John Murray, 1832), lecture VI, p. 221. Here Bull was taking aim at Kelsen’s well-known distinction between war as “delict” and war as “sanction.” But in fact Bull’s criticism was wide of the mark, considering that, in making this distinction, Kelsen was referring to international law in a future scenario within the hypothetical Kantian framework of a world federal state. Bull, The Anarchical Society (n. 6), chap. 6, p. 134.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

order and anarchy: the grotian tradition

189

Reasoning from these premises Bull singles out some significant transformations in international law. In the first place, international law has become an object of concern from an increasing range of perspectives: some of them economic (as evidenced, for example, by the activities of the World Bank and the United Nation’s Food and Agriculture Organization), others social, environmental, and so on. In the second place, international law has transitioned from a law of coexistence to one of cooperation.18 And in the third place is the recognition of human rights in international law. This last development – the birth of an international human rights law – is assessed by Bull to be highly disruptive, for it runs contrary to the principle that humanity needs to be organized as a society of sovereign states and it seems to herald the advent of a cosmopolitan society. Although Bull withholds judgment on this development, not signaling whether he takes it to be desirable or undesirable, he does underscore what in his view is its highly destabilizing potential, commenting that “the international discussion of human rights and duties in international law is more a symptom of disorder than of order.”19 In The Anarchical Society Bull also identifies a fourth transformation of international law, one that runs deep but which he does not develop fully. He observes that international law originated under the unitary system of Western Christendom: central to this system was the idea of law itself, supported by the consensus afforded by its Christian underpinnings. But now we are at a place where this “area of consensus in international society has shrunk as the consequence of the ideological split between communist and non-communist states, and as a consequence of the expansion of international society beyond its originally European or Western base.”20 Consensus was the original basis of order in the international system, and yet the system survives without that basis. So, to the extent that international law may “have brought about any strengthening of the element of order in international society,” this is not where its real achievement lies: it lies instead in its having “helped to preserve the existing framework of international order in a period in which it has been subject to especially heavy stress.” This is evidenced “above all by the great world conventions on the law of the sea, diplomatic and consular relations, and the law of treaties,” providing “some elements 18

19 20

In highlighting this shift, Bull draws on the work of Wolfgang Friedmann, The Changing Structure of International Law (London: Stevens & Sons, 1964), chap. 6, p. 141. Bull, The Anarchical Society (n. 6), chap. 6, p. 147. Ibid., p. 154.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

190

international law and western civilization

of a common framework,” or “some common terms of international law” that “states both within and beyond the European cultural tradition”21 have adhered to. This has resulted in an international society whose membership is by and large non-European, and the consequence we are to draw from this outcome is that we must reject “the doctrine that this society rests upon a specific culture or civilisation.”22 These sources of tension and conflict Bull increasingly brings into focus in his later work.

8.4 The Revolt against the West In the preface to the seminal collective work The Expansion of International Society, Hedley Bull and Adam Watson explained that it was their aim to analyze the formation of the contemporary international system, and they organized this analysis under four main headings: (i) the expansion of international European society; (ii) the entry of nonEuropean states into this society; (iii) the revolt against the international European order; and (iv) the characteristics of the new world society of states.23 One of the essays that Bull contributed to this work is titled “The revolt against the West,” and with striking prescience it describes the transformations of international relations and of the role of international law. These transformations take place in five phases that Bull clearly identifies. The first phase saw the struggle of non-Western states to assert their sovereignty. This meant that they needed to wrest themselves from the West’s hegemony, which consisted in the West exercising extraterritorial jurisdiction over the non-European world. The first of the states to achieve this was Japan, gaining full sovereignty in the end of the nineteenth century, followed by Turkey, Egypt, and China. The second phase consisted in the outbreak of anti-colonial conflict, first in Asia, in the 1940s and 1950s, and then in Africa, in the 1960s and 1970s.24 The third phase was that of the fight for racial equality against the alleged superiority of the white race. Here Bull goes back to the 21 22 23

24

Ibid. Ibid., chap. 2, p. 37. Hedley Bull and Adam Watson (eds.), The Expansion of International Society (Oxford: Clarendon Press, 1984), Preface, p. v. Bull, “The revolt against the West,” in Bull and Watson, The Expansion of International Society (n. 23), p. 220.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

order and ana rc hy : the gro tian tr adit ion

191

eighteenth-century declarations of rights and points out the nineteenthcentury abolition of slavery. From the standpoint of interstate relations, this phase was marked by the Bandung Conference of 1955,25 and the proclamation of important international documents, like the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. The fourth moment, also of great significance, was that of the struggles for economic justice against all forms of economic exploitation. In this connection Bull points out Article 1 of the 1966 International Covenant on Civil and Political Rights: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Then, in 1986, the General Assembly of the United Nations formally adopted the “Declaration on the Right to Development.”26 This was preceded, in the 1970s, by strategies whose ostensible purpose was to favor the development of so-called underdeveloped peoples. As we will see, however, these were essentially projects that in new forms – that is, on the basis of the new discourse of development – once more enabled the West to exert dominance. With the 1973 oil crisis and the move of Third World countries toward extremism, there emerged a new sense that in order to address the problem of the “underdeveloped” countries it was necessary to heed the claims that were being made for greater equality in the distribution of wealth. In May 1974, the UN General Assembly adopted the “Declaration on the Establishment of a New International Economic Order.” This new international order – envisaged to “be one of the most important bases of economic relations between all peoples and all nations”27 – rested on a few fundamental principles. Significant among these were (i) the sovereign equality of states (para. 4(a)); (ii) the “right of every country 25

26

27

See Luis Eslava, Michael Fakhri, and Vasuki Nesiah (eds.), Bandung, Global History, and International Law: Critical Pasts and Pending Futures (Cambridge: Cambridge University Press, 2017). UN General Assembly, 41st Session, Official Records, Supplement 53, “Declaration on the Right to Development,” UN Doc. A/RES/41/128 (4 Dec. 1986). Article 1 of this declaration states that the “right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.” UN General Assembly, 6th Special Session, Official Records, Supplement 1, “Declaration on the Establishment of a New International Economic Order,” UN Doc. A/RES/3201 (S-VI) (1 May 1974), para. 7.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

192

i n t e r n at i o n al l aw an d wes tern c ivilization

to adopt the economic and social system that it deems the most appropriate for its own development” (para. 4(d)); (iii) the “regulation and supervision of the activities of transnational corporations” (para. 4(g)); (iv) a “just and equitable relationship between the prices of raw materials, primary commodities, manufactured and semi-manufactured goods exported by developing countries and the prices of raw materials, primary commodities, manufactures, capital goods and equipment imported by them” (para. 4(j)); (v) “securing favourable conditions for the transfer of financial resources to developing countries” (para. 4(o)); and (vi) “the need for all States to put an end to the waste of natural resources” (para. 4(q)).28 These principles for a new international economic order subsequently found further support when, in December of the same year, the UN General Assembly adopted the Charter of Economic Rights and Duties of States.29 This charter set out the legal rights and duties of states necessary to give life to a new international economic order. Some of its provisions reflect the historical tensions witnessed during decolonization.30 Some deny states the right “to promote or encourage investments that may constitute an obstacle to the liberation of a territory occupied by force” (Art. 16(2)). Some declare that all states “should facilitate the access of developing countries to the achievements of modern science and technology” (Art. 13(2)). And some, finally, set standards that savor of the utopian even to this day, a case in point being the right of states to “regulate and supervise the activities of transnational corporations” 28

29

30

On the idea behind the 1974 declaration, see Mohammed Bedjaoui, Towards a New International Economic Order (New York and London: Holmes & Meier Publishers, 1979), written at the invitation of UNESCO. Its author was the Algerian ambassador in Paris, a member of the United Nations Law Commission, and associate of the International Law Institute, and in it he underscored the birth of a “multipolar world” based on “an ‘international right of participation,’ i.e. participation by all States in the formulation and application of the rules governing the relations between them” (ibid., p. 12). This is set in contrast to the “bipolar or oligarchic world,” which “relies on an ‘international right of confiscation’” (ibid.), and the effort of Third World countries in making this transition will accordingly be “to protect their newly-won independence and sovereignty in the precarious circumstances of the present system of international relations” (ibid.). As we will see, however, the Western countries have since evolved a new paradigm based on a postcolonial ideology by which to limit and even counteract the claims advanced by Third World countries. UN General Assembly, 29th Session, Official Records, Supplement 31, UN Doc. A/RES/ 3281 (XXIX) (12 Dec. 1974). Thus Article 16(1) states: “It is the right and the duty of all States, individually and collectively, to eliminate colonialism, apartheid, racial discrimination, neo-colonialism [. . .].”

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

or der and a n arc hy : the gr otia n tr adit ion

193

(Art. 2(2)) – an objective that cannot possibly be achieved in the present era of ever-growing globalization. Finally, the struggle for economic justice was followed by a fifth phase, in which Third World countries sought to reclaim their cultural identity. Here Bull with keen foresight recognized the cultural clash that was shaping up between the West and non-Western peoples, specifically underscoring the role of Islamic fundamentalism, as well as Hindu and Sikh traditionalism in India, among other indigenous cultures. He frames a crucial question by asking whether the revolt against the West came in reaction to Western dominance, but invoking values that are themselves Western, or whether it was “a revolt against Western values as such.”31 Bull answers this question by observing, correctly, that the newfound awareness of Third World peoples was initially based on Western values (like those underpinning the 1948 Universal Declaration of Human Rights), but that these peoples subsequently came up with their own declarations of values, sometimes framed in open opposition to Western values, a notable example being the Islamic declarations of human rights. Indeed, the Third World countries’ endeavor to defend their economic interests took the form of struggles to reclaim their traditions and cultural identities, as has happened, and continues to happen, with the indigenous peoples of South America. What this development underscores is, for one thing, a need to take a relativist approach to the proclamations of the rights of individuals and of peoples issued in the wake of World War II and, in parallel, a need to appreciate that the movements of Third World peoples have helped to call into question the principles of international law that had been instrumental in legitimizing these people’s own submission to Western powers.32

8.5 Grotian Realism, Cosmopolitanism, and Human Rights We have seen that in outlining a “cooperative” vision of international society, Bull takes into account the cultural factors that must inevitably be reckoned with in thinking about this society as not just an extension of European power. Even so, these factors intrude on that vision with disruptive force, perhaps no more so than the values embodied in human rights. Indeed, there are different ways of interpreting these 31 32

Bull, “The revolt against the West” (n. 24), p. 223. Ibid., p. 227.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

194

i nternational l aw and western civi lizatio n

values, and these interpretations can drive deep contradictions into the international society of states. In an essay titled “Human Rights and World Politics,” Bull sets human rights in the historical context of the developing international society, using World War I as a watershed moment. He observes that in the period from Vattel to World War I, the international society only recognized states as its “immediate members”: “individual persons and groups other than states participated in it only indirectly, through the relationship in which they stood to states,”33 and this made for an environment in which “the very idea of human or natural rights [. . .] is potentially disruptive.” More than that, as Bull also observes, in the nineteenth century and the first half of the twentieth century it was customary for states to appeal to a right of humanitarian intervention: they would do so acting on the authority of Grotius and the other natural lawyers who were writing before the states-system was fully formed, and even though this “right was treated as part of positive international law by many European and American authorities,” the practical purpose it served was to legitimize the hegemonic interventions of the Western powers. Bull points out its use by Britain, France, and Russia when in 1827 they backed the Greek insurrection in Turkey; by France when in 1860 she intervened in Syria on behalf of the Maronite Christians with the authorization of Turkey and the European Concert; and by the United States in its support of Cuba in the Spanish-American War of 1898. In short, as Bull puts it: “The promotion of human rights was [. . .] a cardinal justification of European expansion and imperial government.” After World War I, the international human rights landscape seems to change: with the League of Nations and then the United Nations, “there has been a great development of general treaties, declarations or resolutions of international bodies and adjudications that set standards of human rights in international law,”34 making for an environment “at first sight much less inhospitable to recognition and protection of human rights.” However, this should not be taken to suggest that we are moving toward a “world society or community that is replacing the society of states,” or that we are making the transition “from international law to world law.” 33

34

Hedley Bull, “Human rights and world politics,” in Ralph Pettman (ed.), Moral Claims in World Affairs (London: Croom Helm, 1979), p. 82; p. 83 for all subsequent quotations in this paragraph. Ibid., p. 84; pp. 84–85 for all subsequent quotations in this paragraph and the following.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

or der and a n arc hy : the gr otia n tr adit ion

195

Bull does not understand this to be possible. Indeed, for one thing, “the declarations and resolutions in which standards of human rights are proclaimed”35 lack “effective procedures for implementation and enforcement.” And, for another thing, because international human rights standards “rest chiefly on treaties entered into by sovereign states,” any claims we may want to make that these standards “express not the consent of states, but ‘the general will of the world community,’ are an aspiration rather than a description of actual trends.” Hence Bull’s conclusion about international human rights law, or what he called cosmopolitical law: “In a society of states, as Kant argued in Perpetual Peace, cosmopolitical law can find only a limited expression.” This is not the only place where Bull moves away from a cosmopolitical conception. In The Anarchical Society, he takes issue with the “radical salvationist model” which he terms “global centralism”: the model is centralist in that it seeks the “maximum centralized direction that can be achieved, given that the states system continues”; it is “salvationist” in that this centralized direction is meant to express “not simply the common interests of the great powers, but a sense of the overriding common interests of all mankind.”36 This view he takes is paradigmatically exemplified in the work of Richard Falk, who “advocates a political structure whose elements are a strengthening of existing central institutions, such as the United Nations and the International Court of Justice; the development of the United Nations specialised agencies [. . .]; informal patterns of co-operation among ‘principal world actors,’ consisting of the five most populous states, together with representatives of regional, cultural and ethnic groupings”; and other elements tending “towards the central organization of world affairs” and “a more cosmopolitan way of perceiving the world.”37 Bull offers two basic criticisms of Falk’s model: for one thing, it neglects to take account of the concrete demands made by Third World countries; and, for another, it is premised on distinctly Western values (dignity, human rights, and so on). In reality, Falk’s conception cannot be characterized as cosmopolitan. Indeed, as we saw when we analyzed Kant, and as we will see later, 35 36 37

Ibid., p. 85 (applies to entire paragraph). Bull, The Anarchical Society (n. 6), chap. 13, pp. 290–91. Bull is specifically referring to Richard A. Falk, This Endangered Planet: Prospects and Proposals for Human Survival (New York: Random House, 1971), chap. VII, “Designing a new world-order system,” pp. 285–352; see esp. pp. 314 ff. In this regard, see the accurate analysis offered in Zolo, Cosmopolis (n. 14), pp. 53 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

196

international l aw and western civili za tio n

cosmopolitanism is not inconsistent with a realist approach that proposes to solve the problem of the international polity by envisioning an intermediate phase in which sovereign states work out forms of cooperation and alliance rather than going for a centralized world government. In several respects this strategy of an intermediate phase of cosmopolitanism can be seen to overlap with Bull’s own conception. Let us close this discussion by taking up Bull’s considerations relating to the future of the international society of states, for even though these are considerations he made in the 1970s, they are still very much relevant to us today. In his assessment, the post–World War II “society of states [. . .] with its uncertain foundation shows more signs of disintegration than of increasing integration.” As evidence of this disintegration he points to the “present contention about human rights,” as well as to the demands made by Third World countries. Indeed, while the Western constitutional tradition conceives human rights “principally in terms of the civil and political rights of individuals,” in the view of Third World countries “the human rights that are important are collective rights,”38 consisting in the rights “of subject peoples to be liberated from colonialism, subject states from neo-colonialism and subject races from white domination.”39 Thus, as Bull points out, “the rights of individuals receive no mention” in the 1974 Charter of Economic Rights and Duties of States, which rather envisions “a redistribution of wealth, and along with it a redistribution of power, as between rich states and poor,” and in which “the duties are imposed only upon the rich states and the rights conceded only to the poor.” Bull thus recognizes that “there is no foundation whatever” for human rights if these are understood as “rights established by some a priori moral rule that can be shown to be objectively valid.” In fact, “different societies and individuals lead different ways of life and have different histories”: it follows that “disagreement about moral values is a natural and inevitable feature of human life.”40 The point, then, is not just “that in China and Central Africa, in Pakistan and Saudi Arabia [. . .] human rights in the Western sense are not enjoyed”: we need to also appreciate “that these rights are not regarded as morally valid.”41 Furthermore, the disintegrating elements that Bull recognizes in the states-system lead him to doubt its viability as he looks out into the future 38 39 40 41

Bull, “Human rights and world politics” (n. 33), pp. 86 and 87, respectively; italics added. Ibid., p. 87 (for this and all subsequent quotations in this paragraph). Ibid., p. 89. Ibid., p. 90.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

o r d er an d a n a r c h y: t he gr o t i a n t r a d i t i o n

197

and considers the possibility of reforming it. Even in The Anarchical Society he observes that if the states-system is to survive, it must preserve the organization of the international society and its system of cooperative relations. But no such structure can be maintained without “a process of consensus,” and in order to achieve such consensus – despite the different, even conflicting values and interests of the countries that appear on the international scene – two conditions need to be met: “there must first be brought about a redistribution of wealth, amenities of life and power in favour of the states and peoples of the Third World,”42 and there must also be a system of regional federations “which occupy the middle ground between states on the one hand, and global organisations on the other,” and which “are chosen on the basis of geographical contiguity and complementarity of resources and economies.”43 Finally, Bull stresses the need to preserve and extend “a cosmopolitan culture, embracing both common ideas and common values,” listing this among the factors that will shape the future of the international society. To be sure, this cosmopolitan culture, built around a common stock of ideas and values, “is weighted in favour of the dominant cultures of the West.” But this should not be understood as a necessary or a desirable attribute of this culture, “engulfing cultural particularisms.” As Bull remarks: “Like the world international society, the cosmopolitan culture on which it depends may need to absorb non-Western elements to a much greater degree if it is to be genuinely universal and provide a foundation for a universal international society.”44 It can thus be concluded that Bull’s realist conception, conceived on a Grotian foundation, winds up embracing a cosmopolitan conception, for it calls on us to break out of the confines of the Western tradition in view of the need to recognize values rooted in non-Western cultures: only in this way is it possible to deal with the forces of division that have beset the states-system for centuries, and indeed from the outset. 42 43

44

Bull, The Anarchical Society (n. 6), chap. 13, p. 293. Ibid., pp. 294 and 296, respectively. In making these recommendations, Bull draws in particular on Rajni Kothari, Footsteps into the Future: Diagnosis of the Present World and a Design for an Alternative (New Delhi: Orient Longman, 1974), who “proposes a system of twenty to twenty-five regional federations” among which are the EEC; the Arab world; and east, west, and south Africa. Bull, The Anarchical Society (n. 6), chap. 13, p. 305.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:37:29, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.010

9 The Law of Peoples and International Law

9.1 The Law of Peoples According to John Rawls The law of peoples comprises the whole of the principles of (positive) international law. This distinction – between the law of peoples and international law, or the law of nations – was introduced by John Rawls in his 1993 article “The law of peoples” and then reprised in his 1999 book of the same title. That book proceeds from a liberal idea of justice, for it is Rawls’s belief that the evils by which humankind is afflicted can ultimately be traced to a nonliberal idea of justice that translates to political injustice in its application. Rawls attempts to solve this problem by taking up Kant’s idea of a fair international order capable of guaranteeing conditions of coexistence among peoples. Like Kant, however, Rawls points out that no such international order can exist absent a domestic legal system capable of securing the basic freedoms of citizens. A legal system of this kind describes a constitutional democracy capable of guaranteeing a pluralism of reasonable views. Rawls’s idea is to analogically extend this model to an international society of peoples. The idea of a fair society is described by Rawls in terms that have become familiar to us: it is a society of free and equal persons within a fair system of cooperation. Rawls explains that this model is to be extended not to states but to peoples, the reason being that peoples (as is certainly not the case with states) can be ascribed “moral motives.”1 This makes it possible to frame the law of peoples as “reasonably just.” And Rawls is 1

John Rawls, The Law of Peoples, with “The Idea of Public Reason Revisited” (Cambridge, MA: Harvard University Press, 1999), § 1.3, p. 17.

201

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

202

international l aw, is l am, and the t hird world

well aware that a law of peoples so conceived “is Utopian in that it uses political (moral) ideals, principles, and concepts to specify the reasonably right and just political and social arrangements for the Society of Peoples,”2 but at the same time he qualifies this conception as “realistically Utopian in that it depicts an achievable social world that combines political right and justice for all liberal and decent peoples in a Society of Peoples.”3 The basic idea, then, is to apply the principles of justice to a society of peoples, and this society will then look like a constitutional democracy: on the one hand this outcome is utopian, for it relies on the use of principles, but on the other hand it is realistic, for the extension (from the domestic sphere to the international) falls within “the limits of practicable political possibility and, in so doing, reconciles us to our political and social condition.”4 The conception expounded by Rawls is rooted in Kantian philosophy. Just as Kant identified the conditions for a perpetual peace in the establishment of republican forms of government, so Rawls argues that in order for a society of peoples to thrive, it must be a society of liberal peoples having “three basic features: a reasonably just constitutional democratic government that serves their fundamental interests; citizens united by what Mill called ‘common sympathies’; and finally, a moral nature” requiring “a firm attachment to a political (moral) conception of right and justice.”5 Then, too, Rawls’s choice to view international law as a law of peoples, rather than as one of states or nations, stems from his rereading of the concept of sovereignty. Indeed, a fundamental feature of sovereignty lies in “the right to go to war in pursuit of state policies”6 (ius ad bellum), but this no longer seems to describe a right of states. Ergo: “The war powers of governments [. . .] are only those acceptable within a reasonable Law of Peoples.”7 This means that “we must [. . .] deny to states the traditional 2 3 4 5 6 7

Ibid., pp. 17–18; Rawls’s italics. Ibid., Introduction, p. 6; italics added. Ibid., § 1.1, p. 11. Ibid., § 2.1, pp. 23–24. Ibid., § 2.2, p. 25. Ibid., p. 26; italics added. The reasonable is a concept that Rawls had previously described by stating that “persons are reasonable in one basic respect when [. . .] they are ready to propose principles and standards as fair terms of cooperation and to abide by them willingly, given the assurance that others will likewise do so.” So understood, he goes on to specify, the “reasonable is an element in the idea of society as a fair system of cooperation and that its fair terms be reasonable for all to accept is part of its idea of reciprocity.” John Rawls, Political Liberalism, expanded ed. (New York: Columbia University Press, 2005; 1st ed. 1993), lecture II, § 1, pp. 49–50.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

the l aw of peoples a nd international l aw

203

rights to war and to unrestricted internal autonomy.” As Rawls points out, this imperative is consistent with a “dramatic shift” toward a stricter international law since World War II, which now “tends to limit a state’s right to wage war to instances of self-defense.”8 In other words, by framing the problem of international law from the perspective of its peoples, rather than from that of states, we underscore their moral nature, and specifically their capacity to engage in a reasonably just manner with others. This describes liberal peoples, as well as what Rawls calls “decent” peoples,9 and what distinguishes them is that they are not just rational, exclusively focused on the pursuit of their own interests, but also reasonably just, meaning that they are willing to do their part in creating and supporting a system of fair cooperation, provided that others do as well. This system consists in a reasonably just law of peoples, and in giving an account of it, Rawls first builds an ideal theory – extending the social contract idea to a society of peoples – and then turns to nonideal theory, looking at the conditions under which a reasonable law of peoples comes under stress. In the ideal theory, Rawls describes a reasonably just society of peoples as a liberal society, one inhabited by rational and reasonable persons whose conceptions of the good – their comprehensive doctrines – are accordingly reasonable. This means that their transcendent values do not override the “political values of a constitutional democratic society,”10 and so they can give rise to what Rawls has famously termed an “overlapping consensus” of such doctrines. This consensus is only possible once it is recognized that “a liberal society with a constitutional regime does not [itself], as a liberal society, have a comprehensive conception of the good.”11 Stated otherwise, the consensus is grounded in a political conception of justice – a conception that, unlike the comprehensive doctrines that people as moral agents may well espouse in fleshing out a full-fledged, all-encompassing conception of the good, is built within the framework of public reason, meaning that it proceeds from principles, guidelines, and “values that 8 9

10

11

Rawls, The Law of Peoples (n. 1), § 2.2, pp. 26–27. These are peoples “whose basic institutions meet certain specified conditions of political right and justice,” among which is the right of citizens to participate in the political decision-making process (ibid., Introduction, § 1, p. 3, n. 2). John Rawls, “The idea of public reason revisited,” in The Law of Peoples (n. 1), § 6.3, p. 173. Rawls, The Law of Peoples (n. 1), § 3.2, p. 34; Rawls’s italics.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

204

international l aw, is l am, and the t hi rd world

others, as free and equal citizens, might also reasonably be expected reasonably to endorse.”12 In the sphere of international relations, peoples are characterized by Rawls as moved by a range of interests. Thus “they strive to protect their political independence and their free culture with its civil liberties, to guarantee their security, territory, and the well-being of their citizens.”13 But these interests also significantly include “a people’s proper selfrespect of themselves as a people.” This is “altogether distinct from their self-concern for their security and the safety of their territory,” for here we have a commitment to a “criterion of reciprocity” in virtue of which peoples recognize one another as equals:14 it is this criterion of reciprocity that grounds the principles of the law of peoples. Prominent among these principles are the freedom and independence of peoples, their right of self-defense, and “a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime.”15 On these bases the ideal theory rests the idea of an international stability “for the right reasons,” as distinguished from “stability as 12

13

14

15

Rawls, “The idea of public reason revisited,” in The Law of Peoples (n. 1), § 2.1, p. 140. According to the political conception of justice specifically advanced by Rawls – called justice as fairness – these principles and guidelines are identified through an original position that models our conception of ourselves as free and equal persons (rational and reasonable) and of society as a fair scheme of cooperation among such persons, to which end, in designing and agreeing to such a scheme, we are asked to reason from behind a veil of ignorance that prevents us from promoting our own interests at the expense of the well-being and moral powers of others. But there is actually understood to be a whole family of such conceptions: what they all have in common is a criterion of reciprocity (ibid., p. 141) that governs the proffering of reasons for accepting fair terms of cooperation; so, too, these conceptions should all include “a list of certain basic rights, liberties, and opportunities (such as those familiar from constitutional regimes),” as well as “measures ensuring for all citizens adequate all-purpose means to make effective use of their freedoms” (here Rawls points us to Political Liberalism (n. 7), lecture I, § 1.2, p. 6, and lecture IV, § 5.3, pp. 156–57), and in so doing the same conceptions should accordingly also specify “substantive ideas of fairness involving fair opportunity.” Rawls, “The idea of public reason revisited,” in The Law of Peoples (n. 1), § 2.1, p. 141. Rawls, The Law of Peoples (n. 1), § 3.3, p. 34; all subsequent quotations in this paragraph are from pp. 34–35. As Rawls puts it: “What distinguishes peoples from states – and this is crucial – is that just peoples are fully prepared to grant the very same proper respect and recognition to other peoples as equals.” For a similar set of principles, Rawls points us to J. L. Brierly, The Law of Nations: An Introduction to the Law of Peace, ed. Humphrey Waldock, 6th ed. (Oxford: Clarendon Press, 1963).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

the l aw of peoples a nd international l aw

205

a balance of forces,” while also offering “a reply to political realism as a theory of international politics.”16 To this end Rawls introduces the idea of liberal democratic peace.17 This is the idea behind the just-mentioned stability for the right reasons: at its core lies another previously mentioned idea, namely, that “the interests which move peoples (and which distinguish them from states) are reasonable interests guided by and congruent with a fair equality and a due respect for all peoples.”18 Without this moral nature of peoples, the best that could be achieved among them would be “a modus vivendi, a stable balance of forces only for the time being,” subject to the twists and turns of the struggle for power and wealth. But this idea of stability for the right reasons secured by a liberal democratic peace grounded in the moral power of peoples to pursue reasonable interests consistent with a recognition that all peoples stand on an equal footing, that is, consistent with justice, does not simply rest on the assertion that peoples are reasonable to begin with, nor is such reasonableness simply posited as a condition that must be met in order for a people to be accepted into the society of nations, for that would not answer the realist objection: the argument for stability takes account of the “moral learning” of citizens, that is, of the “psychology of learning” in virtue of which citizens can “acquire a sense of justice” over time in the context of “political and social institutions” which can “be revised and reformed for the purpose of making peoples happier and more satisfied,” and which can similarly be used as tools with which to establish a balance of interests among peoples.

9.2 Nonliberal Peoples From the outset, Rawls explains that the society of peoples he envisions contains “both liberal and nonliberal (but decent) societies” coexisting under the constraints of public reason.19 The law of peoples he frames is therefore also intended to apply to nonliberal peoples, and so the problem arises as to whether they ought to be tolerated. Rawls argues that they should, so long as their “basic institutions meet certain specified conditions of political right and justice (including the right of citizens to play a substantial role, say through associations and groups, in making 16 17 18 19

Rawls, The Law of Peoples (n. 1), § 5.1, p. 44. Ibid., § 5, pp. 44 ff. Ibid., pp. 44–45; all subsequent quotations in this paragraph are from pp. 45–46. Ibid., Preface, p. vi.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

206

i n t e r n a t i o n a l l a w , is l a m , an d t h e t h i r d w o r l d

political decisions) and lead their citizens to honor a reasonably just law for the Society of Peoples.”20 That is how Rawls describes the idea of decent in what he calls “decent hierarchical peoples,” so called because (as the description suggests) they have a “decent consultation hierarchy.”21 Now, among these peoples, we ought certainly to include nonfundamentalist Islamic societies, for even though their polity is based on a state religion, it is consistent with freedom of thought and conscience and recognizes the freedom to express one’s political dissent. What this means, in Rawls’s assessment, is that basic human rights in these societies are respected.22 Having discussed human rights under the institutions of “decent hierarchical peoples,” Rawls turns to their role in the law of peoples. Here human rights serve an irreplaceable function, for they act as a limit on the legitimate causes of war, on the principle that war is just only when entered into in self-defense or to address grave violations of human rights.23 In this latter case, however – as history shows, and as can be appreciated from the entire tradition from Vitoria to Grotius – human rights can be invoked in the service of expansionistic or neocolonial policies, and this fact calls for a clearer statement of such rights. Rawls notes that human rights need to be distinguished from constitutional rights (those enshrined in constitutions), as well as “from the rights of liberal democratic citizenship” (civil and political rights).24 This suggests that human rights are essentially understood by him as suprastate rights. Indeed, he highlights the special role that human rights play in the law of peoples, pointing out that, historically, they reflect the effort to limit the state’s sovereign powers in the wake of World War II, not only externally, where human rights “restrict the justifying reasons for war and its conduct,” but also internally. In this second regard, human rights are qualified by him as a benchmark “for the decency of domestic political and social institutions. In doing so they limit admissible domestic law of societies in good standing in a reasonably just Society of 20 21

22 23 24

Ibid., Introduction, p. 3. Ibid., p. 4, where Rawls also notes: “Other possible kinds of decent peoples I do not try to describe, but simply leave in reserve, allowing that there may be other decent peoples whose basic structure does not fit my description of a consultation hierarchy, but who are worthy of membership in a Society of Peoples.” Cf. § 8.1, p. 63. Ibid., §§ 8–10. Ibid., § 10.2, p. 79; cf. § 4.2, p. 37, and § 5.3, p. 49. Ibid., § 10.2, p. 79; all subsequent quotations in this paragraph are from pp. 79–80.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

t h e l a w o f p eo pl e s a n d i n te r na ti o na l l aw

207

Peoples.” This society, in other words, is one whose members are recognized as protecting human rights domestically, and the effect of this human rights standard internationally is to shape the law of peoples in such a way as to (a) rule out the ability to intervene in the affairs of foreign peoples by recourse to diplomatic, economic, or military means and (b) place boundaries around “the pluralism among peoples.”25 As can be appreciated from these remarks, human rights are central to Rawls’s construction of a law of peoples. And, after all, it has been commented that in the principle of respect for human rights – in combination with other principles, such as self-defense and the duty to honor treaties – lies the moral kernel of international law.26 But there are other moral traditions that have set out moral criteria for the conduct of international affairs.27 One familiar example is the natural law tradition of the Catholic Church. Another is the Islamic tradition, with its elaborate moral conception of mutual agreement among peoples, both inside and outside the Muslim community.28 As Nardin comments, we may not be able to identify a single foundation common to all such moral conceptions, but we can set out a common international morality.29 However, it is only by engaging

25

26

27 28

29

In making this latter point, Rawls references David Luban’s statement that “if human rights exist at all, they set a limit to pluralism.” David Luban, “The romance of the nation-state,” Philosophy & Public Affairs, 9, no. 4 (1980), 392–97, at 396. See Terry Nardin, Law, Morality, and the Relations of States (Princeton, NJ: Princeton University Press, 1983), p. 233. Ibid., p. 241. See Elie Kedourie (ed.), Nationalism in Asia and Africa (New York: New American Library, 1970), pp. 33–34. As an example of international morality, Nardin points us to Michael Walzer’s Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 2015; 1st ed. 1977), where the morality of international law is presented as a body of norms, customs, professional codes, legal precepts, and religious and philosophical principles that give birth to a moral tradition of more general scope than the specific traditions, doctrines, and judgments it is derived from. Walzer describes his work as “a book of practical morality”: its method is not “to begin with the foundations” (ibid., Preface to the first edition, p. xxvii) but to reason about the moral judgments we make in regard to actual cases of war; and its aim is accordingly to “account for the ways in which men and women who are not lawyers but simple citizens (and sometimes soldiers) argue about war, and to expound the terms we commonly use” (ibid., xxv). But a “moral theory of war” (ibid., xxviii) so constructed will have to be consistent with moral principles of universal scope. Nardin, writing approvingly of this theory, comments that its concern is not so much to prescribe aims of action as to set practical boundaries: these are the boundaries that morality imposes on the conduct of international affairs, and they are ultimately grounded in the theory of human rights (Nardin, Law, Morality, and the

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

208

international l aw, is l am, and the t hird world

with other peoples and perspectives in a constant dialogue that this can be achieved.30 This is different from the approach put forward by Rawls, for he rules out the possibility of resting international law on any comprehensive conception of the person and of society (whether it be a religious, philosophical, or moral conception). Thus in 1999, in the The Law of Peoples, Rawls reiterates the basic idea he previously set out in his 1993 article of the same title, in which it is stated “that basic human rights are to express a minimum standard of well-ordered political institutions for all peoples who belong, as members in good standing, to a just political society of peoples.”31 By Rawls’s own admission, this standard is “quite weak,” for it does not invoke any deep moral or philosophical conception of human nature proposing to explain why anyone should be entitled to such rights, as by arguing that “human beings are moral persons and have equal worth.” In fact, this human rights standard is designed to be “politically neutral” between Western and non-Western traditions: hence the strategy of steering clear of any attempt to rest human rights on a fully fleshed-out foundation (a deep conception of person and society), for this would foreclose the standard’s universal acceptance. And yet this deliberately thin foundation, insufficient as a justification for human rights, is offered by Rawls as the basis on which liberal and hierarchical peoples become entitled not to tolerate “outlaw” regimes that violate the same rights. But it seems quite impossible to assert human rights and make claims about them without resting them on some kind of foundation. And this may well explain why Rawls comes back to this question, first framing it in relation to liberal societies and then to hierarchical ones.

30 31

Relations of States (n. 26), p. 245). However, as we will see in Chapters 11 and 13, human rights without the backing of an international, universally recognized order based on law are liable to be exploited in the worst of fashions, and therefore cannot serve as a ground on which basis to justify war. This is certainly a weakness of Walzer’s conception, and it shows through in what I believe to be his misguided judgment that Israel’s response to the 2006 Hamas rocket attacks from the Gaza Strip was not disproportionate. See Michael Walzer, “War fair: The ethics of battle,” New Republic, July 31, 2006; cf. idem, “Israel must defeat Hamas, but also must do more to limit civilian deaths,” New Republic, July 30, 2014. Ibid., p. 243. John Rawls, “The law of peoples,” Critical Inquiry, 20, no. 1 (1993), 36–68, at 57. Rawls is specific about the rights this minimum standard is to ensure, commenting that “the law must at least uphold such basic rights as the right to life and security, to personal property and the elements of the rule of law, as well as the right to a certain liberty of conscience and freedom of association and the right to emigration. These rights we refer to as human rights” (ibid.; subsequent quotations in this paragraph are from pp. 56 and 57, respectively).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

the l aw of peoples and internati onal l aw

209

In what Rawls calls his ideal theory, persons are considered reasonable and rational, two features that can be understood as shorthand for their two moral powers, namely, “a capacity for a sense of justice and a capacity for a conception of the good.”32 But there is an institutional and political structure that needs to be in place in order for citizens so conceived to be able to exercise these two moral powers, and crucial to it is the human rights guarantee. And therein lies the liberal foundation of human rights: it lies in the conception of the person as reasonable and rational, and of citizens as equal and free, and in the need for a society in which they can exercise the two moral powers enabling them to live out that conception of themselves. Hierarchical societies, however, pose a challenge in this regard, for as Rawls points out they do not conceive of their citizens as free and equal: “a decent hierarchical society [. . .] does not treat its own members reasonably or justly as free and equal citizens, since it lacks the liberal idea of citizenship.”33 But these societies, insofar as they are decent, honor what Rawls calls a reasonable and just law of peoples. Because this “law applies to how peoples treat each other as peoples,” it must find some common ground among them and so cannot be grounded in any moral or religious conception, including what Rawls calls “comprehensive liberalism, as found in Kant or J. S. Mill”:34 it must therefore be grounded in a political conception, as against one that requires a deep commitment that not everyone can reasonably be expected to make. In short, Rawls rules out the possibility of resting human rights on a universal foundation if this means requiring different peoples to commit to a single conception of the good, and yet this idea would seem to be consistent with requiring that all peoples commit to the same principles of political justice, serving as the foundation of the law of peoples.

9.3 Outlaw Regimes The theory of justice that in 1971 Rawls sets out for the basic structure of society is developed in two stages, yielding an ideal theory and a nonideal one by which the former is extended: first “an ideal conception of justice” is constructed by contracting parties who cannot use to their own 32 33 34

Rawls, The Law of Peoples (n. 1), § 11.1, p. 82. Ibid., § 11.2, p. 83; this quotation and the next; Rawls’s italics. Ibid., § 11.1, p. 82.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

210

international l aw, islam, and the third wo rld

advantage any knowledge about the place they will occupy or the views they will be likely to hold in the society whose principles they are agreeing to; then, using that conception as a guidepost, the same parties “ask which principles to adopt under less happy conditions,”35 where they take up the question of “how we are to deal with injustice” and thus “decide the grounds and limits of political duty and obligation.”36 This same scheme carries over to the theory that in 1999 Rawls sets out for the law of peoples. For, having identified the principles that are ideally to govern a law of peoples, he addresses “the questions arising from the highly nonideal conditions of our world with its great injustices and widespread social evils.”37 In this way the theory, in its nonideal extension, can be used as a guide in deciding “how to deal with non-well-ordered peoples.” Under this rubric falls the problem of noncompliance, or how a liberal democratic society ought to deal with regimes that do not “accept and follow the Law of Peoples”: these regimes are accordingly characterized as outlaw, and they behave this way because they “think a sufficient reason to engage in war is that war advances, or might advance, the regime’s rational (not reasonable) interests.” This brings into focus the question of just war, a concept defined by contrasting outlaw regimes with well-ordered societies, both liberal and decent, which engage in war only in self-defense, or when they have good reason to believe that their safety and security is seriously at risk. (As Noam Chomsky observes, however, this definition of outlaw states is not as straightforward as it may seem. For if we are to properly apply it to states that fail to comply with a reasonable law of peoples – violating the main rules of international law and resorting to military force outside the scope of the United Nations Charter – then we ought to define the United States as an outlaw state, next to all the dictatorial states that exhibit the same behavior.)38 35

36 37

38

John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: The Belknap Press of Harvard University Press, 1999; orig. pub. 1971), chap. 39, p. 216; italics added. The parties also “choose a constitution and a legislature to enact laws” (ibid., chap. 1, p. 12), to this end taking account of “general facts about society, such as its size and level of economic advance, its institutional structure and natural environment, and so on” (ibid., chap. 31, p. 175). Ibid., chap. 1, p. 8, and chap. 31, p. 175, respectively. Rawls, The Law of Peoples (n. 1), § 13.1, p. 89; subsequent quotations in this paragraph are from pp. 89–90; italics added. See Noam Chomsky, Rogue States: The Rule of Force in World Affairs (Cambridge, MA: South End Press, 2000). On US violations of international law, see the highly critical Michael Mandel, How America Gets Away with Murder: Illegal Wars, Collateral Damage and Crimes Against Humanity (Ann Arbor, MI, and London: Pluto Press, 2004).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

t h e l a w o f p eo pl e s a n d i n te r na ti o na l l aw

211

The self-defense criterion – a state’s interest in guaranteeing its own safety and security – is identified by Rawls as the just-war foundation on which rests a state’s right to war (ius ad bellum). But Rawls also lays out criteria delimiting the proper conduct of war (ius in bello). These criteria, he points out, are “familiar from traditional thought on the subject,”39 and two in particular are that (a) war must always be aimed at securing “a just and lasting peace among peoples, and especially with the people’s present enemy,” and (b) those engaged in war “must carefully distinguish three groups: the outlaw state’s leaders and officials, its soldiers, and its civilian population,” for in an outlaw state “the civilian members of the society cannot be those who organized and brought on the war,” so they cannot be held responsible, nor can the soldiers be held responsible, for they “are often conscripted and in other ways forced into war [. . .] and their patriotism is often cruelly exploited.” On this basis Rawls condemns “both the fire-bombing of Tokyo and other Japanese cities in the spring of 1945 and the atomic bombing of Hiroshima and Nagasaki” on the part of the United States, for these were “all primarily attacks on civilian populations”: thus they “were very grave wrongs, as they are now widely, though not generally, seen to have been.”40 The question of grave wrongs in war brings up two nihilist theses that Rawls resolutely rejects in reasoning about the bounds of what is legitimate in war. The first of these is that, since “war is hell,” then “anything goes” in the conduct of war: whatever it takes “to get it over with as soon as possible.” The second thesis is that since “we are all guilty” (everyone’s hands are dirty), we are all in it together and therefore none of us can be singled out for blame. In rejecting these theses, Rawls points out that they facilely cast aside morally significant distinctions: granted that war is hell, this does not mean that it is everywhere and equally so (such that we can bulldoze over anything labeled “war”); and granted that we are all guilty, this should not prevent us from distinguishing different roles and degrees of involvement (such that no one is any guiltier than anyone else): “In short,” Rawls argues taking up Hannah Arendt’s analysis of the 39

40

Rawls, The Law of Peoples (n. 1), § 14.1, p. 94; subsequent quotations in this paragraph are from pp. 94–95. Ibid., p. 95. In making the case that the United States was unjustified in its conduct of the war in Japan, Rawls also mentions its “failure of statesmanship,” which in part consisted “in not considering negotiations with the Japanese before any drastic steps such as the fire-bombing of Japanese cities in the spring of 1945 and the bombing of Hiroshima and Nagasaki were taken” (ibid., §14.4, p. 101).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

212

i n t e r n a t i o n a l l a w , is l a m , a n d t h e t h i r d w o r l d

Eichmann trial in Jerusalem, “there is never a time when we are excused from the fine-grained distinctions of moral and political principles and graduated restraints.”41 Rawls is quick to point out, however, that despite these significant principled constraints on the conduct of war, the conception of the law of peoples he is offering is to be distinguished from the natural law doctrine of just war. Indeed, the law of peoples is much broader than natural law. For it is conceived by Rawls as a political doctrine, and in this sense it is understood by him a part of a family of “reasonable” doctrines, among which he includes natural law. The latter is in turn “thought to be part of the law of God,”42 which makes it voluntaristic and disqualifies it from the realm of the political. However, despite this difference in the framing and justification of the two doctrines, there is nothing to prevent the latter (natural law) from supporting the former (the law of peoples). Thus, while “both views support the right to war in self-defense,” and in fact consider this to be the only ground for this right, “the content of the principles for the conduct of war is not in always the same.” More to the point, while Christian natural law and the law of peoples agree “that civilians are not to be directly attacked,” the former is stricter in its understanding of what counts as legitimate indirect harm done to civilians: under the principle of double effect, Christian doctrine “forbids civilian casualties except insofar as they are the unintended and indirect result of a legitimate attack on a military target”; but under the supreme emergency exemption, the law of peoples accepts that the loss of civilian lives may be legitimate if there is no other way “to wage a just war in 41

42

Ibid., §14.5, p. 103 (all quotations in this paragraph also from the same page). Arendt argues that distinctions obviously do matter in the practical sphere, especially the distinction between potentially doing something and actually doing it. In a speech she imagines being addressed to Eichmann, she points out that “there is an abyss between the actuality of what you did and the potentiality of what others might have done. [. . .] Let us assume, for the sake of argument, that it was nothing more than misfortune that made you a willing instrument in the organization of mass murder; there still remains the fact that you have carried out, and therefore actively supported, a policy of mass murder. [. . .] in politics obedience and Support are the same.” Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Viking Press, 1965; 1st ed. 1963), p. 278. In this passage, where Eichmann is portrayed as downplaying an essential moral distinction, Arendt is underscoring Eichmann’s apparent lack of judgment. It is this non-use or disregard of judgment that seems to make possible the two theses rejected by Rawls, who points to the closing pages of the Postscript in Arendt’s book, for it is here that Arendt highlights the role of judgment in drawing the distinctions needed to properly work out moral problems. Rawls, The Law of Peoples (n. 1), § 14.6, p. 104; all unsourced quotations in this paragraph are from pp. 104–05; italics added.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

the l aw of peoples and international l aw

213

defense of liberal democratic regimes,” as is expected of the statesman. In other words, while the conduct of war resulting in civilian casualties “cannot be justified by a doubtful marginal gain,” it can be justified if such actions are certain to result in “some substantial good.”43

9.4 Burdened Societies: Justice and Political Culture in the Law of Peoples We just saw, in dealing with the problem of noncompliance, that wellordered societies gain a right to war in self-defense against the aggression of outlaw states. We turn now to the problem of “unfavorable conditions”: these may be “material and technological” as well as “political and cultural,” and here there accordingly emerges not a right of well-ordered societies but a duty that they have to assist societies burdened by such conditions, where the goal (as in the case of outlaw states) is to bring such burdened societies into the fold of the larger society of well-ordered peoples.44 In clarifying what this duty of assistance means, Rawls underscores the need to recognize and protect human rights but observes that this condition in turn crucially rests on a burdened society’s political culture. To this end he points to the empirical research that Amartya Sen has devoted to famines, suggesting that the cause of famine in burdened societies often lies not so much in a food shortage as in “the failure of the respective governments to distribute (and supplement) what food there was.”45 Rawls is thus making the larger point that a burdened society’s ability to flourish and achieve prosperity ultimately hangs on its “political and social structure” rather than on any lack of resources. 43

44 45

Ibid., § 14.3, p. 98. Rawls is specifically referring here to Britain’s wartime bombing of German cities in its effort to stop the Nazi offensive. He comments that this campaign could well have been justified under the supreme emergency exemption in the period from June 1940 (the fall of France) until the summer and fall of 1941, when it became apparent that Russia “would be able to fight Germany until the end” (ibid., pp. 98–99). He then comments: there is a case to be made that the exemption held “even through the Battle of Stalingrad (which ended with German surrender in February 1943). But the bombing of Dresden in February 1945 was clearly too late” (ibid., p. 99). Ibid., § 15.1, pp. 105–6. Ibid., § 15.3, p. 109. See Amartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation (Oxford: Clarendon Press, 1981). Similar theses have been advanced in Development as Freedom (Oxford: Oxford University Press, 1999), in which Sen makes economic development dependent on political institutions, that is, on the achievement of full democracy.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

214

international l aw, islam, a nd the third world

In making this point, and stressing the role of human rights within a political culture that can sustain them, Rawls considers the population problem by contrasting two approaches to it. On the one hand were the policies adopted in China in the late 1970s; on the other were those adopted by the Indian state of Kerala. The former consisted in imposing “harsh restrictions” on the size of families, coupled with “draconian measures” depriving women of their rights; the latter, by contrast, consisted in empowering women through education, while protecting their right “to vote and to participate in politics [. . .] and to own and manage wealth and property. As a result, within several years Kerala’s birth rate fell below China’s, without invoking the coercive powers of the state.”46 This suggests that “burdened societies would do well to pay particular attention to the fundamental interests of women.”47 And, in addition, since “basic human rights are involved, and these belong to the common institutions and practices of all liberal and decent societies,” these fundamental interests of women override any conflicting interests justified on religious grounds: “a religion cannot claim as a justification for its subjection of women that it is necessary for its survival.” In developing the thesis of the duty of assistance, Rawls turns to the question of distributive justice among peoples. Again, his argument is that “the crucial element in how a country fares is its political culture – its members’ political and civic virtues – and not the level of its resources.”48 He thus takes issue with Charles R. Beitz and his global distribution principle,49 which states that since “the wealthier countries are so because of the greater resources available to them,”50 and the welfare of different countries in the global system turns on trade relations that make them interdependent, justice requires that greater resources be redistributed to resource-poor countries.51 46

47

48 49

50 51

Ibid., § 15.3, p. 110. These are findings for which Rawls cites Amartya Sen, “Population: Delusion and reality,” The New York Review of Books, September 22, 1994, pp. 62–71. Rawls, The Law of Peoples (n. 1), § 15.3, p. 110; all subsequent quotations in this paragraph are from p. 111. Ibid., § 16.2, p. 117. See Charles R. Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979). Rawls, The Law of Peoples (n. 1), § 16.2, p. 116. Beitz alleges that Rawls neglects to consider the distribution of natural resources and argues that Rawls’s principles of justice only apply to relations among members of a single state, not to their relations across different states. Beitz, Political Theory and International Relations (n. 49), p. 132. Although there is something arbitrary about the global distribution of resources, the problem of justice this distribution gives rise to lies not in this feature of it but, as Beitz points out, in the economic interdependence among states on

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

the l aw of peoples and international l aw

215

In rejecting the principle that wealth among interdependent states ought to be redistributed in order to address the inequalities that may, and in fact do, exist among societies across the globe, Rawls is not suggesting that such inequalities do not pose a problem of justice. On the contrary, he recognizes that they do – especially in “our world as it is with its extreme injustices [and] crippling poverty.”52 Nor does he challenge the “goals of attaining liberal or decent institutions, securing human rights, and meeting basic needs.” In fact this is required by the duty of assistance, which “holds until all societies have achieved just liberal or decent basic institutions.” However, beyond this point – “at which a people’s basic needs [. . .] are fulfilled and a people can stand on its own” – it is difficult to make a case for transfer payments to be made from rich countries to poor ones (at least on the basis of the duty of assistance alone). Hence Rawls proposes what he characterizes as a global egalitarian principle with target: its target is “to raise the world’s poor until they are either free and equal citizens of a reasonably liberal society or members of a decent hierarchical society,” and once this target is achieved, a “cutoff point” kicks in, making further wealth redistribution unnecessary, with the implication that this would be inconsistent with a people’s “political autonomy.” Rawls distinguishes this principle from the “global egalitarian principle without target,”53 which “is designed to help the poor all over the world, and it proposes a General Resource Dividend (GRD) on each society to pay into an international fund to be administered for this purpose.” But the point of contention lies not so much in the principle’s taxation scheme per se as in its requiring wealth transfers beyond the target of making a people “free and responsible, and able to make their own decisions” within a framework of just institutions.54 Rawls appreciates that this conception of international distributive justice gives the appearance of a Western bias, for it suggests that burdened societies can get the resources they need only if they subscribe

52

53

54

which it rests, or, more to the point, in the “social cooperation [that] is the foundation of distributive justice” (ibid., p. 144). Rawls, The Law of Peoples (n. 1), § 16.2, p. 117; all subsequent quotations in this paragraph are from pp. 117–19. Ibid., p. 118; italics added; all subsequent quotations in this paragraph are from pp. 118–19. If we were to make it our goal to “raise the standard of living beyond what is necessary to sustain those institutions” by way of “further global distribution,” we would be looking to realize what Rawls terms the cosmopolitan view, whose “ultimate concern [. . .] is the well-being of individuals and not the justice of societies” (ibid., § 16.3, p. 119).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

216

international l aw, islam, a nd the third wo rld

to the political culture of the richer countries, which in this scenario happen to be Western. In response to this concern, Rawls reminds us that the law of peoples is based on a criterion of reciprocity among peoples in virtue of which this law “does not require decent societies to abandon or modify their religious institutions and adopt liberal ones”:55 it only requires that they be “prepared to stand in a relation of fair equality with all other societies,” and as Rawls emphatically comments, surely we “cannot argue that being in a relation of equality with other peoples is a Western idea.” We have completed our snapshot of Rawls’s thinking on the law of peoples. He has cast his conception as a “realistic utopia,” an idea understood to stand in continuity with Kant’s own approach to the problem of designing a reasonable framework for the mutual relations of different peoples having potentially conflicting interests and views. Indeed, just like Kant, Rawls singles out the conditions of possibility of the society of peoples: we need (1) constitutional democracies that relate to one another on the basis of (2) a reasonable pluralism that in turn is set up within (3) a space of public reason for debate among a family of reasonable political conceptions of right and justice. On this foundation there can be established a “liberal democratic peace” governing relations among wellordered societies (liberal as well as hierarchical) that do not resort to war as a means for advancing their interests, and that will go to war only in selfdefense or to defend other liberal or “decent hierarchical peoples.” These conditions enable us to envision a world order that is not just an assemblage of states, each pursuing its own self-interest. And because the vision suggests that this is more than a “logical possibility”56 – or, stated otherwise, that justice is actually possible – we have reason to make an earnest attempt to realize it. Indeed, as Rawls comments: “If a reasonably just Society of Peoples whose members subordinate their power to reasonable aims is not possible, and human beings are largely amoral, if not incurably cynical and self-centered, one might ask, with Kant, whether it is worthwhile for human beings to live on the earth.”57 55 56 57

Ibid., § 17.1, p. 121; subsequent quotations in this paragraph are from page 122. Ibid., § 18.3, p. 128. Ibid. Rawls is referring here to the doctrine of right (Rechtslehre) in Kant’s Metaphysics of Morals (1797): “If justice perishes, then it is no longer worthwhile for men to live upon the earth.” Compare Mary Gregor’s translation: “For if justice goes, there is no longer any value in human beings’ living on the earth.” Immanuel Kant, The Metaphysics of Morals, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), pt. I, § 49 p. 103 (Ak. 6:332).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

t h e l a w o f p e o p l e s an d i n t e r n a t i o n a l l a w

217

9.5 The Realists’ Criticism of John Rawls’s Theses The French edition of Rawls’s 1993 article “The Law of Peoples” was published alongside a deeply critical article by Stanley Hoffmann that raised some familiar realist objections to it. Hoffmann points out “the failure of both the Liberal and the Marxist prophecies”: the former had predicted “a harmonious liberal world of cooperating nation-states which reduced powers for mischief”; the latter had “informed us that the revolutionary triumph of the proletariat would result in the ‘withering away’ of the state, and therefore of the division of the world into competing states as well.” This failure, he comments, “seemed to abandon the field to the cheerless ‘eternal verities’ of Realism, warning us that the need for order – always threatened by the states’ contest – takes precedence over the quest for justice.”58 But into this cheerless field steps Rawls, “the one contemporary philosopher who tries systematically [. . .] to provide us with an ideal theory for international society,” a theory that “would serve as a yardstick with which the existing international society could be judged, and provide us with directions for reform.”59 But Hoffmann also points out several problems he detects in Rawls’s method and conception. To begin with, the international society is made up not so much of peoples as of states and individuals. This means that we need not one but at least three contracts: first, a global one defining the rights and obligations of individuals whatever “people” they belong to, and defining the structures they would want to live in—a global state, a multitude of states, or entirely new institutions [. . .]; secondly, a contract among representatives of states, or of whatever other structures the global contract might have set up, defining the principles of their own intercourse; thirdly, a contract to which the parties would be representatives both of individuals and of states [. . .] setting up authoritative international institutions and procedures to deal with issues that cannot be left merely to arrangements among separate units or to an unregulated market, such as much of the world economy.60

As Hoffmann comments: “There must be easier ways to ideal theory!” He then points out a second weakness of Rawls’s theory: because it is based on the social contract method, it can only give us ideal theory, in a way 58

59 60

Stanley Hoffmann, “Ideal worlds,” working paper no. 62, Harvard University Center for European Studies, 1995, sec. I, p. 1; italics added. Translated into French as “Mondes idéaux: Commentaire à John Rawls,” in Le droit des gens (Paris: Éditions Esprit, 1996). Hoffmann, “Ideal worlds” (n. 58), sec. I, p. 2. Ibid., sec. IV, p. 10; all unsourced quotations also from the same page; italics added.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

218

i n t e r n a t i o n a l l a w , is l a m , a n d t h e t h i r d w o r l d

that, for one thing, “does not add much to old liberal notions of world harmony, and particularly to Kant’s provisions for perpetual peace, calling for an end to war and standing armies, and for the establishment of a league of constitutional regimes,” and, for another, “leads either to utopia, or to a minimal set of principles acceptable by an ‘overlapping consensus’ of ‘not unreasonable’ regimes.” Then, too, Rawls’s nearly exclusive focus on ideal theory introduces another problem: “Most of the philosophical and ethical problems of world affairs are the concern of non-ideal theory.” Thus, in noncompliance theory, as we saw, Rawls argues that well-ordered societies can assert a right to war against outlaw regimes either in self-defense or in “grave cases” of human rights violations. But in making this argument, Rawls leaves “hugely important issues” unaddressed, among which: What is “a grave case” that justifies a war to defend human beings whose rights are trampled by an outlaw regime? Is forcible intervention also justified when such rights are crushed in a civil war? How can the authors of international crimes be brought to judgment? If “the duty of assistance is not based on some liberal principle of distributive justice” [. . .], what kind of assistance should be granted by the rich and how can it be made to reach the poor in poor countries? How much of a priority should be given by a state to helping its own poor? How should non-citizens and minorities be treated?61

There is, finally, another noncompliance problem that Hoffman points out in Rawls’s theory. This is the problem of “strict compliance” with the principles of justice. This is an assumption that Rawls makes both in his 1971 book A Theory of Justice and in his 1993 article “The Law of Peoples,” the former dealing with the domestic case, the latter with the question of global justice “in a world of formally sovereign states.”62 But whereas the assumption in the former case is reasonable – given the judicial and enforcement apparatus in a liberal democracy – in the latter case it is not. Here “the issue of compliance is fundamental,” not only because “the failure to comply is built into the very structure of a society of states” – given that there is “no central Executive, legislature, or police, and a rarely used World Court” – but also because a state’s noncompliance in the international arena can easily lead to “massive violations of human rights.” Any ideal theory that fails to take account of either of 61 62

Ibid., p. 11; all quotations from the next paragraph also from the same page. It should be pointed out, however, that Rawls no longer speaks of strict compliance in his 1999 account of the law of peoples. It is unclear whether this means that he is no longer making the assumption.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

t h e l a w o f p e o p l e s an d i n t e r n a t i o n a l l a w

219

these two features of international relations – as Rawls does according to Hoffmann – is woefully inadequate: in Hoffman’s own words, it is “left up in the air.” Hoffmann, in short, does not see “that the distinction between ideal and non-ideal theory really suits international relations,” nor does he believe “that the social contract method is the best approach to ideal theory,”63 for in its attempt to achieve a doctrine of universal reach, it winds up giving us an “impoverished”64 account of what international justice should look like. But the idea he promotes as a solution to this problem does not look any more compelling. He finds promise in what Judith N. Shklar has called the “liberalism of fear,”65 which like Rawls’s liberalism is framed independently of any comprehensive religious or philosophical doctrine or conception of the good (for that would entail an unreasonable commitment in a context of many such contending doctrines and conceptions), but which, in doing so, does not proceed from Rawls’s assumption of free and equal persons willing to work out the terms of their cooperation in the society they are going to inhabit. Rather, she starts out from “what she deemed a fundamental, common and immediate emotional experience: the fear of cruelty and tyranny.” Hence the main purpose of this liberalism, namely, to protect everyone “from cruelty, oppression and fear.”66 As Hoffmann explains, the liberalism of fear places a twofold emphasis in view of this goal: one on human rights – viewed as necessary to empower people to “preserve their freedom and to protect themselves against abuse”67 – and a correlative emphasis on the prohibition against cruelty, viewed as a “necessary condition of the dignity of persons.”68 Significantly, both can be universalized, for they both stem from that fear of cruelty which can be understood as common to the whole of humankind ever since the atrocities of World War I.69 63 64 65

66 67 68 69

Ibid., sec. I, p. 3. Ibid., sec. III, p. 8. Judith N. Shklar, “The liberalism of fear,” in Nancy L. Rosenblum (ed.), Liberalism and the Moral Life (Cambridge, MA, and London: Harvard University Press, 1989), pp. 21–38. Hoffmann, “Ideal worlds” (n. 58), sec. IV, p. 12. Shklar, “The liberalism of fear” (n. 65), p. 37. Ibid., p. 30. This idea of fear as a universal foundation for a political morality in the context of pluralism is aptly summarized by Hoffmann in this way: “There are many views of the supreme good, she thought, but only one ultimate evil, ‘cruelty and the fear it inspires, and the very fear of fear itself.’” Hoffmann, “Ideal worlds” (n. 58), sec. IV, p. 13, quoting Shklar, “The liberalism of fear” (n. 65), p. 29.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

220

international l aw, is l am, and the t hird world

This is one merit that Hoffman sees in the liberalism of fear: it affords a view from nowhere (a reference made to Thomas Nagel’s 1986 book of the same title) that is actually a view from everywhere and can thus be universalized, for that is the experience of cruelty. The other merit is that from this “liberalism of fear and the imperatives of protection from cruelty and tyranny, important principles can be derived,” expressed as both “negative liberties” and “positive measures”: the former include “protecting the weak from harm, excesses of power and the kind of inequality that amounts to oppression”; the latter include “the division and dispersion of power, effective voluntary associations, procedural fairness, a well-informed and vigilant citizenry.”70 To be fair, this is only a sketch of a view that Shklar never managed to fully develop. But two questions naturally suggest themselves, even so. First, is it really feasible to rest an entire political conception of international justice on a single universal emotion of fear of cruelty? And second, are the negative liberties and positive measures that Hoffmann points out as important principles that can be derived from this fear any less “fuzzy” than the notions he so describes?71 70 71

Hoffmann, “Ideal worlds” (n. 58), sec. IV, p. 12. Ibid., p. 11.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.011

10 Islam and Rights: Islamic and Arab Charters of the Rights of Man

10.1 The Fundamental Principles of the Western Conception of Rights The founding moment in the history of the rights of man in the Western tradition can be situated between the seventeenth and eighteenth centuries, when rights began to gradually shed their religious underpinnings and were set on a rational natural law foundation: they were accordingly conceived as “natural” rights, and through this process they were secularized. This transformation never took place in the Islamic world. In the Western world, the revolutions of the late eighteenth century ushered in the age of legal positivism, which endeavored to secure the certainty of positive law, and in doing so dispensed with the idea of natural rights. And, finally, in a third stage, the rights of man were set on a constitutional basis. To be sure, the natural law conception came back into play with the UN Universal Declaration of Human Rights of 1948.1 In the process of drafting this document, however, there emerged some deep disagreements with some of the exponents of the Islamic world.

10.2 The Negotiations behind the 1948 Universal Declaration of Human Rights and the “Clash of Civilizations” The 1948 Universal Declaration of Human Rights was adopted with 48 votes and 8 abstentions. The Arab states voted as follows: 4 were in favor (Egypt, Iraq, Lebanon, and Syria) and 1 abstained (Saudi Arabia); Yemen was not present at the time the vote was taken. Also in favor were 4 non1

On this question see the classic Antonio Cassese, I diritti umani nel mondo contemporaneo (Rome and Bari: Laterza, 1988), pp. 24 ff.

221

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

222

international l aw, islam, and the third world

Arab but Muslim-majority states (Iran, Turkey, Pakistan, and Afghanistan).2 Saudi Arabia’s abstention and Yemen’s absence signal these two countries’ objection to a document they viewed as fully incompatible with the principles of Islam.3 These views had already become apparent in the negotiating and drafting of the Declaration. Thus during the negotiations of Article 14 of the draft document (Article 16 in the final document), giving “men and women of full age [. . .] the right to marry and to found a family,” the representative for Saudi Arabia, Mr. Baroody, observed that the expression “men and women of full age” did not necessarily mean “of full age according to the law” of the different countries that were to sign the declaration.4 He thus proposed that this fact be made explicit and that the phrase “of full age” be replaced with “of legal matrimonial age.” For the same reason, he also felt it necessary to restrict the scope of this expression by adding the qualification “within every country,” in such a way as to make the language consistent with the provisions in force in different legal systems, and specifically in those of the Muslim countries. He also proposed, in a second part of the amendment, that the words “equal rights as to marriage” be replaced with “full rights as defined in the marriage laws of their country.” In the ensuing debate, the representative of the United Kingdom observed that the amendment proposed by Saudi Arabia omitted to make any mention of equal rights between men and women. Furthermore, the delegation of the Low Countries objected that the Saudi amendment would have made it possible for states to impose undue restrictions on both the right to marry and the right to found a family. The Saudi Arabian representative pointed out in response that his country did not necessarily reject the idea of equality between men and women, feeling “that the rights of men and women as to marriage should be assessed in qualitative rather than quantitative terms.” He went on to say that this is why “the respective rights of each sex were so clearly defined in all civil codes. Certain rights were identical for both men and 2

3

4

UN General Assembly, 183rd Plenary Meeting, Official Records, “Continuation of the Discussion on the Draft Universal Declaration of Human Rights: Report of the Third Committee (A/777),” UN Doc. A/PV.183 (10 Dec. 1948), p. 933. Paul Tavernier, “Les États arabes, l’ONU et les droits de l’Homme: La Déclaration universelle des droits de l’Homme et les Pactes de 1966,” in Gérard Conac and Abdelfattah Amor (eds.), Islam et droits de l’homme (Paris: Économica, 1994), p. 59. UN General Assembly, 3rd Session, 3rd Committee, “Saudi Arabia: Amendment to Article 14 of the Draft Declaration (E/800),” UN Doc. A/C.3/240 (7 Oct. 1948).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r igh ts

223

women whereas others were different, either for reasons of a biological nature or because they referred to activities and responsibilities which were necessarily not the same for men and women.”5 To which he added that apparently the authors of the draft declaration had, for the most part, taken into consideration only the standards recognized by western civilization and had ignored more ancient civilizations which were past the experimental stage, and the institutions of which, for example, marriage, had proved their wisdom down through the centuries. It was not for the Committee to proclaim the superiority of one civilization over all others or to establish uniform standards for all the countries in the world.6

The Saudi delegation thus insisted on its own amendment, for it was making the argument that it was only fair to show equal respect for all marriage traditions in every country. But neither part of the Saudi amendment was accepted. What the travaux préparatoires throw into bold relief, then, is that in the negotiating history leading to the 1948 adoption of the Universal Declaration we have the elements of a “clash of civilizations” proper. Also indicative was the debate on Article 16 of the Draft Declaration (Article 18 in the final draft), on freedom of thought, conscience, and religion, which also includes the freedom to change one’s religion. Here, too, it was a particularly tense confrontation that flared up with the Islamic countries, for they specifically deny this latter freedom. The Saudi representative pressed for removal of any language in that regard, arguing that it was sufficient to protect freedom of thought, conscience, and religion and the freedom to revise one’s own worldview and the principles of one’s own conscience. At the same time, he questioned the logic of providing for these three freedoms in one sentence, only to narrow the scope of the provision to religion alone in the next, focusing “exclusively on freedom of religion and the right to change religious beliefs, without any mention of the right of the individual to change his general conception of things and the dictates of his conscience.” He speculated that the Commission on Human Rights wanted to avoid “the delicate matter of freedom of thought and conscience,” so as not “to take a stand openly on the basis of their different political ideologies.”7 5

6 7

William A. Schabas (ed.), The Universal Declaration of Human Rights: The Travaux Préparatoires (Cambridge: Cambridge University Press, 2013), p. 2466. Ibid. Ibid., p. 2489.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

224

i n t e r n at i o n al l aw, is l am, and the t hird world

In laying out the reasons for his proposed amendment, he came out with a specific indictment of the West, pointing out that throughout history missionaries had often abused their rights by becoming the forerunners of a political intervention, and there were many instances where peoples had been drawn into murderous conflict by the missionaries’ efforts to convert them. So it was that bloody and unjustifiable crusades organized in the name of religion, had had as their real economic and political purpose the acquisition of a place in the sun for the surplus populations of Europe. Religious wars between Catholics and Protestants had caused, in Europe, the death of millions of persons of both faiths which differed but little from each other.8

He once more alluded to the clash of civilizations by commenting that certain groups of people had claimed throughout history to be God’s chosen people or to belong to a superior religion, merely because they were more powerful than their neighbours of a different faith. Those who believed in God should admit that all human beings, regardless of their religion, were equal before Him. [. . .] For the Arab world, a good religion was one which advocated a reciprocal spirit of kindness and tolerance among mankind. For those reasons Mr. Baroody wished the Committee to make the declaration as clear as possible and omit any provisions apt to serve as an easy pretext for exciting hatred and encouraging dangerous differences of opinion.9

While Turkey and Lebanon declared themselves in favor of the article as worded by the Drafting Committee, other Islamic countries took the side of Saudi Arabia. This was the case with Iraq and Syria. In the negotiations there also emerged a clash between the Islamic countries and the Western colonial powers. This clash brought to light the Islamic world’s resistance to a conception of rights regarded as an expression of the ideology espoused by the Western countries that had been exercising colonial domination. Thus Baroody, addressing the French representative, asked “whether his Government had consulted the Moslem peoples of North Africa and other French territories before accepting that text [the provision in Article 16 on the right to change one’s religion], or whether it intended to impose it on them arbitrarily.” He also addressed the other colonial powers, and in particular the United 8 9

Ibid. Ibid., p. 2490.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r igh ts

225

Kingdom, Belgium, and the Netherlands, asking them “whether they were not afraid of offending the religious beliefs of their Moslem subjects by imposing that article on them.” In this same vein, “he reminded the representative of Lebanon that 40 percent of the Lebanese population was Moslem, and asked him whether the whole of that population had authorized him to approve article 16 in toto.” Likewise: In connexion with the remarks of the representative of China, Mr. Baroody stated that Mr. Chang was over-optimistic in believing that missionaries should be given a chance not to repeat past mistakes. Mr. Baroody did not question the high personal integrity of most missionaries, but he feared that many would still be used for the ends of certain alien political forces.10

The matter of the colonial powers’ legacy was also brought up by the Syrian representative: “The Syrian people remembered the oppressive policy carried out by the French Government during the period when their country was under French mandate and were convinced that the same oppressive policy was being carried out in North Africa.”11 And, finally, the Afghan representative also “voted against the second phrase of article 16 because the reasons put forward by the Saudi Arabian representative were in conformity with the religious beliefs and social principles of his country. Afghanistan reserved the right to conform to Moslem laws with regard to the question.”12 The proposed Saudi amendment, striking out the right to change one’s religion, was rejected by 22 votes to 12, with 8 abstentions.13 This was the upshot of an impasse that made apparent the difficulty of reconciling the Western conception of rights with the Islamic one. It was a different attitude that the Islamic countries took to the UN’s two human rights covenants of 1966 – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) – for they were both approved unanimously by the General Assembly. But it would be wrong to assume for this reason that the Islamic countries espoused the universal conception of human rights propounded by the United Nations. To see this we need to distinguish the ratification of the two covenants with their application. The key to understanding why the two covenants gained unanimous approval lies not so much in the provisions they contain as in those that 10 11 12 13

Ibid., pp. 2501–2 (includes the run-in quotations in the previous paragraph). Ibid., p. 2506. Ibid. Ibid., p. 2504.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

226

international l aw, i slam, and the t hird world

were left out, namely, anything that might have been a point of contention with the Islamic world, and in particular the right to change religion: there is no mention of this right in Art. 18 ICCPR, on freedom of thought, conscience, and religion.14 As to the application of the two covenants, a range of issues have emerged owing to the previously considered difficulty of reconciling Islamic law with the UN’s human rights provisions. Thus, for example, Algeria made reservations (or “interpretative declarations”) regarding Art. 23(4) ICCPR, on the rights and responsibilities of spouses as to marriage, during marriage, and at its dissolution, stating that it would understand this provision “as in no way impairing the essential foundations of the Algerian legal system.”15 These brief considerations suggest that if human rights can lay claim to universality in the Islamic world, this only holds for their formal ratification, not for their application.16

10.3 The Islamic and Arab Perspectives on the Rights of Man As we just saw, it was a bumpy road that led to the adoption of the Universal Declaration of Human Rights in 1948 and the two human rights covenants of 1966: the experience laid bare some deep divergences of opinion that did not just result in the objections, abstentions, and reservations discussed, but also awakened the Arab world to the need to work on its own project to codify human rights.17 Thus the League of Arab States (LAS)18 and the Organisation of Islamic Cooperation (OIC)19 have undertaken a broad initiative aimed at proclaiming and formalizing rights in numerous international instruments. But there are significant differences between the two philosophical 14 15 16 17

18

19

See Tavernier, “Les États arabes” (n. 3), p. 64. United Nations, Treaty Series, vol. 1545 (New York, 1998), p. 322. See Tavernier, “Les États arabes” (n. 3), p. 70. See Milena Modica, “La progressiva internazionalizzazione dei diritti dell’uomo nel mondo arabo-islamico e africano (1948–1994),” in Le “carte” delle organizzazioni araba, islamica e africana, vol. 1 of Paolo Ungari and Milena Modica (eds.), Per una convergenza mediterranea sui diritti dell’uomo (Rome: Euroma La Goliardica, 1997), p. 124. The Arab League Pact was signed on March 22, 1945, by six founding members: Saudi Arabia, Egypt, Iraq, Jordan (at the time still known as Transjordan), Lebanon, and Syria. The league now has twenty-two members. The OIC Charter was signed in Jeddah in 1972. The OIC’s membership comprises fiftysix Muslim states of Asia and Africa, with the addition of Albania, making up an overall fifty-seven members.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r igh ts

227

outlooks, the OIC being markedly more confessional, the LAS instead taking a more secular approach based on the idea of Arab unity.

10.4 Islamic Declarations on the Rights of Man In 1970 the Kingdom of Saudi Arabia published a memorandum responding to an invitation by the secretariat general of the League of Arab States (LAS) to adhere to the Universal Declaration of Human Rights (UDHR) and to the International Covenant on Economic, Social and Cultural Rights (ICESCR). In extending this invitation, the LAS was adhering to a recommendation made by the United Nations Commission on Human Rights and to Resolution 1421 of the United Nations Economic and Social Council.20 The memorandum emphatically underscored the irreconcilable differences between the Islamic conception of the rights of man – expressed through the lens of the conservative understanding of Saudi Arabia – and the Western conception. Indeed, we find it stated here that the foundation of rights in Islam lies in the divine dogma, whereas in the Western world rights are contingent on the fleeting law of man. As the document states: The rejection expressed by our state does not at all mean that we are indifferent to the objectives these instruments pursue [. . .]. Our rejection rather means a firm will to protect, guarantee, and safeguard the dignity of man, without distinction of any kind among human beings, in virtue of the Islamic dogma revealed by God, and not in virtue of statutory enactments inspired by materialist considerations, and hence subject to constant change. Our state holds that the authority of the religious dogma, freely subscribed to, is greater and more abiding than that of a law dictated by contingent considerations.21 20

21

UN Economic and Social Council, 46th Session, 1602nd Plenary Meeting, “Question of the realization of the economic and social rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and study of special problems relating to human rights in developing countries,” UN Doc. E/RES/1421 (XLVI) (6 June 1969). Translated from the French, titled “Le Mémorandum du Gouvernement du Royaume d’Arabie Saoudite relatif au Dogme des droits de l’homme en Islam et à son application dans le Royaume, adressé aux Organisations Internationales intéressées” (Memorandum of the Kingdom of Saudi Arabia concerning the dogma of the rights of man in Islam and its application in the Kingdom, addressed to all international organizations concerned), in Colloques de Riyad: Le dogme musulman et les droits de l’homme en Islam (Publication du Ministère Saoudien de l’Information, 1972); italics added. Cf. Andrea Pacini (ed.), L’Islam e il dibattito sui diritti dell’uomo (Turin: Edizioni Fondazione Giovanni Agnelli, 1998), p. 34.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

228

i n t e r n a t i o n a l l a w , is l a m , an d t h e th i r d w o r l d

This statement is followed by moral judgments that take a highly critical view of the West: in the contingent and materialist foundation of law, itself a consequence of the West’s loss of faith in God, lies the root cause of the “turmoil and errors that we can see today in the youth of the advanced countries,”22 as well as of the increase in crime and social deviance. The text goes on to list the rights, duties, and protections based on Islamic law as stated in the Qur’an: the dignity of the human person, the prohibition on discriminating against another human being, freedom of conscience, the prohibition on causing harm to the goods of others or to human life, the inviolability of the home, and the duty to ensure an education for every Muslim. The memorandum underscores the enforceability of these prescriptions, which unlike the Universal Declaration of Human Rights and the ICESCR are backed by legislative provisions designed to ensure compliance. Finally, on the basis of Islamic tradition, some reservations are made regarding some rights of the Western tradition, particularly the right to marry “without any limitation due to race, nationality or religion” (Art. 16 UDHR), the freedom to change one’s religion or belief (Art. 18 UDHR), and “the right to join and form trade unions” (Art. 22 ICCPR), for this activity is specifically prohibited under the law of the Kingdom of Saudi Arabia. The conception of rights expressed in this memorandum can also be found in other documents that expressly look to the Islamic tradition. It can easily be recognized, for example, in the final report of the Colloquium on Human Rights in Islam held in December 1980 at the initiative of the International Commission of Jurists in Geneva, the University of Kuwait, and the Union of Arab Lawyers in Cairo. Among the conclusions of the report is that “Islam was the first to recognise basic human rights and almost 14 centuries ago it set up guarantees and safeguards that have only recently been incorporated in universal declarations of human rights. In the Islamic concept, human rights and freedoms are not attributed to Nature but are considered to be gifts of God in accordance with the Islamic faith.”23 Indeed, the fundamental principles are contained in the Qur’an and the Sunna. 22 23

Ibid. International Commission of Jurists, Human Rights in Islam: Report of a Seminar Held in Kuwait, December 1980 (1982), chap. 1, point 10, p. 9. Cf. “Colloque du Kuwait, 1980,” in Sami A. Aldeeb Abu-Salieh, Les Musulmans face aux droits de l’homme. Religion, droit et politique: Études et documents (Bochum: Verlag Dr. Dieter Winkler, 1994), p. 498.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

is l am an d r igh ts

229

The report also devotes specific attention to the Islamic principles and procedures of criminal law, “with a view to safeguarding individual security and balancing the welfare of society against that of the individual in matters of crime and punishment.”24 These principles are three: (1) the principle that responsibility for crimes is personal (it cannot be extended to anyone beyond the offender); (2) the principle that there can be no criminal prosecution for acts that are not statutorily defined as crimes; and (3) the principle that no act can be made into a crime after the fact (the non-retroactivity of criminal law). The report also points out that “Islam was the first to safeguard personal rights and freedoms for religious minorities. Thus, it sets an example for contemporary political systems to follow.”25 And its final conclusion is that “Islam’s codification of human rights, and its provision of political, legal, social and economic safeguards, constitute a solid foundation for an effective exercise of human rights and freedoms and protection against any infringement of them.”26 This codification of human rights on an Islamic foundation can be found in two particularly significant documents: the Universal Islamic Declaration of Human Rights (UIDHR), written in 1981 by the Islamic Council of Europe, and the Cairo Declaration on Human Rights in Islam (CDHRI), adopted in 1990 by the Organisation of Islamic Cooperation (OIC). The former, proclaimed in Paris on 19 September 1981, is not a legally binding document but a policy statement: as is noted in its Foreword, it was “compiled by eminent Muslim scholars, jurists and representatives of Islamic movements and thought” whose purpose was to highlight the religious foundation of rights in Islam, nor was it ever enacted by any political power or recognized by international organisms, but rather issues from a moral concern to clearly assert that human rights are rooted in Islamic law (al-šarīʿa), and hence to ground the conduct of individuals in their mutual relations in virtue of their being embedded in the community (umma), and in virtue of the respect owed to the latter.27 24

25 26 27

International Commission of Jurists, Human Rights in Islam (n. 23), chap. 1, point 12, p. 9. Ibid., chap. 1, point 18, p. 12. Ibid., chap. 1, point 19, p. 12. As the document clarifies in its third Explanatory Note, “every person shall be subject only to such limitations as are enjoined by the Law for the purpose of securing the due recognition of, and respect for, the rights and the freedom of others and of meeting the just requirements of morality, public order and the general welfare of the Community (Ummah).” Published in The International Journal of Human Rights, 2, no. 3 (1998), 102–112. Cf. “Déclaration islamique universelle des droits de l’homme,” in Emmanuel Hirsch (ed.), Islam et droits de l’homme (Paris: Librairie des Libertés, 1984), p. 220.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

230

i n t e r n at i o n al l aw, is l am, and the t hird world

In the Preamble (3rd whereas) it is stated that “Allah (God) has given mankind through His revelations in the Holy Qur’an and the Sunnah of His Blessed Prophet Muhammad an abiding legal and moral framework within which to establish and regulate human institutions and relationships.” In the Qur’an and the Sunna we thus find the principles, at once legal and moral, that must form the basis of human rights. And indeed, further on in the Preamble, at point (g), it is stated that Muslims recognize an “obligation to establish an Islamic order: (i) wherein all human beings shall be equal and none shall enjoy a privilege or suffer a disadvantage or discrimination by reason of race, colour, sex, origin or language; (ii) wherein all human beings are born free,” and “(v) wherein the rulers and the ruled alike are subject to, and equal before, the Law.” It is therefore the Islamic order that contains the legal and moral principles underpinning the equal status of all human beings, their freedom, and their equality before the law, by which the document means the divine law, and hence the šarīʿa. This is clearly quite unlike the conception that developed out of the history of Western constitutionalism, where the equality and freedom of human beings is grounded in their common humanity, historically recognized in legislation (in the rule of law) and then in the constitution (in the context of any modern constitutional democracy). Hence the profound difference between the two conceptions: whereas the West grounds human rights in freestanding values understood as inherently worthy and self-authenticating – i.e., in the idea of a common, equal humanity – Islam understands these very values as contingent on the Islamic law, from which they derive and with which they accordingly need to be consistent.28 Nothing could be farther from the Western conception, on which human rights are recognized independently of any religious backing they may have, and would even have to be asserted against any religion or creed that should deny them. Consistently with the premises of Islamic human rights just outlined, the Preamble to the Universal Islamic Declaration of Human Rights closes with the statement that the human rights contained in the declaration itself are “enjoined by Islam.” This foundation of rights in Islamic law expresses a specific legal conception of human rights that is clearly far removed from the Western conception. Islam does not have anything comparable to the modern Western distinction between private and public law or between civil and criminal 28

Mohamed Allal Sinaceur, “La Déclaration islamique universelle des droits de l’homme,” in Alain Fenet (ed.), Droits de l’homme, droits des peuples (Paris: PUF, 1982), p. 210.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl am a n d righ t s

231

law, or indeed between procedural and substantive law: even if the different subjects of law “fall [. . .] in the main under one or the other of those headings,” “there is continual overlapping and, above all, the concept of any systematic distinction is lacking.” At the same time, some concepts are treated under headings where one would not expect to find them from a Western perspective: such is the case with “the right or claim of Allah [haqq Allāh] as opposed to a private claim [haqq ādāmī],” which ˙ “a special section of penal law.”29 It should ˙ further be noted falls under here that the term haqq (law) also means “truth” (as opposed to bātil, ˙ is one of the names for God: there is nothing about ˙ meaning “error”) and this term that could even relate to the Western conception of rights. Also very much in contrast to the Western view, the concept of a right in Muslim law is understood to bear a close connection to that of a duty. Only Allah the almighty holds rights, and in view of such omnipotence these rights of God turn into duties for man.30 Furthermore, rights are grounded in a principle of reciprocity and are accordingly rooted in the community. And since the law is at once “communitarian and divine, the individual cannot be its enactor, much less its author.”31 Therein lies the point of greatest incommensurability with the Western conception of rights. For in the modern Western tradition, the law and the rights set forth in it belong to humans and are recognized as human – as posited and enforced through a legal apparatus – whereas in the Islamic tradition, as noted, the foundation of the rights of man lies in the law of God. The conception of rights espoused in the Universal Islamic Declaration of Human Rights could in this sense be likened to the voluntaristic, natural law conception found in the Western tradition, for in the natural law doctrine the established order, with the rights it contains, is understood to issue from the will of God.32 29

30

31 32

Joseph Schacht, An Introduction to Islamic Law (Oxford: Oxford University Press, 1982; 1st ed. 1964), chap. 16.3, p. 113. See Bassam Tibi, Im Schatten Allahs: Der Islam und die Menschenrechte (Munich: Piper, 1999), p. 108. Sinaceur, “La Déclaration islamique universelle” (n. 28), p. 211; my translation. The theocentric conception of nature (fitra), closely bound up with divine creation, also ˙ appears in the Qur’an (The Byzantines, 30:30): “So [Prophet] as a man of pure faith, stand firm and true in your devotion to [a] the religion. This is the natural disposition God instilled in mankind – there is no altering God’s creation – and this is the right religion, though most people do not realize it.” [a] “Literally ‘set your face to.’” The Qur’an: A New Translation by M. A. S. Abdel Haleem (Oxford: Oxford University Press, 2005), pp. 258–59 (except where otherwise indicated, this will be the source for all translations from the Qur’an).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

232

international l aw, islam, and the third wo rld

Rights, therefore, can only be had in virtue of an objective God-given law. This understanding also separates the Islamic conception from the way rights are conceived under one of the fundamental principles to have developed out of the Western tradition, namely, the principle of toleration. It was the loss of a religious foundation for the law, along with the separation of church and state, that set the West on the path to recognizing equal liberties for all persons, while enabling all to freely profess whatever religious creed they believe in. By contrast, the Universal Islamic Declaration of Human Rights provides that “every person has the right to express his thoughts and beliefs so long as he remains within the limits prescribed by the Law” (Art. XII(a) UIDHR), namely, the Islamic law of the šarīʿa.33 In short, individuals are not recognized as free to form their own moral views and convictions (or as capable of exercising autonomy of conscience), for in their moral thinking they are inextricably bound to their community (umma), which alone is regarded as capable of grounding an objective morality. This foundation of rights in the šarīʿa and the umma is a theme that runs throughout the 1981 Universal Islamic Declaration of Human Rights: while this declaration contains all the rights proclaimed in the UN’s 1948 Universal Declaration of Human Rights, it sets these rights on a different foundation. Thus Article VII of the 1981 UIDHR (“Right to Protection against Torture”) corresponds to Article 12 of the 1948 UDHR, and Article IX UIDHR (“Right to Asylum”) corresponds to Article 14 UDHR. Likewise, Article I UIDHR (“Right to Life”) corresponds to Article 3 UDHR, but the background premise is different: while the UIDHR clearly states that “life is sacred and inviolable,” and that “no one shall be exposed to injury or death,” it immediately qualifies that principle with a significant caveat: “except under the authority of the Law.” This law, then – the šarīʿa – sets boundaries around the right to life, as well as around the other rights contained in the UIDHR, which rights can be recognized only so long as they do not collide with the prescriptions set forth in the Sunna. It is on this basis that all the rights in the UIDHR are recognized: Islamic law governs both civil rights – not distinguished from human rights – and social rights. Political rights appear in the UIDHR under the heading “Right and Obligation to Participate in the Conduct and Management of Public 33

The French translation is equally explicit in this regard, stating: “Toute personne a le droit d’exprimer ses pensées et ses convictions dans la mesure où elle reste dans les limites prescrites par la Loi” (Article 12(a) of the Déclaration islamique universelle des droits de l’homme, Conseil Islamique d’Europe, 19 September 1981, Paris).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl am an d ri ght s

233

Affairs,” providing that “subject to the Law, every individual in the community (Ummah) is entitled to assume public office” (Art. 11(a) UIDHR) and that “people also have the right to choose and remove their rulers” in accordance with the “process of free consultation (Shura),” which stands as the “basis of the administrative relationship between the government and the people” (Art. 11(b) UIDHR).34 Social rights are mentioned in Article XVIII UIDHR under the heading “Right to Social Security,” giving everyone “the right to food, shelter, clothing, education and medical care consistent with the resources of the community,” as well as Article XVII UIDHR (“Status and Dignity of Workers”), which contains a fair wages provision enjoining Muslims to treat workers not only “justly” but also “generously,” coupled with language stating that wages must be paid “promptly” and a fair labour standard entitling workers to “adequate rest and leisure,” but it does not provide for any right to work along the lines of Article 23(1) UDHR.35 In the French version, the declaration closes with the two previously mentioned Explanatory Notes stating that each of the human rights enshrined in the declaration itself “carries a corresponding duty” and that enjoyment of the same rights is “subject only to such limitations as are enjoined by the Law [the šarīʿa] for the purpose of [. . .] meeting the just requirements of morality, public order and the general welfare of the Community (Ummah)” (Explanatory Notes 2 and 3 UIDHR). We are thus looking at an Islamicization of human rights, that is, a framing of them in accordance with the principles contained in the Qur’an and the Sunna. And, by the same token, we can also appreciate how far apart the two conceptions of rights are: just as the personal rights set forth in Western declarations – rights of the person as such – cannot fit into an Islamic conception until they are translated into “rights of the moral person,” so the West’s social rights cannot fit into an Islamic conception until they are translated into the “rights of a communitarian being” (droit de l’être communautaire).36 34

35

36

The consultation principle (šūrā) is stated in the Qur’an as follows: “Far better and more lasting is what God will give to those who [. . .] conduct their affairs by mutual consultation” (Consultation, 42:36–38). But because the principle is grounded in religion and tied to the community, it cannot be compared to the principle of representation that forms the basis of modern Western democracies. “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.” See Ihsan Hamid al-Mafregy, “L’Islam et les droits de l’homme,” in Emmanuel Hirsch (ed.), L’Islam et droits de l’homme (Paris: Librairie des Libertés, 1984), pp. 11–50, at 47.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

234

international l aw, islam, and the third world

After the 1981 UIDHR, as mentioned, came the 1990 Cairo Declaration on Human Rights in Islam (CDHRI), adopted by the Organisation of Islamic Cooperation (OIC), the governmental organization established in 1969 whose key bodies include the Islamic Summit and the Council of Foreign Ministers. At the very outset, the Cairo Declaration describes the Islamic community as a force for good, possessed of a higher, divinely bestowed knowledge and faith in virtue of which it can provide cohesion in the midst of discord and guide humanity away from materialism toward the one truth revealed by Allah: Reaffirming the civilizing and historical role of the Islamic Ummah which Allah made as the best community and which gave humanity a universal and well-balanced civilization, in which harmony is established between hereunder and the hereafter, knowledge is combined with faith, and to fulfill the expectations from this community to guide all humanity which is confused because of different and conflicting beliefs and ideologies and to provide solutions for all chronic problems of this materialistic civilization.37

Like the UIDHR, the Cairo Declaration makes explicit the supremacy of Islamic law: “All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shariʿa” (Art. 24 CDHRI). The same holds for the right to life and to bodily integrity, both of which are recognized but may be overridden for “a Shariʿa-prescribed reason” (Art. 2(a) and (d) CDHRI). While “woman is equal to man in human dignity, and [. . .] has her own civil entity and financial independence, [. . .] the husband is responsible for the maintenance and welfare of the family” (Art. 6(a) and (b) CDHRI). And “parents and those in such like capacity have the right to choose the type of education they desire for their children, provided they take into consideration the interest and future of the children in accordance with ethical values and the principles of the Shariʿa” (Art. 7(b) CDHRI). 37

As published in the June 2012 revised edition of Forced Migration Review: Islam, Human Rights and Displacement, pp. 8–9, which points to the OIC as its source. The wording is slightly different from that of the copy held by the United Nations, which speaks of God (rather than Allah) and of a nation (rather than a community). The Organisation of the Islamic Conference, The Cairo Declaration on Human Rights in Islam, in UN General Assembly, 4th Session, World Conference on Human Rights (Geneva, 19 April – 7 May 1993), item 5 on the provisional agenda, “Contribution of the Organization of the Islamic Conference,” UN Doc. A/CONF.157/PC/62/Add.18 (9 June 1993), typewritten document, p. 3.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl am an d ri ght s

235

Article 10 CDHRI states that “Islam is the religion of true unspoiled nature,” while prohibiting “any form of pressure on man or to exploit his poverty or ignorance in order to force him to change his religion to another religion or to atheism.” Even freedom of speech is subordinate to Islamic law: “Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shariʿa” (Art. 22(a) CDHRI). The point of all these observations, in short, is to underscore the twofold theme of community and faith that informs the whole declaration: like the UIDHR, the Cairo Declaration envisions an essentially communitarian being whose rights must be consistent with the šarīʿa.

10.5 Arab Declarations on the Rights of Man The Arab approach to human rights is markedly different from the Islamic approach, for it tends to be secular, making it possible to find common ground with the Western tradition. As with Islamic declarations of human rights, so with Arab declarations a distinction can be drawn between governmental or formally adopted ones and nongovernmental (unauthoritative, merely declarative) ones. In this latter category we find the Draft Charter on Human and Peoples’ Rights in the Arab World, drawn up by seventy-six Arab experts from twelve Arab countries who in December 1986 met in Syracuse, Italy, at the Istituto Superiore Internazionale di Scienze Criminali (International Institute of Higher Studies in Criminal Sciences). In the Preamble, the Draft Charter takes as foundational the “common values, legacy, history, civilization, and interests that unite citizens across the entire Arab Nation, whose land God has blessed by making it the cradle of revealed religions.”38 The civil rights recognized in the Draft Charter include freedom of thought and conscience (Art. 9) and freedom of opinion and expression (Art. 10), significantly without any limitation imposed by the šarīʿa. The document also recommends the establishment of two bodies for the protection of human rights: an Arab Commission for Human Rights (Arts. 50–54) and an Arab Court of Human Rights (Arts. 55–61). 38

Draft Charter on Human and Peoples’ Rights in the Arab World (1986), Syracuse, Italy, Istituto Superiore Internazionale di Scienze Criminali, 1987, p. 5; translated from the French.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

236

international l aw, islam, and the third world

Also significant, in conclusion, is that the Draft Charter, in its Preamble, reaffirms its allegiance to the principles set forth in the UN Charter and the International Bill of Human Rights.39 This same approach and framework can also be found in a governmental document of the Arab world: the Arab Charter on Human Rights, adopted in 1994 by the League of Arab States (LAS).40 On the one hand, like the 1986 Draft Charter, the 1994 Arab Charter underscores the central role entrusted to the Arab Nation as a force for good in the course of human history: as its Preamble states in the very opening, the whole document stems “from the Arab Nation’s faith in the dignity of man; from when God favoured it by making the Arab Nation the cradle of monotheistic religions and the birthplace of civilisation; which has reaffirmed [man’s] right to a life of dignity based on freedom, justice and peace.” On the other hand, like the 1986 Draft Charter, the 1994 Arab Charter recognizes in its Preamble the principles set forth in the UN Charter and the International Bill of Human Rights, suggesting a convergence with the Western conception of human rights. However, the Arab Charter in the same clause also affirms the Islamic principles contained in the 1990 Cairo Declaration on Human Rights in Islam.41 Its Preamble appeals to the Arab Nation as the “the cradle of monotheistic religions and the birthplace of civilisation; which has reaffirmed [man’s] right to a life of dignity based on freedom, justice and 39

40

41

Ibid., p. 5. The International Bill of Human Rights comprises the 1948 Universal Declaration of Human Rights and the two covenants of 1966, namely, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). A draft version of the Arab Charter had previously been approved by the Arab Standing Committee on Human Rights, meeting in Cairo in January 1993, and the LAS then submitted a report to the United Nations. See UN Economic and Social Council, Commission on Human Rights, 49th Session, Agenda Item 11, “Note verbale dated 4 February 1993 from the Permanent Mission of the League of Arab States to the United Nations Office at Geneva addressed to the Under-Secretary-General for Human Rights,” UN Doc. E/CN.4/1993/90 (12 Feb. 1993), p. 6, item III (“The Draft Arab Charter on Human Rights”). This Islamic bent was not present in the January 1993 draft version of the Arab Charter. But in December of the same year, an Arab ministerial conference for human rights was held that amended the document for consistency with the 1990 Cairo Declaration on Human Rights in Islam, and it was this amended document that would eventually be submitted to the LAS Council for final approval. The push for the Islamicized document came from some member states of the Organisation of Islamic Cooperation (OIC) that were also LAS members. See Modica, “La progressiva internazionalizzazione dei diritti dell’uomo nel mondo arabo-islamico e africano” (n. 17), pp. 136–37.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r ight s

237

peace.” And the Arab Nation is entrusted with realizing “the everlasting principles established by the Islamic Shari‘a and the other divine religions enshrined in brotherhood and equality amongst human beings.” The Arab Charter rests Arab identity not on Islam but on the idea of an Arab nation. This nonreligious basis of identity suggests the possibility of a coexistence among the major monotheistic religions, and could point the way in a search for a common set of principles. This is a compellingly innovative perspective that lays the groundwork on which to find a consensus on human rights. Coherently with these premises, the Arab Charter does not ground any right in the šarīʿa.42 It thus recognizes the “right to freedom of belief, thought and opinion” (Art. 26), freedom of religion (Art. 27), and the right of minorities to enjoy their cultures (Art. 37) – all without imposing any restrictions based on Islamic law. At Article 4(A), however, the Arab Charter limits rights and freedoms if this is “considered necessary to protect national and economic security, or public order, or public health, or morals.”43 And at Article 10 it provides for the death penalty, but “only for the most serious crimes,” and with the right “to seek pardon or commutation of the sentence.” To be sure, further restrictions on the death penalty are provided in Article 12, but these are based on Islamic law.44 A few more remarks are in order. In the first place, the Arab Charter contains provisions fully consistent with the two UN covenants of 1966. The previously mentioned Articles 26 and 27, recognizing freedom of thought and religion, correspond to Article 18 of the International Covenant on Civil and Political Rights (ICCPR), and Articles 29–32 of the Charter – recognizing the right to form trade unions and strike, the right to work, the right to free choice of employment, and equal 42

43

44

See Hamadi Redissi, “L’universalità alla prova delle culture: Le Dichiarazioni islamiche dei diritti dell’uomo,” in Pier Cesare Bori, Giuseppe Giliberti, and Gustavo Gozzi (eds.), La Dichiarazione Universale dei Diritti dell’Uomo cinquant’anni dopo (Bologna: CLUEB, 2000), p. 120. Even though, as just noted, the article does impose a restriction on grounds of public morality, it goes on to specify – in accordance with the classic liberal principle – that the exercise of rights and freedoms may be limited where this is deemed necessary to protect “the rights and freedoms of others.” Article 12 reads: “Sentences of death shall not be carried out on persons below eighteen years of age, or a pregnant woman, until she gives birth, or a nursing mother, until two years have passed from the date of [her child’s] birth.” The Islamic basis for these exceptions is Sahih Muslim, bk. 17, hadith 4205, where the prophet Muhammad is recounted to have suspended the punishment of a pregnant adulteress so that she could give birth, whereupon she was stoned to death and the newborn child was entrusted to another woman for breastfeeding and nurturing.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

238

internati onal l aw, islam, and the third world

employment opportunity – correspond to Articles 6–9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is also noteworthy that the Arab Charter provides guarantees for the actual enjoyment of basic human rights and freedoms. This is done in two ways: first, by prohibiting state parties from (a) restricting the rights they already recognize, whether by law, treaty, or custom (Art. 3(A)), and (b) making derogations from the freedoms enshrined in the Charter itself, specifically providing that no state may do so on the ground that another state “affords those freedoms to a lesser degree” (Art. 3(b)); and, second, by requiring state parties to draft periodic human rights reports to be submitted to the Human Rights Committee established in 1968 under the League of Arab Nations (Art. 41).45 It bears mentioning, in closing, that neither the 1990 Cairo Declaration on Human Rights in Islam nor the 1994 Arab Charter on Human Rights were ever ratified – a fact that speaks to the plurality of different positions in the Muslim world in the matter of human rights and what the proper form of government should be.46

10.6 Attempts to Modernize the Arab Charter We have seen that, even though the 1994 Arab Charter on Human Rights is something of a Janus-faced document, it contains some boldly innovative elements that stand in contrast to the traditional Arab perspective embraced by many Arab states.47 This resistance within the Arab world would later give place to a new attitude in view of the developments that have since taken place in the international landscape, coupled with the repercussions of the September 11 attacks and the work of several nongovernmental human rights organizations. In this context the Council of the League of Arab Nations (LAS) issued a resolution in March 2003 asking the Arab Standing Committee on Human Rights to modernize the Arab Charter by bringing it into line 45 46

47

See Redissi, “L’universalità alla prova delle culture” (n. 42), p. 121. See Pacini, introduction to L’Islam e il dibattito sui diritti dell’uomo (n. 21), p. 19. The Cairo Declaration, issued in 1990 by the nineteenth Islamic Conference of Foreign Ministers, has never been ratified by the heads of state of the Organisation of Islamic Cooperation (OIC). The 1994 Arab Charter was approved by the Council of the League of Arab States (LAS) but has never been ratified by the league’s member states. The single exception is Iraq, the only Arab state to have ratified the Arab Charter. Seven states did, however, issue reservations in refusing to ratify the charter: these are the United Arab Emirates, Bahrain, Oman, Saudi Arabia, Sudan, Kuwait, and Yemen.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r igh ts

239

with current international human rights standards.48 In compliance with this request, the Arab Standing Committee submitted a final draft for a modernized Arab Charter in January 2004. At the meeting held to present the new Arab Charter, the secretary general of the LAS, M. Amr Moussa, explained what the Charter’s “modernization” meant by commenting that Arab countries are entrusted with the critical task of “developing their own societies so as to bring them into synchrony with the modern world. [. . .] Arabs should not change the foundations of their thought or their system of values, but neither should they reject out of hand the idea of evolving.”49 On this basis, the new Arab Charter needed to be recognized among the main international human rights instruments as “proof of the advancement of Arab thought on human rights and of its contribution in promoting such rights.”50 In several important respects, the 2004 updated Arab Charter on Human Rights (ACHR) certainly marks a clean break with the Islamist tradition.51 It starts out in Article 1 by framing the whole document “in the context of the national identity of the Arab States,” stressing “their sense of belonging to a common civilisation,” and making it its purpose to “establish the principle that all human rights are universal, indivisible, interdependent and indissoluble” (Art. 1(4) ACHR).52 48

49

50

51 52

Decision 6302/119 (Part II) of the Council of the Arab League, 24 March 2003. For a reconstruction of the events, see Mervat Rishmawi, “The revised Arab Charter on Human Rights: A step forward?” Human Rights Law Review, 5, no. 2 (2005), 361–76, at 363. Here I am following Hafidha Chekir, “La modernisation de la Charte arabe des droits de l’homme,” Jura Gentium: Rivista di Filosofia del Diritto Internazionale e della Politica Globale (2005), www.juragentium.org/topics/islam/rights/fr/chekir.htm. Translated from the French. In “Rapport et Recommandations de la Commission Arabe Permanente pour les Droits de l’Homme. Réunion complémentaire à la deuxième session extraordinaire de la Commission consacrée à l’actualisation de la Charte arabe des droits de l’homme (4 au 15 janvier 2004),” p. 1. Ibid., p. 2. The new Arab Charter was subsequently adopted by the LAS Council in Tunis in May 2004. See the “Tunis Declaration issued at the 16th session of the Arab Summit, held in Tunis on May 22–23, 2004,” which at point 2(2) asserts the Council’s “commitment to the humanitarian principles and the noble values of human rights in their comprehensive and interdependent dimensions, to the provisions of the various international conventions and charters, and to the Arab Human Rights Charter adopted by the Tunis Summit, as well as to the reinforcement of the freedom of expression, thought and belief and to the guarantee of the independence of the judiciary.” Among the Charter’s first signatories was Morocco, in December of the same year. News of the event was reported in the daily newspaper Al Bayane on December 29, 2004. See Chekir, “La modernisation de la Charte arabe” (n. 48), see esp. sec. III.1. As translated by Mohammed Amin Al-Midani and Mathilde Cabanettes, with a revision by Susan M. Akram, and published in the Boston University International Law Journal, 24

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

240

international l aw, is l am, and the t hi rd world

Other articles provide protections against human exploitation, prohibiting “forced labor, human trafficking for prostitution or sexual exploitation [. . .], as well as exploiting children during armed conflicts” (Art. 10(2) ACHR), or requiring state parties to “ensure that mentally or physically disabled persons should enjoy a decent life, in conditions which ensure dignity, promote self-reliance and facilitate their active participation in society” (Art. 40(1) ACHR). Also innovative are the provisions proclaiming the right to development (Art. 37 ACHR) and the right to a safe environment (Art. 38 ACHR). Then, too, we find the fundamental nondiscrimination principle that the rights and freedoms contained in the Charter apply “without any distinction on grounds of race, color, sex, language, religion, opinion, thought, national or social origin, property, birth or physical or mental disability,” with the requirement of state parties to take “necessary measures to guarantee effective equality in the enjoyment of all [such] rights and liberties” (Art. 3(1) and (2) ACHR), while a specific provision states that “men and women are equal in human dignity, in rights and in duties,” again requiring state parties to take “necessary measures to guarantee the effective equality between men and women” (Art. 3(3) ACHR). Equally fundamental, finally, are the rule-of-law principles providing for equality before the law (Art. 11 ACHR) and an independent judiciary, specifically requiring state parties to “ensure the independence of the courts and the protection of judges against interference, pressure or threat” and establishing “a right to legal remedy” (Art. 12 ACHR), as well as the right to appeal if convicted of a crime (Art. 16(7) ACHR). However, despite these innovations, even the 2004 ACHR has not been able to avoid criticism, originating both within the Arab world and from without. For one thing, like the 1994 Arab Charter on Human Rights, the 2004 ACHR affirms its allegiance not only to the principles stated in the 1945 UN Charter and the International Bill of Human Rights (comprising the Universal Declaration of 1948 and the two UN covenants of 1966, namely, the previously mentioned ICCPR and ICESCR) but also to the principles of the 1990 Cairo Declaration on Human Rights in Islam. So here, too, we have a compromise solution, suggesting that the secular principles of international law are recognized in the ACHR only so long (2006), 147–64. An earlier translation is published in International Human Rights Reports, 12 (2005), 893.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r ight s

241

as they do not come into conflict with Islamic principles; or, stated otherwise, the Charter appears to accord primacy “only to the human rights recognized in religious texts, thus giving greater weight to the civilizational specificity of the religious and the sacred.”53 Also of serious concern is the Charter’s lack of an adequate solution to the problem of equal rights between men and women. The previously mentioned Article 3(3) ACHR, stating that “men and women are equal in human dignity, in rights and in duties,” qualifies this principle by setting it “within the framework of the positive discrimination established in favor of women by Islamic Shari’a and other divine laws, legislation and international instruments.” As Hafidha Chekir points out, this means that the rights of women are, once more, understood to lie on a conciliatory foundation that amounts to a “compromise between international and religious instruments.”54 What seems to follow from this observation is that women under the ACHR can only enjoy the rights granted to them by Islamic šarīʿa. The same problem has also been highlighted by the International Commission of Jurists (ICJ).55 And the ICJ also underscores the discrimination that noncitizens are subject to under the ACHR. Thus equal access to public services (Art. 24(4) ACHR) and freedom of peaceful assembly and association (Art. 24(6) ACHR) are restricted to citizens, as are the rights to work, to social security, and to education (Arts. 34, 36, and 41 ACHR). The ICJ also points out the inadequate protection afforded to minorities, for in providing them with a “right to enjoy their own culture, to use their own language and to practice their own religion” (Art. 25 ACHR), the Charter does not explicitly secure their ability to exercise these rights in common as members of a community. What is more, by stating that “the exercise of these rights shall be governed by law,” the same provision opens the possibility for the state to unduly interfere in the enjoyment of the same rights.56 And, finally, the ICJ also points out that while the Charter provides a right of asylum, it does so subject to the 53 54 55

56

Chekir, “La modernisation de la Charte arabe” (n. 48), sec. III.2; my translation. Ibid. See “Commentaires de la Commission Internationale de Juristes à l’adoption du texte de la Charte arabe des Droits de l’Homme,” February 2004, sec. III(3)(a), p. 8, www .humanrights.ch/upload/pdf/061015_Comment-Charte-arabe.pdf. The ICJ was established in Berlin in 1952 and is made up of sixty eminent jurists representing legal systems across the five continents. Part of its mission, as stated on its website (www.icj.org), is to “ensure that international law, especially human rights and humanitarian law, is utilised effectively for protection, particularly for the most vulnerable.” See “Commentaires” (n. 55), sec. III(6), p. 13.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

242

i n t e r n at i o n al l aw, is l am, and the t hird world

proviso that “this right may not be invoked by persons facing prosecution for an offence under ordinary law” and that “political refugees may not be extradited” (Art. 28 ACHR), and this is in violation of the 1951 Convention Relating to the Status of Refugees and its 1967 protocol.57 In short, as much as the 2004 Arab Charter on Human Rights introduces significant innovations, no less significant are its departures from international human rights standards. The project to modernize the Charter or make it more current seems inevitably to come up short, continuing to proceed under the constraint of some insuperable limits of the Islamic tradition.

10.7 Human Rights and International Law We have seen how deep the differences are that divide the Western and Islamic conceptions of human rights. Even so, setting aside the fact that the more innovative Arab Charter of 1994 was never ratified, we can reflect on the conditions that may foster some kind of agreement or rapprochement between these two traditions. With the 1948 Universal Declaration of Human Rights and the previously discussed UN covenants of 1966 (the ICCPR and the ICESCR), the Western countries made human rights an essential component of international law. This is no doubt the result of a long history that has shaped human rights into a distinctly European and Anglo-American idea, and other cultures and civilizations, as noted, diverge from this tradition in important ways. But let us nonetheless explore the path toward common ground. In November 1992, ministers and representatives of the African states met in Tunis in preparation for the World Conference on Human Rights that was set to take place in Vienna in June 1993. What came out of this regional meeting was the Tunis Declaration. In it the African states affirmed their commitment to the principles set forth in the International Bill of Rights (comprising the 1948 UDHR and the two 1966 UN covenants, i.e., the ICCPR and the ICESCR) and stated that “the universal nature of human rights is beyond question,” adding that “their protection and promotion are the duty of all States, regardless of their political, economic or cultural systems.”58 At the same time, however, the 57 58

Ibid., sec. III(7), p. 14. “Final declaration of the regional meeting for Africa of the World Conference on Human Rights” (Tunis Declaration), in Report of the Regional Meeting for Africa of the World Conference on Human Rights (Tunis, 2–6 Nov. 1992), UN Doc. A/CONF.157/AFRM/14 (24 Nov. 1992), chap. I, points 1 and 2, p. 1.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r igh ts

243

declaration noted that “no ready-made model can be prescribed at the universal level since the historical and cultural realities of each nation and the traditions, standards and values of each people cannot be disregarded.”59 These policy statements were ratified at the World Conference on Human Rights held in Vienna in 1993, and this therefore marks the moment when the Islamic and Asian states found recognition of their view that human rights cannot be unqualifiedly universal.60 At this point, however, it is only fair to ask to what extent human rights can really be said to exist under a single international system: perhaps, in view of the cultural differences by which peoples are divided, human rights are more accurately described as existing under a plurality of systems.61 Indeed, as we have seen, as numerous as the Arab states’ ratifications of international human rights agreements may be, no less numerous are the reservations the same states have made in adhering to these agreements,62 invariably whenever the principles expressed in these agreements came into conflict with Islamic law. So, for example, confining our gaze to the Arab states in the Mediterranean area, we can see that in ratifying the 1979 Convention on the Elimination of All Forms of Discrimination against Women, Libya and Tunisia both entered reservations stating that this convention could not invalidate the šarīʿa laws governing the personal status of women in their countries.63 And, as noted earlier, in ratifying the 1966 ICCPR, Algeria rejected its Article 23 – concerning marriage and the family – as incompatible with Algerian family law.64 These examples and background should suffice to show that it would be quite unreasonable to proclaim the universality of human rights. The persistent disagreement rather suggests a different path if we are looking for a universal moral basis on which to rest the system of 59 60

61

62

63

64

Ibid., point 5, p. 2. “ Final declaration of the regional meeting for Africa of the World Conference on Human Rights,” Human Rights Law Journal, 14, nos. 9–10 (1993), 370. Kalevi J. Holsti, Peace and War: Armed Conflicts and International Order 1648–1989 (Cambridge: Cambridge University Press, 1991), pp. 304–5. At Article 2(1)(d) of the Vienna Convention on the Law of Treaties (concluded on May 23, 1969), a reservation is defined as “a unilateral statement, however phrased or named, made by a State, when signing, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” In this regard see Ramdane Babadji and Jean-Robert Henry, “Universalisme et identités juridiques: Les droits de l’homme et le monde arabe,” in Ahmed Mahiou (ed.), L’État de droit dans le monde arabe (Paris: CNRS Éditions, 1997), pp. 86–7. Ibid, p. 88.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

244

international l aw, is l am, and the t hird world

international relations: it may be more promising, in other words, to attempt a cross-cultural foundation for human rights. In fact this is what some scholars have suggested in an effort to reform Islam,65 while others envision an “international civil society of human rights.”66 But what conditions need to be in place before such an international civil society can even be possible? There is a minority of voices in the Muslim world who argue that the Islamic conception of human rights is actually compatible with the Western conception, but the mainstream view is that to embrace human rights is to surrender to Western hegemony or that Muslims are at any rate best served by a human rights scheme cast in a distinctly Islamic mould.67 The former, conciliatory, argument proceeds from the observation that condensed in the šarīʿa, such as we know it today, are all of the meanings that have come together in the process of interpreting the Islamic sources over the course of history. And just as these sources, mainly the Qur’an and the Sunna, have been interpreted in one way, so they can also be interpreted in another, in light of whatever new understanding may be needed to respond to the socioeconomic conditions we face today, thus bringing new clarity to the purpose of the Islamic sources.68 Thus, as Abdullahi Ahmed An-Na‘im observes,69 as much as the authority of man over woman is based on the Qur’an,70 society has 65

66

67

68

69 70

I am thinking in particular of Bassam Tibi, “Islamic law / shari’a, human rights, universal morality and international relations,” Human Rights Quarterly, 16, no. 2 (1994), 277–99, at 280. Tibi argues that the study of international relations should transition away from its focus on “political security issues and global economics” so as to embrace a cultural analysis of international relations (ibid., p. 284). See Babadji and Henry, “Universalisme et identités juridiques” (n. 63), p. 79; my translation. See Tibi, “Islamic law / shari’a” (n. 65), p. 286. Among the authors who argue that the šarīʿa is fully consistent with human rights is Ali Abd al-Wahid Wafi, “I diritti umani e i cinque obiettivi della šharī‘a,” in L’Islam e il dibattito sui diritti dell’uomo (n. 21), pp. 53 ff. An argument to this effect can be found in Abdullahi Ahmed An-Na‘im, “Il conflitto tra la šharī‘a e i moderni diritti dell’uomo: Proposta per una riforma dell’Islam,” in L’Islam e il dibattito sui diritti dell’uomo (n. 21), p. 114. See esp. idem., Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law, foreword by John Woll (Syracuse, NY: Syracuse University Press, 1996). An-Na‘im, Toward an Islamic Reformation (n. 68), chap. 4, pp. 99–100. Specifically in the sura of Women, 4:34, translated by An-Na‘im (ibid., p. 99) as follows: “Men have qawama [guardianship and authority] because of the advantage they [men] enjoy over them [women] and because they [men] spend their property in supporting them [women].” Compare: “Men are the maintainers of women, with what Allah has given some of them above others and with what they spend out of their wealth.” English

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r igh ts

245

developed in ways that make this principle historically backward, all the more so that the equal dignity of man and woman can be asserted consistently with other verses in the Qur’an.71 The method to be followed in working toward this goal is that of igˇ tihād, a form of legal reasoning that makes it possible for one authoritative text from the Qur’an and the Sunna to be replaced with others that come from the same sources but are more general and can thus be used to advance new principles and promote new rules.72 This is a significant proposal for reforming Islam that could make it possible to reach some form of cross-cultural consensus. In making this proposal, An-Na‘im draws inspiration from Mahmoud Mohamed Taha,73 who contends that the Qur’anic texts that teach solidarity only among Muslims were revealed to the prophet Muhammad in his Medina period, whereas in the earlier Mecca period he was preaching solidarity toward the whole of

71

72

73

Translation of The Holy Quran, with Explanatory Notes from the English Translation and Commentary of Maulana Muhammad Ali, ed. Zahid Aziz (Wembley, UK: Ahmadiyya Anjuman Lahore Publications, 2010; orig. pub. 1917), 113. Compare also: “Men are the protectors and maintainers of women, because Allâh has made one of them to excel the other, and because they spend (to support them) from their means.” Translation of the Meanings of The Noble Qur’an in the English Language, by Dr. Muhammad Taqî-ud-Dîn Al-Hilâlî and Dr. Muhammad Muhsin Khân (Medina, KSA: King Fahd Complex for the Printing of the Holy Qur’an, n.d.), p. 113. The rest of the verse continues as follows: “Therefore the righteous women are devoutly obedient (to Allâh and to their husbands), and guard in the husband’s absence what Allâh orders them to guard (e.g. their chastity, their husband’s property). As to those women on whose part you see ill-conduct, admonish them (first), (next), refuse to share their beds, (and last) beat them (lightly, if it is useful); but if they return to obedience, seek not against them means (of annoyance). Surely, Allâh is Ever Most High, Most Great” (ibid.). Especially in Qur’an, The Night Journey, 17:70, and The Private Rooms, 49:13. The latter verse reads: “People, We created you all from a single man and a single woman, and made you into races and tribes so that you should recognize one another. In God’s eyes, the most honoured of you are the ones most mindful of Him: God is all knowing, all aware.” See An-Na‘im, “Il conflitto tra la šharī‘a e i moderni diritti dell’uomo” (n. 68), p. 116, applying this method to Qur’an, The Immunity, 9:29, understood to legitimize discrimination against non-Muslims: “Fight those who do not believe in Allah, [. . .] nor follow the Religion of Truth, [. . .] until [. . .] they are in a state of subjection” (from the 2010 edition of the Qur’an as translated by Maulana Muhammad Ali (n. 70), p. 236). As An-Na‘im points out, igˇ tihād can be used to replace this verse with others that explicitly rule out coercion in matters of faith, and specifically with the verse from The Cow that says: “There is no compulsion in religion – the right way is indeed clearly distinct from error” (Qur’an, 2:256, quoting from the same source, p. 62). On the role of igˇ tihād as a source of new principles in a changing Muslim society under šarīʿa law, see also An-Na‘im, Toward an Islamic Reformation (n. 68), chap. 2, pp. 27 ff. Mahmoud Mohamed Taha, The Second Message of Islam, trans. and ed. Abdullahi Ahmed An-Na‘im (Syracuse, NY: Syracuse University Press, 1987), see esp. chap. 6, pp. 146 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

246

international l aw, is l am, and the t hird world

humanity. In a globalized society, An-Na‘im argues, Muslims ought to stress the eternal message of the Qur’an revealed during the Meccan period.74 It must be pointed out, however, that An-Na‘im is not naive about the possibilities offered by cross-cultural dialogue: he is well aware of the limits owed to the specificities of different cultural contexts. Thus, as he points out, if we take the rights set forth in the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, we can observe that even if this convention has been ratified by several Muslim countries (including Algeria, Egypt, Libya, Morocco, Tunisia, and Afghanistan), it has not been possible for Muslims to forswear forms of punishment such as amputation of the hand, for they are prescribed in the Qur’an.75 An-Na‘im rules out the suggestion that this punishment should apply to non-Muslims, but he points out that while amputation will immediately conjure up the idea of cruel and unusual punishment in the minds of most people in North America, for example, to a Muslim mind it may, under certain circumstances, seem entirely appropriate. Thus, in An-Na‘im’s judgment, “neither internal Islamic reinterpretation nor 74

75

An-Na‘im, Toward an Islamic Reformation (n. 68), p. 180. It bears mentioning, however, that this view has attracted its share of criticism. One objection to it is that it neglects to consider the revealed nature of the Qur’an, making it unlikely that a third of the verses contained in this text can simply be dismissed as messages of mainly practical import addressed to a historical community. See Louay M. Safi, “Human rights and Islamic legal reform” (11 August 1998), p. 1, available under “Research Articles” at http://louaysafi.com. A second line of objection is that even if we agree that greater weight ought to be accorded to those parts of the Qur’an that underscore the idea of equality, there are problems with the method by which Taha and An-Na‘im interpret the Qur’an to this end, for they wind up replacing one religious construct with another. This is the objection raised by Mohamed Charfi, who argues that a distinction needs to be made between the shariʿa, which is a human creation and is thus contingent, and Islam, which instead is based on eternal values and must be lived in foro interno. See Mohamed Charfi, “Les États musulmans et les droits de l’homme,” in Boutros BoutrosGhali (ed.), Amicorum Discipulorumque Liber: Paix, Développement, Démocratie (Brussels: Bruylant, 1998), vol. 2, pp. 1003–4, 1014. For a discussion of the criticisms made of An-Na‘im’s view, see Daniele Anselmo, Šharī‘a e diritti umani (Turin: Giappichelli, 2007), pp. 212 ff. “Cut off the hands of thieves, whether they are man or woman, as punishment for what they have done – a deterrent from God: God is almighty and wise” (Qur’an, 5:38). See Abdullahi Ahmed An-Na‘im, “Toward a cross-cultural approach to defining international standards of human rights: The meaning of cruel, inhuman, or degrading treatment or punishment,” chap. 1 in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: University of Pennsylvania Press, 1992).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

is l am an d r igh ts

247

cross-cultural dialogue is likely to lead to the total abolition of this punishment as a matter of Islamic law.”76 The conflict between the Islamic conception of human rights and the Western conception has been interpreted by Ann Elisabeth Mayer as rooted in the Muslim authors’ assumption of the “primacy of Revelation over reason,” noting that none of the Muslim human rights schemes “endorses reason as a source of law or moral guidance.”77 This frames the clash as one between Western rationalism and Islamic theocentricism.78 As simplistic as this rendering of the conflict may be, it does highlight the problem that, on the one hand, Western civilization will not be able to embrace a theocentric worldview, and yet, on the other hand, a meeting of civilizations is not only desirable but also necessary, because Islam does not so much butt up against the West from the outside as it lies within the West.

76

77

78

Ibid., p. 36. This view has come under criticism from Carlos Santiago Nino, who notes that the argument, in making the case that the cutting of hands in the Muslim world may not amount to cruel and degrading punishment, proceeds from the premise that Muslims do not regard this form of punishment as cruel and degrading. But, Nino points out, this is entirely different from arriving at this same conclusion simply on the ground that the person subjected to such punishment happens to be Muslim. The argument, as stated, fails to draw this essential distinction and is thus flawed. See Carlos Santiago, Nino, Diritto come morale applicata, ed. Massimo La Torre (Milan: Giuffrè, 1999), p. 198, orig. pub. as Derecho, moral y política: Una revisión de la teoría general del derecho (Barcelona: Ariel, 1994). Nino further speculates that if societies in which the cutting of hands is law should turn democratic and secular, shifting away from a theocratic model, then their attitude toward this punishment would change, for democracies rely on a standard of intersubjective agreement in deciding what counts as a valid norm (ibid., p. 202). Ann Elisabeth Mayer, Islam and Human Rights: Tradition and Politics (Boulder, CO: Westview Press, 2013), p. 48. In Tibi, “Islamic law / shari’a” (n. 65), pp. 290–1, the same clash is instead framed as “a basic conflict between cultural modernity and pre-modern doctrines” or, more specifically, “between the global civilization of cultural modernity and local pre-modern cultures grouped in regional civilizations” (ibid., p. 297): whereas in the former, human rights find their basis in the natural-law “principle of subjectivity for determining man to be a free individual” (ibid., 290), in the latter, and specifically “in Islamic doctrine, the individual is considered a limb of a collectivity, which is the umma/community of believers” (ibid., 289). This explains why “in Islam, Muslims, as believers, have duties/ fara‘id vis-à-vis the community/umma, but no individual rights in the sense of entitlements” (ibid.). As Tibi argues, this conflict of worldviews can be ascribed to the “simultaneity of structural globalization and cultural fragmentation” (ibid., p. 285), and with this historico-structural framing of the issue we can avoid casting the conflict as a “clash of civilizations” (ibid., p. 297), with the whole package of value judgments the latter implies.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

248

international l aw, i slam, and the t hird world

The goal, then, is to arrive at a consensus at once universal and crosscultural in the matter of human rights.79 Islam is divided between two options: on the one hand it can take the traditionalist view that the rules and principles by which Muslims are to live are contained in the šarīʿa, which serves as the source of religious duties but does not speak to Muslims about human rights; on the other hand is the historicist view asserting the historical nature of Islamic revelation.80 Only if Western and Islamic countries both pursue this historical avenue is there any likelihood of achieving a universal consensus.81 On the one hand, this means appreciating that the Western conception of human rights is not absolute but relative: we do this by recognizing the extent to which human rights have been and may still be exploited by the West in pursuit of its hegemonic aims, while underscoring that the Western conception of human rights has been instrumental in establishing the rule of law and constitutional democracy in Western countries, and so in forging secular forms of government consistent religious pluralism. On the other hand, the historical approach suggests that we should lay emphasis on those parts of the Qur’an that carry a universalist message, while distancing ourselves from those parts that instead teach solidarity only among Muslims. In this way, we can look forward to the prospect of achieving a consensus on human rights. This means that we need to embrace the idea of a mutual recognition of our different cultural and religious principles. Which in turn means that the 1948 Universal Declaration of Human Rights, for example, should not only protect the individual rights 79

80 81

Bassam Tibi, “The European tradition of human rights and the culture of Islam,” in Abdullahi Ahmed An-Na‘im and Francis M. Deng (eds.), Human Rights in Africa: CrossCultural Perspectives (Washington, DC: The Brookings Institution, 1990), pp. 104–32, at 109. Ibid., p. 131. An example of this approach can be found in Mohamed Talbi, “Religious liberty: A Muslim perspective,” chap. 18 in Charles Kurzman (ed.), Liberal Islam: A Sourcebook (Oxford and New York: Oxford University Press, 1998; orig. pub. in Liberty and Conscience (Aldershot, UK: Committee for the Defence of Religious Liberty), vol. 1, no. 1 (spring 1989), 12–20), offering a historical analysis of religious freedom in an effort to advance a reformist project. Talbi uses this analysis to show that the Qur’an unambiguously supports religious freedom, arguing that traditional theology fails to adhere to the spirit of the Qur’an. Only by historical analysis, he claims, can we explain Islamic discrimination against confessional minorities and the persecution of apostates (p. 165). In fact, there is no basis for these practices in the Qur’an, which “deals at length with” the problem of religious liberty, and “argues, warns, advises, but never resorts to the sword” in the matter of apostasy (p. 167).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

is l am an d righ t s

249

of the Western tradition but should also recognize the “communitarian individual” of the Islamic tradition and the close relation between rights and duties proper to that conception. Before we move on, however, it is essential that we dig deeper into the Islamic conception of international law so as to explore the possible ways in which it can converge with the Western conception.

10.8 Šarīʿa and International Law In order to grasp the peculiarity of Islamic international law – and so the principles of the šarīʿa as they apply to international law – we need to consider the šarīʿa in its historical context.82 The thesis advanced by An-Na‘im in this regard is quite specific: he observes that “Islam was born in an extremely violent environment and received a very hostile and aggressively violent reaction from the tribes of seventh-century Arabia.”83 As a result, international Islamic law – known as siyar and developed by the Hanafi school in Kufa starting from the early eighth century – established itself as an international order that divided the world into two parts: on the one hand was the land of Islam (or dār al-islām), on the other was the land of war (or dār al-harb), and between the two there existed a state of constant warfare, for˙it was the aim of Islam to extend its own rule over the whole of humanity.84 For an authoritative definition of the siyar we can turn to Sarakhsi, a jurist of the Hanafi school in whose words we can appreciate the reason for the constant state of war between Muslim and non-Muslim peoples. The siyar, he explained, describes the conduct of the believers in their relations with the unbelievers of enemy territory as well as with the people with whom the believers had made treaties, who may have been temporarily (musta’mins) or permanently (Dhimmīs) in Islamic lands; with apostates, who were the worst of the unbelievers, since they abjured after they accepted [Islam]; and with rebels (baghīs), who were not counted as unbelievers, though they were ignorant and their understanding [of Islam] was false.85

82 83 84

85

An-Na‘im, Toward an Islamic Reformation (n. 68), p. 141. Ibid., p. 142. Majid Khadduri, The Islamic Law of Nations: Shaybānī’s Siyar (Baltimore, MD: The Johns Hopkins Press, 1966), pp. 11–12. Ibid., p. 40, quoting Sarakhsi, Kitāb al-Mabsūt (Cairo 1324/1906), vol. X, p. 2; Khadduri’s brackets.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

250

i n t e r n at i o n al l aw, is l am, and the t hird world

So here we have a stark picture of international relations depicting a world divided into opposing camps of believers and nonbelievers – friends and enemies necessarily in conflict with each other. But as AnNa‘im observes, this depiction needs to be duly qualified. For even though “warfare among the tribes of Arabia and among the political entities of the region had been motivated by such considerations as tribal honor, territorial rivalry, and economic greed, Shari‘a restricted the use of force in international relations to self-defence and the propagation of Islam”: these were understood by Muslims as “the only legitimate reasons for war,”86 and in a historical context in which this conception of the use of force found its legitimacy in virtue of the violence on which international relations were largely based. And just as it is implausible to properly appreciate the šarīʿa apart from the historical context of its birth, so we need to consider how that context has since changed. We now live in a world whose international relations are predicated on the idea of coexistence, if not in reality at least in principle, and so the šarīʿa will have to be accordingly reinterpreted in light of this fundamental shift. As An-Na‘im summarizes this idea, “the Qur’an and Sunna have been the source of Shari‘a as the Islamic response to the concrete realities of the past and must be the source of modern Shari‘a as the Islamic response to the concrete realities of today.”87 In making this suggestion An-Na‘im points to the different meanings that can be ascribed to the use of force (jihad) in many of the verses in the Qur’an that were revealed to the Prophet once he migrated with his followers from Mecca to Medina in AD 622. In the verses from the earlier Mecca period, the term jihad refers to a “striving” or “struggle” that draws its strength from the message of the Qur’an,88 but in the later 86 87 88

An-Na‘im, Toward an Islamic Reformation (n. 68), p. 142; italics added. Ibid., pp. 143–44. An example is Qur’an, 25:51–52: “If it had been Our will, We would have sent a warner to every town, so do not give in to the disbelievers: strive hard against them with this Qur’an” (as translated by M. A. S. Abdel Haleem (n. 32), pp. 229–30). Verse 25:52 is similarly translated elsewhere. See, for instance, the 2010 edition of the 1917 translation and commentary by Maulana Muhammad Ali (n. 70): “So do not obey the disbelievers, and strive against them a mighty striving with it” (p. 452), where the verse is commented as follows: “This verse affords a clear proof of the significance of the word jihād, as used in the Quran. Every exertion to spread the Truth is, according to this verse, a jihād; in fact, it is called the jihād kabīr (‘mighty striving’) or the great jihād. Fighting in defence of religion received the name of jihād, because under the circumstances it became necessary for the Truth to live and prosper; if fighting had not been permitted, Truth would surely have been uprooted. The commentators all accept this significance of the word here. It should be noted that the greatest jihād which a Muslim can carry on is one by means of

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl am a n d righ t s

251

Medinan verses the Prophet writes approvingly of the use of force against non-Muslims. Thus in Sura 9 (which dates to AD 631 and so is surely among the Prophet’s last revelations) we read: “So when the sacred months have passed, kill the idolaters, wherever you find them, and take them captive and besiege them and lie in wait for them in every ambush” (Qur’an, 9:5).89 This was clearly an imperative for the historical context of seventhcentury Arabia. And it may well have been justified in that context. In fact, as An-Na‘im points out, “Islam would probably not have survived if the Muslims [had been] denied the use of force in propagating the faith and maintaining the cohesion and stability of the community. It was impracticable to maintain a nonviolent society at a time when violent force was the law.”90 But international relations have since changed, and so a corresponding change needs to take place in the way the šarīʿa is used in governing such relations. In this reform effort, more to the point, it is necessary “to substitute as bases of Islamic law those clear and definite verses of the Qur’an and related Sunna that sanction the use of force in propagating Islam among non-Muslims [. . .] with texts of the Qur’an and Sunna that enjoin the use of peaceful means in achieving these objectives.”91 What is compelling about An-Na‘im’s interpretivist historical approach is that its conciliatory aim is framed from a Muslim perspective. For

89

90 91

the Quran, to which the personal pronoun it at the end of the verse unquestionably refers, because such jihād must be carried on by every Muslim under all circumstances” (pp. 452–53, n. d(52)). Compare: “So obey not the disbelievers, but strive against them (by preaching) with the utmost endeavour with it (the Qur’ân).” Translation of the Meanings of The Noble Qur’an in the English Language (n. 70), p. 484. Compare also: “So obey not the unbelievers, but struggle with them thereby mightily.” The Koran Interpreted, trans. A. J. Arberry (New York: Touchstone, 1996; orig. pub. London: George Allen & Unwin; New York: Macmillan, 1955), p. 60. From the 2010 edition of the translation by Maulana Muhammad Ali (n. 70), p. 232, commenting that “by the idolaters here are meant, not all idolaters or polytheists wherever they may be found in the world, not even all idolaters of Arabia, but only those idolatrous tribes of Arabia assembled at the pilgrimage who had first made agreements with the Muslims and then violated them” (ibid., n. b (5–1)). The same observation is made in the 2005 translation by M. A. S. Abdel Haleem (n. 32), p. 116, n. (c). Note, too, that the verse continues with a further qualification: “But if they repent and keep up prayer and give the due charity, leave their way free. Surely Allah is Forgiving, Merciful. And if anyone of the idolaters seek your protection, protect him till he hears the word of Allah, then convey him to his place of safety. This is because they are a people who do not know” (Qur’an 9:5–6). An-Na‘im, Toward an Islamic Reformation (n. 68), p. 158; italics in original. Ibid.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

252

international l aw, islam, and the third wo rld

instead of calling on the Muslim world to accept the international law of the West, it is asking Muslims to look to Islam itself as a source of principles that would make it possible for the Western and Islamic conceptions of international law to coexist. What is more, under this proposed reform of Islamic law applied to international relations, the rule of law would not be reduced to a tool by which the stronger countries could bend the weaker ones to their own will (as the United States has often done in its unilateral action) but would instead be a principle that all countries are equally subject to without benefiting some at the expense of others. We have so far seen that despite the deep differences that separate the Western and Islamic conceptions of international law, it is possible for these conceptions to converge, and we have looked at some of the conditions of this convergence. We will now turn to the constitutions of the Islamic countries, and specifically of the Mediterranean ones, so as to further elaborate on this point and reinforce the argument in favor of convergence.

10.9 Two Visions of the Rights of Man in the Islamic World It would not be inaccurate to say that almost all Arab countries have two visions of the rights of man.92 Whereas the 1981 Universal Islamic Declaration of Human Rights and the 1990 Cairo Declaration on Human Rights in Islam are solely based on the šarīʿa, the constitutions of Arab countries also recognize rights in the manner of the Western tradition. One example, confining our view to the Arab countries of the Mediterranean, is the Tunisian Constitution of 1959, which on the one hand made Tunisia a confessional state – stating that “its religion is Islam” (Art. 1) – but on the other hand, like the current constitution of 2014,93 it protected freedom of conscience and religion, consistently with public order (Art. 5), as well as “freedom of opinion, expression, the press, publication, assembly and association [. . .] according to the terms defined by the law” (Art. 8).94 92

93

94

See Maurice Borrmans, “Ipotesi di convergenza sui diritti dell’uomo nel Mediterraneo,” in Ungari and Modica (eds.), Per una convergenza mediterranea sui diritti dell’uomo (n. 17), vol. 3, Orientamenti critici e ricostruttivi, pp. 85–99, esp. 87 ff. The Tunisian constitution of 2014 devotes ample space to rights: the whole of Title Two, spanning from Article 21 to Article 49. The document sets up Tunisia as a constitutional democracy and can be held up as a model for the rest of the Arab world. Tunisia offers a significant example of modernization among the countries of North Africa. This can be appreciated in its 1956 Code du statut personnel (Code of Personal Status), under which men and women enjoy equal standing in the matter of divorce, with Article 31, for example, stating that divorce proceedings before a court of law may be

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl am an d ri ght s

253

Likewise with the Syrian Constitution of 1973, which on the one hand, at Article 3, makes Islam the “religion of the President of the Republic” and “Islamic jurisprudence [. . .] a main source of legislation,” while on the other hand it sets the government on a fully secular foundation by stating, at Article 3, that “the Syrian Arab Republic is a democratic, popular, socialist, and sovereign state.” And the same point can be made about the Egyptian and Algerian Constitutions. The Egyptian Constitution of 1971 (as amended in 2007) states that “Islam is the religion of the State” and “Islamic law [šarīʿa] is the principal source of legislation” (Art. 2), but at the same time it guarantees “freedom of belief and the freedom of practice of religious rites” (Art. 46). This dual foundation, at once secular and confessional, can also be found in Articles 40 and 11: while the former states that “all citizens are equal before the law,” the latter draws an implicit distinction between men and women, for in recognizing woman’s “equal status with man in the fields of political, social, cultural and economic life,” it introduces the notion of a “proper coordination between the duties of woman towards the family and her work in the society,” and it also sets forth the condition that the equal status of man and woman may only be protected “without violation of the rules of Islamic jurisprudence.” A new constitution was enacted in Egypt in 2014, but much the same point can be made about this text, too. Article 2 retains the Islamic šarīʿa as the main source of legislation, in contrast to Article 64, which under its first clause states that “freedom of belief is absolute.”95 And while Article 53 establishes a principle of equality before the law, “without discrimination based on religion, belief, sex, origin, race, color, language, disability, social class, political or geographic

95

initiated at the request of either spouse. At the same time, however, Article 119 recognizes the rule that male heirs may inherit a share twice as large as female heirs. Quoting from the unofficial translation made available by the Egyptian State Information Service (www.sis.gov.eg). Note that under the second clause of the same Article 64 the freedom of religion and worship is protected only “for the followers of Abrahamic religions.” As has been commented, “this leaves large scope for the legislator. Adherents of faiths other than the three Abrahamic faiths [. . .] are left outside constitutional protections.” Michael Meyer-Resende, “Egypt: In-Depth Analysis of the Main Elements of the New Constitution,” written at the request of the European Parliament’s Committee on Foreign Affairs (AFET) for the Policy Department of the DirectorateGeneral for External Policies of the Union, doc. no. EXPO/B/AFET/2013/40 (Brussels: European Union, April 2014), DOI 10.2861/63673, sec. 5.2, p. 12. Even within the same article, then, we can observe a double register, with a pluralistic (progressive) clause followed by a more traditional (conservative) one.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

254

international l aw, islam, and the third world

affiliation or any other reason,”96 Article 11 no longer posits the condition of equality subject to Islamic jurisprudence but, under its third clause, retains the traditionalist idea of a woman’s domestic duties, with the aim of “enabling women to strike a balance between family duties and work requirements.”97 Also of two minds, finally, is the Algerian Constitution of 2016, which on the one hand reiterates the confessional basis of the state – by making Islam the state’s religion (Art. 2: “l’Islam est la religion de L’État”) – while at the same time enshrining the full menu of basic rights and liberties recognized in the West: equality before the law and the prohibition against discrimination on any ground (Art. 32); the inviolability and dignity of the human being, with the prohibition against any form of violence, moral or physical, and against cruel, inhuman, or degrading treatment or punishment (Art. 40); freedom of conscience and opinion, and freedom of religion (Art. 42: “La liberté d’exercice du culte est garantie dans le respect de la loi”); freedom of expression, association, and assembly (Art. 48); and so on. We can see from this discussion how the Arab constitutions differ from the previously discussed Islamic charters of rights: whereas the latter proceed from a confessional communitarian basis specifically designed to stand clear of the Western tradition – thereby making any genuine agreement with this tradition unlikely unless their Islamic sources are reinterpreted – the Arab constitutions (at least the Mediterranean ones we have looked at) rest human rights on both bases – the confessional and the secular – thus providing a stronger foothold from which to work in the effort to get the two conceptions to converge. Nor should we forget the fertile social ground from which blossomed the various leagues and organizations that have made human rights declarations in accord with the UN’s Universal Declaration of 1948. A case in point is the Tunisian Human Rights League, in whose 1985 charter we find it stated that any two persons, male and female, once they reach the age of majority, have the right to freely choose their spouse and to form a family solely on the basis of their personal convictions and 96

97

This article falls under Part III of the 2014 constitution (Public Rights, Freedoms & Duties, Arts. 51 to 93), providing a broadly secular foundation for rights within the framework of a presidential democracy. On the role of religion in the framing of rights in Arab countries, see Stefano Ceccanti, “Religione, diritti e garanzie nei Paesi arabi,” Quaderni di diritto e politica ecclesiastica, 1 (2003), 165–80.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl am an d ri ght s

255

conscience.98 This clearly calls to mind Article 16 of the UN’s Universal Declaration, just as Article 9 of the Tunisian League charter, on freedom of thought and conscience, is modelled after Article 18 of the Universal Declaration.99 It should also be pointed out, in conclusion, that Muslim countries have been using Western codes as templates for their own codes since the mid-nineteenth century. One need only consider, in this regard, the process of Ottoman codification, which drew on the French codes for its own Commercial, Criminal, and Maritime Codes (of 1850, 1858, and 1864, respectively), as well as for its Codes of Civil and Criminal Procedure (enacted in the 1880s). The same codification based on the French model took place in Egypt, with its Civil Codes of 1875 and 1948 (the latter after independence in 1922). But this did not mean that the šarīʿa thereby disappeared from the law – only that it was reduced to a complex of moral principles that still carry weight and continue to influence the framing of laws and the decision-making of the courts,100 particularly in the matter of personal status. The civil codes currently in force in some Islamic countries draw on a variety of authoritative sources apart from the šarīʿa. The Egyptian Civil Code of 1948 states that matters within its purview are governed by statutory law, absent which custom governs, absent which the šarīʿa will count as law, and then finally, if even the šarīʿa leaves a vacuum, 98

99 100

The French original: “L’homme et la femme, à leur majorité légale, ont le droit de choisir librement leur conjoint et de fonder une famille en fonction de leurs seules convictions personnelles et de leur conscience” (Art. 8 of the 1985 Charte de la Ligue Tunisienne pour la Défense des Droits de l’Homme). On the development of human rights associations in the Maghreb, see Mohamed Karem, “La question des droits de l’homme au Maghreb: Acteurs et espace d’une revendication,” in Mahiou, L’État de droit dans le monde arabe (n. 63), pp. 207 ff. Borrmans, “Ipotesi di convergenza sui diritti dell’uomo” (n. 92), p. 88. As recently as 1996 a dispute was taken to court in Egypt over a conflict between Islamic law (the šarīʿa) and the state’s secular law, specifically in the matter of female circumcision, a practice the Ministry of Health banned under a decree of the same year. The provision was challenged before the Cairo Administrative Court by a group headed by a prominent Islamic figure who invoked Article 2 of the Egyptian constitution, making Islamic šarīʿa “the principal source of legislation.” The court found for the petitioners, but the Health Ministry appealed the ruling, which the Supreme Administrative Court overturned holding that, absent a specific provision in the šarīʿa, the legislator may exercise discretionary power. The case is documented in Baudouin Dupret, “The rule of morally constrained law: The case of contemporary Egypt,” chap. 16 in Pietro Costa and Danilo Zolo (eds.), The Rule of Law: History, Theory and Criticism (Dordrecht: Springer, 2007).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

256

international l aw, islam, and the third world

the courts are to adjudicate by recourse to natural law.101 The same hierarchy of sources is also found in the Algerian Civil Code of 1975.102 What we can take away from this overview of the constitutions of Islamic countries and their systems of legal sources is that, clearly, the implementation of the šarīʿa and its principles has increasingly loosened up over the course of history,103 paving the way for a gradual secularization of these countries’ legal orders. Despite the profound differences we have seen to exist between the Islamic and Western conceptions of human rights, we have also uncovered some possibilities for convergence. However, this is a point we have arrived at only by looking at the Islamic countries’ constitutional law, which does not yet afford a complete picture of the reality on the ground, for we also have to take into view the institutions whose role it is to ensure the protection of citizens’ rights, and absent which the enjoyment of such rights would not be genuine. When we take this broader view, however, we see that the Arab countries’ institutional makeup is still unfortunately inadequate to the task, and quite far from securing the constitutional protections and democratic process the West is accustomed to.

101

102

103

This hierarchy of sources is laid out in Article 1 of the Egyptian Code Civil, under the heading “Les lois et leur application” (The laws and their application): “(1z) La loi régit toutes les matières auxquelles se rapporte la lettre ou l’esprit de ses dispositions. / (2) A défaut d’une disposition législative applicable, le juge statuera d’après la coutume, et à son défaut, d’après les principes du droit musulman. A défaut de ces principes, le juge aura recours au droit naturel et aux règles de l’équité.” Article 1 of the Algerian Code Civil states: “La loi régit les toutes matières auxquelles se rapporte la lettre ou l’esprit de l’une de ses dispositions. / En l’absence d’une disposition légale, le juge se prononce selon les principes du droit musulman et, à defaut, selon la coutume. / Le cas échéant, il a recours au droit naturel et aux règles de l’équité” (under the heading “Des effets et de l’application del lois”). On this question, see Olivier Carré, L’islam laïque, ou le retour à la Grande tradition (Paris: Armand Colin, 1993), pp. 136 ff. The implementation of the principles of Islam is addressed, among other places, in Yadh Ben Achour, “Islam et laïcité: Propos sur la recomposition d’un système de normativité,” Pouvoirs, 62 (1992), 15–30, at 24, pointing out how the ruptures that separate the normative core of Islam from its historical advent have made it possible to legitimize such deviations from divine law. Ben Achour also underscores how the state has acted as a tool by which to secularize Islam, this in distinction to the Islamic fundamentalist frame of mind. In conclusion, he observes, the state’s legal system has globally escaped the grip of classic Islamic normativity in all areas except in the matter of personal status. This analysis is also shared by Tariq AlBishri, “Šharī‘a, invasione coloniale e modernizzazione del diritto nella società islamica,” in Pietro Costa and Danilo Zolo (eds.), Lo Stato di diritto: Storia, teoria, critica (Milan: Feltrinelli, 2002), p. 675.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r ight s

257

10.10 Islam and Democracy There are some milestones in the constitutional history of the West that have made it possible to move toward a secularized conception of rights, ultimately to establish the constitutional democracies of today. There first came the disentanglement of natural law from religion: this process began in the seventeenth century and brought with it the previously discussed constitutional development that divided the religious order from the political, leading to the now-familiar separation of church and state. This fundamental development in turn set the stage for the Western states’ proclamation of the right to resist any political power that should deny the freedom to practice a religion of one’s own choosing.104 This was tantamount to claiming the right to a society that could harbor religious and ideological differences, and so a pluralistic, tolerant society existing apart from the state. This was, in outline, the process that led to the proclamation of the rights of man. The stage was thus set for a second development: the gradual limitation of political power, first by legislative means (in the form of the nineteenth-century state constrained in its action by law)105 and then by way of constitutional constraints (in the constitutional democracies of the twentieth century). Moreover, starting from the first half of the seventeenth century, this second development of a power at first limited by statute and subsequently by constitutional enactment was made possible and reinforced by the growth of an independent judiciary. In classic Islam, by contrast, there is no subordination of power to the law, for the rulers and governors are answerable only to God.106 Even the Universal Islamic Declaration of Human Rights of 1981 is premised on 104

105

106

Islam also saw the rise of a movement claiming the right to resist unjust governments, but this was the claim advanced by the political and religious minority known as the Kharijites. See Henri Laoust, Les schismes dans l’Islam: Introduction à une étude de la religion musulmane (Paris: Payot, 1965), pp. 36 ff. This is an idea that finds three different embodiments in the Rechtsstaat, the état de droit, and the rule of law. On this threefold distinction see Michel Rosenfeld, “The rule of law and the legitimacy of constitutional democracy,” Southern California Law Review, 74 (2001), 1307–52. See also the discussion in Costa and Zolo, Preface to The Rule of Law (n. 100). This is the view expressed, for example, by Ibn Taymiyya (1263–1328) in ’As siyāsatuššarī ‘a fī islāhirra ’ī warra ’iyya (Government according to the divine law for the common good˙ of the authorities and their subjects) (Cairo, 1971), translated into Italian in Ibn Taimiyya, Il buon governo secondo l’Islam: La siyasa shar‘iyya di Ibn Taymiyya, ed. and trans. Gian Maria Piccinelli, published as supplement 2 of TaquinoTaqwim (2001), a journal of the Interdepartmental Centre for Islamic Sciences in Bologna (Centro Interdipartimentale di Scienze dell’Islam).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

258

internati onal l aw, islam, and the third world

the principle that the rulers and the ruled are equal before God, who “alone, is the Law Giver” (Foreword, second clause), and who “has given mankind through His revelations in the Holy Qur’an and the Sunnah of His Blessed Prophet Muhammad an abiding legal and moral framework within which to establish and regulate human institutions and relationships” (Preamble, third Whereas). On this conception, the šarīʿa is not restricted to Islamic law but is the law at large.107 From the perspective of radical Islamism, God is the only sovereign, and only the ulama (doctors of laws) are authorized to interpret the divine law and act with legislative power. On this conception, the source of law lies not in the people but in the divine will expressed in the šarīʿa. On these bases is built the idea of “Islamic constitutionalism,” according to which neither the executive nor the legislature can act contrary to revealed Islamic law, the šarīʿa.108 Clearly, this conception runs completely counter to the Western constitutional tradition, which, as just 107

108

On this point, and on the broader considerations made in this paragraph, see Tibi, “The European tradition of human rights” (n. 79), pp. 121 ff. This is the view that Sayyid Abul-A‘la Mawdudi, the fountainhead of Pakistani Islamic fundamentalism, sets out in Tadwīnuddustūrilislāmī (Codification of the Islamic constitution) (Mu’assasaturrisāla, 1975), quoted in R. Bahlul, “Prospettive islamiche del costituzionalismo,” in Costa and Zolo, Lo Stato di diritto (n. 103), p. 639. Elsewhere Mawdudi asks, “What does Allah’s sovereignty imply? That His writ must run supreme in the world: legal judgements must be based on His Shari‘ah, the police must operate according to His commandments, financial transactions must be carried out in conformity with His laws [. . .]. Further, Allah alone must be feared, His subjects must submit to Him only, and man must not serve anyone but Him.” He continues: “If you are a true follower of Islam, you can neither submit to any other Din, nor can you make Islam a partner of it.” Sayyid Abul-A‘la Mawdudi, Let Us Be Muslims, ed. Khurram Murad (London: The Islamic Foundation, 1985), pp. 299–300. “The word ‘Din,’” Mawdudi explains, “is used in several meanings. The first is sovereignty, power, lordship, kingship, or rulership. The second is the opposite of this, i.e. submission, obedience, service or slavery. The third is to bring to account, to judge, or to dispense reward and punishment for actions. All those three uses are found in the Qur’an” (ibid., p. 125). Close to Mawdudi’s view is that of the contemporary Tunisian Islamic thinker Rachid Ghannouchi, who argues that the “Islamic government is one in which: / 1. Supreme legislative authority is for the shari‘a, that is the revealed law of Islam, which transcends all laws. Within this context, it is the responsibility of scholars to deduce detailed laws and regulations to be used as guidelines by judges. The head of the Islamic state is the leader of the executive body entrusted with the responsibility of implementing such laws and regulations. / 2. Political power belongs to the community (umma), which should adopt a form of shura, which is a system of mandatory consultation.” Rachid Ghannouchi, “Participation in non-Islamic government,” chap. 9 in Kurzman, Liberal Islam (n. 81), p. 91. On Ghannouchi’s views, see Mohamed-Chérif Ferjani, Islamisme, laïcité et droits de l’homme (Paris: L’Harmattan, 1991), pp. 212 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r igh ts

259

noted, constrains political power within the limits of the state’s law and constitution, nor does Islamic constitutionalism protect rights as they would be under the rule of law in a constitutional democracy. In Islam, however, we can also find approaches that conceive the Qur’an as the source of the first theory of democracy, specifically in view of the principle of the šūrā, on which the power to legislate belongs to the people acting in consultation, either directly among themselves or indirectly by way of representatives.109 On this political conception of Islam, then, the constitution is the outcome of this consultation, forming its foundation as a principle expressing the will of the people rather than that of God. This is certainly an alternative to the traditional view, on which sovereign power in an Islamic state can only be attributed to God and God alone. We have thus seen that Islamic political thought does not foreclose the possibility of a convergence between Islam and democracy in the manner of the Western tradition. As mentioned, however, if this intellectual landscape may seem promising, it is another reality that can be observed as we move closer to the ground at the institutional level. For, with the exception of Tunisia, the institutional forms in the Arab countries are still far from a position where they can guarantee a genuine enjoyment of rights or support the establishment of an authentic democracy.110 This can be appreciated by highlighting several features of state and government that separate the Arab countries from the West. Here, too, we need only look at the Mediterranean and consider, to begin with, the idea 109

110

See Tibi, “The European tradition of human rights” (n. 79), p. 128. Here Tibi is making reference to Mustafa Abu-Zaid Fahmi, Fannulhukm fīlislām (The art of governing in Islam) (Cairo: al-Maktab al-Masri al-Hadith,˙ 1981). Fahmi interprets the šūrā as a principle of participation, and hence as providing a human rights guarantee. On the principle of the šūrā see Ibrahim A. Al-Marzouqi, “Political rights and democracy in Islamic law,” chap. 24 in Eugene Cotran and Adel Omar Sherif (eds.), Democracy, the Rule of Law and Islam ( London, The Hague, Boston: Kluwer Law International, 1999), observing that the principle of the šūrā was a practice even among pre-Islamic Arabs (ibid., p. 456). He points out that even the prophet Muhammad resorted to the šūrā, and argues that the modern constitutional system of parliamentary democracy is consistent with Islamic law. Al-Marzouqi defines the šūrā “as follows: / 1. al-Shura is a divine method of government of the people by the people. It informs them about the dignity and rights they should enjoy. / 2. It is an instrument by which the ruler may arrive at a sound opinion. This is secured by public participation in both decision-making and sharing the responsibility which may arise from that decision” (p. 465; slightly copyedited). Bassam Tibi, “Bericht über den gesamtarabischen Kongreß ‘’Azmatuddi- muqratiyya fīl watanil ‘arabī’ / Krise der Demokratie im arabischen Vaterland,” Centre for Arab Unity Studies, Beirut, 25–30 Nov. 1983, Orient, vol. 25, no. 4 (1984), 473–83, at 478.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

260

i n t e r n a t i o n a l l a w , is l a m , an d t h e t h i r d w o r l d

of a “state for the masses,” such as we saw in Syria and Libya before the end of Muʿammar Gheddafi’s regime, or the influence of the semi-presidential model of the French Fifth Republic.111 In addition – regardless of the form of government we encounter: be it monarchical or republican – the executive power tends to enjoy primacy over the legislative and judicial powers, especially in the Arab countries of the Maghreb, but also in countries like Kuwait and Iraq. Similarly, within the executive, it is the head of state whose role is most important, for his legitimacy precedes that of any governmental institution. Thus, in Morocco, for example, power belongs to the king as “Imam for the faithful and descendent of the Prophet,” a title that was also conferred on King Mohammed V of Morocco, in part for his role in negotiating Moroccan independence (1956). In 1961 he was succeeded to the throne by his son Hassan II, who thereby gained the title of Commander of the Faithful.112 In Tunisia, Prime Minister Habib Bourguiba received the same title in virtue of a “special mission with which history has invested him” in his fight against colonialism. And in Algeria, Houari Boumédiène invoked the authentic values of the Algerian Revolution (1954–62) in opposition to the personality cult of his predecessor, Ahmed Ben Bella.113 But even more significant, in pointing out the differences between the forms of government in Arab and Western countries, is the matter of the separation of powers, a cornerstone of constitutional democracy under the rule of law: while the Arab countries (formally) recognize the separation of powers in their constitutions, this principle has not translated into a separation of the functions of government.114 More to the point, the executive has encroached on both legislative and judicial powers. Its expansion into legislative power has been effected in a number of ways. The first of these is by legislative initiative and the executive’s use of decree-laws (thus, for example, on the basis of Art. 28 of the Tunisian Constitution of 1959, the constitution was modified by Law 111

112

113 114

See Yadh Ben Achour, Politique, religion et droit dans le monde arabe (Tunis: Cérès Productions, 1992), p. 132. Among the features of the semi-presidential system that have been adopted are the emergency powers the president may exercise under Article 16 of the French Constitution of 1958. See Mohamed Ridha Ben Hammed, Le pouvoir exécutif dans les pays du Maghreb: Étude comparative (Tunis: Imprimerie Officielle de la République Tunisienne, 1994), p. 29. Ibid., p. 30. See Amel Aouij-Mrad, Le système juridique des pays arabes: Aspects politiques et constitutionnels (University of Bologna, 2002), p. 13. But we should note the exception of Tunisia, which in the wake of the Arab Spring revolution set up a constitutional democratic form of government based on a clear separation of powers and of their functions.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r ight s

261

No. 88–88 of 25 July 1988 and by Constitutional Law No. 2002–51 of 1 June 2002). Another way is by authoritative order (Art. 55 of the Moroccan Constitution of 1996). Another way is by the power to introduce constitutional amendments (Art. 57 of the Moroccan Constitution). Another way still is by exceptional measure (Art. 46 of the Tunisian Constitution of 1959; Art. 124 of the Algerian Constitution). And one more device that has been used consists in the power to require a referendum for legislative bills deemed to be of national significance (Art. 47 of the Tunisian Constitution of 1959, amended by Constitutional Law No. 97–65 of 27 Oct. 1997).115 The second encroachment of the executive, on judicial power, consists in its ability to exercise control over the functioning of the justice system. Specifically, the constitutional councils entrusted with overseeing constitutional justice are in fact subordinate to the executive. In Morocco, the Chambre Constitutionnelle has limited the powers of Parliament in favor of the executive,116 while in Tunisia, until 2014, a close working relationship was formally set up between the Conseil Constitutionnel and the Head of State, with the latter submitting legislative bills to the former and the former reviewing these bills for conformity with the Constitution.117 This does not mean, however, that the Arab landscape is completely devoid of institutions capable of supporting the rule of law: we can point, for example, to the Administrative Tribunal established in Tunisia in 1972, followed by the creation of the country’s Council of State. But beyond these institutions, and it bears pointing out that their development is still incomplete,118 it seems evident that the fundamental 115

116

117

118

Here it bears pointing out, however, that the new Tunisian Constitution of 2014 sets out a clear distinction of governmental powers and functions. In particular, the new constitution secures the independence of the judiciary (Art. 102) and confers on it the power of judicial review (Art. 120). See Mohamed Ghomari, “La justice constitutionnelle au Maroc,” Revue marocaine de droit et d’économie du développement, 30 (1993), observing that “the Constitutional Chamber is aware of its own political nature and its dependence on the Executive” (ibid., p. 15; my translation). Thus, in the conflict between the Chamber of Representatives and the Executive, the Constitutional Chamber has consistently upheld the Executive’s rulemaking powers against the legislative body’s lawmaking powers (ibid., pp. 13–14). This relationship is set out in Articles 72–75 of the Tunisian Constitution of 1959. In this regard see also Aouij-Mrad, Le système juridique des pays arabes (n. 114), p. 14. See Lotfi Larguet, “Il regime giuridico delle libertà pubbliche in Tunisia,” in Gustavo Gozzi (ed.), Islam e democrazia: Il processo di democratizzazione in un paese arabo e i problemi delle democrazie occidentali a confronto (Bologna: il Mulino, 1998), p. 77. Larguet underscores the modest and limited scope of action of administrative authorities in Tunisia.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

262

international l aw, i slam, and the t hird world

principle of Western constitutionalism, namely, the separation of powers, has yet to be adequately applied in Arab countries, and this works against the possibility of guaranteeing effective protections in these countries. Then, too, there is no real multi- or even bi-party system in these countries,119 and this is yet another hindrance to the development of authentic forms of democracy in the Arab Islamic world. It is fair to say, then, that the constitutions enacted in the Arab countries essentially reflect the existing power relations entrenched in these countries, while doing little to secure the separation of powers needed to guarantee basic rights. They can in this sense be described as constitutions in a nonconstitutional world.120 Constitutionalism and Western democracy are two inseparable concepts. The absence of constitutionalism in the Muslim world rules out the possibility of establishing forms of democracy comparable to those in the West. Which in turn makes unfeasible the idea of exporting the model of Western constitutional democracy to the Arab world. This problem raises another question: is Islam compatible with democracy? Or, as Yadh Ben Achour puts it, is it possible to be at once faithful and democratic?121 The question can legitimately be asked because, as noted, Arab constitutions explicitly invoke Islam,122 on the premise of the close connection understood to exist among religion, law, 119

120

121 122

Consider, for example, Tunisia’s Organic Law No. 88–32 of 3 May 1988, under which the formation of political parties was subject to administrative review. (Organic laws are governed under Articles 64 and 65 of the Tunisian Constitution of 2014: they require an absolute majority of all members of the legislature, are defined by subject matter, and are distinguished from ordinary laws.) See Larguet, “Il regime giuridico delle libertà pubbliche in Tunisia” (n. 118), p. 76. It should be pointed out, however, that the administrative-review law has since been eclipsed: Article 35 of the Tunisian Constitution of 2014 guarantees the “freedom to establish political parties, unions, and associations,” subject only to the condition that they “respect the provisions of the Constitution.” The expression comes from Nathan J. Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (New York: State University of New York, 2002). Ben Achour, Politique, religion et droit (n. 111), pp. 258 ff. Examples are Article 2 of the Algerian Constitution of 1971, Article 2 of the Egyptian Constitution of 2014, Article 1 of the Tunisian Constitution of 1959, and Article 2 of the Jordanian Constitution. Islam is conceived as a source of identity and a basis of social integration, and in this sense the relation between Islam and the state ought to be understood as declarative rather than normative. See Abdelfattah Amor, “Constitution et religion dans les États musulmans,” in Constitution et religion, proceedings of the 10th session of the Académie Internationale de Droit Constitutionnel, Tunis, 1994 (Toulouse: Presses de l’Université des Sciences Sociales de Toulouse, 1994), p. 45. Here, too, compare Aouij-Mrad, Le système juridique des pays arabes (n. 114), p. 11.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r igh ts

263

and politics,123 making it difficult (on this conception) to accept the idea that different religions might stand on an equal footing. And yet this is not an idea that a democracy can reject: as Ben Achour observes, democracy must be able to tolerate dissent, nor is it enough to describe democracy as “government by the people,” for we also have to ask, Who are the people? The people, Ben Achour answers, are “a people made of citizens who understand themselves to be such on the basis of their political allegiance to the state, to the political city, and who do not confuse their role as citizens with their identity as believers.”124 This does not mean rejecting religion but rather “internalizing” it, and mutually acknowledging the variety of religions and the right to practice them. Indeed, democracy today is sustainable only to the extent that we recognize that the values we choose to live by, and which shape our personal identity, are not absolute (but only relative) and therefore cannot be imposed on everyone else.125 In the discussion so far, at both the level of doctrine and that of institutional reality, we have highlighted the profound differences between Islam and the West, while exploring the prospect of a convergence between the two sides. The controversial nature of these relations can also be appreciated as we turn to the modern developments of Euro–Mediterranean relations.

10.11 The Mediterranean as an Area of Interchange among Cultures If we look at the Barcelona Declaration of 1995, we can see clearly laid out in it the building blocks of a project that was aimed at making the Mediterranean a place where different cultures and traditions could meet. The declaration underscored “the privileged nature of the links forged [in the Mediterranean] by neighbourhood and history,” viewed as holding the promise of “turning the Mediterranean basin into an area of dialogue, exchange and cooperation guaranteeing peace, stability and prosperity.”126 123

124 125 126

In this relation “the political and the legal do not have any autonomy, and any distinction in this sphere is limited, almost trivial.” Amor, “Constitution et religion” (n. 122), p. 36; my translation. Ben Achour, Politique, religion et droit (n. 111), p. 261; my translation. Ibid., p. 271. Barcelona Declaration, adopted at the Euro-Mediterranean Conference on 27–28 November 1995, second page, preliminaries (also applies to the quotations in the next paragraph), www.eeas.europa.eu/archives/docs/euromed/docs/bd_en.pdf.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

264

international l aw, is l am, and the t hird world

Against this backdrop, the declaration sought to establish a Euro–Mediterranean partnership whose aim it was, “through strengthened political dialogue,” to foster “economic and financial cooperation” while strengthening “the social, cultural and human dimension.” This meant promoting a balanced economic and social development and taking “measures to combat poverty.” But the set of institutions through which this goal was to be achieved brought out, once more, the full of complexity of the challenge that lay ahead under any such partnership project. Indeed, on the one hand, the European countries and those along the Mediterranean’s southern shores declared their allegiance to a set of shared principles: the rule of law and democracy and, in the sphere of international relations, the UN Charter, the Universal Declaration of Human Rights (1948), and the “essential principles of international law.”127 But, on the other hand, they “resolved to establish [. . .] a multilateral and lasting framework of relations based on a spirit of partnership, with due regard for the characteristics, values and distinguishing features peculiar to each of the participants,” and this meant “recognizing in this framework the right of each [country] to choose and freely develop its own political, socio-cultural, economic and judicial system.” So, even the Barcelona Declaration, in proclaiming the need to protect human rights, rested such protection on two foundations: the Western legal tradition, on the one hand, and the Islamic one, on the other. However, as if in an effort to close the gap that still separated the cultural horizons of the Mediterranean countries, the Barcelona Declaration singled out the “essential contribution [that] civil society can make in the process of development of the Euro-Mediterranean partnership and as an essential factor for greater understanding and closeness between peoples.”128 This meant that in order for the governments of different countries to be able to cooperate fully, it would be necessary to create a system of networks connecting the civil societies in these countries: only in this way would it be possible to establish “a common area of peace and stability,” build a “shared prosperity,” and achieve “mutual understanding.”129 127

128

129

Ibid., second page, under the heading “Political & security partnership” (also applies to the quotations in the rest of this paragraph). Ibid., sixth page, under the heading “Partnership in social, cultural and human affairs”; italics added. Ibid., eighth page, sec. II; ibid.; and twelfth page, sec. IV. Collaboration among civil societies in the Mediterranean is something the Barcelona Declaration envisions as

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

isl a m an d r igh ts

265

To be sure, many Arab countries view their civil society as an adversary whose initiatives need to be contained. Apart from these challenges, however, there is no denying the significance of the basic insight behind the Barcelona Declaration: the idea of looking to the Mediterranean countries’ civil societies in the effort to achieve a “mutual understanding” and “closeness” among peoples. In this regard we need only consider the contemporary migratory flows into Europe,130 whose societies have become spaces where different cultures meet, and even if there is sometimes tension and even conflict that grows out of this pluricultural landscape, the interchange has also been one of mutual adjustment and learning, not only in Europe but also, possibly, in the Muslim countries of origin through the influence exerted by those migrants who are now settled in Europe.131 So, even accounting for the profound cultural, theological, political, and legal differences between the European and the Islamic

130

131

resting on a principle of “decentralized cooperation,” designed “to encourage exchanges between those active in development within the framework of national laws: leaders of political and civil society, the cultural and religious world, universities, the research community, the media, organizations, the trade unions and public and private enterprises” (ibid., sixth page, under the heading “Partnership in social, cultural and human affairs”). In this regard, see Ulrike Julia Reinhardt, “Civil society co-operation in the EMP: From declarations to practice,” EuroMeSCo Paper No. 15, May 2002 (available under the “Paper” menu item in the sidebar at www.euromesco.net/publications/). See Bassam Tibi, Il fondamentalismo religioso alle soglie del Duemila (Turin: Bollati Boringhieri, 1997), p. 25. Orig. pub. Der religiöse Fundamentalismus im Übergang zum 21. Jahrhundert (Mannheim, Leipzig, Vienna, Zurich: B. I. Taschenbuchverlag, 1995). Thus on February 3, 2002, the Central Council of Muslims in Germany (or ZMD, short for Zentralrat der Muslime in Deutschland) adopted the important Islamic Charta, announced on February 20 in Berlin by the council’s chairman, Nadeem Elyas, and also published in Islamic Studies, 42, no. 3 (autumn 2003), 517–24. The Charta significantly declares that “there is no contradiction between the divine rights of the individual, anchored in the Qurhan, and the core right as embodied in Western human rights declarations” (Art. 13). It also rejects the idea of a “clerical theocracy” (Art. 12), makes explicit its “commitment to religious pluralism” (Art. 14), and recognizes the “basic legal order of the Federal Republic of Germany as guaranteed by its Constitution,” with its rule of law and separation of powers (Art. 11). At the same time, however, the Charta states that “it is necessary to form a European Muslim identity” (Art. 15) and points out the need to secure a “dignified life in the midst of society” (Art. 20), to this end calling for a series of measures that include the “introduction of Islamic religious instruction into the school system, to be provided in German” (as has been the case since 2014 in the Land of Hesse, where primary schools, for the first time in Germany, have been teaching Islam using state-trained teachers) and “authorization of the public call to prayer, reinforced by loud-speakers.”

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

266

i nternational l aw, is l am, and the t hird world

Mediterranean, it would not be entirely far-fetched to look to this area as a model on which basis to favor a meeting among different cultures,132 not only in shaping international law but also in the effort to achieve greater integration in civil society in the countries that border the Mediterranean. 132

On the Mediterranean as a place in which to forge a “meeting of civilizations,” offering an alternative to the Atlantic North American view of a “clash of civilizations,” see Franco Cassano and Danilo Zolo (eds.), L’alternativa mediterranea (Milan: Feltrinelli, 2007), and especially Zolo’s important introduction, “La questione mediterranea” (pp. 13 ff.).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:38, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.012

11 The Third World and International Law

11.1 Introduction Two watershed moments mark the beginning of political modernity: one is the birth of the system of sovereign states; the other is the enactment of Europe’s “civilizing mission.” These two developments can clearly be recognized in the work of the fountainheads of modern international law, and in particular in Francisco de Vitoria’s Relectio de Indis (1539) and Hugo Grotius’s De Jure Belli ac Pacis (1625). In these and other works of the sixteenth and seventeenth centuries, the two elements just mentioned – the principle of the state’s sovereignty and Europe’s civilizing mission – were set on a natural law foundation. But they would continue to be preserved, albeit in different forms, in the age of positivism (in the nineteenth century) and also in that of pragmatism (in the twentieth century).1 What form is the West’s civilizing mission now taking in the age of postcolonialism? Is it possible to shape international law in such a way that it can truly promote justice, without serving as an instrument of “empire”? Is it possible to make international law truly universal, on the basis of principles rooted in a plurality of different civilizations and legal systems? And, finally, what about the attempt to extend to the Third World a model of good governance based on human rights and democracy: is this not the modern translation of the West’s civilizing mission? These are the questions we will be addressing in this chapter. 1

See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge: Cambridge University Press, 2002), pp. 399 ff. Koskenniemi is referring to international judicial legislation and to the role of the judge as a “pragmatic manager of conflicting interests” (ibid., p. 406). On this question, see also Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005), p. 315.

267

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

268

i n t e r n at i o n al l aw, is l am, and the t hird world

11.2 Postcolonialism and International Law The debate that came in response to the formation of the new postcolonial states covered cultural, political, and economic aspects. From a cultural point of view there emerged the new states’ concerns about embracing international law, which to them appeared Eurocentric,2 and hence extraneous to the traditions distinctive to Asia, Africa, and Latin America. Some scholars were asking if the new states ought to be bound by a system of law they had no part in shaping.3 Others, like Quincy Wright, observed that the prevailing attitude in China, and generally in the East, was one that favored negotiation over the international courts’ application of positive law.4 Key to this discussion on international law was the critical analysis of the foundation of such law. It was claimed, in this regard, that international law should not have been based solely on the legal thought of the West but should also embody the legal principles of the Confucian, Buddhist, Hinduist, and Muslim countries of Asia and Africa.5 C. W. Jenks commented that international law essentially boiled down to Roman law, coupled with elements of empiricism deriving from the common law tradition:6 it therefore lacked a foundation broad enough for it to be imposed on the present-day world, and he accordingly pointed out the need to create a “multicultural” legal system. Jenks claimed that international law faced a twofold task: on the one hand, it was necessary to promote an “intellectual revolution” in keeping with the political and social changes that had taken place, so as to realize a legal system having a foundation broad enough to gain the acceptance of the world community; at the same time, it was necessary to work toward this aim by degrees, through an evolutional process designed to make sure that current law would not grow so weak as to thwart the effort to 2

3

4

5

6

R. P. Anand, New States and International Law (London: Vikas Publishing House, 1972), p. 45. R. Y. Jennings, “The progress of international law,” British Year Book of International Law, 34 (1958), 334–55, at 350. Quincy Wright, “The influence of the new nations of Asia and Africa upon international law,” Foreign Affairs Reports, 7 (1958), 33–39, at 38. F. S. C. Northrop, The Taming of the Nations: A Study of the Cultural Bases of International Policy (New York: Macmillan, 1952), pp. 267–77. In this regard, cf. Anand, New States and International Law (n. 2), p. 49. C. Wilfred Jenks, “Law and the Pursuit of Peace,” in Law in the World Community (London: Longmans, 1967), p. 56. Cf. Anand, New States and International Law (n. 2), p. 50.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

t he t h i r d w o r l d an d i n t er n a t i o n a l l a w

269

rest international law on a broader foundation. “Only a multicultural and multi-legal-system approach,” he concluded, “will enable us to master this twofold task.”7 Jenks observed that this approach would not have been anything new in the history of international law: it would only have been the continuation of a process that was already underway, taking the development of international law to a world stage. Even at the time of the Roman ius gentium, he pointed out, international law did not make up a single legal system. In fact, modern international law had developed as the outgrowth of two families of legal systems: the civil law and the common law system. These had also been influenced by three international legal systems which they in turn influenced, namely, canon law, Hebrew law, and maritime law, each of which went on to have an important impact on the legal traditions of the West. So there was nothing new, Jenks reiterated, about the problem with which international law was then being confronted: there was only the worldwide scale the problem had taken on, requiring a commensurate solution.8 In the postcolonial debate, however, we also find voices that brought to light the way the problem of “cultural” differences was in fact, at bottom, a problem of clashing national interests. This was the view taken, for example, by Oliver James Lissitzyn, for whom it was national interests, rather than cultural differences, that drove policy in the sphere of international law and determined its shape.9 Arguing to the same effect was Wolfgang Friedmann, who contended that the new postcolonial states did not base their international policy on the principles of their Asiatic and African civilizations but rather “behaved very much like the older states, pursuing their national interests to the maximum extent compatible with the acceptance of the rules of international law,”10 in what can be identified as a stage of development that all nations must go through. In short, the problem of conflicts rooted in cultural differences cannot be properly analyzed without pointing out that they may in fact come 7

8

9

10

C. Wilfred Jenks, The Common Law of Mankind (London: Stevens & Sons Limited, 1958), p. 87. “What is there new in the problem which now confronts us except the greater complexity which arises from the world scale on which it presents itself?” (ibid., p. 89). Oliver James Lissitzyn, “International law in a divided world,” International Conciliation, 542 (1963), 57–58. Cf. Anand, New States and International Law (n. 2), p. 51. Wolfgang Friedmann, “United States policy and the crisis of international law: Some reflections on the state of international law in ‘International Co-operation Year,’” The American Journal of International Law, 59, no. 4 (1965), 857–71, at 858.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

270

i n t e r n at i o n al l aw, is l am, and the t hird world

down to conflicts of interest between Western states, on the one hand, and the new states of Asia and Africa, on the other.

11.3 International Law: Between Cultural Differences and Conflicts of Interest As noted, the claim has been made by many authors that the clash between the Western world and the new postcolonial states cannot be explained by cultural differences alone: while these may be a contributing factor, what is central to this clash is the question of sovereignty and the endeavor to establish and secure favorable economic relations under the principles of justice and equality. As is known, Western international law was created by Christian Europe, and in the modern age it was therefore “based on the value system of the Occidental culture, on Christian, and often Catholic, values.”11 In the age of postcolonialism, this international law expected compliance on the part of nations that had had no part in creating it. Indeed, in the age of colonialism, and even in the postcolonial age, this law was understood to be superior (to other systems of law) and universal.12 In reality, if we look at the history of international law, we can easily see that when the Europeans reached Asia, they found themselves acting within a web of interstate relations based on some traditions that had been in place for a long time and were in no way inferior to Western civilization.13 At the origin of the rules and procedures of international law in place in the sixteenth and seventeenth centuries were the commercial, diplomatic, and treaty relations the Europeans established with the Asian sovereigns. The Portuguese and the Dutch did so, as did the English 11

12 13

Joseph L. Kunz, “Pluralism of legal and value systems and international law,” The American Journal of International Law, 49, no. 3 (1955), 370–76, at 371. Also in The Changing Law of Nations: Essays on International Law (Columbus: Ohio State University Press, 1968), p. 48. Ibid., pp. 372 and 49, respectively. Charles Henry Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th Centuries) (Oxford: Clarendon Press, 1967), p. 224. See also R. P. Anand, “The role of Asian states in the development of international law,” in René-Jean Dupuy (ed.), L’Avenir du Droit International dans un Monde Multiculturel / The Future of International Law in a Multicultural World, workshop held in The Hague, 17–19 Nov. 1983 (The Hague, Boston, London: Martinus Nijhoff Publishers, 1984), pp. 105–116, at 109.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

t h e th i r d wor l d an d i n t e r n a t i o n a l l a w

271

and French East Indies trading companies, but it bears pointing out here that before the Europeans arrived in Asia, there existed in this region some ancient traditions that admitted the entry of foreigners and protected their commercial activities.14 Until the eighteenth century, international law had been based on treaties and customs whose scope also included relations with Asiatic states.15 These relations found themselves being either concealed or voided in the international treaties concluded in the colonial period of the nineteenth century.16 In this period the Asiatic states could no longer exercise any role in the development of international law, and this law was essentially developed to answer the needs of the civilization of European affairs.17 Precisely for this reason, it was this law that was called into question after the end of colonialism: as has been observed, “the dominant bent of mind” in Asia and Africa tended toward “a refutation of international law and international constitutionalism,” and it did so “on the ground that these are Western inventions not meeting African and Asian needs.”18 As noted, this explains why the Asian states have been reluctant to accept the decisions of the International Court of Justice, and also why they have objected to a scheme of compulsory arbitration.19 It would therefore be a mistake to overplay the role of cultural differences, for they are rather the expression of specific national interests. Thus, for example, when the United Nations held diplomatic conferences on the law of the sea 1958 and 1960, and no agreement was reached on the breadth of territorial waters, this was not due to the Asian-African countries’ different cultural traditions: it was rather because the interests 14

15

16 17 18

19

See Charles Henry Alexandrowicz, “Treaty and diplomatic relations between European and South Asian powers in the seventeenth and eighteenth centuries,” in Académie de Droit International de La Haye, Recueil des Cours, 1960, II, tome 100 (Leiden: A. W. Sijthoff, 1961), pp. 250 ff. In this connection, Manohar L. Sarin reminds us that in 1960, when a dispute that had broken out between Portugal and India was brought to the International Court of Justice, the court upheld the validity of the 1779 Treaty of Poona. See Manohar L. Sarin, “The Asian-African states and the development of international law,” in L’Avenir du Droit International (n. 13), pp. 117–42, at 120. See Anand, “The role of Asian states” (n. 13), p. 110. Lissitzyn, “International law in a divided world” (n. 9), p. 58. Adda Bruemmer Bozeman, The Future of Law in a Multicultural World (Princeton, NJ: Princeton University Press, 1971), p. 170. Sarin, “The Asian-African states” (n. 15), p. 125.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

272

international l aw, islam, and the third world

of the traditional maritime powers were in conflict with those of the weaker states, “not only of Asia and Africa, but of Latin America and Europe as well.”20 There is no doubt that international law can no longer remain Eurocentric: if it is to gain the acceptance of all states, “it must extend from a European national law to a common law of mankind.”21 The effort will now have to be to understand how the interests of the new postcolonial states can be brought to bear on the principles of international law, or rather how international law can be refashioned in light of the Asian, African, and Latin American countries’ needs, perspectives, and principles of justice. Because these countries tend to be less developed than the Western countries, it will be necessary to assess how this factor will shape their initiatives and how it translates into doctrines designed to protect their interests. As Sarin comments, “cultural factors or values have hardly any impact on the attitudes taken by the developing countries,” whose positions will, on the contrary, “be influenced by their economic and political development.”22

11.4 The History of International Law: An Anticolonial Perspective In view of the foregoing considerations, it will be necessary to lay out the approach that ought to be taken for a critical reconstruction of the history of international law. Three specific features of this history have come to light. In the first place (1) is the Eurocentric nature of international law in the modern age, but this law has also been shaped by trade and diplomatic relationships, especially with the Asian countries. In the second place (2), we have seen how the colonial age of the nineteenth century foreclosed the contribution of other civilizations and cultures in shaping Western international law. And, in the third place (3), conspiring with cultural specificities in explaining the international policies of postcolonial states were these states’ own national interests. In reconstructing these developments, we will need a specifically tailored critical approach. An important contribution in this sense comes from the strong criticism of international law offered by Siba N’Zatioula Grovogui. 20 21 22

Anand, “The role of Asian states” (n. 13), p. 113. Ibid., p. 114. Sarin, “The Asian-African states” (n. 15), p. 137.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

the thir d wo rld a nd interna tiona l l aw

273

International law can be subjected to a strong line of criticism or to a weak one. The argument on the latter approach is that even if international law is admittedly Eurocentric, it has over time become universal.23 The strong anticolonial doctrine, by contrast, sets out to illustrate how “Western notions of self and sovereignty have been grounded in claims of superiority, a higher knowledge of civil institutions, and a mission to elevate the other.”24 Only from this angle is it possible to clearly bring out the ways in which philosophical and historical systems connect with the international order. What is distinctive to this approach consists in its seeking to reconstruct the relations between colonizing countries and colonized ones through the lens of their positions of economic, political, social, and cultural superiority or inferiority (be it real or purported).25 The weak form of anticolonial legal theory instead argues that just because there is no genuinely intercivilizational international law, this does not mean that we ought to thereby reject certain achievements of contemporary international law, such as its human rights project. But in fact, as has been rightly observed, this emphasis on the human rights credentials of international law draws attention away from the international relation of social and economic inequality between developing and developed countries, in such a way as to make it possible to narrowly focus on each country’s domestic situation.26 The effort, beyond taking the pluralism of cultures and civilizations into account, should instead be to highlight “the historical affirmation of Western hegemony in the international order and the legal, political and ideological conditions of sovereignty and self-determination in the postcolonial era.” Key to this reconstruction is the attempt to analyze the “modes of operation” of international law, showing how they are mainly 23

24

25 26

In this regard, see James Thuo Gathii, “International law and Eurocentricity,” European Journal of International Law, 9 (1998), 184–211, at 185. An example of a weak approach to anticolonial doctrine can be found in Surya Prakash Sinha, Legal Policentricity and International Law (Durham, NC: Carolina Academic Press, 1996). The weak doctrine neglects to consider the political (imperialistic) and capitalistic elements of international law, those that explain why the countries that have been subject to colonial domination have since been reluctant to endorse a system of international law devised by the colonizing West itself. See, in this footnote, Gathii, “International Law and Eurocentricity,” p. 189. Siba N’Zatioula Grovogui, Sovereigns, Quasi Sovereigns, and Africans: Race and SelfDetermination in International Law, vol. 3 of the Borderlines series, ed. David Campbell and Michael J. Shapiro (Minneapolis, MN, and London: University of Minnesota Press, 1996), p. X. See Gathii, “International law and Eurocentricity” (n. 23) p. 187. Ibid., pp. 190–91.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

274

i n t e r n at i o n al l aw, is l am, and the t hird world

predicated on “European perceptions of the self,”27 a self-conception set in opposition to non-European otherness. It is on this basis that the norms of international law have been developed, along with the legal doctrines that have provided a systematic framework for these norms by firming up concepts such as sovereignty, freedom of trade, and private property.28 In light of this background, international law can be argued to be “the legal system that engendered colonialism.”29 Even if it was in the colonial era that international law most forcefully carried out this function, it continued to operate in this way in the postcolonial era as well. This happened, for example, through the affirmation of concepts such as sovereignty and self-determination, which on the one hand have enabled postcolonial countries to achieve independence, but on the other hand have been painted as “objectively derived from universal [though in fact Western] values.”30 Any meaningful criticism of international law in the postcolonial era therefore needs to be radical, for otherwise it would fail to bring out the underlying ideology, or the system of values that international law carries with it in ways that are functional to the interests of Western hegemony.

11.5 The Problem of the Sovereignty of Peoples and of Nations Central to the debate in the post–World War II period was the problem of the sovereignty of the newly independent states. In particular there emerged the issue of these states’ natural resources. In 1962, the UN General Assembly passed a resolution on sovereignty over natural resources in which it called into question several major areas of international law that “relate, broadly, to the exploitation of the raw materials of one State by individuals or juridical persons who are nationals of another State, and also include such major subjects as expropriation and other acts of taking, compensation for acts of taking, exhaustion of national jurisdiction, and the settlement of disputes arising out of questions of compensation.”31 27

28 29 30 31

Grovogui, Sovereigns, Quasi Sovereigns, and Africans (n. 24), p. 16; cf. 24. See also Gathii, “International law and Eurocentricity” (n. 23), p. 195. Grovogui, Sovereigns, Quasi Sovereigns, and Africans (n. 24), p. 55. Ibid., p. 3. Ibid., p. 16. Karol N. Gess, “Permanent sovereignty over natural resources: An analytical review of the United Nations declaration and its genesis,” International and Comparative Law Quarterly, 13, no. 2 (1964), 398–449, at 398. See also UN General Assembly, 17th Session, Official Records, Supplement 17, Resolution 1803, “Permanent Sovereignty over Natural Resources,” UN Doc. A/RES/1803 (XVII) (14 Dec. 1962).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

the thir d wo rld a nd interna tiona l l aw

275

The text of the resolution looks ambivalent, for on the one hand it recognizes the sovereignty of the newly independent states, but at the same time it states that the settlement of any disputes is to be governed by existing international law (which is functional to the interests of the Western powers). Thus, on the one hand, the resolution recognizes “the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests,” but at the same time it provides “that nothing [. . .] prejudices the position of any Member State on any aspect of the question of the rights and obligations of successor States and Governments in respect of property acquired before the accession to complete sovereignty of countries formerly under colonial rule.”32 So, too, in keeping with this latter policy, the resolution states that “the capital imported and the earnings on that capital shall be governed [. . .] by the national legislation in force, and by international law.” In cases where resources are nationalized, expropriated, or requisitioned, “the owner shall be paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law.” And if such compensation should give “rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. However, upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication.”33 Reflected in the language of this resolution is the full complexity of the transition from colonial status to full sovereignty. The colonial powers did not renounce the rights they gained under international law, while the newly independent states are trying to exercise their full sovereignty on the basis of their own natural resources. Let us see if we can gain some deeper insights into these dynamics by taking a closer look at some of the other provisions in the UN resolution. In the resolution, the concept of sovereignty can be observed to apply both to “peoples and nations”34 and to newly formed states. One could 32

33 34

UN General Assembly, “Permanent Sovereignty over Natural Resources” (n. 31), first and second “considering,” p. 15. Ibid., sec. I, points 3 and 5, p. 15. In the final text of the resolution we read: “Violation of the rights of peoples and nations to sovereignty over their natural wealth and resources is contrary is contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international cooperation and the maintenance of peace” (ibid., sec. I, point 7, pp. 15–16).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

276

i n t e r n at i o n al l aw, is l am, and the t hird world

therefore take it that the recognition of sovereignty precedes colonial domination. And this is in fact how Algeria expressed itself: in the debate leading to the resolution, in the General Assembly’s seventeenth session, Algeria invoked “an underlying concept of a basic and continuing sovereignty of peoples and nations that remained valid through an episode of colonisation.”35 Peoples and nations “who were basically sovereign,” the argument continued, could not lose their sovereignty upon coming under colonial rule, and the de facto status of a colony in no way altered the nature of its people’s sovereignty. Therefore when a people regained possession of its rights, it must review the situation which had existed in the interim: rights acquired during the colonial period should be reviewed and the situation “restored to normal.”36 The debate closed with a compromise solution that on the one hand, as we saw, safeguarded the member states’ existing position, but at the same time recognized the rights of successor states and governments (as well as their obligations) in the matter of previously acquired property (the property the former colonial powers acquired before the colonized countries gained full sovereignty). The Algerian position was certainly consequential, for it laid out the case for an underlying and continuing sovereignty of peoples which could subsist independently of any foreign government’s exercise of sovereignty, and which could preserve itself in a latent or dormant state throughout a period of colonial domination. It is for this reason that the UN resolution proclaimed the sovereignty of peoples and nations: this was meant to include territories that could not govern themselves and were accordingly excluded from the scope of the concept of a state’s sovereignty over its own natural resources. As to the property rights claimed by the former colonial powers, the argument has been made in legal scholarship that “a dormant sovereignty of peoples and nations over their natural resources came into being when the territorial units as we now know them were created, and that the territorial title passed to the new State upon its accession to independence.” It necessarily follows that “such transfers of territorial title traditionally safeguard acquired rights,”37 meaning the rights acquired by the colonial powers. 35 36 37

See Gess, “Permanent sovereignty” (n. 31), p. 443. Ibid, p. 444. Ibid., p. 447. Here Gess points out the example of the UN’s 1950 resolution on Libya, which provides that the “property, rights and interests of Italian nationals, including

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

the t hir d world a nd inter na tio na l l aw

277

Needless to say, these views are problematic. For a clear-sighted criticism of them we can turn to Antony Anghie, who points out that they proceed from the assumption that newly independent states have “no history or existence [. . .] in international law until that precise time when they are ‘created’ by colonialism.” The assumption, in other words, is that “colonial territories had no pre-colonial personality cognizable by international law [. . .]. In this sense they belonged to no one and could, presumably, be appropriated by the colonial state even as it brought into existence the unit, the ‘people’ to which PSNR [permanent sovereignty over natural resources] ostensibly refers.”38 In recognizing the “acquired rights” of colonial powers, Western legal scholarship has held that people who are subject to colonial domination enjoy territorial sovereignty, however limited it may be. These peoples were thus understood to have sovereignty, but only to the extent necessary to confer binding force on the concessions they gave to the colonial powers that later would inevitably seek to impose obligations on the same peoples once they had been formed into independent states. As Anghie thus concludes, “Personality [. . .] is invented in order to be bound.”39 The colonial powers held on to their position of dominance even after the peoples they colonized gained independence, and it was international law that they relied on as a key instrument to that effect. The ambiguity of the UN’s 1962 resolution on permanent sovereignty over natural resources was perpetuated in international adjudication, which essentially protected the rights the colonial powers had acquired in the colonial era. In this connection Anghie points out several arbitration cases in which international law is used in precisely that way. Notable among these was the 1977 dispute between Libya and Texaco,40 involving an attempt by Libya to nationalize all of Texaco’s rights, interest, and property in

38

39 40

Italian juridical persons, in Libya, shall, provided they have been lawfully acquired, be respected.” UN General Assembly, 5th Session, Official Records, Supplement 20, “Economic and Financial Provisions Relating to Libya,” UN Doc. A/RES/388 (V) (15 Dec. 1950), Part A, Article VI(1), p. 18. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005), p. 219. Ibid., p. 220. Texaco Overseas Petroleum Co. & California Asiatic Oil Co. v. The Government of the Libyan Arab Republic, published in translation under the title “Award on the merits in dispute between Texaco Overseas Petroleum Company / California Asiatic Oil Company and the Government of the Libyan Arab Republic (compensation for nationalized property),” International Legal Materials, 17, no. 1 (1978), 1–37.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

278

international l aw, islam, and the third world

Libya. This ostensibly brought the dispute within the scope of the 1974 “Charter of Economic Rights and Duties of States,”41 under which states enjoy precisely that right (to nationalize foreign property), and which provides that if a dispute should arise in regard to compensation, “it shall be settled under the domestic law of the nationalizing State and by its tribunals,”42 making no mention of any international standards of compensation. And yet, despite these facts, the sole arbitrator in the case, Prof. René-Jean Dupuy, ruled that the Charter was “not binding on capital exporting states,” on the ground that only the newly independent states endorsed the Charter and that they “were incapable of changing international law if those changes were opposed by the industrialised [capital exporting] states.”43 In short, Anghie concludes, “traditional principles of international law, particularly sovereignty doctrine, take on a different form when applied to the non-European world.”44 This suggests that is it is necessary to further develop the previously mentioned critical approach in analyzing the current relation between international law and the Third World.

11.6 The Sovereignty and Legitimacy of Postcolonial States under International Law The question of the sovereignty of states that gained their independence in the postcolonial period is closely bound up with the question of their legitimacy. According to neoconservative realism, the legitimacy of states lies exclusively in their ability to exercise “effective control and authority” over their territory and command “the obedience of the bulk of the population of that territory,” and to do so in a way that is permanent:45 this is still the basic idea behind the states-system that came into shape following the 1648 Peace of Westphalia. On the liberal conception, by contrast, a state is legitimate to the extent that it enables individuals within its territory to participate in the political process. In short, while the neoconservative view makes a state’s legitimacy contingent on its 41

42 43 44 45

Introduced by way of UN Resolution 3281. UN General Assembly, 29th Session, Official Records, Supplement 31, UN Doc. A/RES/3281 (XXIX) (12 Dec. 1974). Chapter II, Article 2(2)(c), of the Charter (at p. 52 of UN Resolution 3281). Anghie, Imperialism, Sovereignty and the Making of International Law (n. 38), pp. 221–22. Ibid., p. 235. See Brad R. Roth, Governmental Illegitimacy in International Law (Oxford: Oxford University Press, 2000), p. 259, quoting UN General Assembly, 5th Session, Official Records, Annexes, Agenda Item 61, UN Doc. A/AC.38/L. 21/Rev. 1 (1950).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

t he t hir d w o rl d an d i n te r n a ti o n a l l a w

279

effective power, the liberal one instead frames it within the discourse of individual liberty. The argument, on this latter view, is that the statessystem is no longer current, having been superseded by a system of plural actors operating within the free market and in the context of liberal democracies. But in fact there is a third angle, one that takes a critical view of both the conservative and the liberal conception. From this third angle, which is also the approach framing the present discussion, the question of whether or not a state is legitimate needs to be considered in view of the history of colonialism and its development and transformation from its origin to the present day.46 From this perspective, colonialism has not been an exception in the history of international law: on the contrary, it is still very much with us, still applying its force, only in different forms. These are the various forms of international intervention ostensibly designed to serve a range of familiarly benevolent purposes, among which “to protect human rights, avert or attend to international humanitarian emergencies, install democracies, monitor elections, and oversee transitions from authoritarian one-party states and military regimes,”47 as well as to restructure economies under free-market reforms. In the colonial age, the Western powers imposed political forms completely extraneous to the traditions of the peoples they were subjecting. The main such form is the nation-state.48 This was a form of state the West regarded as universal, for which reason the colonial powers of the West thought they could impose it on peoples who did not share their own civilization. The same frame of mind can be observed today in the attempt to impose democratic forms of government, protect human rights, and set up free-market economies. From a Western point of view, no government can be legitimate unless it assumes these political forms and implements these economic systems. So, as much as colonialism may have taken different forms, it is still in process. It will therefore be necessary to take a closer look at some strictly connected aspects of Western encroachment, namely, (1) its colonial legacy, (2) the violation 46

47 48

James Thuo Gathii, “Neoliberalism, colonialism and international governance: Decentering the international law of governmental legitimacy,” Michigan Law Review, 98, no. 6 (2000), 1996–2065, available at SSRN: https://ssrn.com/abstract=656022. This text will provide the frame of reference for much of the discussion that follows. Ibid., pp. 2010–11. In this regard see, for example, Sami Zubaida, Islam, the People and the State: Essays on Political Ideas and Movements in the Middle East (London: Routledge, 1989), pp. 123 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

280

international l aw, is l am, and the t hird world

of the nonintervention principle, and (3) the question of the sources of international law. (1) The first aspect needing to be considered relates to the consequences that have followed from the Western powers’ practice of using the gauge of their own expansionary needs as a criterion by which to divide the peoples they brought into subjection. Thus, for example, the Somali people were divided between Kenya and Somalia and the Maasai people between Kenya and Tanzania. This created artificial states and, within them, “a crisis of internal legitimacy.”49 If there is any solution to this crisis, it must involve the people exercising their right of self-determination as they would have without colonial subjection. (2) The second aspect relates to the Western powers’ continuing encroachment on Third World peoples in the postcolonial era. This has happened in the form of economic intervention programs carried out by the Western powers as well as by international financial institutions. As much as there are no provisions or doctrines of international law prohibiting the West from engaging in economic coercion, this should be considered a violation of the nonintervention principle, because to subject a nation to economic coercion is to violate its economic sovereignty.50 This reading of the nonintervention principle finds its basis in Article 2(7) of the 1945 UN Charter and is widely supported by Third World countries. It can also be found in some resolutions of the UN General Assembly, including the “Declaration on the Inadmissibility of Intervention into the Domestic Affairs of States and the Protection of Their Independence and Sovereignty”51 and the “Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations.”52 49

50 51

52

See Makau wa Mutua, “Why redraw the map of Africa: A moral and legal inquiry,” Michigan Journal of International Law, 16, no. 4 (1995), 1113–76, at 1118. As Mutua comments: “I concede that although other reasons, such as external economic factors and cultural disorientation, have contributed to the crisis of the African state, they cannot be divorced from the crisis of internal legitimacy.” Gathii, “Neoliberalism, colonialism and international governance” (n. 46), p. 2030. UN General Assembly, 20th Session, Official Records, Supplement 14, Resolution 2131, UN Doc. A/RES/2131 (XX) (21 Dec. 1965). UN General Assembly, 25th Session, Official Records, Supplement 28, Resolution 2625, UN Doc. A/RES/2625 (XXV) (24 Oct. 1970).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

t h e th i r d wor l d an d i nt e r n a t i o n a l l a w

281

(3) The third problem is that international law restricts the sources of law to treaties and customs. This means that the resolutions of the UN General Assembly do not count as sources of international law, and so that the economic coercion exercised by the major powers and international financial institutions cannot be reckoned among the practices prohibited by the nonintervention principle. This makes it clear that international law is set up to serve the colonial powers’ new interests. Thus, for example, states that fail to submit to the economic restructuring required by international capital lose their legitimate status and are no longer entitled to obtain loans from the Bretton Woods institutions (the World Bank and the International Monetary Fund). A critical approach to international law should, on the contrary, also include non-Western sources based on the ethical and political principles of postcolonial societies, however different they may be from Western traditions.53 We are therefore looking at a clash between the West’s neocolonial forms of intervention and the Third World’s forms of resistance.

11.7 The Third World and the Western Ideology of Good Governance Current Western intervention in Third World countries is marked by a clear orientation toward “democratizing” these countries. This has taken the form of an attempt to contain and channel the mass resistance of the many social movements that have been sprouting up on the international scene since the 1980s.54 On the one hand, the social movements that have come into shape in the Third World have asserted a discourse of liberation and resistance; on the other hand, there has been an international flourishing of institutions devoted to a mission of democratization and peace. These international institutions have managed to keep popular resistance in check and to modernize the social, political, and economic structures of developing countries in an effort to bring the Third World within the fold of Western “modernity.”55 53 54

55

Gathii, “Neoliberalism, colonialism and international governance” (n. 46), pp. 2031–34. Balakrishnan Rajagopal, “From modernization to democratization: The political economy of the ‘new’ international law,” chap. 7 in Richard Falk, Lester Edwin J. Ruiz, and R. B. J. Walker (eds.), Reframing the International: Law, Culture, Politics (New York and London: Routledge, 2002), p. 137. Ibid., p. 138.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

282

i n t e r n a t i o n a l l a w , is l a m , an d t h e th i r d w o r l d

With the end of the Cold War there came an increased presence of international organizations in the Third World: not only the UN agencies, such as the Food and Agriculture Organization (FAO) and the United Nations Children’s Fund (UNICEF), but also economic and financial institutions, like the World Bank and the International Monetary Fund (IMF). These organizations were set up to pursue two main objectives: the first (a) was to “save” so-called failed states,56 such as Somalia, Liberia, and Afghanistan; the second (b) was to promote “democratization.” As Balakrishnan Rajagopal has argued, behind the first objective was a racist attitude toward the Third World: the idea was to “recolonize” these countries and bring them back under a UN trusteeship.57 The democratization objective, for its part, was framed within a paradigm in a package that included peacekeeping, electoral assistance, institution-building, and the rule of law. The complexity of this paradigm and its underlying ideology calls for careful analysis. It first needs to be underlined that, as much as the UN has played a distinct role in transforming the political frameworks of many states, it has always presented its own position as apolitical and neutral relative to the possible outcomes of the democratization processes it has taken part in. The UN’s doctrine was laid out in the 1990s in a series of reports by then Secretary-General Boutros Boutros-Ghali. Here we find a specific link among peace, development, and democracy.58 In a report on democratization he presented to the UN General Assembly in 1996, the link is explicitly made between democracy and development: “a culture of democracy [. . .] helps to foster a culture of development.”59 The report continues: Democracy today is receiving widespread acknowledgement for its capacity to foster good governance, which is perhaps the single most important development variable within the control of individual States. By providing legitimacy for government and encouraging people’s participation in decision-making on the issues that affect their lives, democratic processes contribute to the effectiveness of State policies and development strategies.60 56

57 58 59

60

See Gerald B. Helman and Steven R. Ratner, “Saving failed states,” Foreign Policy, 89 (1992/93), 3–20. See Rajagopal, “From modernization to democratization” (n. 54), p. 140. Ibid., pp. 142–44. Boutros Boutros-Ghali, An Agenda for Democratization (New York: United Nations, 1996; also published as UN Doc. A/51/761), point 22, p. 9. Ibid., point 24, pp. 9–10.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

the thir d world a nd interna tiona l l aw

283

On this conception, democracy is also tied to peace: “Democratic institutions and processes within States may likewise be conducive to peace among States. [. . .] The legitimacy conferred upon democratically elected Governments commands the respect of the peoples of other democratic States and fosters expectations of negotiation, compromise and the rule of law in international relations.”61 In short, democratic institutions favor peace and development. This is an unassailable statement of principle, to be sure, but if we look at the actors who play on the international stage, what we can see is a form of political control shaped by a neocolonial practice driven by a corresponding ideology. We therefore have to answer two related questions: (a) What is the meaning and practical import of the relationship between democracy and development? And (b) why are Third World countries resisting democratization?

11.8 Democracy and Development Several approaches have been put forward that offer to explain the way democracy and development are related and what the nature of that relationship is: we range from conceptions that see democracy as an obstacle to development to ones that see it as an institution under threat from capitalism. International organisms such as the UN and the World Bank instead call for increased democratic participation as a necessary condition of economic development. This is the view that former UN Secretary-General Boutros-Ghali has laid out in several documents.62 Even the World Bank, in its official policy statements, expresses the same view. But wrapped into the democratization process are a number of ambiguities that need to be sorted out. Important elucidations have come from authors like Albert O. Hirschman, Amartya Sen, and Joseph E. Stiglitz, the last of whom, in particular, underscores how the transition from tradition to modernity requires participation, absent which democratic government would have no basis of legitimacy. Participation – understood as a participatory process that is not limited to voting but also includes “transparency, openness, and voice in both public and corporate settings” – enables “citizens [. . .] to know what the government is 61 62

Ibid., point 18, p. 1. In addition to the agenda for democratization (n. 59), see UN General Assembly, 48th Session, Agenda Item 91, “An Agenda for Development: Report of the SecretaryGeneral,” UN Doc. A/48/935 (6 May 1994).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

284

international l aw, i slam, and the t hird world

doing and why,” and thus makes it possible to “dissipate much of the resistance to change,”63 particularly when it comes to popular resistance hindering the transformation away from traditional forms of social organization. But it is in the work of Amartya Sen, more than any other author, that we can find the insights needed to clarify the relation between democracy and development. In a range of works from the 1993 essay “Capability and Well-being”64 – introducing a human development approach based on the concept of capability as a person’s ability to achieve a condition of well-being – to the 1999 book Development as Freedom, Sen compellingly shows that democracy and human rights, which stand as its foundation, contribute to robust economic development. It can therefore be claimed, from Sen’s perspective, that human development is a necessary condition of economic development. He can thus state that “developing and strengthening a democratic system is an essential component of the process of development.”65 Encompassed in a democratic system, as Sen describes it, are political freedoms and civil rights, for it is the exercise of these rights and freedoms – inclusive of an adequate education, wide fair access to healthcare, political participation, and the like – that makes it possible to appropriately define economic needs and their fulfillment, while enabling human beings to realize their full “capability.” If the relation of necessary conditionality that Sen establishes between human development and economic development holds, it should serve as the foundation on which to build an authentic democracy not only in Third World countries but also in Western ones. Yet this approach is either ignored by Western countries or exploited by them to serve the interests of their intervention in developing countries. Democratization and development have been promoted in the Third World through the activities of a wide range of international organisms. These include the UN agencies, such as the United Nations Development Programme (UNDP) and the Office of the High Commissioner for Human Rights (OHCHR); national agencies, such as the United States Agency for International Development (USAID); the European Bank for 63

64

65

Joseph E. Stiglitz, “Participation and development: Perspectives from the comprehensive development paradigm,” Review of Development Economics, 6, no. 2 (2002), 163–82, at 165, 166, and 168, respectively. Amartya Sen, “Capability and well-being,” in Martha Nussbaum and Amartya Sen (eds.), The Quality of Life (Oxford: Clarendon Press, 1993), pp. 30–53. Amartya Sen, Development as Freedom (Oxford: Oxford University Press, 1999), p. 157.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

the thir d world a nd interna tiona l l aw

285

Reconstruction and Development (EBRD); and global economic organizations like the World Trade Organization (WTO).66 However, these international agencies and organisms have met significant resistance from movements in the Third World that object to their exploitation of democratization processes. Let us therefore try to understand that charge, and so what the reasons are for such resistance.

11.9 Democracy, Human Rights, and Resistance Movements Third World resistance to the democratization projects promoted by international economic and financial organizations is aimed at laying bare the deeper designs these projects conceal. Which is to say that they are used as vehicles through which to select Third World elites willing to stand behind a full economic globalization of the markets that is functional to Western expansion. The resistance put up by these social movements is interpreted by Balakrishnan Rajagopal as the expression of a new cosmopolitanism whose core effort is to oppose globalization and to establish forms of decentralization and local democracy. Only once this foundation is set will these movements accept the promotion of human rights.67 For otherwise human rights can only amount to an ideology designed to legitimize the action of international organisms and the local communities’ consequent loss of autonomy. Rajagopal’s approach is quite innovative, for it seeks to revisit international law through the lens of social movements and no longer through that of state or individual actors.68 This approach also situates itself outside the Marxist framework so as to instead work within that of “cultural politics” in rethinking the foundations of international law. The reason why Marxism is rejected as an idle tool, incapable of making sense of the social struggles that unfold in the Third World, is that these

66 67

68

Rajagopal, “From modernization to democratization” (n. 54), pp. 149–51. Reasoning from these same premises, Upendra Baxi argues that the history of human rights should be written from the viewpoint of communities united in their struggles through the experience of suffering. See Upendra Baxi, “Voices of suffering and the future of human rights,” Transnational Law and Contemporary Problems, 8 (1998), 125–69, at 148. Balakrishnan Rajagopal, “International law and Third World resistance: A theoretical inquiry,” chap. 8 in Antony Anghie, Bhupinder Chimni, Karin Mickelson, and Obiora Okafor (eds.), The Third World and International Order: Law, Politics and Globalization (Leiden and Boston: Martinus Nijhoff Publishers, 2003), p. 147.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

286

i n t e r n at i o n al l aw, is l am, and the t hird world

struggles are not class-based but rather come in response to social problems like environmental decay and the oppression of women. Furthermore, Marxism depicts history as a series of transformations of society from one stage to the next, and within this conception we will not be able to understand the complex nexus between the economic and cultural aspects concerned in the social struggles of the Third World. In short, Rajagopal concludes, Marxism does not provide us with the conceptual toolkit needed to properly understand the development of the global economy or the nature of the social movements that have emerged primarily in reaction to the new forms of the global economy. By contrast, the cultural politics approach makes it possible to interpret these social movements through the identity dynamics they express. Which in turn offers an alternative account by which to better understand the condition of women, the environmental question, and the claims for the recognition of ethnic identities, among other issues.69 Stated otherwise, Rajagopal proposes to expand our field of vision beyond the institutional box, thereby clearing the ground for us to factor the “struggles over meanings” into our analysis. In this way, the resistance offered by Third World social movements can serve as a concept in light of which to analyze international law. What is compelling about this approach is that it enables us to appreciate the standpoint of “alternative collectivities,” thus affording a broader vision than the liberal one of individual autonomy and rights and the realist one focused on the state’s sovereignty. Rajagopal’s analysis is significant as an indictment against international law, which has always embraced the victory of sovereign states, ultimately legitimizing the colonial conquests of the European empires and the American one. If international law could break out of this mould, it would be able to expand its horizon so as to include social movements within its purview and appreciate the role they could play in reshaping the principles of international law.70 There are good reasons, then, why international law should move beyond the confining statecentered perspective, considering that the state’s sovereignty, especially in the Third World, falls in significant ways under the influence of international organizations (like the WTO and the Bretton Woods institutions), and considering as well the democratic deficit of many Third World states. 69 70

Ibid., p. 158. Ibid., p. 162.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

the t hir d world a nd inter n atio na l l aw

287

11.10 Conclusions It will now be necessary to further elaborate on the foregoing considerations so as to give them a systematic order. We can do so by organizing the discussion around three topics: (1) the nature of international law in relation to the neocolonial perspective; (2) the decentralization of the process through which law is made, particularly as regards international human rights law; and (3) the role of the law of peoples relative to the states’ domestic law. (1) Under the first heading, it bears underscoring that since the age of colonialism, international law has expressed the interests of the social forces and states that have held a dominant position in international relations.71 This means that we should be attempting to introduce the critical tools with which to unmask this ideology of domination that drives international policy in the First World. We will thus have to recognize, for example, the social movements’ claims to identity. We will further need to rethink the concept of the Third World so as to distinguish within it the interests of its peoples from those of the governing elites. These elites support neoliberal policies and market deregulation in keeping with a Western model of governmentality.72 A meaningful criticism of international law should accordingly also extend to the global governance model, which places not peoples but states at the center of the international stage, and which assumes a uniform and unlimited process of development, without recognizing the different paces at which different peoples in fact proceed in their development. As Bhupinder Chimni points out, instead of holding all peoples to a standard they cannot meet, it would be more effective to gauge the standard to the realities of what is actually sustainable. (2) In the second place, we need to consider, in a globalized world, the making of law through “private governments” enabling the formation of stateless systems of law.73 This is also happening in the now globalized 71

72 73

See B. S. Chimni, “Third World approaches to international law: A manifesto,” chap. 4 in The Third World and International Order (n. 68), p. 72. Ibid., p. 57. A case in point is the lex mercatoria as a body of transnational law that multinational enterprises have developed to regulate their economic transactions. But the same process can also be observed in international labor law (lex laboris internationalis), where “enterprises and labour unions as private actors are dominant law-makers.” Gunther Teubner, “Breaking frames: The global interplay of legal and social systems,” review of

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

288

i n t e r n at i o n al l aw, is l am, and the t hird world

context of human rights law. But here it is necessary to point out and clarify the double-edged nature of this kind of discourse. For on the one hand it supports the codification of civil, political, and social rights that can be asserted against states in favor of resource-strapped and marginalized groups, but on the other hand it can be used as a tool for protecting private rights, such as intellectual property rights, thereby favoring the transformation of a common asset of humanity into a system of corporate property rights.74 In short, the human rights discourse takes two divergent courses, for on the one hand it is subservient to neoliberal policies, and on the other it is functional to emancipation processes in the Third World. This two-sidedness shows that what appears to be the zerosum game between human rights and the economic policies of the Western powers can in fact be made to work in favor of the latter. What this dynamic reveals is a continuity between the ideology of colonialism, which sought to justify colonial expansion as a mission intended to “civilize” peoples, and the neocolonial powers’ human rights ideology, which can now be used to justify their free-market economic policies. Upendra Baxi points out the risk that the principles underpinning the 1948 Universal Declaration of Human Rights may now find themselves being replaced by a human rights paradigm that is consonant with the market economy and functional to trade and commerce.75 (3) Finally, a thorough criticism of international law needs to also consider its role in conferring sovereignty over natural resources, making the case that this sovereignty belongs to Third World peoples and not to the states into which they are organized.76 This would make it possible to

74

75

76

Michel van de Kerchove and François Ost, Le droit ou les paradoxes du jeu (Paris: Presses Universitaires de France, 1992), The American Journal of Comparative Law, 45 (1997), 149–208, at 157, also published as “Die unmögliche Wirklichkeit der Lex Mercatoria: Eine systemtheoretische Kritik der théorie ludique du droit,” in Festschrift Zöllner (Köln: Heymann, 1998), pp. 565–88, at 574. See Gary Teeple, “Globalization as the triumph of capitalism: Private property, economic justice and the new world order,” in Ted Schrecker (ed.), Surviving Globalism: The Social and Environmental Challenges (London: Macmillan, 1997), pp. 15–37. Cf. Chimni, “Third World approaches to international law” (n. 71), p. 54. Baxi, “Voices of suffering” (n. 67), p. 163. This paradigm is predicated on the principle that human rights can have a future only if they go hand in hand with economic development. The idea is that only the free market offers the best hopes of human redemption, but in fact this winds up legitimizing the imposition of great human suffering at the hands of global capital (ibid., p. 168). Chimni, “Third World approaches to international law” (n. 71), p. 63.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

t he t hir d w o r l d an d i n t er n a t i o n a l l a w

289

denounce the serious human rights violations that peoples suffer at the hands of their ruling classes, and also of transnational capital, through laws, institutions, and practices that limit the independence of Third World peoples in order to implement Western-styled governance and economic policies.77

11.11 Excursus: “Deconstructing” the Third World The term Third World was first introduced in a 1952 article by the French demographer Alfred Sauvy, who argued that in addition to the First World, comprising the capitalist countries, and the Second World, made up of the Communist countries, there also existed a Third World, consisting of “the whole complex of countries the United Nations refers to as underdeveloped.”78 In framing the Third World problem, Sauvy was looking at the Cold War context, commenting that without the Third World, “the coexistence of the other two would not pose a serious 77

78

An example can be found in the struggles of the indigenous peoples of Latin America. Most notable among these, perhaps, is the resistance put up by the indigenes of the Peruvian Amazon. This has been a hard-fought struggle, with some gruesome episodes in 2009, carried out against the legislative decrees the Peruvian government issued under the 2006 United States–Peru Trade Promotion Agreement. These are provisions the indigenes see as harmful because they would clear the way for multinationals to appropriate their lands. One decree in particular (no. 1064) would have given companies an easement right to cross indigenous lands without requiring them to comply with any environmental standard. As much as 70 to 80 percent of the Amazon rainforest has been given in concession to oil companies for fossil fuel exploration and extraction. A particularly intense struggle has been waged by the Jíbaro peoples, an ethnic group that in the seventeenth and eighteenth centuries the Spanish never managed to subject, and who in the late nineteenth century and early twentieth century resisted the exploitation of natural rubber (caoutchouc). The struggles these peoples have engaged in to protect their cultural identity and their natural resources have in the meantime resulted in the Peruvian government repealing the decrees, while the UN’s special rapporteur on the rights of indigenous peoples has called for a commission to be set up to investigate the abuses and violence that have been carried out. This is only a momentary respite in the long and painful history of struggles that have proved to be a necessary condition for the attainment of human rights. My translation from the French original: “C’est l’ensemble de ceux que l’on appelle, en style Nations Unies, les pays sous-développés.” Alfred Sauvy, “Trois mondes, une planète,” L’Observateur, 14 Aug. 1952, no. 118, p. 14. See also Yves Lacoste, Unité et Diversité du Tiers Monde (Paris: Maspéro, 1980), vol. 1, chap. 1, pp. 14 ff., and Kofi Buenor Hadjor, Dictionary of Third World Terms (London and New York: I. B. Tauris, 1992), pp. 3 ff. Cf. Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003), p. 25.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

290

international l aw, is l am, and the t hi rd world

problem,”79 and pointing out that “what matters to each of the two worlds is to conquer the third one or have it on its side.”80 Was Sauvy perhaps alluding to the possibility of a Third World no longer subject to the domination exercised by the first two worlds? If so, on what basis could he think that, and what paths might lead to that result? Today, more than half a century later, we are still asking the same questions, and the solution, whatever it turns out to be, is not going to be any less complex. A solution can be attempted by taking our cue from the link that Sauvy rightly underscored in pointing out that Third World countries live in a condition of “underdevelopment.” But what criteria should we use in describing a country as underdeveloped? Much of the literature that has addressed the Third World problem, and this is especially true in anthropology, has underscored the arbitrary nature of the distinction between “development” and “underdevelopment,” in that the criteria we use in drawing this distinction are framed within a discourse that carries an implicit Western bias. Here the term discourse, in the work of all those who have taken up the question of underdevelopment, is to be understood in the sense expounded by Michel Foucault. This is an idea that Foucault developed beginning in the early 1970s, referring to the power relations that a given conceptual system could bring into being, thereby supporting the relative subjugation practices. These include control and exclusion practices, which on this view are closely bound up with the accompanying discourse understood as a conceptual system. As Foucault put it, discourse practices “function as systems of exclusion; they concern that part of discourse which deals with power and desire.”81 The discourse of the Third World and of development emerged in the wake of World War II: it came at the end of colonialism but was 79

80

81

The French original: “Sans ce troisième ou ce premier monde, la coexistence des deux autres ne poserait pas de grand problème.” Sauvy, “Trois mondes, une planète” (n. 78). “And that,” he added, “is where all the problems of coexistence spring from.” The French original: “Ce qui importe à chacun des deux mondes, c’est de conquérir le troisième ou du moins de l’avoir de son côté. Et de là viennent tous les troubles de la coexistence” (ibid.). Michel Foucault, “The discourse on language,” trans. Rupert Swyer, in The Archaeology of Knowledge and the Discourse on Language, trans. A. M. Sheridan Smith (New York: Pantheon Books, 1972), pp. 215–37, at 220. “The discourse on language” was originally published as L’ordre du discours (Paris: Gallimard, 1971) and has also been translated by Ian McLeod under the title “The order of discourse,” in Robert Young (ed.), Untying the Text: A Poststructuralist Reader (Boston: Routledge and Kegan Paul, 1981), pp. 48–78. The Archaeology of Knowledge was originally published as L’archéologie du savoir (Paris: Gallimard, 1969).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

the third wo rld and interna tional l aw

291

conceived to stand in continuity with colonial discourse. To be sure, colonialism had been marked by violence: it was an age of power exercised through violence. But colonial power at the same time sought to legitimize its own dominance through discourse in Foucault’s sense, and in particular through a discourse that depicted colonial peoples as devoid of values and as prey to myths and traditions that accounted for their “backward” ways. As Frantz Fanon observed, “the colonist turns the colonized into a kind of quintessence of evil. [. . .] The ‘native’ is declared impervious to ethics, representing not only the absence of values but also the negation of values. He is, dare we say it, the enemy of values. In other words, absolute evil.”82 Colonial discourse thus recast difference into a system of racial and cultural discrimination and hierarchy.83 Deportation, forced labor, and slavery have been instrumental in making Europe a place of opulence. This opulence is therefore indecent, writes Fanon, because it was amassed on the back of slave labor. In this sense, “Europe is literally the creation of the Third World.”84 And because Europe’s wealth was thus built on violence – by plundering the peoples who had been subjected to colonial domination – its system, or indeed any system based on violence, could only be taken down by violence itself.85 In the post–World War II period, as mentioned, colonial discourse continued under the guise of “development discourse,” which lays the foundation for the concept of the Third World. So we now have to critically examine the new elements through which Western dominance continued to be exerted, looking to deconstruct its development 82

83

84 85

Frantz Fanon, “On violence,” chap. 1 in The Wretched of the Earth, trans. Richard Philcox, foreword Homi K. Bhabha, preface Jean-Paul Sartre (New York: Grove Press, 2004), p. 6. Originally published as Les damnés de la terre (Paris: François Maspero, 1961). Homi K. Bhabha points out that colonial discourse is “crucial to the binding of a range of differences and discriminations that inform the discursive and political practices of racial and cultural hierarchization.” Homi K. Bhabha, “The other question: Difference, discrimination and the discourse of colonialism,” in Russell Ferguson, Martha Gever, Trinh T. Minh-ha, and Cornel West (eds.), Out There: Marginalization and Contemporary Cultures (New York: The New Museum of Contemporary Art; Cambridge: The MIT Press, 1990), vol. 4 of the Documentary Sources in Contemporary Art series, ed. Marcia Tucker, pp. 71–87, p. 72. Also quoted in Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (Princeton, NJ: Princeton University Press, 1995), p. 9. Fanon, “On violence” (n. 82), p. 58. As Fanon observes, “colonialism is not a machine capable of thinking, a body endowed with reason. It is naked violence and only gives in when confronted with greater violence” (ibid., p. 23).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

292

i n t e r n at i o n al l aw, is l am, and the t hird world

discourse, in such a way as to explore the alternative paths that so-called underdeveloped countries might take. It was by turning to the problem of poverty that development discourse gained traction in the postwar period: with the rapid pace at which the United States was growing into a world power, the spotlight fell on the “war on poverty” in the Third World.86 This poverty was defined on the basis of quantitative criteria by stipulating a poverty line: an income level that in the West would have been insufficient to secure a livelihood. The solution to the problem of poverty was thus understood to lie in economic growth and development.87 The problem of global poverty came especially into focus when President Truman made it an “essential component” of his 1949 inaugural address.88 Having emphasized that the United States, coming out of the war, is “moving on with other nations to build an even stronger structure of international order and justice,” he pointed to the “underdeveloped areas” whose “economic life is primitive and stagnant.” The condition of peoples in this area, he said, poses “a threat both to them and to more prosperous areas.” But, Truman continued: “For the first time in history, humanity possesses the knowledge and skill to relieve the suffering of these people,” making it possible to “envisage [. . .] a program of development based on the concepts of democratic fair-dealing.”89 Packaged into Truman’s words are the two main elements of development discourse: possession of a higher knowledge (science and technology) and the forms of power (a new international political order) under which to set up relations between prosperous areas and Third World peoples, in such a way as to grow these peoples’ primitive economies and enable them to overcome their benighted conditions. In this order of discourse, it is the system of international relations that frames the elements: it does so by establishing that which can be said and thought.90 In this sense it can be claimed that “the production of the 86 87

88 89

90

Escobar, Encountering Development (n. 83), p. 21. Ibid., p. 24. In September 1948 the World Bank “published income estimates for different parts of the world, indicating that whereas income per capita in the more highly developed countries of North America and Europe was in excess of $1,300, in the bulk of the underdeveloped countries it was only about $100.” Devesh Kapur, John P. Lewis, and Richard Webb, The World Bank: Its Half Century (Washington, DC: Brookings Institution Press, 1997), vol. 1, p. 83. See Escobar, Encountering Development (n. 83), p. 3. Harry S. Truman, Public Papers of the Presidents of the United States: Harry S. Truman (1949) (Washington, DC: US Government Printing Office, 1964). Escobar, Encountering Development (n. 83), p. 40.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

the t hir d world a nd inter na tio na l l aw

293

Third World through the articulation of knowledge and power is essential to the development discourse.”91 This became possible by putting forward a narrative of subjectivity in which Third World peoples were depicted as uncouth and underdeveloped, a population of small farmers living a hand-to-mouth existence, and so on. As Arturo Escobar observes, development has not unfolded as a cultural process but has been carried out as a system of technical interventions, on the assumption that these interventions could universally be applied from the outside to populations uniformly labelled as underdeveloped, this through a “discursive homogenization” that has made it possible to neglect the cultural diversity of Third World peoples.92 Because development has not involved any gradual endeavor to work out solutions specific to each of the different populations involved, its outcome has been to wipe out Third World cultures. Compounding this problem was the action of many political elites tied to the West, with their role in doing environmental damage and despoiling the people of their resources. This action perpetuated the “civilizing” violence which has been visited on non-Western peoples since the sixteenth century, and which since the end of World War II has continued under a new guise through the imposition of development discourse. What options become available on the international scene in the effort to lift the yoke of domination with which the West has thwarted the development of “underdeveloped” peoples? As in the study of international law, so in the human sciences, and particularly in anthropology, some approaches have sprung up that take a critical look at the brand of development promoted by the West. These approaches emerged in the mid-1980s, with a range of authors who took their cue from the social movements that were resisting development policies. For in these movements, these authors saw the possibility of deconstructing the underpinning development discourse. As Stuart Hall explains it, “movements provoke theoretical moments.”93 Social movements, in other words, make it possible to establish a new order of discourse that does away with development sciences and with Western 91 92 93

Ibid., p. 12. Ibid., p. 53. Stuart Hall, “Cultural studies and its theoretical legacies,” chap. 17 in Lawrence Grossberg, Cary Nelson, and Paula Treichler (eds.), Cultural Studies (New York: Routledge), p. 283. Also quoted in Escobar, Encountering Development (n. 83), p. 224.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

294

international l aw, is l am, and the t hird world

modes of knowledge, laying the groundwork for other types of knowledge and experience.94 Social movements are guided by a specific set of principles that translate into action focused on safeguarding cultural difference, framing economic needs in broader terms than those of profit and the market, defending the local before engaging with the global, and critiquing “the group’s own situation, values, and practices as a way of clarifying and strengthening identity.”95 It is on these bases, through the challenge thrown at the Western world, that it becomes possible to deconstruct the Third World, and on this foundation rests the possibility for “both the First and the Third World, perhaps finally transcending the difference, [. . .] of learning to be human in posthumanist (post-man and postmodern) landscapes.”96 94 95 96

Escobar, Encountering Development (n. 83), p. 216. Ibid., p. 226. Ibid.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.013

12 The Foundation of Human Rights: An Intercultural Perspective

12.1 The Religious Origin of Rights In The Declaration of the Rights of Man and of Citizens, Georg Jellinek famously set out the thesis of the religious origin of rights.1 In making this argument, he went back to the religious wars that broke out in the first half of the seventeenth century in England, with the underlying claims of religious freedom. With the first of the English Civil Wars came the Putney Debates of 1647 on the constitution and future of England, and yet, as is known, these debates did not result in any legal recognition of religious freedom. What is more, those who were claiming religious freedom only sought this freedom for members of their own confession, as is testified by the fact that the Puritans who fled to the English colonies of North America were intolerant of other religious confessions. Only with the founding of the Colony of Rhode Island came a universal recognition of religious freedom, when Roger Williams extended this freedom to all inhabitants of the colony: Jews, Christians, and Muslims. Up until the first universal proclamation of religious freedom – in the code of laws established in Rhode Island in 1647, stating that “all men may walk as their consciences persuade them, every one in the name of his god ”2 – freedom of religion was confined within each religious confession.

1

2

Georg Jellinek, The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History, trans. Max Farrand (New York: Henry Holt and Co., 1901; orig. pub. 1895). William Read Staples, The Proceedings of the First General Assembly of “The Incorporation of Providence Plantations,” and the Code of Laws Adopted by That Assembly, in 1647: With Notes Historical and Explanatory (Providence, RI: Charles Burnett, 1847), p. 50.

297

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

298

co ndi tion s f or p e ac e

We should thus clarify Jellinek’s thesis about the “religious origin” of rights. By this term is essentially meant that the first right ever to have been recognized in Western constitutional history was freedom of religion (or conscience). This right was only granted to members within each of the several confessions, which in their mutual relations accordingly found their proper description in Hobbes’s metaphor of the state of nature. The wars of religion that raged across Europe in the first half of the seventeenth century ended with the mutual recognition of Europe’s three major Christian denominations: the Catholic, the Lutheran, and the Calvinist. At the same time, however, an intellectual effort got underway to find a “universal foundation” for the basic freedoms – a basis on which these freedoms might overcome mutual exclusions, making it possible for rights to be recognized for all men: thus rights were first rested on the idea of natural law (Grotius, Locke), and then on our “shared humanity” (Kant, Lessing). This completed the well-known “secularization” process through which rights came to be recognized for all men regardless of their faith.

12.2 Natural Liberty and Positive Rights The seemingly simple idea of a universal foundation is in reality quite problematic. This can be appreciated by asking what is meant by foundation. I believe we can distinguish two meanings of this concept, according as we ask what the origin of rights is or what their justification is. In Locke’s Second Treatise of Government, we find this argument: The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions. [. . .] And being furnished with like Faculties, sharing all in one Community of Nature, there cannot be supposed any such Subordination among us, that may Authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of Creatures are for ours.3

In this argument, Locke lays out the premise that (1) according to the law of natural reason we all have one nature in common – for we are all endowed with the same powers of reason – and on this basis he concludes 3

John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), bk. II, chap. II, § 6, ll. 6–19, p. 271; italics in original.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

the f oundation of h uman rights

299

that (2) we are “all equal and independent,” which in turn means that (3) there cannot be any “subordination among us,” and so that (4) no one can injure anyone else or take his life, liberty, or possessions. In this passage, Locke makes no mention of rights. But elsewhere he does introduce this concept: If man in the State of Nature be so free [. . .]; If he be absolute Lord of his own Person and Possessions, equal to the greatest, and subject to no Body, why will he part with his Freedom? [. . .] To which ’tis obvious to Answer, that though in the state of Nature he hath such a right, yet the Enjoyment of it is very uncertain, and constantly exposed to the Invasion of others. [. . .] This makes him willing to quit this Condition, which however free, is full of fears and continual dangers: And ’tis not without reason, that he seeks out, and is willing to joyn in Society with Others who are already united, or have a mind to unite, for the mutual Preservation of their Lives, Liberties and Estates, which I call by the General name, Property.4

If we combine the two passages, then, we get the argument that in virtue of the common nature which all men are understood to share in, reason endows them with equal rights. The foundation of rights therefore lies in the recognition, itself based on reason, that we all have the same origin – our common nature – and this is what justifies the ascription of an equal right of everyone to preserve their property. As we can see, here Locke takes a broad view of property as comprising our life, liberty, and estate.5 And property in the narrower sense of our material possessions (our estate) receives a separate foundation in labor: we have a right to our possessions to the extent that these are the fruits of our labor. But this, too, is a justification of rights based on their origin, since the labor or effort we put into acquiring possessions accounts for their origin. Finally, as we saw in the second passage, the uncertainty that comes with the state of nature makes it necessary to establish a civil society: specifically, a government is formed having an executive and a legislative branch, and its laws give formal recognition to the rights that reason accords to all men in virtue of their common nature or in virtue of the work they expend to gain what is in their possession (these being the two justificatory origins of rights). In Locke’s conception, then, it is a necessary passage that takes place from the freedom of natural law to the legal rights of positive law. 4 5

Ibid., bk. II, chap. IX, § 123, ll. 1–17, p. 350; italics in original. See the editor’s comment in Locke, Two Treatises (n. 3), Introduction, p. 102, and again in the footnote to § 124, p. 350.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

300

conditions for p eace

There can be no underestimating the significance of Locke’s work, considering the central role it played in forging the liberal paradigm. But no less significant are the problems his work left unresolved, which only in later political thought would receive any adequate solutions. Two of these problems concern in particular the relation between natural freedom or rights and positive law – a relation that Locke works out by stipulating a legal recognition of “natural rights” – and the aforementioned idea of a nature we all share in common. I submit that for a satisfactory answer to these two problems we should turn to Kant.

12.3 Ethics and Law In The Metaphysics of Morals Kant takes on the problem of the foundation of rights: the problem of their origin and justification. I have always been struck by the ease with which Kant shifts from one order of discourse to the other. Under the heading “There Is Only Innate Right,” he writes: “Freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every man by virtue of his humanity.”6 Once we come across Kant’s claim that there is only one innate right, we should expect him to state what this right is. But instead of speaking about a right, he shifts to the subject of freedom. What is the relation that holds between our only “innate” (original) right and freedom? Kant makes this relation explicit in saying (as we just saw) that freedom – understood as “independence from being constrained by another’s choice” – must “coexist with the freedom of every other in accordance with a universal law.” It is in this universal law (a positive law) that lies the origin of our individual freedom, the source of our right to enjoy this freedom. As is known, Kant’s moral and political thought marks the end of natural law, its foundational role now replaced by positive law – the “coercive law” he speaks of in The Metaphysics of Morals – which limits our original natural freedom and founds our rights to individual freedom. On this conception, then, there is no natural right: there is only our natural freedom, which can coexist with everyone else’s freedom if it translates into the right that every citizen enjoys on the basis of a law at once coercive and 6

Immanuel Kant, The Metaphysics of Morals, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), p. 47 (Ak. 6:237); italics added on first occurrence.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

t h e f o u n d a t i o n o f hu m a n r i g h t s

301

universal, in that everyone accepts it and accordingly expects it to be enforced. But what is this “natural” freedom? And what are the consequences of its limitation by the action of positive law? It is in working out this relation that Kant introduces the moral perspective. In the essay titled “Even a Nation of Devils Needs the State,” Otfried Höffe turns to the well-known passage in Perpetual Peace where Kant remarks that the “problem of the formation of the state [. . .] is not insoluble, even for a race of devils, granted that they have intelligence,”7 a remark that according to Höffe “sums up with trenchant clarity [. . .] the fundamental question of legal and state legitimation.”8 The devils that Kant is referring to are, of course, all of us as selfinterested individuals, and the point is that since in this situation – what Höffe calls the “primary state of nature” – “everyone is exposed to the boundless arbitrariness of everyone else,” we have a compelling reason to “accept self-imposed limitations on our [natural] freedom.” We must therefore cooperate if we are to coexist: “By giving up part of his freedom, each person ceases to be the victim of the other’s corresponding freedom, and the sacrifice of his [natural] freedom is rewarded by a certain civic liberty.” So only by restricting our natural freedom can we enjoy our civic liberties: the foundation of the latter rests on the universal benefit of coexistence that comes with restricting the former, as a result of which we get what Höffe calls the “secondary state of nature.” The next step is evidently to secure this benefit or universal advantage by way of the civic liberties established by law: “Mutual restraints on our [natural] freedom represent [. . .] a safeguard on our [civic] freedom; the sacrifice of our [natural] freedom is rewarded with civic ‘rights’ and liberties,” where “the reward is [. . .] the positive aspect of sacrificing our freedom. Where we mutually renounce the freedom to kill, the integrity of life and limb will be ‘automatically’ guaranteed; where we renounce the freedom to cause offence, our honour will ipso facto be safeguarded.”9 In short, our civic liberties originate out of, and hence are 7

8

9

Immanuel Kant, Perpetual Peace: A Philosophical Essay (1795), trans. Mary Campbell Smith (London: George Allen & Unwin; New York: Macmillan, 1917), first supplement, § 1, pp. 153–54. Otfried Höffe, “Even a nation of devils needs the state: The dilemma of natural justice,” in Howard Lloyd Williams (ed.), Essays on Kant’s Political Philosophy (Chicago: University of Chicago Press, 1992), pp. 120–42, at 120; the quotations in the rest of this paragraph at pp. 127–28; all italics added. Here the analysis previously made in Section 4.1 is being taken up so as to enter into the problem of the foundation of rights. Ibid., p. 128.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

302

conditions for peace

grounded in, the limitation of natural freedom effected by way of positive law. I believe we have reached a point of no small significance: we have clarified, on a Kantian approach, what foundation civil rights rest on, or what their origin is: these rights arise out of the self-imposed limitation on our natural freedom, and the justification for this limitation lies in the need to ensure our own coexistence as self-interested individuals. Here we need to take a brief detour and elaborate on the concept of devils as used by Kant. The individuals he is referring to by that name – human beings originally endowed with unlimited natural freedom – are described by the complex anthropology he expounds especially in Religion within the Bounds of Bare Reason and Anthropology from a Pragmatic Point of View, central to which is the theme of the conflictive relation between the propensity for radical evil and the predisposition to good. I would suggest that this anthropology can be usefully reframed from a psychoanalytical perspective: the idea of natural freedom could accordingly be rendered as that of a “complex of impulses.” This makes it possible to move beyond the crude political anthropology espoused by Hobbes or Locke, and even beyond the Kantian anthropology, however explicative it may be, and replace these conceptions with a psychoanalytical account of personality. Thus, in Sigmund Freud’s Civilization and Its Discontents (1930), the law acts as the limit within which to effectively curb the expansive force of our individual impulses. The Kantian perspective also makes it possible to explore two aspects, enabling us to see how the law relates to a political community’s ethos or ethics, on the one hand, and to the broader discourse of morality, on the other. The first point can be developed by considering political anthropology, meaning the account of the human being that justifies the use of law as a device through which to limit our natural freedom. Let us go back to Perpetual Peace, where in regard to such a use of law to curb our “selfseeking propensities,”10 Kant writes that “from the standpoint of reason, the result will be the same as if both forces [of man against man] did not exist, and each individual is compelled to be, if not a morally good man, yet at least a good citizen.” So, what happens when we agree to constrain our natural freedom by way of positive law – “and so much lies within the power of man” – is that we effectively shape our attitudes and conduct in 10

Kant, Perpetual Peace (n. 7), First Supplement, § 1, p. 153 (also the source for the next two quotations).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

the f oundation of h uman rights

303

view a mutual respect for our rights: this is the assertion of a “republican” ethos or ethic, on a legal foundation, in keeping with a tradition that traces back to Aristotle’s Politics.11 In short, we respect the civil rights of others only out of fear that the state may punish any violation of such rights, and so we are compelled to be “good citizens” even without being morally good, that is, even without doing our duty for the sake of duty itself: we rather comply in order not to face criminal prosecution. It is therefore the binding force of law, with the punishment it provides for violating its provisions, that makes one a “good citizen”: this is the “wellspring” from which originates the good citizen’s behavior, and it is on this foundation that a community’s ethos or ethic is formed. This ethic is thus grounded in a specific and historically determined conception of law and the state. But how do these political ethics of the community relate to morality as the practical grounding of life beyond the community? This is a problem that is being debated today among moral philosophers from Jürgen Habermas to Seyla Benhabib. It has been aptly summarized by Benhabib, who asks: “How can one mediate moral universalism with ethical particularism?” How can one mediate legal and political norms with moral ones?”12 One suggestion for solving this problem comes, once more, from Kant’s reflection on rights (and before that from Locke’s 1689 Letter concerning Toleration) as viewed through the reading of it offered by Ronald Dworkin.

12.4 Rights, Morality, and Human Dignity It was just suggested that we can still draw on Kant to attack the problem of the foundation of rights given the conflict between moral universalism and ethical particularism. To this end we need to complete Kant’s reflection on rights. In the essay “On the Common Saying,” Kant states that “everyone has his inalienable rights, which he cannot give up even if he wishes to, and about which he is entitled to make his own judgements.”13 11

12

13

As Aristotle expressed the same idea, “it is manifestly possible to be a good citizen without possessing the goodness that constitutes a good man” (Politics, III.2, 1276b–1277a, trans. H. Rackham, Loeb Classical Library (London: William Heinemann; Cambridge, MA: Harvard University Press, 1959), p. 187). Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge University Press, 2004), p. 16. Immanuel Kant, “On the common saying: ‘This may be true in theory, but it does not apply in practice,’” in Political Writings, ed. H. S. Reiss, trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1991), pp. 61–92, at 84; italics added.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

304

co ndi tion s f or p e ac e

In setting out this principle that we are entitled to be our own judges in matters concerning our inalienable rights, Kant is addressing the problem of the conflict that may arise when our rights come under threat by an unjust law, meaning a law that has been enacted without considering the general will of an entire population. The conflict expressed here is that between a law of the state and the individual consciences of its citizens, who in this law may see a violation of their civil rights (freedom of religion, freedom of thought, and so on). This is an analysis that, as mentioned, Ronald Dworkin developed by drawing on Kant’s conception. He notes that there are two meanings to the term right, hinging on the “distinction [. . .] between the issues of whether a man has a right to do something and whether it is the right thing for him to do”:14 in the first sense (1), a right is what entitles us to do something, like using our own property without outside interference in our choices; in the second sense (2), a right is what entitles us to act on principle, that is, according to the dictates of our conscience. A principle, as is known, is understood by Dworkin as “a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality.”15 In this second sense, a right is therefore the right to follow our moral convictions of right and wrong, and here Dworkin accordingly speaks of “moral rights.” Why should the law respect the moral rights of individuals? Because, as Dworkin puts it, “the bulk of the law [. . .] cannot be neutral. It must state, in its greatest part, the majority’s view of the common good.”16 But the majority view can outright deny the views held by minorities. And on this basis Dworkin argues that citizens have a right not to obey the laws. Here we need to pause for a moment and key in on the two provisional conclusions we have so far reached in our discussion of rights. In the first place, it has clearly emerged that in the limitation of natural freedom effected by positive law under the guarantee of the state lies the foundation of the republican ethos, or the ethics of a polity that determines what it is to be a good citizen, but not what it means to be a morally good person. In the second place, it has emerged that moral rights, as Dworkin calls them, entitle those very citizens to object to the law of the majority. This is essentially the conflict we were looking at before, but instead of 14

15 16

Ronald Dworkin, Taking Rights Seriously (London and New York: Bloomsbury Academic, 1997; orig. pub. 1977), chap. 7, p. 229. Ibid., chap. 2, p. 39. Ibid., chap. 7, p. 246.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

the f oundation of h uman rights

305

framing it as one between a community’s ethical particularism and the moral universalism of individuals (in the manner of Benhabib and the proponents of discourse ethics), we can now recast it as one between two particularisms: the ethical one of the political community and the moral one of the individuals who belong to the various minorities within that community. How to overcome this conflict, in which the law established by the majority stands in contrast to the moral conscience of individuals in a minority group? And on what basis? In answer to the first question, Dworkin introduces a concept of substantive equality as distinguished from that of formal equality: “equal treatment,” he argues, needs to be replaced with the idea of “treatment as an equal, which is the right, not to receive the same distribution of some burden or benefit, but to be treated with the same respect and concern as anyone else.”17 This is not just an academic principle but an operating one of extraordinary consequence, and Dworkin cites several examples, notable among which is the landmark 1954 US Supreme Court case Brown v. Board of Education, which ended de jure segregation in public schools. This concept of substantive equality needs to also be brought into relation with that of liberty, noting that the latter is derivative of the former. As Dworkin puts it, “individual rights to distinct liberties must be recognized only when the fundamental right to treatment as an equal can be shown to require these rights. If this is correct, then the right to distinct liberties does not conflict with any supposed competing right to equality, but on the contrary follows from a conception of equality conceded to be more fundamental.”18 This development of the question of rights proposed by Dworkin certainly ushers in an idea of normative pluralism, understood as the legal form of an intercultural conception of rights. Having clarified how it may be possible to overcome the conflict between the law of the majority and the moral rights of individuals in the minority – namely, through a substantive concept of equality grounded in the idea of treatment as an equal – we now have to specify the foundation on which this solution rests. Here we enter into territory in the outer reaches of law, into that “noumenal” reality in which lies the origin of rights and their multiple, sometimes conflicting interpretations. Let us return to Dworkin for one last time, making the connection with the 17 18

Ibid., chap. 7, p. 227; italics in original. Ibid., chap. 12, p. 328.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

306

conditions for peace

Kantian premises he builds on. Dworkin argues that the rights we enjoy against the state owe their existence to one or both of two important ideas: The first is the vague but powerful idea of human dignity. This idea, associated with Kant [. . .] supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust. The second is the more familiar idea of political equality. This supposes that the weaker members of a political community are entitled to the same concern and respect of their government as the more powerful members have secured for themselves [. . .].19

These two ideas of human dignity and political equality are, of course, strictly connected – neither being possible without the other – and Dworkin brings out this connection in specifying that they are both foundational vis-à-vis the rights that can be asserted against the government: “It makes sense to say that a man has a fundamental right against the Government [. . .], like free speech, if that right is necessary to protect his dignity, or his standing as equally entitled to concern and respect [. . .].”20 But can we take the vagueness out of human dignity? Does it consist in Kant’s “humanity”21 or in Locke’s idea of our “sharing all in one Community of Nature”?22 And what is the relation between dignity and rights, that is, between universal dignity and the particular liberties to which we may have a right? Will an answer to these questions make it possible to finally rest the multiple and different interpretations of rights on a single universal foundation?

12.5 The Problem of Dignity and of Rights We are going to tackle the problem of human dignity by first looking at the history of this concept, in broad outline, so as to then turn to the multiple meanings it has taken on in contemporary thought. A clear statement of the concept can be found in Stoic thought, and specifically in the work of Cicero, who provided a Latin translation for it in commenting Panaetius of Rhodes: “And if we will only bear in mind the superiority and dignity of our nature, we shall realize how wrong it is 19 20 21 22

Ibid., chap. 7, pp. 239–40. Ibid., p. 240. Kant, The Metaphysics of Morals (n. 6), p. 47 (Ak. 6:237). Locke, Two Treatises of Government (n. 3) bk. II, chap. II, § 6, ll. 6–19, p. 271.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

the f oundation of h uman rights

307

to abandon ourselves to excess and to live in luxury and voluptuousness [. . .].”23 Cicero goes on to identify reason as the basis on which hinges the distinction between humans and animals, and hence as the basis of moral deliberation.24 This is consistent with the Stoic account of anthropology, according to which we have two personae (two roles or masks): the first we are endowed with by nature, and it consists in reason;25 the second is shaped by the particular historical situation in which we are embedded, but in it we can ultimately exercise our free will – this because it is from nature itself that we get both our reason and our freedom to make moral judgments.26 In short, it is reason that distinctively marks out humans, and it is therefore in our rational nature that we can find the locus of human dignity. This line of thinking extended to the age of humanism (Pico della Mirandola), proceeded through the Second Scholastic (Francisco de Vitoria), and continued to the legal and political theories of the seventeenth century (Hugo Grotius). But the Stoic conception also clearly informs Kant’s philosophy, which marked the endpoint and conclusion of natural law theory. In the contemporary landscape, the concept of human dignity has been broadened and problematized: it can no longer be reduced to our rational nature, itself no longer taken as given. To illustrate the complexity of the modern understanding, let us look at the deeply probing debate that developed in German scholarship around the Basic Law for the Federal Republic of Germany (1949), which clearly enshrines the principle of human dignity (die Würde des Menschen) and specifically brings it into connection with human rights (Menschenrechte). Let us see, then, if we can use the language of this constitutional provision, with the surrounding debate, as a framing device through 23

24

25

26

Cicero, De Officiis, 1.30.105–107, trans. Walter Miller, Loeb Classical Library (London: William Heinemann; New York: G. P. Putnam’s Sons, 1913), p. 109. The Latin original: “si considerare volumus, quae sit in natura excellentia et dignitas, intellegemus, quam sit turpe diffluere luxuria et delicate ac molliter vivere [. . .].” Hubert Cancik, “‘Dignity of man’ and ‘persona’ in Stoic anthropology: Some remarks on Cicero De Officiis I 105–107,” in David Kretzmer and Eckart Klein (eds.), The Concept of Human Dignity in Human Rights Discourse (The Hague: Kluwer Law International, 2002), p. 21. As Cicero remarks: “to us Nature herself has assigned a character of surpassing excellence, far superior to that of all other living creatures, and in accordance with that we shall have to decide what propriety requires” (De Officiis, 1.28.97, trans. Miller (n. 23), p. 101). The Latin original: “Nobis autem personam imposuit ipsa natura magna cum excellentia praestantiaque animantium reliquorum.” Cancik, “‘Dignity of man’ and ‘persona’” (n. 24), p. 24.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

308

cond itions for p eace

which to adequately set out the relation between human dignity and human rights. In so doing we are going to consider whether there is only one way to frame this relation or whether it is open to multiple interpretations. Article 1(1) of the Basic Law reads: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” This first clause of Article 1 clearly states the basis for the legitimacy of the state: the state is legitimate only to the extent that it protects human dignity, which accordingly establishes the aim of the state.27 Article 1(2) of the Basic Law reads: “The German people therefore [darum] acknowledge [bekennt sich zu] inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.” Here it becomes imperative to closely examine the language, for this second clause establishes a relation between human dignity and human rights, a relation whose implications need to be captured in full. The use of the logical connective therefore in this second clause means that human rights are to be ascribed to all human beings on the basis of their dignity. More to the point, what can be extracted from this constitutional language – with its placement of human dignity ahead of human rights – is that the latter are derived from the former and that their purpose is to enable individuals to pursue their life plans in keeping with their dignity.28 Human beings therefore enter the picture as prelegal beings, equipped with their own dignity: only when this dignity is recognized as a constitutional principle (in the first clause) must it also be recognized (in the second clause) that rights are to be ascribed to human beings so that the dignity with which they are endowed can be fully realized. Human dignity therefore acts as a (Kantian) regulative idea, from which follows the ascription of human rights. Human rights, then, are not “natural rights”: they are rather the normative consequence of a postulate, or, otherwise stated, they are an imperative that flows from the legal recognition of human dignity – an imperative addressed to the framers of the constitution, requiring that they give these rights a positive legal form. This is how we need to construe the distinction between human rights and the basic rights which the framers introduce in the third clause of the first article, which reads: “The following basic rights shall bind the legislature, the 27

28

Eckart Klein, “Human dignity in German law,” in The Concept of Human Dignity in Human Rights Discourse (n. 24), p. 146. Ibid., p. 147.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

the f oundation of h uman rights

309

executive and the judiciary as directly applicable law.” The basic rights are constitutionalized rights, and they do not coincide with human rights, for there are basic rights which only citizens enjoy,29 and which therefore do not apply to all human beings. But we need to drill even deeper, for (as mentioned at the close of the last section) the idea of dignity as a human attribute is open to interpretation, and hence still too vague to serve as an adequate basis of human rights. Two lines of legal interpretation have features that make them objectionable. On one of these, dignity is conceived as a “right to rights,”30 but this amounts to configuring a right as existing in itself, before it is recognized in positive law, and hence as a “natural right” or as the expression of a divine legislator’s will. On the same ground, we need to reject the line of interpretation that theorizes a “right to human dignity,”31 for here, too, we would be looking at a “natural right” – not a divine one, to be sure, but voluntaristic nonetheless, or at least a right grounded in an equally elusive “law of natural reason.” Let us therefore return to our initial question about human dignity as a “quality” understood to belong to humans before it is even recognized in the law: what exactly does this prelegal quality consist in? We can begin to answer this question by going back to Article 1(2) of the Basic Law, which recognizes a set of “inviolable and inalienable human rights.” In this language we can easily detect the Enlightenment tradition which informed the declarations of rights proclaimed in the age of the American and French Revolutions, and in which individuals are conceived as rational and autonomous beings, capable of making their own decisions in pursuit of their own happiness. It was by developing this idea that Kant arrived at the moral principle that human beings are always to be treated as ends in themselves, and never as means to an end. Hence the idea that (a) to violate this principle, by treating persons as means, is to violate human dignity, and that (b) the state is entrusted with making sure that such violations do not happen. To commit to human dignity, then, is to endorse an account of individuals as ends in themselves. 29

30

31

These rights restricted to German citizens have accordingly come to be known as “German rights”: they include freedom of assembly (Art. 8), freedom of association (Art. 9), freedom of movement (Art. 11), and occupational freedom (Art. 12). See Christoph Enders, Die Menschenwürde in der Verfassungsordnung: Zur Dogmatik des Art. 1 GG, Jus Publicum, vol. 27 (Tübingen: Mohr Siebeck, 1997), p. 501. Klein, “Human dignity in German law” (n. 27), p. 152.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

310

conditions for p eace

In further developments – in legal thinking as well as in the broader debate – this Kantian idea of dignity has been extended so as to include not only autonomous and rational beings but also unborn children and persons who are mentally incapacitated or in a persistent vegetative state. This broader view of dignity can be recognized in landmark rulings of the German Federal Constitutional Court (the Bundesverfassungsgericht, or BVerfG, for short), which has upheld the doctrine that human dignity belongs to human beings regardless of their mental state or intellectual capacity. In particular, in an abortion ruling of 1978 (Abortion I), the Court held that human life “is the living foundation of human dignity and the prerequisite for all other fundamental rights,”32 and in a subsequent ruling on gender issues (Transsexuelle I), human life was upheld as “a supreme value.”33 So, if human life itself is a supreme value, it is worthy of the human dignity that makes it imperative to treat others as ends in themselves, rather than as means or “objects”: dignity must therefore be recognized for humans not only in virtue of their rationality and autonomy, but also in virtue of their human life itself, in any of the multiple conditions in which it may exist. It must, however, be pointed out that dignity does not carry absolute weight relative to other constitutional principles:34 it needs to be balanced against such other protections as a woman’s freedom of choice in matters of abortion, or freedom of artistic expression, or the right of personality.35 There is one more consideration of prime importance that needs to be made. Which is that in order to interpret the concept of human dignity we need to resort to criteria that inevitably reflect value judgments.36 Thus, key to the interpretation we have been discussing is a conception of persons as rational and autonomous agents (it is these agents who are understood to possess the dignity in virtue of which human rights are conferred on them). As discussed, however, this is the conception of the person that underpinned the revolutions of the late eighteenth century: this conception therefore belongs to the Western legal and political 32

33 34 35

36

BVerfGE 39, 1, 42 (1975). Trans. Robert E. Jonas and John D. Gorby, “German constitutional court abortion decision,” The John Marshall Journal of Practice and Procedure, 9 (1976), 605–84. BVerfGE 49, 24, 53 (1978); my translation. Klein, “Human dignity in German law” (n. 27), p. 156. The latter is so stated in Article 2(1) of the Basic Law: “Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.” Klein, “Human dignity in German law” (n. 27), p. 149.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

the f oundation of h uman rights

311

canon, which in turn came into shape through a process that gave rights an increasingly secularized form and conferred them on a broader and broader segment of the population, thereby expanding the political power base. And this is the trajectory along which we need to situate the principle that dignity also applies to human life as such: this recognition fits into the expansion of the frontiers of rights, at a point in history where the advancement of technology suggests the possibility of manipulating our genetic makeup and intervening in prenatal life. This conception of human dignity can be recognized in other fundamental documents of the Western legal tradition, such as the 1948 Universal Declaration of Human Rights and the 1993 Vienna Declaration and Programme of Action. On this distinctively Western conception of human dignity, human rights are understood to be functional to its protection and realization. But what other conceptions of human dignity and rights are there in other civilizations and cultures? And are there any points of convergence with the Western tradition?

12.6 An Intercultural Perspective on Rights? The concept of human dignity can also be found in the declarations of rights of the Islamic world and in the Arab declarations of rights. Earlier on, in Section 10.4, we looked at the memorandum that the Kingdom of Saudi Arabia issued in 1970 stating the reasons why Saudi Arabia had not adhered to the 1948 Universal Declaration of Human Rights or the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). The memorandum explained that this had nothing to do with any supposed indifference to the aims these declarations were trying to achieve, namely, to protect human dignity: on the contrary, the rejection expressed “a firm commitment to protecting, guaranteeing, and safeguarding the dignity of man without distinctions among human beings, on the basis of the Islamic dogma revealed by God.”37 37

“Le Mémorandum du Gouvernement du Royaume d’Arabie Saoudite relatif au Dogme des droits de l’homme en Islam et à son application dans le Royaume, adressé aux Organisations Internationales intéressées” (Memorandum of the Kingdom of Saudi Arabia concerning the dogma of the rights of man in Islam and its application in the Kingdom, addressed to all international organizations concerned), in Colloques de Riyad: Le dogme musulman et les droits de l’homme en Islam (Publication du Ministère Saoudien de l’Information, 1972). Also published in Andrea Pacini (ed.), L’Islam e il dibattito sui diritti dell’uomo (Turin: Fondazione Giovanni Agnelli, 1998), p. 34.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

312

conditions for p eace

The document proceeded to enumerate the human rights principles based on Islamic law, first among which is the principle of the “dignity inherent in the human person. Such dignity is solemnly proclaimed in the Qur’an, in its statement that ‘We have honoured the children of Adam and carried them by land and sea’ (Qur’an, 17:70).”38 In this document, clearly conceived in the Islamic tradition, human dignity is owed to God’s recognition of it, or in the value that God attaches to it. Indeed, as the verse continues: “We have provided good sustenance for them [the children of Adam] and favoured them specially above many of those We have created.” The dignity of humans therefore lies in the special regard in which God holds them. The rights enumerated in the Saudi memorandum – such as freedom of conscience and the inviolability of domicile – are thus proclaimed on the basis of the favor that Allah accords to the human being. The idea of human dignity also figures in the Arab declarations of human rights. Thus in the Arab Charter on Human Rights of 2004 we find it stated, from the outset, that the states parties that are adhering to the charter are doing so “based on the faith of the Arab nation in the dignity of the human person whom God has exalted ever since the beginning of creation and in the fact that the Arab homeland is the cradle of religions and civilizations whose lofty human values affirm the human right to a decent life based on freedom, justice and equality.”39 This conception is clearly rooted in Arab national identity, and its proclamation of rights is accordingly aimed at protecting the dignity of persons as members of the Arab community. We can thus appreciate that human dignity takes on different meanings in different cultures, and so it would be quite extraordinary if a declaration of rights were to be conceived in full disregard of the distinctive features that make up its cultural background: no declaration can exist in a vacuum, and each one therefore needs to be functional to the understanding of human dignity that is specific to its own culture. So now we must ask the question: Is it possible to set human rights on a viable intercultural foundation? And if so, how? Let us now turn to this question, looking at the foundation of liberties that include religious freedom and the freedoms that are specific to a full array of civilizations and cultures. 38

39

As translated in The Qur’an: A New Translation by M. A. S. Abdel Haleem (Oxford: Oxford University Press, 2005), p. 179. As translated in International Human Rights Reports, 12 (2005), 893; italics added.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

the f oundation of h uman rights

313

12.7 Beyond the Liberal Conception of Western Democracies In a work titled Between Naturalism and Religion, Jürgen Habermas offers an important analysis of the pluralism of cultures in Western societies, stressing the need to protect this diversity by introducing cultural rights. These are understood as individual rights, their purpose being to ensure a substantive equality among individuals under general laws that apply equally to all – a feature of the law considered to be essential to a liberal democratic conception of the contemporary state. Following John Rawls, Habermas argues that the plural forms of moral life in civil society makes it necessary for the state to be neutral in the ends it promotes.40 This means that the laws enacted by the state are inclusive and general in the sense just mentioned, in such a way as not to discriminate among individuals by reason of their ways of life or their selfimage and worldview. But – Habermas goes on to note, further elaborating on Rawls’s conception – this neutrality of ends does not ipso facto translate into a neutrality of effects, even when everyone is treated equally under the law, because even a general rule can wind up imposing heavier burdens or restrictions on some individuals in comparison to others. A case in point would be a law permitting abortion: while it guarantees equal treatment (applying equally to all women, without exclusion), it may weigh heavily on religiously minded people by contradicting their belief in the unborn child’s right to life, while finding favor with people who, by contrast, believe that women should have freedom of choice in making decisions about their own bodies.41 It can therefore happen that the liberal principle of justice – consisting in a formal equality of treatment under a general rule – may collide with the conceptions of the good espoused by different individuals. It is this asymmetry of effect resulting from the generality of the law that cultural rights are designed to make up for, as by allowing Sikhs to ride motorcycles wearing their traditional turban instead of the mandatory helmet or, in Germany, allowing Muslim women to wear the traditional headscarf in the workplace or Muslim female students to do the same at school. (As we will see in the next section, however, there are limits to

40

41

Jürgen Habermas, Between Naturalism and Religion: Philosophical Essays, trans. Ciaran Cronin (Cambridge: Polity Press, 2008), p. 283. Ibid., p. 286.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

314

conditions for p eace

these protections, and they need to be taken into account in working out any scheme of cultural rights.) Habermas’s case for human rights is quite compelling, his argument being based on the premise that “Sikhs, Muslims, and Jews enjoy the same religious freedom as the Christian majority.” This is not inconsistent with the rule of law: we are simply looking at “instances of basic rights taking priority over ordinary laws or public safety regulations.”42 In other words: the right to freedom of religion may entail a right to particular freedoms needed to guarantee the right to “treatment as an equal” enjoyed by people who belong to different cultures and religious confessions. Cultural rights can thus be understood as functional to the need to secure the guarantee that all individuals be able to enjoy an equal right to espouse their ethos or ethics, meaning their conception of the good life, or of what is worthy in life. What lies at the foundation of the cultural rights? There is certainly a specific moral conception of the human being, that is, a recognition of human dignity or, more precisely, as we have seen, a recognition that such dignity is subject to multiple interpretations. This is a point that Habermas frames as follows: But if we relate the guarantee of equal ethical liberties to such an intersubjectively understood process for forming, reproducing, and developing personal identity, we must expand the concept of the legal person as the bearer of subjective rights accordingly. Against this background, it makes sense to derive cultural rights directly from the principle of the inviolability of human dignity.43

More syllogistically, if human dignity is subject to multiple interpretations, and if these are rooted in different cultures, then it follows that cultural rights must perforce become part of any Western democracy that accounts itself to be liberal on the basis of its respect for human dignity: the liberal principle of the generality of laws does not alone suffice to this end. Cultural pluralism must necessarily find its counterpart in a legal pluralism through which to enable a coexistence among different foundations of rights, that is, among the different understandings of human dignity that spring out of the multiplicity of cultures that presently form the complexity and richness of Western societies. As noted, cultural rights are individual rights and must therefore not be confused with collective rights. In fact, there are some deep 42 43

Ibid., p. 292. Ibid., p. 296.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

the f oundation of h uman rights

315

contradictions that can emerge in the relation between these two types of rights. This relation is addressed in the well-known book by Will Kymlicka titled Multicultural Citizenship, where collective rights are described as group-differentiated rights, for they are designed to protect the identity of the different cultural groups that individuals belong to in the modern polyethnic society. Kymlicka is careful to stress that these rights are legitimate only so long as they do not wind up violating the individual rights of those who belong to the relative group.44 This view that Kymlicka lays out is developed by Habermas into an original solution that I would argue can be used to overcome the potential contradiction between individual and collective rights. Habermas looks at the Amish community and the francophone community in Quebec, among other cases: members of the former were granted an exemption from compulsory schooling, and the latter are under an obligation to attend French schools (meaning that the Quebecois do not have the option to attend English schools). Through these examples, Habermas brings out the idea that “cultures qualify as bearers of rights,” this on “a metaphysically grounded ethics of the good”45 that can trump individual claims. But, Habermas argues, this is a hypostatization of culture that needs to be resolutely rejected, for it would amount to positing culture as an entity that transcends the individuals who identify with it: on the contrary, culture ought to be conceived as an enabling condition, or as a complex of conditions that make it possible for individuals to solve complex existential problems. In ruling out the idea of collective rights recognized for a culture or group, Habermas advances a policy criterion that seems especially useful in making the law appropriately responsive to the cultural pluralism of contemporary societies: “group rights,” he argues, “are legitimate only if they can be understood as derivative rights – derived, that is, from the cultural rights of the individual group members.”46

12.8 The Limits of Cultural Rights in Multicultural Societies As useful as Habermas’s solution may be in working out the problem of human rights and dignity in a multicultural society, his thinking becomes highly problematic and contradictory when he turns to the question of 44

45 46

See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford University Press, 1995), chap. 3. Habermas, Between Naturalism and Religion (n. 40), pp. 302 and 301, respectively. Ibid., p. 300; italics in original.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

316

conditions for p eace

religion, for he appears to carve out a significant role for religion in the public forum of democracy. Indeed, on the one hand he addresses the presence of religions in secularized societies, observing that while the secular mind finds no difficulty in accepting that the ethos of others should enjoy the same recognition as our own, the religious mind sees other ways of life as not just different but also misguided. But on the other hand he takes the view that, despite this difference, a secularized state should not impose its own secular worldview (as happened in France, where the government prohibited the Islamic headscarf in state schools and the burqa in public spaces on the basis of a secular conception of the state). As Habermas puts it, “secular citizens, in their role as citizens,” should not “deny that religious worldviews are in principle capable of truth.” Indeed, “a liberal political culture can even expect its secular citizens to take part in the efforts to translate relevant contributions from religious language into a publicly accessible language.”47 This expectation, according to Habermas, is based on the steadfast principle that “a state cannot encumber its citizens, to whom it guarantees freedom of religion, with duties that are incompatible with pursuing a devout life.”48 But in fact, as has rightly been observed, no law of the state – on matters of abortion, euthanasia, and the like, and no matter how permissive – subjects believers to any obligation that forces them to act contrary to their faith.49 Habermas would reply to this objection by reiterating the point that “the burdens of tolerance are not shared equally by believers and unbelievers, as is shown by more or less liberal abortion regimes.”50 This may well be the case, if it means that it is more difficult for believers than for nonbelievers to live with the idea that there exist worldviews which they do not share, but this “purported asymmetry of the secular state does not take away from believers the freedom to decide whether or not to make use of a right”51 that has been recognized for all citizens, believers and nonbelievers alike. Even more importantly, however, as much as Habermas may well be right to underscore that a liberal “state cannot encumber its citizens [. . .] with duties that are incompatible with 47 48 49

50 51

Ibid., p. 113. Ibid., p. 126 Paolo Flores d’Arcais, “Le tentazioni della fede (undici tesi contro Habermas),” in “Per una riscossa laica,” special issue, Micromega, 7 (2007), § 5, http://temi.repubblica.it/ micromega-online/le-tentazioni-della-fede-undici-tesicontro-habermas/. Habermas, Between Naturalism and Religion (n. 40), p. 112. Flores d’Arcais, “Le tentazioni della fede” (n. 49), § 5; my translation.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

the f oundation of human rights

317

pursuing a devout life,” it does not follow from this principle that these devout citizens are thereby entitled to make their worldview and way of life obligatory, even if they make up a majority of the population.52 If that were allowed to happen, it would clearly contradict the very point of a liberal state concerned to protect the interests of all citizens – believers and nonbelievers alike – in a pluralist society. But as the foregoing discussion suggests, the paradox can easily be resolved by a combination of cultural rights and noninterference. In other words, in a secular state – founded on the separation of church and state (as in the case of the French principle of laïcité) – or in a neutral state – founded on the principle of “active neutrality,” designed to ensure that individuals of all faiths and persuasions have an equal opportunity to live their lives in accordance with their most deeply held values and convictions (as in the case of the German model) – it is essential to recognize cultural rights so as to protect the full diversity of cultural identities, and where a morally sensitive or contentious issue is involved (such as abortion or euthanasia), a right to liberty should be in place such that everyone is free to choose for themselves whether or not to make use of such rights in keeping with their own conceptions of the good, regardless of whether these individuals are believers or nonbelievers, and so long as the exercise of such rights does not interfere in the ability of others to do the same. This last condition springs from the need to take into account the problem of the limits within which to protect cultural rights and rights involving morally contentious issues. Thus, for example, on this noninterference principle, it may prove necessary to prohibit the practice of female genital mutilation, even if it is grounded in a religious or cultural tradition,53 or to prohibit the use of violence on daughters who choose to embrace a Western lifestyle deemed to be inconsistent with her parents’ culture and way of life.54 The problem is clearly complex and cannot be solved on any broad-brush approach, but a noninterference or harm principle should clearly be kept in mind. So let us see if we can define a limit to the exercise of a right to cultural identity in a multicultural society, and let us take freedom of religion as our point of departure. Freedom of religion is recognized in the important International Covenant on Civil and Political Rights (ICCPR) of 1966, which simultaneously also sets 52 53

54

Ibid. A case in point, in Italy, is Law No. 7 of 9 January 2006, titled “Disposizioni concernenti la prevenzione e il divieto delle pratiche di mutilazione genitale femminile” (“Provisions concerning the prevention and prohibition of female genital mutilation”). Flores d’Arcais, “Le tentazioni della fede” (n. 49), § 6.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

318

conditions for p eace

out the limits this right is subject to: “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others” (Art. 18(3) ICCPR). Now, as we can see, in addition to containing a noninterference and harm principle – stating that freedom of religion cannot be exercised in such a way as to undermine “the fundamental rights and freedoms of others” or public safety, order, and health – the covenant also introduces the idea of morals as a constraint under which to limit freedom of religion. But how are we to take this idea of morals in the context of a multicultural society? In a comment on Article 18 ICCPR, the Office of the High Commissioner for Human Rights answers this question by providing a criterion that makes much sense because it recognizes the pluralism out of which freedom of religion came into being in the first place: “the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.”55 Significantly, in recognizing that pluralism is more than simply a fact of modern complex societies, but is in itself worthy of protection, this criterion rules out the idea that any one of the religious traditions or ideological orientations making up a majority in such a society can limit the freedom of its religious or ideological minorities. At the same time, and precisely for this reason, the criterion can also serve as a guide for governing the exercise of cultural rights. We have outlined a view of pluralism offering a criterion on which basis to possibly achieve a meeting of the secular mind, the religious mind, and the various streams of culture and tradition that intersect in Western societies, and in European ones in particular. And what this suggests is that the same result can be achieved at the international level, in such a way as to overcome the “clash of civilizations” that still seems to be tearing us apart.

12.9 Toward a Multicultural Constitutional Democracy As can be surmised from the previous discussion, multiculturalism has transformed constitutional democracies by prompting them to recognize 55

UN Human Rights Committee, 48th Session, “General comment adopted by the Human Rights Committee under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights,” UN Doc. CCPR/C/21/Rev.1/Add.4 (27 Sep. 1993), p. 3, item 8.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

t h e f o u n d a t i o n of hu m a n r i g h t s

319

cultural rights, move beyond the majoritarian principle, and embrace normative pluralism. These transformations call for a rethinking of the principles of Western constitutionalism. In Strange Multiplicity, the multiculturalist James Tully has argued that the pretense to universality informing the language of constitutionalism stifles cultural difference and promotes a dominant culture by glossing it with the veneer of neutrality. What he instead proposes is an intercultural theory of the constitution proceeding from the premise that every culture takes shape through a continuous process of interchange among a variety of intermingling cultures. On this model, “the culturally diverse sovereign citizens of contemporary societies negotiate agreements on their forms of association” within the framework of a constitution that recognizes their cultural diversity. The constitution, in other words, would function as “a ‘form of accommodation’ of cultural diversity.”56 The language of liberal constitutions, by contrast, is all-encompassing, tending to exclude or assimilate cultural diversity. More to the point, (1) the concept of popular sovereignty assumes that sovereign people are culturally homogeneous, and (2) the constitution, “legally and politically uniform,” is “a constitution of equal citizens who are treated identically rather than equitably.”57 What we should be moving toward is instead a genuinely intercultural sovereignty, under constitutions “based on the sovereignty of culturally diverse citizens here and now, not on abstract forgeries of culturally homogeneous individuals, communities or nations.”58 Through this contrast we can re-envision our democracies as multicultural constitutional democracies. Some of these multicultural features can be detected in the Italian Constitution, especially in its Article 6, on linguistic minorities, and Article 8, on religious confessions other than Catholicism. But, as was suggested in Section 12.7, no transition toward a properly multicultural democracy can be effected until the constitution also recognizes cultural rights, or the right to express one’s own cultural identity within the limits of public order and of morals in keeping with the pluralist criterion the UN Human Rights Committee set out in its 1993 comment on Article 18 of the International Covenant on Civil and 56

57 58

James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1997), p. 30. See also Francesco Belvisi, Società multiculturale, diritti, costituzione: Una prospettiva realista (Bologna: CLUEB, 2000), pp. 120 ff. Tully, Strange Multiplicity (n. 56), p. 66. Ibid., p. 183.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

320

conditions for peace

Political Rights of 1966.59 Cultural rights should encompass both individual rights (in the sense discussed by Habermas: Section 12.7) and collective rights, acting in combination to make sure that individuals can enjoy a substantive equality even under the formal equality of the general laws of identical treatment that define the contemporary liberal state. Other provisions of the Italian Constitution that need to be reframed with this end in view are Articles 16 (freedom of movement), 17 (freedom to peaceably assemble), and 18 (freedom of association), for these rights are not recognized for everyone but only for citizens belonging to the ethnically and culturally national community. Finally, it is necessary to revisit the idea of the people contained in Article 1 of the Italian Constitution: this idea should reflect not the sovereignty of a culturally and ethnically homogeneous people but the sovereignty of a people through which runs a plurality of cultural streams. In light of this new constitutionalism – premised on the need to recognize the multiculturalism of Western societies – the democratic constitution needs to be reconceived as “a framework within which to propose solutions and possible forms of coexistence, that is, as an ‘accommodation of possibilities’”60 on which basis different ways of life and systems of values can coexist.61 By so rethinking the principles that underpin Western constitutional democracies, we should be able to succeed in the effort to fully integrate the numerous ethnic, cultural, and religious communities that by now are well established in our society. The outcome of this integration process would be a democracy that no longer needs to be “exported”: because this process is one of interchange with other civilizations and cultures, the democracy that would result from it would act as an interface through which to enter into dialogue with such other civilizations and cultures and share ideas with them. From a Kantian perspective, this transformation of Western democracies should figure as the first necessary condition to be satisfied in working toward a possible peace. 59 60

61

See note 55 and the discussion in the previous Section 12.8. Gustavo Zagrebelsky, Il diritto mite: Legge, diritti, giustizia (Turin: Einaudi, 1992), p. 10; my translation. Cf. Belvisi, Società multiculturale (n. 56), p. 164.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:39:47, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.014

13 Parallel Worlds: International Governance and the (Utopian?) Principles of International Law

13.1 Governance and International Law In the discussion so far, some particularly significant elements have come to light: (1) ius gentium, and later international law, has served as the main medium through which the West has formulated its colonial ideology; (2) this ideology, and in particular the legal conception of the West, cannot be understood as universal, for it is instead specific to the Western states-system and constitutional history; (3) Western history is also the history of the resistance that other peoples and civilizations have put up in response to the West’s assertion of power; and (4) it is essential that we move beyond the logic of the clash of civilizations by embracing an intercivilizational outlook, one that does not confine itself to recognizing the values of other cultures and civilizations but also works to ensure that their material interests are protected when they come into conflict with Western interests. That final point suggests that it may be possible to break out of the old paradigm and identify the conditions of international peace. Let us therefore consider these conditions and see if we can make any headway in this ambitious project. We have seen that in domestic law some principles have taken shape that have moved us closer to a multicultural constitutional democracy. We should therefore now consider what main trends are shaping up in international law and what solutions they prefigure. In a stimulating essay that carries forward the interpretive line taken in the seminal Gentle Civilizer of Nations (Chap. 5), Martti Koskenniemi offers a clear picture of the clash that has been taking place between the logic of international law and the governance practiced by the players that have dominated the international scene. He observes that the European debate is fundamentally premised on the view that international law is simply what the states’ domestic law looks like at the higher 321

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

322

c o n d i t i o n s f o r pe a c e

level of their international relations. We can see this view at work in the Kantian effort to envision a future cosmopolitical condition, as well as in the economistic-technocratic conceptions put forward by Auguste Comte and Émile Durkheim, envisioning a single world society run by expert technocrats, and finally in Habermas’s vision of a world society founded on the United Nations Charter, conceived by him as a constitution for humankind.1 In reality, Koskenniemi observes, the idea that the world can be governed under a single body of international law runs counter to three trends that strongly resist this vision: the increasing deformalization of law, its increasing fragmentation, and the resurgence of empire.2 The first transformation involves “the increasing management of the world’s affairs by flexible and informal, non-territorial networks within which decisions can be made rapidly and effectively.”3 Thus, on the one hand, “international trade is not regulated by international law but by lex mercatoria and private international arbitration,” while at the same time we are moving toward a form of globalization that “invokes not government, but governance, a spontaneous process, pushed by private interests and actors in a thoroughly pragmatic process, accountable to no functional equivalent of a public realm but to an amorphous aggregate of stakeholders.” The second trend, the fragmentation of law, involves the “the division of international regulation into specialised branches, deferring to special interests and managed by technical experts.”4 Thus, “instead of a single international law, we have today human rights law, environmental law, international trade law, international criminal law and so on, with little unifying ethos.” These bodies of law amount to “functional regimes” that may even come into conflict: “trade institutions versus environmental or human rights regimes; the jurisprudence of the International Court of Justice versus the jurisprudence of the International Criminal Tribunal of the Former Yugoslavia,” and so on. The third trend consists in the build-up of empire on a global level. This is an assessment that Koskenniemi underscores by pointing out the 1

2

3

4

Jürgen Habermas, The Divided West, ed. and trans. Ciaran Cronin (Cambridge: Polity Press, 2006). Martti Koskenniemi, “Global governance and public international law,” Kritische Justiz, 37, no. 3 (2004), 241–54, see esp. pp. 243 ff. Ibid., p. 243 (also the page source for the following two quotations; italics in original). As examples of this trend, Koskenniemi mentions the G8 and the world economic forum in Davos. Ibid. Also the page source for the quotations in the rest of this paragraph.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

323

United States’ disengagement from international treaties and arrangements.5 These include the Anti-Personnel Mines Convention (or Ottawa Convention), the Comprehensive Nuclear Test Treaty Ban (CTBT), the Biological and Toxic Weapons Convention (BWC) of 2001, and the majority of human rights treaties. It therefore seems unlikely that we should see a move toward the establishment of an international public law sitting on top of the states’ domestic law. What instead seems more likely is that constellations of special interests will become entrenched through the coexistence of a plurality of differentiated regimes. The three previously identified trends bring into focus the problem of the meaning of international law. The fall of the Berlin Wall in 1989 prompted a new series of international initiatives by the United Nations, prominent among which were the 1992 Rio Earth Summit (United Nations Conference on Environment and Development, or UNCED), the World Conference on Human Rights (held in Vienna in 1993), and the Fourth World Conference on Women: Action for Equality, Development and Peace (held in Beijing in 1995). These three initiatives developed in parallel to the three trends that were working deep changes in international law. And so several international conferences set forth important international principles, but their implementation was entrusted to the world powers and their interests. International law thus wound up being sidelined, having become a tool of governance.6 In short, international law would seem to have definitely taken second place to the reasons of political realism, which guides governance in ways that are functional to the interests of the dominant powers. Thus, for example, as Koskenniemi reminds us, among the most wellestablished and uncontroversial aspects of international law are the rules on the use of force, “and yet, in the spring of 1999 many international lawyers and humanitarian activists advocated their violation: the bombing

5

6

This is a trend that only seems to be intensifying today. For a different understanding of it, however, see Michael Hardt and Antonio Negri, Empire (Cambridge, MA: Harvard University Press, 2000), where the trend toward empire is not reduced to an effect of US hegemony but is rather understood as the construction of a complex system that comprises a plurality of international organisms, such as the World Trade Organization and the World Bank. Koskenniemi, “Global governance” (n. 2), p. 249.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

324

conditions for peace

of Serbia was ‘illegal but necessary.’”7 International law is increasingly being regarded as strictly functional to the logic of governance. But even if this is the shape that international law has taken as a result of its transformation under the force of the three trends toward deformalization, fragmentation, and the making of empire, we can still look beyond the instrumental view of international law imposed by governance. Indeed, as Koskenniemi observes, “international law is not only about governing things” but also provides the foundation on which to work in “constructing a public space within which [. . .] groups whose interests are not well represented in governance bodies receive a voice.”8 And whereas the governance of things falls within the realm of “power and policy, utilitarian calculations, expert vocabularies and the existential ‘decision,’” the construction of a public space serves a higher purpose: It enables those groups to articulate their claims not as claims of special interest but as the interests of the (international) society. This is visible in international law’s utopian, aspirational face, expressed in general notions such as “peace,” “sovereignty,” jus cogens, non-combatant immunity and so on – expressions that in countless legal texts appeal to solidarity within a community.9

It is something of a paradox, Koskenniemi concludes, that while the proponents of political realism awkwardly sought to justify the Iraq War of 2003, declaring “key aspects of international law ‘dead’ or at least in a severe crisis, there has never in the past half century been such widespread invocation of international law.”10 Next to the logic of political realism, then, we can also observe an emphatic assertion of international law, with an international community upholding the 7

8 9 10

Ibid., referring us to further discussion in Martti Koskenniemi, “‘The lady doth protest too much’: Kosovo, and the turn to ethics in international law,” The Modern Law Review, 65, no. 2 (2002): 159–75. Koskenniemi, “Global governance” (n. 2), p. 253 (also the source for the next quotation). Ibid.; my emphasis on utopian. Ibid., p. 254. A striking example of this paradox can be observed in the United States’ recourse to the United Nations in the lead-up to the war. UN Security Council Resolution 1441 of 8 November 2002 “warned Iraq that it will face serious consequences as a result of its continued violations of its [disarmament] obligations” (point 13 at p. 5 of UN Doc. S/ RES/1441 (2002)), to this end citing the threat to “international peace and security” posed by Iraq’s “proliferation of weapons of mass destruction and long-range missiles” (ibid., p. 1). And indeed this was precisely what the United States was alleging in making the case for the invasion of Iraq. But, as it later turned out, these weapons were inexistent, and the allegations themselves likewise turned out have been based on insufficient evidence obtained from unreliable sources.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

325

principles of a universal justice that no logic of power and special interests can quash.

13.2 Ventures of Empire: The War on Terror and Human Rights Violations Let us see if we can use political realism as an approach by which to understand the Bush Doctrine that was put into effect in the wake of 9/11. We will turn to the Global War on Terrorism and assess the consequences it has had on the civilization of Western law. Central to this doctrine and the ensuing war on terror was the view that, as Antony Anghie observed, anyone became an enemy simply by taking exception to the imperialist and neocolonial design that the United States was carrying out as a superpower.11 In other words, there was no distinction, in the Global War on Terrorism, between an author of criminal acts and a political enemy: to put it with a bit more care, the latter status (being a political enemy) was a precondition for the former (being a terrorist) and therefore made one a legitimate target in the effort to root out global terrorism. Individuals so targeted became outlaws: as political enemies, they fell outside the scope of the due process protections afforded by criminal justice, including the protections accorded to prisoners of war, not only under national law but also under international law (and we will shortly see exactly how this came about). The Global War on Terrorism could thus be waged under a global criminal law of the enemy. This meant that terrorism became a war crime that could be prosecuted by any available means, including by denying the protections provided by human rights law and international humanitarian law. In this way, the distinction between war and crime was extinguished, with the consequence that anyone could be captured and indefinitely detained without charges solely on the suspicion that they had engaged in terrorist activities. What emerged was a war-making model that led to four particularly significant consequences as follows: First, the principles of criminal justice became inert, for on top of them came, by superimposition, the all-covering concept of a global war on terror.12 11

12

Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005), pp. 273 ff. See Matteo Tondini, “Beyond the law of the enemy: Recovering from the failures of the global war on terrorism through law,” Jura Gentium: Rivista di Filosofia del Diritto

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

326

c o n d i t i o n s f o r pe a c e

Second, this development was effected by deploying the concepts of friend and enemy across the globe, a dyad that displaced the traditional distinction, in criminal law, between guilty and innocent. Third, the War on Terror was waged without defining its object, namely, terrorism. Fourth, it became the political aim of the War on Terror to defeat terrorism as the global enemy.13 This meant bypassing and violating the rules of criminal procedure, designed to establish “judicial truth” and not to defeat a political enemy. The problem, then, was that of the conflict between the political element and the legal element. This aspect of the War on Terror bears further investigation, specifically as it relates to the idea of a “criminal law of the enemy”: as Luigi Ferrajoli has noted, this idea is self-contradictory, for “the concept of the enemy falls under the logic of war, which is the negation of law, just as law is the negation of war.”14 This is because the notion of the terrorist or criminal as an enemy suspends all the protections of criminal law, from the presumption of innocence to the right to present a defence (and indeed it suspends the whole idea of due process). If the criminal and the accused are conceived as “the enemy,” then the legal process becomes a tool of war. On this view, a terrorist becomes an enemy to be suppressed more than someone whose guilt is to be judicially established. At the basis of this view was an identification between criminal law and war: war was refashioned into a criminal tool by which to maintain international public order, and this criminal law of the enemy, in its various forms, was legitimized on the basis of the logic of war.15 But the notion of terrorists as political enemies signals the end of the Western legal civilization that has been coming into form since the end of World War II. From the first half of the seventeenth century to the post–World War I period, there developed in Europe a jus publicum europaeum that excluded the possibility of criminalizing political enemies. As we saw in

13

14 15

Internazionale e della Politica Globale (2007), www.juragentium.org/topics/wlgo/cor tona/en/tondini.htm# n*. Paper presented at the Cortona Colloquium 2007: War, Law and Global Order, ed. Sara Benjamin and Elisa Orrù, organized by the Giangiacomo Feltrinelli Foundation in collaboration with the Jura Gentium Centre and the University of Florence, 19–21 October 2007. See Luigi Ferrajoli, “Il ‘diritto penale del nemico’ e la dissoluzione del diritto penale,” Questione Giustizia, 4 (2006), 797–812, at 812; my translation. Ibid., p. 799. Ibid., p. 802.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel w orld s

327

Chapter 7, this meant that the jus ad bellum (the right to war) was reserved for sovereign states and that heads of state could not be charged with war crimes. This paradigm fell into crisis when, in the aftermath of World War I, the Paris Peace Conference sought to extradite Kaiser Wilhelm II of Germany (of the Hohenzollern line), so that he could face trial for war crimes; and then it became functionally extinct with the Nuremberg and Tokyo Trials, conducted to try the leaders of Germany and Japan for crimes against peace and against humanity committed over the course of World War II. In the wake of World War II, then, the jus publicum europaeum was replaced with a new paradigm under which alleged war criminals could be brought to trial under the protection of the law. But with the Global War on Terrorism, in which these protections were denied to terrorists labeled as political enemies, this newer paradigm itself fell into crisis. This crisis was brought on by violating the enemy’s human rights, as well as by disregarding the separation of powers that forms the bedrock of Western constitutional democracies. As concerns the problem of human rights in the face of a national security threat such as terrorism, it is clear that the Global War on Terrorism waged under the Bush Doctrine placed the military solution ahead of the conventional tools the law makes available for finding and arresting individuals suspected of terrorism. In the Iraq War, as well as in the ongoing War in Afghanistan, the United States has engaged terrorists (Al Qaeda), insurgents, and regular combatants. This raises the question of who is to count as a prisoner of war (POW), since combatants in this last group were fighting in keeping with the rules of International Humanitarian Law and thus enjoyed POW status.16 The governing provision is Article 4(A) of the Third Geneva Convention (as revised in 1949), stating that POWs include (1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or 16

See the discussion in Roberta Arnold, “Human rights in times of terrorism,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 66 (2006), 297–319, at 310.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

328

c o n d i t i o n s f o r pe a c e

volunteer corps, including such organized resistance movements, fulfill the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. [. . .] (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. But how to square these criteria with the detentions at Guantanamo Bay? The prisoners the United States held at this detention camp were famously defined under the Bush Doctrine as “unlawful enemy combatants”: as such, they were detained solely on suspicion, which meant that they could not know the charges on which they were being held in detention. Under criminal law, they should therefore have been released within forty-eight hours of their capture, yet most were detained indefinitely without trial, and by executive order the camp itself is still being kept indefinitely open. In dealing with this problem, an attempt was made to have the War on Terror be recognized as an armed conflict under Common Article 2 of the Third Geneva Convention, stating that the convention applies “even if the state of war is not recognized by one of” the parties to the conflict. The newly coined term “unlawful enemy combatant” was introduced so that the detainees captured in the War on Terror could be denied the rights that POWs and civilians alike enjoy under traditional due process and criminal law. This question was addressed in a 2003 report issued by the Working Group on Arbitrary Detention set up by the UN Commission on Human Rights, which pointed out that “the authority which is competent to determine prisoner-of-war status is not the executive power but the judicial power.”17 The working group also concluded that 17

UN Economic and Social Council, Commission on Human Rights, 59th Session, “Civil and Political Rights, Including the Question of Torture and Detention,” Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2003/8 (16 Dec. 2002), p. 20.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

329

so long as a “competent tribunal” [. . .] has not issued a ruling on the contested issue, detainees enjoy “the protection of the [Third Geneva] Convention” [. . .], whence it may be argued that they enjoy firstly the protection afforded by its article 13 (“Prisoners of war must at all times be humanely treated”), and secondly the right to have the lawfulness of their detention reviewed and the right to a fair trial provided under articles 105 and 106 of that Convention (notification of charges, assistance of counsel, interpretation, etc.), so that the absence of such rights may render the detention of the prisoners arbitrary.18

The working group also considered what should happen if a competent court should decide not to grant POW status to detainees, pointing out that this case would fall within the purview of the 1966 International Covenant on Economic, Social and Cultural Rights, and in particular under “articles 9 and 14 thereof, the first of which guarantees that the lawfulness of a detention shall be reviewed by a competent court, and the second of which guarantees the right to a fair trial.”19 But, as briefly mentioned, the threat to Western legal civilization came from several fronts. For it involved the violation of the human rights protected not only under international humanitarian law but also under domestic law. And especially damaging, in this connection, was a certain readiness to circumvent a principle that stands as a cornerstone of Western democracy, namely, the separation of powers. In the 2004 case of Rasul v. Bush, the US Supreme Court recognized the right of non-US citizens detained at Guantanamo to petition federal courts in the United States for writs of habeas corpus so as to have the legality of their detention reviewed, noting that “Congress has granted federal district courts, ‘within their respective jurisdictions,’ the authority to hear applications for habeas corpus by any person who claims to be held ‘in custody in violation of the Constitution or laws or treaties of the United States.’”20 As Ronald Dworkin notes in his discussion of the case, “the Geneva Conventions draw a fundamental distinction between two classes of people that a nation might capture in war or other military action.”21 On the one hand are prisoners of war, who “may not be punished simply for bearing arms against the capturing nation” and “may not be exposed 18 19 20

21

Ibid., pp. 20–21. Ibid., p. 21. Rasul v. Bush, 542 U.S. 466, 473 (2004). See also the discussion in Ronald Dworkin, “What the Court really said,” The New York Times Review of Books, 12 Aug. 2004, www.nybooks .com/articles/2004/08/12/what-the-court-really-said/, § 3. Dworkin, “What the Court really said” (n. 20), § 4 (includes block quotation below).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

330

conditions for peace

to coercive interrogation.” On the other hand are “civilians fighting independently of any government,” as well as soldiers in a more organized action who do not wear uniforms or other identifying badges or who fight with a force that does not respect the laws of war. They are not entitled to prisoner-of-war status; they may therefore be prosecuted and punished as criminals for acts of war, though the Geneva Conventions require that they be treated humanely.

It is this second class, according to the Bush administration, that covers what it termed “unlawful combatants,” enabling the US government to detain these individuals “indefinitely without charge or prosecution.” But, as Dworkin underscores, even if that conclusion were correct, it would not enable a government to ignore the humane-treatment requirement of the Geneva Conventions. And, in Dworkin’s analysis of the Supreme Court’s 2004 decisions on detention, we should be able to extract from this case law the “new and stronger claim [. . .] that the government’s treatment of prisoners it calls ‘unlawful combatants’ is not only morally indefensible but forbidden by the Constitution as well.” Indeed, in Hamdi v. Rumsfeld (2004), Justice O’Connor noted “that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.”22 And Dworkin notes that “the protection of the due process clause in the Constitution is not limited to citizens: it requires that government deny no person due process of law.”23 In Hamdi, Justice O’Connor addresses the question of “striking the proper constitutional balance”24 between security and due process in the executive’s treatment of enemy combatants captured and detained while the country is at war. Dworkin summarizes her conclusions as follows: Scalia thought the implications of the Court’s opinion in the Rasul case frightening: he imagined prisoners wherever the US military fights suing in American courts to protest their treatment. O’Connor responded to his fears: she said that the right balance between due process protection and military efficiency can be struck by measures that impose no burdens of record-keeping and military commission review beyond those the US military has traditionally maintained. If I am right, her claim presupposes that we do not subject those we hold without trial to harsh treatment 22

23 24

Opinion of Justice O’Connor in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), p. 23 of the slip opinion (O’Connor’s italics, citing Jones v. United States, 463 U.S. 354, 361 (1983)). Dworkin, “What the Court really said” (n. 20), § 4. Opinion of Justice O’Connor in Hamdi (n. 22), p. 25.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

p a r a l l e l wo r l d s

331

and objectionable methods of interrogation. But we should be willing, out of respect for our own traditions and values, to accept whatever unknown loss of efficiency this deference to morality may entail.25

We have seen that the human rights violations committed in prosecuting the War on Terror have undermined the founding principles of democracy, and as discussed this includes the separation of powers. Let us therefore consider one final incident that illustrates this deep destructuring of the democratic framework. In 2001, Salim Ahmed Hamdan, a Yemeni national who was working as a bodyguard and chauffeur for Osama bin Laden, was captured in Afghanistan and then, in 2002, was detained at Guantanamo, but before he could challenge his detention, a military commission designated him an enemy combatant, thereby depriving him of POW status under the Geneva Conventions. The problem was that the military commission was acting under the authority of an executive order signed by President George W. Bush.26 But this was in violation of the US Constitution, which under Article 1, Section 8, Clause 9, gives Congress alone the power to “constitute Tribunals inferior to the supreme Court.” This was pointed out when the case reached the US Supreme Court, which in Hamdan v. Rumsfeld noted that the “military commission at issue is not expressly authorized by any congressional Act”:27 this commission accordingly “lacks the power to proceed because its structure and procedures violate both the UCMJ [the Uniform Code of Military Justice] and the four Geneva Conventions signed in 1949.”28 So, again, the Court not only found a violation of human rights law but also clearly signaled that the special military commissions set up by presidential order were inconsistent with the separation of executive and legislative power. It can thus be concluded that once the September 11 attacks were designated an act of war, rather than a crime, the path was clear to respond not by police action under the ordinary rule of criminal law but through the criminal law of the enemy, thereby depriving the enemy 25 26

27

28

Dworkin, “What the Court really said” (n. 20), § 4. Executive Office of the President, “Military Order of November 13, 2001 – Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism,” Federal Register: The Daily Journal of the United States Government, 66, no. 222 (2001), 57831–36. It is for this reason that the US Congress subsequently passed the Military Commissions Act of 2006. Hamdan v. Rumsfeld, 548 U.S. 557 (2006), pp. 3–4 of the slip opinion, at points 3 and 4. For an analysis of the case, see also Chiara Bologna, “Hamdan vs. Rumsfeld: Quando la tutela dei diritti è effetto della separazione dei poteri,” Quaderni costituzionali, XXVI, no. 4 (2006), 813–17.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

332

conditions for p eace

of due process protections in a war marked by useless devastation and killing.29 But this was only a sign of weakness, yielding to the convenience of advancing political aims by forsaking the law.30 It was clear from the outset that the preventive War on Terror – waged to “rid the world of evil,”31 as George W. Bush expressed himself in a speech delivered on September 14, 2001, at a national prayer service – was not going to be a conventional war that would end with a peace treaty following a military defeat by one of the two sides to the conflict. On the contrary, it was going to be an infinitely long war conducted in a prelegal space. In fact, it was an illegal war that descended to the level sought by its terrorist baiters, and it wound up drawing in terrorism from Afghanistan and Iraq. What the ongoing Global War on Terrorism is showing is that terrorism cannot be abated by military action alone, without diplomacy and in disregard of the rule of law, bypassing the due process protections afforded by criminal law and outside the framework of international humanitarian law.32 Otherwise we will be looking at a further erosion of Western legal culture and the founding principles of Western democracy.33 The subsequent Obama administration committed itself to moving beyond the previous unilateralism by embracing a multilateral approach in dealing with the international community. This new approach was clearly laid out in the White House National Security Strategy of May 2010. This document underscores that war is always to be understood as a means of last resort in the effort to ensure national security,34 which must rest above all else on diplomacy, “the fair and equitable administration of justice,” and “collaboration with the global community.” Very much in the same vein, the document asserts that “America will not impose any system of government on another country, but our 29

30 31

32 33 34

According to one estimate, “the war has, directly or indirectly, killed around 1 million people in Iraq, 220,000 in Afghanistan and 80,000 in Pakistan, i.e. a total of around 1.3 million. Not included in this figure are further war zones such as Yemen.” International Physicians for the Prevention of Nuclear War (IPPNW), Body Count: Casualty Figures after 10 Years of the “War on Terror”—Iraq, Afghanistan, Pakistan, translated from the German by Ali Fathollah-Nejad, first international edition (Washington, DC; Berlin; Ottawa: March 2015), Executive Summary, p. 15. See Ferrajoli, “Il ‘diritto penale del nemico’” (n. 13), p. 807. Congressional Record, 107th Congress, First Session, vol. 147, pt. 12 (Washington, DC: United States Printing Office, 2001), Sept. 14, p. H17150. Ferrajoli, “Il ‘diritto penale del nemico’” (n. 13), p. 809. Ibid., p. 812. The White House, National Security Strategy, May 2010, sec. III, p. 22. The following three quotations in this paragraph at pp. 35, 49, 36, and 12 (in that order).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

333

long-term security and prosperity depends on our steady support for universal values.” Only on this basis would it be possible to build a new international order: the United States, as the document envisions its role in history, has promoted an architecture of laws and institutions “not to build an empire but to bring into being a world in which more and more individuals and nations can shape their own destiny.” This was nothing short of a paradigm shift by comparison with the Bush administration, in that the Obama administration was now speaking of “facilitating global cooperation” and “strengthening the legitimacy and authority of international law and institutions,” and of “an international order that recognizes the rights and responsibilities of all nations.”35 This shift was particularly significant in relation to the Muslim world. Indeed, the policy outlined in the document saw “not a global war against [. . .] Islam” but rather a “war with a specific network, al-Qa’ida, and its terrorist affiliates who support efforts to attack the United States, our allies, and partners,”36 stating that “we reject the notion that al-Qa’ida represents any religious authority,” at the same time as “we are striving to build bridges among people of different faiths and regions” and “developing new partnerships in Muslim communities around the world.” This new policy outlook adhered to the principles of justice, translating into detention measures consistent with the US Constitution, and indeed asserting that “to deny violent extremists one of their most potent recruitment tools, we will close the prison at Guantanamo Bay.”37 The Obama administration thus sought to open a new space for international relations, even if its policy statement was not without an underside: “The United States must reserve the right to act unilaterally if necessary to defend our nation and our interests, yet we will also seek to adhere to standards that govern the use of force.”38 This duality is a constant theme in US foreign policy.

13.3 The “Constitutionalization” of International Law The risks posed by the power that sovereign states exercise beyond the boundaries of the law have become a concern in the Western debate, 35 36 37

38

Ibid., pp. 11, 13, and 12 (in that order). Ibid., p. 20; the other quotations in this paragraph at p. 22. Ibid., p. 22. It must be noted, however, that this policy aim met with strong bipartisan Congressional resistance, and under an executive order of the subsequent Trump administration, the prison is now being kept indefinitely open. Ibid.; italics added.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

334

c o n d i t i o n s f o r pe a c e

which has responded by embracing an outlook that calls for the constitutionalization of international law. This is not a process that can be likened to the creation of a constitution for a nation-state: as some authors argue, it rather needs to be understood as a process that follows specific guideposts anchored in historical reality. This process, in other words, needs to be guided on the one hand by legal principles that belong not to particular states but to humanity as a whole, and on the other by the international protection of human rights.39 With the recognition that states have human rights obligations, a process got underway that may lead to a shift away from a human rights model based on interstate relations. Indeed, the claim has been made that international law should find its legitimacy on a plane that is superordinate to that of the nation-state.40 On this basis, an international community of law has taken shape – a (Völker-) Rechtsgemeinschaft) – along with an international public opinion. In parallel to this recently initiated process toward the constitutionalization of international law, there has been an accompanying process toward the internationalization of constitutional law. As Von BrunOtto Bryde comments, “if international law is to guarantee human rights, it will pretend to regulate all areas of life even within each state.”41 In a community of international law with a catalogue of human rights, there will no longer be human rights areas reserved for the state in the manner prescribed by the traditional theory of sovereignty. This is a process that has by now expanded on a global scale. Thus, for example, while in Europe the rights and freedoms enshrined in the 1950 European Convention on Human Rights have been incorporated into UK law under the Human Rights Act 1998, in Africa, the High Court of Tanzania “has used without qualification or hesitation international and regional conventions on human rights in order to establish and apply standards accepted by the international community in the interpretation 39

40 41

Von Brun-Otto Bryde, “Konstitutionalisierung des Völkerrechts und Internationalisierung des Verfassungsrechts,” Der Staat, 42, no. 1. (2003), 61–75, at 64. On the possibility of constitutionalizing international law, and so on the possibility of creating a legal system for peace, see Erhard Denninger, “L’impatto della globalizzazione sulle democrazie contemporanee,” Rassegna Parlamentare, 1 (2004), 26–41, at 35 ff., who also underscores the challenges involved in attempting to give life to a “world state.” Bryde, “Konstitutionalisierung des Völkerrechts” (n. 39), p. 64. Ibid., p. 68; my translation.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

335

of the Bill of Rights,”42 adopted by constitutional amendment in 1984 and made justiciable in 1988. Through the reception of international human rights we get the internationalization of the doctrine of fundamental rights.43 In this connection, we need to observe that national boundaries have been taken down by looking to the case law of other countries. Thus, for example, in a 1995 case involving freedom of assembly and association, the Supreme Court of Zambia invoked the case law established by courts in Ghana, Nigeria, Tanzania, Zimbabwe, and India and by the European Court of Human Rights.44 This process toward the international reception of law is not onesided, either: it is not just driven by the development of international human rights law, but in turn winds up affecting this development. Which is to say that the incorporation of human rights covenants into national law in turn promotes human rights in international law.45 A full embrace of this trend – with states committing to human rights obligations – certainly stands as an essential condition for securing peace.

13.4 Institutional Solutions: The International Community and the Decentralized Global Community In the Western debate, as is known, much attention has also been devoted to the question of the possible institutional arrangements by which to prop up an international order. In addressing this question, Armin von Bogdandy recalls the developments that have taken place since the end of World War II. He singles out three conceptions that have emerged in envisioning a world order and the role that international law should play in it: a realist conception, upheld by Great Britain, with its policy of following the United States as a superpower in the matter of international peace and security; a multipolar conception, principally espoused by France, with its effort to achieve a unified Europe on a multilateral basis; and finally a cosmopolitan conception, espoused by Germany,

42

43 44 45

Palamagamba John Kabudi, “The judiciary and human rights in Tanzania: Domestic application of international human rights norms,” Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin America, 24, no. 3 (1991), 271–81, at 276. Bryde, “Konstitutionalisierung des Völkerrechts” (n. 39), p. 69. Christine Mulundika and 7 Others v. The People (1995) S.J. Bryde, “Konstitutionalisierung des Völkerrechts” (n. 39), p. 69.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

336

c o n d i t i o n s f o r pe a c e

with its project to create a global legal community on the basis of shared values.46 Especially worth considering in this last regard is the work that Christian Tomuschat has devoted to the idea of an international legal community. He argues that it is the twofold function of international law “to safeguard international peace, security and justice in relations between States, and human rights as well as the rule of law for the benefit of human beings, who, in substance, are the ultimate addressees of international law.”47 Tomuschat holds that international law and state law regulate the same subject areas within an integrated system built on multiple layers.48 On this view, international law can guide political power in the same way that Constitutional law does within the state. Tomuschat sees a transition underway from a system based on sovereignty to one based on values or on individuals, but this “transformation of international law as a State-centred system to an individual-centred system has not yet found a definitive equilibrium, as was exemplified in 1999 by the NATO operation in Yugoslavia, designed to bring an end to the suffering of the Kosovar Albanians.”49 However, the new international system envisioned by Tomuschat lacks a specific institutional framework. He observes that, whereas in traditional theory it is the states that figure as the main players in international law, the contemporary debate tends to push states into the background, increasingly to instead foreground the international community. This community expresses the values that underpin international erga omnes obligations, while also forming the backbone of a jus cogens.50 The state is depicted as 46

47

48 49

50

Armin von Bogdandy, “Constitutionalism in international law: Comment on a proposal from Germany,” Harvard International Law Journal, 47, no. 1 (2006), 223–42, at 223. Christian Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century, Académie de Droit International de la Haye, Recueil des Cours, vol. 281, 9–438 (The Hague: Martinus Nijhoff Publishers, (1999) 2001), p. 23. Bogdandy, “Constitutionalism in international law” (n. 46), p. 226. Tomuschat, International Law (n. 47), p. 162. Tomuschat goes on to comment that “it is the great challenge for today’s lawyers to define an appropriate dividing line, taking into account that State power may on the one hand become an oppressive force, but that on the other hand it operates as a protective umbrella for the human being under its jurisdiction” (ibid.). Bogdandy, “Constitutionalism in international law” (n. 46) p. 235. Tomuschat (International Law (n. 47), p. 75) notes that “in an impressive number of legal documents of our time, reference is made to the international community as some kind of arbiter who has the last word on matters of basic relevance for international relations.” In this regard he mentions the 1969 Vienna Convention on the Law of Treaties, whose Article 35

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

337

the agent of the international community, from which it gains legitimacy only if it fulfills the fundamental obligations attributed to the state itself.51 In Tomuschat’s vision, however, the international community lacks a source of legitimacy like that which the people offer for the state. In this sense, international law does not, according to Tomuschat, have a source of democratic legitimacy of its own.52 This explains his ambiguity in characterizing the international community, which is sometimes described as a group of countries, and sometimes as a set of shared procedures.53 In this way his conception rules out any kind of federalist solution. In Bogdandy’s assessment, Tomuschat’s theses are close to those expressed in The Divided West, where Habermas explores the possibility of constitutionalizing international law. Here, Habermas takes up the well-known theses expounded in Kant’s Perpetual Peace, which appears to rule out as unrealistic the possibility of establishing new international institutions having coercive powers over sovereign states. Habermas revisits this argument and strikes a more optimistic tone, believing it realistic to bring about an international system built on multiple levels, each devoted to a specific end. Habermas sketches out its architecture as follows: Taking one’s orientation from currently existing structures, one can construe the political constitution of a decentered world society as a multilevel system that for good reasons lacks the character of the state as a whole. On this conception, a suitably reformed world organization could perform the vital but clearly circumscribed functions of securing peace and promoting human rights at the supranational level in an effective and non-selective fashion without having to assume the statelike character of a world republic. [. . .] Nation-states in the various world regions would have to unite to form continental regimes on the model of an EU equipped with sufficient power to conduct an effective foreign policy of its own. International relations would continue to exist in

51 52 53

“accepted the concept of jus cogens, providing the following definition: ‘a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’” Bogdandy, “Constitutionalism in international law” (n. 46), p. 235. Ibid., pp. 235–36. In this second sense the international community is defined by Tomuschat (International Law (n. 47), p. 88) as “an ensemble of rules, procedures and mechanisms designed to protect collective interests of humankind, based on a perception of commonly shared values.”

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

338

conditions for p eace a modified form at this intermediate level. Modification would already be required by the fact that, under an UN peace and security regime, even global players would be forbidden to resort to war as a legitimate means of resolving conflicts.54

As Bogdandy points out, this would not be a global federation, or an international federal system, but a system based on institutions backed by national governments (preferably ones that have been democratically elected): although these institutions “remain international in nature,” they are “no longer in a position to individually block the enactment or enforcement of international law,” for they would “be conscious of their state-mediated (and thus limited) resources of democratic legitimacy and respectful of the diversity of their constituent states.”55 This is an institutional makeup that Habermas describes as supranationalism.

13.5 Excursus: Europe as a “Civilian Power” What could Europe’s role be in the frame of international relations? This question can be tackled on a constructivist approach that lays emphasis on supranational norms and the founding values of the European Union.56 On this approach, Europe is understood to play a role as a “civilian power,”57 that is, a power having the ability to civilize its own member states, secure peace in the European space, and spread a democratic and human rights culture across the Continent, as well as to advance humanitarian and development-cooperation policies on a global scale.58 54

55 56

57

58

Habermas, The Divided West (n. 1), pp. 135–36; italics in original. The German original at p. 134 in Jürgen Habermas, Der gespaltene Westen (Frankfurt am Main: Suhrkamp, 2004). Bogdandy, “Constitutionalism in international law” (n. 46), p. 212. In laying out this approach, I am mainly drawing on John Gerard Ruggie, Constructing the World Polity: Essays on International Institutionalization (London: Routledge, 1998). The concept of civilian power was first introduced in François Duchêne, “Europe’s role in world peace,” in Richard Mayne (ed.), Europe Tomorrow: Sixteen Europeans Look Ahead (London: Fontana, 1972). In this regard, see Hanns W. Maull, “Europe as a global ‘civilian’ power?” in Simon Bulmer, Charlie Jeffery, and Stephen Padgett (eds.), Rethinking Germany and Europe: Democracy and Diplomacy in a Semi-Sovereign State (Basingstoke, UK: Palgrave Macmillan, 2010), pp. 200–20. See the excellent Mario Telò, L’Europa potenza civile (Rome and Bari: Laterza, 2004), esp. pp. 60 and 207–9, where the roots of this role envisioned for Europe as a “civilian power” are traced to Christianity, the Enlightenment, and democratic socialism, but they are also more specifically traced to the postwar legacy of the twentieth century, with its rejection of war and the progressive limitation of the states’ sovereignty (p. 207). It is through this historical legacy that Europe has come to understand itself as a “civilian power”: this is the seedbed of its founding values, namely, human rights, democracy, principles, and the peaceful resolution of conflicts (p. 209).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel w orld s

339

This approach also makes it possible to understand how Europe’s “structural foreign policy,”59 in the sense of its influence on the anarchical structure of international relations, finds its foundation in a specific tradition built on values that originated in Roman law, carried through to the Middle Ages with the idea of rights that William of Ockham developed in the fourteenth century, and continued to the present with the principle of solidarity advanced in Christian thought, social liberalism, and socialism.60 But the cultural space thus identified draws its boundary around Europe, tending to exclude Russia and Moscow as a “Third Rome,” heir to the Byzantine tradition, as well as Turkey, heir to the Ottoman Empire.61 The question that arises in view of this specifically European identity is whether a neoregional entity like the European Union can contribute to the formation of a world order that is increasingly moving away from the unipolarity of American power.62 The fall of the Berlin Wall in 1989 marked the end of the balance between the two superpowers – the United States and the USSR – and this certainly opened a space for Europe to develop on the level of regional governance, by bringing greater stability to Eastern Europe and the Mediterranean, and also on the level of world governance, by promoting policies in support of development aid, democratization, and the protection of human rights, minority identities, and the ethno-cultural heritage. By so doing the European Union has played a role as a “civilizing power.” But what space could Europe occupy as a “civilian power” in the frame of relations with the United States as a superpower? The international relations system has changed in profound ways since the Cold War period. Most especially, the “right to use preemptive or preventive military force”63 asserted by the United States has imposed a concept of “the limits of 59 60

61

62 63

Ibid., p. 194. Ibid., p. 123. The principle of solidarity is clearly stated in the preamble to the Charter of Fundamental Rights of the European Union, whose second clause reads: “Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity.” For a discussion see Lucia Serena Rossi (ed.), Carta dei Diritti Fondamentali e Costituzione dell’Unione Europea (Milan: Giuffrè, 2002), p. 291. Contrary to that tendency, however, there is a case to be made that Turkey’s inclusion in the European Union could have contributed to the establishment of a collaborative relationship with the Muslim world. Telò, L’Europa potenza civile (n. 58), p. 56. G. John Ikenberry, “America’s imperial ambition,” Foreign Affairs, 81, no. 5 (Sept.–Oct. 2002), 44–60, at 51.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

340

co ndi tion s f or p e ac e

sovereignty,” in that “sovereignty entails obligations”64 on states that have provided a safe haven for terrorists, as well as on states that cannot enforce laws against terrorism in their own territory. This framework inevitably makes for a diminished role of international norms, treaties, and agreements designed to limit and place sanctions on the use of force. But there is much more complexity to the approach than that description would suggest. For if American power does not meet much resistance in the course of military intervention, the peace-, nation-, and institution-building phase that follows requires a coalition of states, and in particular of the European Union, and this coalition also needs to coordinate with international organizations like the United Nations and the World Bank. It is within this system that we need to assess both the institutional capacity of the European Union and the scope of its influence in an international relations framework dominated by American power. And in this connection we need only look at the European Union’s form of government and its state form to appreciate its fragility. The European Union’s eastward enlargement following the 1989 fall of the Berlin Wall certainly made for greater internal differentiation within Europe, bringing in a wider array of traditions, external relations, experiences, and so on, but this happened without the support of an “imperial presidency” like that of the United States.65 What should clearly emerge from this contrast is how difficult a challenge European institutionbuilding is in light of the European Union’s form of government, making sure that its decision-making is focused and cohesive despite the increased differentiation within Europe.66 64

65 66

Ibid., p. 52, quoting Richard N. Haass, Director of Policy Planning for the State Department under the Bush administration. When asked about the Bush Doctrine, Haass described these obligations by saying: “One is not to massacre your own people. Another is not to support terrorism in any way. If a government fails to meet these obligations, then it forfeits some of the normal advantages of sovereignty, including the right to be left alone inside your own territory. Other governments, including the United States, gain the right to intervene. In the case of terrorism, this can even lead to a right of preventive, or peremptory, self-defense. You essentially can act in anticipation if you have grounds to think it’s a question of when, and not if, you’re going to be attacked” (interviewed by Nicholas Lemann in “The next world order: The Bush administration may have a brand-new doctrine of power,” The New Yorker, 1 April 2002). Telò, L’Europa potenza civile (n. 58), p. 177. Here Telò points out the need to reinforce Europe’s current “mixed government” system, whose makeup is now part technocratic (the European Commission), part democratic (the European Parliament), and part political (with the Council of the European Union and the European Council both acting as policy- and decision-making bodies through the

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

341

Also noteworthy is that the new states of Central and Eastern Europe are profoundly different from those of Western Europe. As Will Kymlicka observed writing in 2002,67 as much as the acquis communautaire may have been extended across Europe, there were no adequate protections in Central and Eastern Europe for minority rights (one example being the Hungarian minority in Slovakia, another the Russian minority in the Baltic states, as can be appreciated from the conception of citizenship adopted in Latvia and Estonia). The European Union will thus make room for a range of different conceptions of democracy. And, further, considering that many of the former Eastern Bloc states that regained their sovereignty after the fall of the Soviet Union have been resisting supranational forms of government, the more likely solution is going to be an intergovernmental scheme. This political fragility of Europe brings back into focus the debate that took place in the 1990s on the question of whether it makes sense to have a European constitution without a European people.68 From a political and legal point of view, that is, the point of view of the state form, the European Union can be said to form a unitary system equipped with a legal system of its own, a system that has been characterized as a composite “supranational federalism”69 made up of two basic elements: (a) The first is a supranational element, making it possible to distinguish the European Union from traditional international organizations and the nation-state. This supranational element is that of EU law and the European institutions (like the European Commission and the Court of Justice of the European Union).

67

68

69

input of the member states). But he also argues that a mixed government need not be one that, at every turn, finds itself being broken up by “foreign policy, as would happen if the two parallel institutions of the European Parliament and the European Council were kept administratively separate, thereby depriving the institutional system of its unity” (Telò, L’Europa potenza civile (n. 58), p. 225; my translation). This is a point that brings to light all the obstacles that get in the way of achieving a full political unity. Will Kymlicka, “Western political theory and ethnic relations in Eastern Europe,” chap. 1 in Will Kymlicka and Magda Opalsky (eds.), Can Liberal Pluralism Be Exported? Western Liberal Theory and Ethnic Relations in Eastern Europe (Oxford: Oxford University Press, 2002), pp. 13–105, at 13 ff. Dieter Grimm, “Does Europe need a constitution?” European Law Journal, 1, no. 3 (1995), 282–302. See Armin von Bogdandy, Supranationaler Föderalismus als Wirklichkeit und Idee einer neuen Herrschaftsform: Zur Gestalt der Europäischen Union nach Amsterdam (BadenBaden: Nomos, 1999).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

342

conditions for peace

(b) The second is a federal element, which complements the first one with a democratic component, such as European citizenship, making it possible to achieve political integration next to functional integration. In this picture, the enactment of a constitution that incorporates the EU Charter of Fundamental Rights (2000) would shorten the distance that separates European citizens from their institutions. As Hasso Hofmann comments, this would help Europe make the transition from a “functional community” to a “community based on the fundamental rights of EU citizens.”70 And as Habermas argues,71 a European constitution so described would enable the formation of an integrated European-wide public sphere, that is, a civil society with its interest groups and nongovernmental organizations, along with a European party system that operates in a European space and can provide the foundation for a politically and democratically integrated Europe by unifying the forces and interests that stand in support of or against any given transnational policy. It is on these social and political bases that Europe could extend its influence as a “civilian power.”72

70

71

72

Hasso Hofmann, “Menschenrechte, nationale Souveränität, Europäische Grundrechtecharta und die Verfassung Europas,” paper presented at L’Europa e il futuro della politica, Università degli Studi di Napoli Federico II, 25 May 2001, translated by Sara Cappanera as “I diritti dell’uomo, la sovranità nazionale, la Carta europea dei diritti fondamentali e la Costituzione europea,” in Scienza & Politica, 25 (2001), 27–37, at 35. Jürgen Habermas, “Why Europe needs a constitution,” New Left Review, 11 (Sept.–Oct. 2001), 5–25. One cannot, however, ignore the ambiguity inherent in the idea of civilian power. For the values the European Union takes to be foundational – democracy, the rule of law, human rights – are not universal but specific to the Western tradition, and are also functional and subservient to the interests of the European Union itself. This can be clearly appreciated by looking at Article 21 of the Treaty on European Union (TEU), signed in Maastricht in 1992, which sets out the European Union’s common foreign and security policy: “The Union shall define and pursue common policies and actions [. . .] in order to: (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate and support democracy, the rule of law, human rights and the principles of international law; (c) preserve peace, prevent conflicts and strengthen international security [. . .]” (Art. 21(2) TEU). But the pursuit of these values, subordinate to European interests, can come into conflict with the values and interests of other states in the international community. In this regard, see Marco Balboni, “Integrazione militare europea tra legittimazione interna e obiettivi di good governance: Conflitto o armonia?” in Gustavo Gozzi and Pietro Manzini (eds.), L’Occidente e l’ordine internazionale (Turin: Giappichelli, 2008), pp. 105–39, at 131.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel w orld s

343

In reality, the development of a European consciousness is showing itself to be slow, and there is a very real risk that Europe should not be able to advance beyond its current administration of a common economic space, or that, as Habermas fears, it should split into a progressive “Europe of the vanguard”73 and a skeptical Europe that resists political integration. In short, if Europeanization should resolve itself into a mere extension of the globalization of liberalism, collapsing into this project, then, clearly, this means that the raison d’être for the European project will come to naught,74 as will the idea of Europe as a “civilian power” capable of exerting influence as an independent political actor on the international stage. This is a role that Europe might have stepped into more easily under a constitution. It was in 2001 that the Laeken European Council began working “towards a constitution for European citizens.”75 But the resulting project – the Treaty Establishing a Constitution for Europe, signed in Rome in 2004 – failed to pass when it was put to a referendum, which was rejected in both France and the Netherlands. Out of this setback came the idea of a reform treaty: this took the shape of the Treaty of Lisbon, which finally came into force in December 2009, and through which the EU Charter of Fundamental Rights of 2000 was incorporated into EU law. Even with this achievement, however, the notion that Europe should find greater integration under a solidly unifying constitution seems a good way off, nor is there any suggestion that Europe is developing the sense of self needed to act meaningfully on the world stage, especially after the Great Recession of 2008 and the separatist mood that overtook Europe in its wake.

13.6 Globalization and a Possible World Republic Let us take up and go deeper into the discussion previously made in Section 13.4 on the possible institutional arrangements for a future international order. Just like Habermas, Otfried Höffe envisions the formation of a mutlilevel international system. He takes on the 73

74 75

Jürgen Habermas, “Elezioni europee solo di nome: Sono stati test d’opinione nazionale,” interview by Paolo Valentino, Corriere della Sera, 14 June 2004; my translation. Telò, L’Europa potenza civile (n. 58), p. 159. Presidency Conclusions, European Council Meeting in Laeken, 14 and 15 December 2001 (SN 300/1/01 REV 1), p. 23.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

344

conditions for peace

proponents of the communitarian theory of the state,76 for whom the nation-state is the highest form of social unity built on a foundation of shared values. This conception rejects the idea of a world state, understood to entail the dissolution of the plurality of nation-states. In reality, Höffe does not call for the end of nation-states; rather, he envisions the construction of a world republic that will complement their function.77 What suggests this possibility to him is the existence of several elements he sees as common to the process of globalization. He is referring in particular to (1) a community of pain and suffering, finding common ground in the harmful effects of globalization, such as displacement and environmental degradation; (2) a community of cooperation, corresponding to the sphere of solidarity; and, finally, (3) the sphere of justice. Although this last sphere still lacks a global legal community, “a sense of global justice” has been taking shape that has already made it possible to establish international courts, like the International Court of Justice in The Hague and the International Criminal Court, also in The Hague.78 Against this background, Höffe limns a picture of a possible world republic, which would not be set up like the United Nations but would rather be complementary to the creation of intermediate political entities of continental scope entrusted with managing problems specific to such macro-regions, on the model of the European Union. The top-level world republic, for its part, would be entrusted with ensuring peace among states, maintaining a global market order, protecting the environment, and fighting crime on a global scale.79 The legitimacy of such a world republic would rest on two sources of consensus: that of the peoples of the world and that of nation-states. This world republic would mark the third democratic revolution, the first being that of the Greek city-states and the second that which brought about the downfall of absolutist monarchies. Höffe’s world republic, finally, would not be a fully formed, freestanding world state but a federal structure, built on top of the plurality of 76

77

78 79

Höffe is referring in particular to Alasdair MacIntyre, “Is patriotism a virtue?” (The Lindley Lecture, University of Kansas, 26 March 1984), chap. 18 in Derek Matravers and Jon Pike (eds.), Debates in Contemporary Political Philosophy: An Anthology (London and New York: Routledge, in Association with the Open University, 2003), pp. 286–300, and Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983). Otfried Höffe, Democracy in an Age of Globalisation, trans. Dirk Haubrich and Michael Ludwig (Dordrecht: Springer, 2007), p. 211. Ibid., p. 212. Ibid., pp. 307–8.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel w orld s

345

nation-states (at the bottom level) and the continental or subcontinental entities (at the intermediate level) that the states may bring into being. Some familiar objections have been raised against this conception, which can come across as naively unrealistic, a fanciful construction that can only survive in the world of the ought. Höffe takes up three of these objections. The first is (1) the empirical objection, which calls into question the existence of the factual premises that Höffe’s conception takes as given. In response to this objection, Höffe underscores the fact of the United Nations and of continental entities like the European Union: for all their limitations, they show that the idea of a world republic does have a footing in reality. Next is (2) the anthropological objection, on which a world republic is incompatible with the human self-interest of all individuals. Höffe replies by going back to Kant’s remark (previously discussed in Sections 4.1 and 12.3) that the “problem of the formation of the state [. . .] is not insoluble, even for a race of devils, granted that they have intelligence,”80 and this also holds, at the international level, for the problem of a world republic. Finally, there is (3) the moral objection that a supranational legal order on a world scale would stifle the conflicts out of which the great transformations of history have come, to which Höffe replies that moments of great innovation and creativity have also come in peacetime.81 On this basis, he argues, we can reiterate the normative assumption according to which globalization in its various forms creates or heightens a need for action that in order to fulfill the needs of law, justice, and democracy requires an underlying world order that can coercively replace force with law, bind the law to principles of justice, and entrust just law to a subsidiary and federal world republic.82 In this way the international scene will long remain a workshop where the logic of power and the reasons of law will continue to engage head-tohead in a challenge whose outcome will forever be uncertain.

13.7 Different Perspectives in Federalism A multilevel scheme with a different institutional arrangement than that proposed by Otfried Höffe has been developed by Luigi Ferrajoli, who in 80

81 82

Immanuel Kant, Perpetual Peace: A Philosophical Essay (1795), trans. Mary Campbell Smith (London: George Allen & Unwin; New York: Macmillan, 1917), first supplement, § 1, pp. 153–54. Höffe, Democracy in an Age of Globalisation (n. 77), p. 311. Ibid., p. 312.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

346

cond itions for p eace

the current transformations of international law sees the elements of a “polycentric and pluralistic legal cosmopolitanism,” a model “based on the distinction between the particularistic functions of government – legitimized by political representation, especially as secured by the state or by infra-state institutions – and the universalistic functions by which the equal protection of rights is guaranteed for everyone, and which can be effectively served only by supranational institutions” of a federal type.83 This configuration of international relations is understood by Ferrajoli as quite far-removed from the current structure of the United Nations, fashioned after a “weak confederal model.” Furthermore, the “present-day Leviathan,” embodied in the United States as a world power, appears incapable of securing peace. Ferrajoli concludes that the only solution for securing peace and protecting basic rights must lie in a “federal model” of the kind envisioned by Alexander Hamilton and Immanuel Kant. The principle governing its functioning is that of subsidiarity, under which higher-level institutions (mostly federal) are entrusted only with functions that cannot be carried out by the lower (mostly federated) ones, whether they are states or infra-state institutions.84 Taking a historical perspective, Ferrajoli observes that after the formation of nation-states and the subsequent rise of constitutional democracies, a new phase set in that saw the formation of international or supranational political institutions: this gave us the United Nations and the European Union and spawned a multiplicity of other international organisms. We can thus speak of a pluralism of systems held together by relations of coordination, subsidiarity, and integration among a plurality of states and international organisms.85 As a result of this plurality, different degrees of integration can be observed to exist among institutions at the state and supra-state level. The strongest degree of integration is the federalistic one, like the EU system, where supra-state institutions exist whose norms are immediately enforceable as law in its member states. But there are also weaker degrees of federalism, as in the case of international treaties and conventions implemented by way of state norms. As Ferrajoli rightly observes, 83

84 85

Luigi Ferrajoli, Teoria della democrazia, vol. 2 of Principia iuris: Teoria del diritto e della democrazia (Rome and Bari: Laterza, 2007), p. 553; my translation, italics in original. Ibid., p. 556. In this regard see Antonio Cassese, Modern Constitutions and International Law, vol. 192 of Collected Courses of The Hague Academy of International Law (Brill: Leiden and Boston, 1985), pp. 331–476, at 341 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

347

we can thus speak of different degrees of federalism.86 This means that we should reject any monistic conception of the international order, which should instead be conceived in pluralistic terms as an order made up of political institutions (such as the United Nations and the European Union), international organizations (such as the International Monetary Fund and the World Trade Organization), and independent agencies and authorities. The international order so understood, enticing as it may be, suggests to Ferrajoli the present and future problem of the supranational levels of democracy.87 Indeed, while there is a “world constitution” that can be described, in outline, in the International Bill of Human Rights – comprising the 1948 Universal Declaration of Human Rights and the two UN covenants of 1966, namely, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) – there is no guarantee that these rights will be protected or the conditions of peace secured. Once more – as discussed by looking at Kant’s conception (Chap. 4) and then Kelsen’s (Chap. 6) – the prospect of a supra-state legal order and its guarantees collides with the hard reality of international political and economic powers. We should thus be able to appreciate the current difficulty in finding workable institutional schemes of a federal kind: although some headway has already been made toward a world legal order in opposition to a “world order of force” (the reality that Karl Otto Hondrich calls a Weltgewaltordnung),88 this development is still very much in embryo, and we can be sure that its full realization is still a long ways off. Apart from looking at the possibility of clearly identifying the outlines of an institutional scheme, some authors suggest that we are witnessing a progressive acceptance of the general principles of law. One of these authors is Christian Tomuschat, writing in 1999: On many issues, Western States, Russia, China and developing countries continue to hold different views, with many intermediate shades. But the sharp ideological divide has disappeared. No group of countries is opposed in principle to the recognition of human rights as an important element of the international legal order, almost no group rejects democracy as a guiding principle for the internal system of governance of States. Given this rapprochement, towards the emergence of a true international 86 87 88

Ferrajoli, Teoria della democrazia (n. 83), p. 486. Ibid. Karl Otto Hondrich, “Auf dem Weg zu einer Weltgewaltordnung,” Neue Zürcher Zeitung, 22 March 2003, www.nzz.ch/article8QHJ9-1.229340.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

348

c o n d i t i o n s f o r pe a c e community, objections to general principles of law are progressively losing the weight which they carried 25 years ago.89

In reality these divisions were not just ideological: they were, and still are, underpinned by and coupled with a bitter struggle to control resources (energy, food, water, and the like) across the globe. We must therefore broaden our analysis so as to take into view the relations that hold between the West and the “developing” countries of the world.

13.8 Against the West: TWAIL (Third World Approaches to International Law) The call to constitutionalize the international system has drawn criticism from Koskenniemi, who correctly points out that this process “will not resemble domestic constitution-making.” Indeed, “not only does the international realm lack a pouvoir constituant but [. . .] if such a thing presented itself it would be empire, and the constitution it would enact would be one of not an international but an imperial realm.”90 As mentioned in Section 13.1, the difficulty of constitutionalizing international law stems from its being fragmented into a plurality of legal regimes designed to advance interests that can easily come into conflict: commerce versus development and human rights, and suchlike. In this connection, Koskenniemi mentions the 1995 establishment of the WTO, in which is expressed “the domination of Western interests,”91 and nowhere more so, he comments, than in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS): as described by the WTO itself, this agreement for the first time “introduced intellectual property rules into the multilateral trading system,” but as Koskenniemi points out, the intellectual property it protects (copyrights, patents, and trademarks) is “overwhelmingly owned by Western companies,” thereby tilting the agreement heavily in favor of the West, while exacerbating the polarization between the northern and southern hemispheres. The picture we get of the international system is one in which “massive Third World poverty is sustained by the dealings of unrepresentative Third World governments with private transnational corporations,” a system that “provides those 89 90

91

Tomuschat, International Law (n. 47), p. 339. Martti Koskenniemi, “International law and hegemony: A reconfiguration,” Cambridge Review of International Affairs, 17, no. 2 (2004), 197–218, at 206. Ibid. (also the source for the next quotation).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

349

governments with the competence to borrow funds from the international financial markets and to conclude concession agreements with Western companies with binding force against the interests of their country and populations.”92 Koskenniemi colcludes that “the global public order [. . .] is fully implicated in what can only be seen as a deeply unjust system of distributing material and spiritual values.” Still, this does not mean, as Tom Farer has argued, that “international law may only work as an instrument of a great power concert.”93 In reality, international law does address the problem of the economic privileges and interests that Western corporations claim through the policies pursued by the great powers. In the system of international law, in other words, individuals and groups are recognized as members of a legal community: in that capacity, they have rights they can claim (with correlative duties), and this means that they also form a political community through which such rights and duties can be enforced.94 This explains the “use of the International Court of Justice by Paraguay, Germany and Mexico, or of the Inter-American Court of Human Rights by Mexico, in order to articulate claims about the treatment of their citizens in death row in US prisons as claims made on behalf of an international political community.” And this also explains the “struggles over meanings and values,”95 that is, over cultural identity, as well as the Third World social movements that have asserted human rights as a form of resistance against the power of private corporations. It is not possible to forecast the future makeup of an international order whose development is being driven by contradictory forces. What we can do is chart the main trend lines. These can easily be identified, corresponding as they do to the three main approaches that have been adopted in the attempt to explain the development of international relations and international law. We have (1) a realist approach, 92 93

94

95

Ibid., p. 213 (also the source for the next quotation). Ibid. This thesis, Koskenniemi argues, “too readily adopts the standpoint of the hegemon,” failing to consider that “economic problems” are ones “the hegemon usually casts as outside regulation by public international law” (ibid.). The original statement of the thesis is found in Tom Farer, “Toward an effective international legal order: From coexistence to concert?” Cambridge Review of International Affairs, 17, no. 2 (2004), 219–38. Koskenniemi, “International law and hegemony” (n. 90), p. 214 (also the source for the next quotation). Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003), p. 244.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

350

conditions for peace

proceeding from the previously mentioned view that fundamental to this development is the effort of states to advance their interests, and here we cannot disregard the hegemonic role of the great powers (especially the United States and China); (2) the traditional cosmopolitical approach, which in its current embodiment lays emphasis on the “constitutionalization” of international law and the rise of forms of federalism (though the former is still embryonic and the latter still limited); and (3) a Third World approach that lays down a challenge to the two previous approaches (both Western) by turning our attention to the problem of international law in relation to the Third World. Having already looked at the first two approaches, we can turn to the third, which will make it possible for us to complete that earlier discussion by bringing to bear on it the claims and perspective advanced by the so-called developing countries. In this way we can broaden our field of vision to include not only the West but also the cultures and peoples of the Third World. As we saw with Balakrishnan Rajagopal (Section 11.9), we cannot adequately understand how international law and international institutions have evolved in the contemporary age unless we take the Third World movements into account.96 In fact the main thesis of his important International Law from Below is that international law developed as it did in the twentieth century through its attempt to come to grips with the forms of resistance that in the Third World took aim at so-called development. This is the thesis that underpins TWAIL (Third World Approaches to International Law).97 In the Western debate, it is only the human rights discourse that figures as a form of resistance in the Third World. But as Rajagopal emphatically underscores, there is an ideological underpinning to the Western human rights discourse, and it blocks from view the other, no less significant forms of resistance that have taken shape in developing countries. In order to construct a nonideological understanding of resistance movements against Western hegemony, we will have to answer three questions: What specifically are these movements against? What is their aim? And what strategies do they deploy?98 To answer these questions, 96 97

98

Ibid., p. XIV. Aside from Rajagopal, this network of scholars includes Antony Anghie, Bhupinder S. Chimni, James Thuo Gathii, Siba N’Zatioula Grovogui, and Makau wa Mutua, among many others. Rajagopal, International Law from Below (n. 95), p. 13.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

p a r a l l e l wo r l d s

351

we can turn to Frantz Fanon and Partha Chatterjee,99 who enable us to understand why nationalism and the assertion of a permanent national sovereignty over natural resources (the latter doctrine discussed in Section 11.5) do not provide adequate answers to Western expansionism. Indeed, the popular Third World movements we are concerned with act on two fronts, seeking to reappropriate “material resources and symbolic meanings”100 alike.

13.9 Development and International Law: Beyond the Human Rights Discourse Rajagopal introduces us to an approach that connects control over material resources with the effort to reclaim symbolic meanings, to this end analyzing the relation between development and international law. At the core of this relation he places the social movements that have challenged the development creed by offering an alternative to it, as by promoting the principles of autonomy and democratization.101 This approach undoubtedly innovates on the thinking of Third World jurists, who in the post–World War II period essentially pinned their hopes on the work of international institutions, especially the General Assembly of the United Nations. By subjecting this institutionalist thinking to critical scrutiny, while underscoring the role of Third World social movements and struggles, Rajagopal can, by contrast, spotlight the economic violence of Western intervention, especially at the hands of the International Monetary Fund and the World Bank, while at the same time laying bare the Western presumption of racial superiority that informs the idea of development. The relation between international law and development in the post–World War II period can be broken down into three phases. (1) In 1974, the UN General Assembly issued its “Declaration on the Establishment of a New International Economic Order.” This was envisioned as an order “based on equity, sovereign equality, 99

100 101

Frantz Fanon, The Wretched of the Earth, trans. Richard Philcox, foreword Homi K. Bhabha, preface Jean-Paul Sartre (New York: Grove Press, 2004), see esp. chaps. 1 (“On violence”) and 3 (“The trials and tribulations of national consciousness”). Originally published as Les damnés de la terre (Paris: François Maspero, 1961). Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton, NJ: Princeton University Press, 1993). Rajagopal, International Law from Below (n. 95), p. 16. Ibid., p. 28.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

352

conditions for p eace

interdependence, common interest and cooperation among all States,” so as to “correct inequalities and redress existing injustices” and “make it possible to eliminate the widening gap between the developed and the developing countries.”102 In the 1980s, however, came the neoliberal resurgence spearheaded by President Reagan, which put a dent in this project, stalling the initiatives that had been undertaken toward that goal of a more equitable international order. (2) The developing countries therefore embraced the human rights discourse, especially in an effort to fight back the forms of racism built into the new colonialism. (3) After that, in the mid-1980s, the UN General Assembly issued its “Declaration on the Right to Development,”103 establishing the link between human rights and development. But Third World countries essentially took the right to development to mean the right to grow their own economies without regard to externalities, meaning the social and environmental costs incident to economic development. The Western countries, by contrast, rejected that idea of untrammelled development, all the more so if they saw it as inconsistent with their own economic interests, and so they took the view that development certainly did not entail a legal right the developing countries could claim as their own. But the deeper reason for this conflict lies in its ultimate source, in that these conflicting views reflect development strategies behind which was the state. And (as was observed in Section 11.9), this way of promoting development only contributed to solidifying a relationship of mutual advantage between Western economic powers and Third World elites. This is still by and large the status quo, and it suggests to Rajagopal the need to move on to a fourth phase, embracing a profoundly different perspective that consists in looking to the practices and aims of Third World movements as criteria by which to reframe development in relation to human rights.104 102

103

104

UN General Assembly, 6th Special Session, Official Records, Supplement 1, “Declaration on the Establishment of a New International Economic Order,” UN Doc. A/RES/3201 (S-VI) (1 May 1974), p. 3. See UN General Assembly, 41st Session, Official Records, Supplement 53, UN Doc. A/ RES/41/128 (4 Dec. 1986). For commentary, see Antonio Cassese, Problemi della comunità internazionale, vol. 2 of Diritto internazionale, ed. Paola Gaeta (Bologna: il Mulino, 2004), p. 199. In this connection we should recall the National Alliance of People’s Movements (NAPM), which was formed in 1992 in India and has been advocating a kind of

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

353

This approach can be understood to address three main issues. (a) Human rights and sustainable development. In the first place, the emphasis on Third World movements makes it possible to clarify the way human rights bear on the idea of sustainable development. This idea figures prominently, for example, in the 1998 Human Development Report,105 but this report neglects to clarify the meaning of civil rights and liberties (such as freedom of speech) and social rights (such as the right to health). Hence the need to look at the practice of social resistance movements, making it possible to spell out what human rights mean in relation to development. (b) The Western agenda. In the second place, the practice of social resistance movements offers a prism through which to uncover the deeper aims of human rights organizations – ostensibly charged with ensuring good governance, the rule of law, free and fair markets, and

105

development that will avert the exploitation that comes with free-market privatization and deregulation. With a membership of 249 allied organizations in seventeen states across India, NAPM fights for a democracy based on popular control over natural resources. It calls for India to withdraw from the WTO and establish an alternative organization by which to regulate world trade on a democratic basis, and in such a way as to benefit the population and be environmentally sustainable. It is essential to NAPM that India should reject the structural adjustment programs imposed by the IMF, the World Bank, and other like international organizations, along with the conditionality clauses built into these programs. These organizations should not have the power to set or influence policy, especially in areas of vital interest to the welfare of the population, such as education, health, the media, communications, the environment, and work. They should accordingly be democratized, so as to reflect the makeup of the world community and its needs and aspirations. This also holds at the local community level: village communities should have full control over their natural resources; women should be enabled to fully participate in the process of making decisions that affect the village; and tribal self-government should be guaranteed as a human right and in the interests of protecting cultural identities. But the recognition of cultural identities should run parallel to the protection of universal human rights: this means equal rights for women, and regardless of caste or religion. Only against such a background can one properly speak of human rights and justice. Rajagopal also mentions the Zapatista movement, which was formed in 1983, and which to this day is carried forward by the indigenous peoples of Mesoamerica, the descendants of the Maya. Its objective is to fight for the rights of native populations in Mexico: in this sense its struggle traces back to the indigenous peoples’ struggle against the Spanish conquistadores, forming a line of continuity that spans half a millennium. The movement is not militant but peaceful, and its topmost objective is liberative, seeking to free Chiapas from the misgovernment of the federal government of Mexico, which sold off the indigenous peoples’ natural resources to multinational corporations, thereby reducing these populations to misery. United Nations Development Programme (UNDP), Human Development Report (New York and Oxford: Oxford University Press, 1998).

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

354

c o n d i t i o n s f o r pe a c e

the like, but in fact acting to advance the economic interests of the West. (c) Ideological bias. In the third place, we can use the same approach to see that the plans devised by various UN agencies in support of human rights have an ideological bias: their human rights indexes cannot be objective, failing to reflect the input of Third World resistance movements.106 In short, as Rajagopal rightly underscores, the human rights discourse cannot, as such, prevent Western economic power and ideological hegemony from exerting its adverse effects on the Third World. Only social movements afford the proper vantage point from which to understand human rights discourse as a political and cultural tool with which to relieve the Third World of the severe economic hardship visited on it by the “development” promoted by the West.

13.10 Social Movements and International Law Rajagopal’s approach, and the TWAIL approach generally, is innovative in virtue of the challenge it poses to the Western conception of international law, for it brings out what in this conception is unilateral and hegemonic. The resistance that Third World movements and countries have put up against the international institutions behind globalization suggests a need to rethink the principles that underpin international law in its current avatar. To this end I will provide a closing summary of the Third World perspective so as to highlight the issues in need of further investigation. This will be done by closing in on five features of the social movements in which that perspective is embodied. (1) They lay a theoretical and epistemological challenge to international law by opening a vista on a landscape that stretches beyond the central role of the state and of individuals.107 They therefore scale down the significance of the state as the main agent of social and political change. (2) They offer an alternative to the theory and practice of international human rights law. Indeed, the liberal conception has traditionally understood rights in relation to the state’s sovereignty and under two 106 107

Rajagopal, International Law from Below (n. 95), p. 229. Ibid., p. 236.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

355

limits: they could not violate the state’s territorial integrity, and they had to be consistent with its economic self-determination.108 The social-movement perspective, by contrast, underscores the socioeconomic foundation of rights and sovereignty. (3) They make it possible to redefine the right to development not by “eclipsing the West” but by calling for a kind of growth that answers their needs.109 In this way, the question of whether or not human rights are universal is made to turn on that of strategy and resources. (4) They focus on self-governance, thereby shifting the emphasis away from the concern with global governance. In this connection, Richard A. Falk speaks of “globalization-from-below.”110 Movements premised on this idea can be found, for example, in India and Latin America,111 and their gains often come by way of bitter struggles. This idea stands in contrast to international law, which champions globalization and ignores calls for local governance. (5) They reject the discourse of private property, which occupies a central place in the liberal theory of international law. In rejecting this discourse, indigenous peoples in the Third World have increasingly been asserting control over their local resources. Historically – from the age of modernity (in the seventeenth century) to the colonial period (in the nineteenth century) and the subsequent decolonization (in the twentieth century) – international law has played a role in denying Third World peoples their rights over their resources.112 The individual property rights claimed by Western countries are designed in such a way that they wind up undermining the sovereignty of Third World peoples. The resistance put up by social movements can contribute to breaking this nexus.

13.11 One Final Excursus: The Rights of Peoples The foregoing discussion calls for some qualification by providing a clear definition of what is meant by the rights of peoples. As a legal construct, the concept of a people was formally introduced into international law 108 109 110

111 112

Ibid., p. 247. Ibid., p. 248. On the concept of globalization from below, see Richard A. Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (Ardsley, NY: Transnational Publishers, 1998), pp. 218 ff. Rajagopal, International Law from Below (n. 95), p. 268. Ibid., p. 263.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

356

c o n d i t i o n s f o r pe a c e

only with the UN Charter of 1945.113 But the proposition that peoples ought to be recognized as rights-bearers dates back to a much earlier time. As we saw in Chapter 1, in the mid-sixteenth century Francisco de Vitoria developed a doctrine of ius gentium that recognized the Indios of the New World as having dominium,114 meaning that they enjoyed a right of ownership over their lands (and hence over their natural resources). And Hugo Grotius likewise recognized property rights for the peoples of the East Indies. But over the course of the seventeenth century, as the system of sovereign states solidified its hold over foreign lands, the rights of peoples were denied. This supremacy of states over peoples fully entrenched itself during the nineteenth century in the age of Western colonization. Only in the post–World War II period did the concept of the rights of peoples make its way back into the debate on international law. In this debate, the idea emerged that peoples cannot be said to genuinely enjoy any rights unless the individuals that form a people are recognized as part of the community that nurtures their lives.115 This realization took 113

114

115

As stated in Article 1(2) of the UN Charter, the “Purposes of the United Nations are [. . .] to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace [. . .].” Cf. Raymond Ranjeva, “Peoples and national liberation movements,” chap. 3 in Mohammed Bedjaoui (ed.), International Law: Achievements and Prospects (Paris: UNESCO; Dordrecht: Martinus Nijhoff Publishers, 1991), pp. 101–12. “Restat ergo ex omnibus dictis quod sine dubio barbari erant et publice et privatim ita veri domini, sicut cristiani.” In translation: “Meanwhile the conclusion stands sure, that the aborigines in question were true owners, before the Spaniards came among them, both from the public and the private point of view.” Franciscus de Victoria, “The first relectio of the Reverend Father, Brother Franciscus de Victoria: On the Indians lately discovered,” in De Indis et de Iure Belli Relectiones, Being Parts of Relectiones Theologicae XII by Franciscus de Victoria, ed. Ernest Nys, trans. John Pawley Bate (New York and London: Oceana Publications, 1917), sec. 1, § 24. In this regard, see G. C. Marks, “Indigenous peoples in international law: The significance of Francisco de Vitoria and Bartolome de Las Casas,” Australian Year Book of International Law, 13 (1992), 1–51, at 18–20, and Robert A. Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (New York and Oxford: Oxford University Press, 1990), pp. 97–99. This conception was emphatically, albeit unsuccessfully, advanced by the American Anthropological Association, which in 1947, contributing to the travaux préparatoires that went into the drafting of the 1948 Universal Declaration of Human Rights, introduced an important document in which it was argued that if “a statement of human rights” is to be meaningful, “it must also take into full account the individual as a member of the social group of which he is a part”: “if the essence of the Declaration is to be, as it must, a statement in which the right of the individual to develop his personality to the fullest is to be stressed, then this must be based on a recognition of the fact that the personality of the individual can develop only in terms of the culture of his

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

357

shape over the course of the decolonization process that freed peoples from Western domination, while a system of international relations was being formed that was designed to ensure peaceful coexistence among peoples. In 1960, the General Assembly of the United Nations issued its “Declaration on the Granting of Independence to Colonial Countries and Peoples,”116 which came to be recognized as the Decolonization Charter.117 This important document emphatically proclaimed that “all peoples have the right to self-determination.”118 Subsequently (as mentioned in Section 8.4), Common Article 1 of the two UN covenants of 1966 further specified that “by virtue of that right [of self-determination, all peoples] freely determine their political status and freely pursue their economic, social and cultural development.”119 The central agency that international law accords to peoples can also be easily recognized in the 1970 “Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States,” where it is stated “that the subjection of peoples to alien subjugation, domination and exploitation constitutes a major obstacle to the promotion of international peace and security.”120 In this way, public international law has transitioned from a law of relations among states to a law of relations among the members of the international society.121 With this transition also comes the recognition that the rights which peoples enjoy in the system of international law are distinguished by two essential traits, namely, their inalienability and their equality.122 Inalienability means that once peoples are recognized as having

116

117 118 119

120

121 122

society.” American Anthropological Association, Executive Board, “Statement on human rights,” American Anthropologist, 49, no. 4 (Oct.–Dec. 1947), 539–43, at 39–40. UN General Assembly, 15th Session, Official Records, Supplement 16, “Declaration on the Granting of Independence to Colonial Countries and Peoples,” UN Doc. A/RES/ 1514 (XV) (14 Dec. 1960). For commentary, see Frank Abdulah, “The right to decolonization,” chap. 54 in Bedjaoui, International Law: Achievements and Prospects (n. 113), pp. 1205–18, at 1209. Ranjeva, “Peoples and national liberation movements” (n. 113), p. 103. UN General Assembly, Resolution 1514 (n. 116), point 2, p. 67. International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), Common Article 1. UN General Assembly, 25th Session, Official Records, Supplement 28, “Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations,” UN Doc. A/RES/2625 (XXV) (24 Oct. 1970), p. 122. Ranjeva, “Peoples and national liberation movements” (n. 113), p. 102. Ibid., pp. 105 ff.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

358

conditions for p eace

sovereignty, they cannot be denied the right to self-defense or the right to exploit their natural resources. Equality, for its part, inextricably connected with inalienability, means that there can be no hierarchy among peoples, in that none have rights that others lack. That being said, there is a specific distinction that kept coming up in the debate on international law: as an inalienable right of all peoples, the right to self-determination was understood as a right to decolonization, but this did not mean a right of all peoples to form their own states. This was implicit in the 1960 “Declaration on the Granting of Independence to Colonial Countries and Peoples,” which at Article 6 stated: “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”123 Indeed, there has been wide agreement among legal scholars that while the right to self-determination is not exhausted in decolonialization, it cannot “simply become synonymous with secession or with the breakup of existing sovereign states, as has been claimed by groups of various kinds seeking independence or a recognition of rights.”124 In short, international law appears to be of two minds. For on the one hand, especially after World War II, it recognizes that peoples have a right to their own sovereignty, culture, traditions, and language, but at the same time it firmly holds on to the states-system. Hence, only through power relations is it possible for a people to assert its legally recognized sovereignty. Power, law, rights: what conclusions are we to draw? The long inquiry that has taken us to this point must find its denouement. The discourse of Western hegemony, the transformations of international law, the recognition of human rights, the struggles to assert the rights of peoples: all the moments we have looked at in the long history of international relations now seem to find their place in a development at once linear and mired in contradiction and ambiguity. But a second look at the deeper forces that seem to shape this development may give us greater insight into its problematic aspects and thus enable us to gain a fuller understanding of it. 123

124

UN General Assembly, Resolution 1514 (n. 116). In this regard, see Vincenzo Buonomo, I diritti umani nelle relazioni internazionali: La normativa e la prassi delle Nazioni Unite (Rome: Mursia, 1997), p. 126. Ibid., pp. 127–28; my translation.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel w orld s

359

13.12 Anthropology and Law: Kant and Freud The tension we have discussed at various places between the cosmopolitan and realist perspectives remains to this day unresolved, and it may well be that it will never find anything like a definitive solution. But we can still look at this tension through an analysis of human nature: considering that any doctrine in the history of political thought rests on some conception of human nature, the tension between realism and cosmopolitanism can be clarified by proceeding from the perspective of the relationship between law and anthropology. We can frame this anthropological view by drawing on Kant and Freud, both of whom provide us with useful tools, and their approaches point in the same direction. We saw in Section 12.3 that in taking up the question of human nature, Kant brought into focus the tension, inherent in human nature, between the propensity for radical evil and the moral predisposition. As Kant analyzes this tension, the human propensity for evil is so strong as to make peace an unattainable ideal, and yet, at the same time, the moral predisposition points to an ideal that cannot be forsaken. And herein lies the Kantian paradox of peace: we will never be able to achieve it, yet we will never stop trying to. The explanation for this paradox lies in the duality of human nature. We see the same unresolved tension being expressed by Freud, even if he comes at it from a different conceptual angle. In the famous correspondence he had with Einstein in 1932, Freud reflects on the nature of law by pointing out that, on the one hand, the law is designed to curb violence, but on the other it reflects the power relations that obtain within a community. For Freud and Einstein alike, the solution to the problem of war and violence consists in creating a central international body – like the League of Nations, the best example they could point to at the time – capable of exercising a principled authority without resorting to force. But, Freud comments, it would seem that “the attempt to replace actual force by the force of ideas seems at present to be doomed to failure.”125 This makes it necessary to reflect on the insuperable persistence of violence. To this end, Freud draws on his well-known theory of instincts, 125

Sigmund Freud and Albert Einstein, “Why war?” (1933), in New Introductory Lectures on Psycho-Analysis and Other Works, vol. XXII (1932–1936) of The Standard Edition of the Complete Psychological Works of Sigmund Freud (London: The Hogarth Press and the Institute of Psychoanalysis, 1964), pp. 195–216, at 207.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

360

conditions for peace

which reveals some striking similarities to the Kantian conception. Indeed, in response to Einstein’s question about the ease with which we engage in war, Freud posits two opposite kinds of human instincts: “those which seek to preserve and unite – which we call ‘erotic,’ exactly in the sense in which Plato uses the word ‘Eros’ in his Symposium, or ‘sexual,’ with a deliberate extension of the popular conception of ‘sexuality’ – and those which seek to destroy and kill and which we group together as the aggressive or destructive instinct.”126 These aggressive instincts are probably impossible to overcome,127 and that holds true of war as well. But Freud also points to a process of cultural evolution: “For incalculable ages,” he writes, “mankind has been passing through a process of evolution of culture,” noting parenthetically that “some people [. . .] prefer to use the term ‘civilization.’” He continues: “The psychical modifications that go along with the process of civilization are striking and unambiguous. They consist in a progressive displacement of instinctual aims and a restriction of instinctual impulses.”128 I believe that the civilizing process described by Freud can be likened to the one that Kant describes as driven by the force of the moral predisposition. Indeed, as Kant writes: The human being is destined by his reason to live in a society with human beings and in it to cultivate himself, to civilize himself [zu zivilisieren], and to moralize himself by means of the arts and sciences. No matter how great his animal tendency may be to give himself over passively to the impulses of comfort and good living, which he calls happiness, he is still destined to 126

127

128

Ibid., p. 208. In his response to Einstein, Freud speaks of instincts as well as impulses and compulsions. He does not invoke the concept of the life instinct, which he instead uses in his earlier Civilization and Its Discontents, trans. James Strachey, with a biographical introduction by Peter Gay (New York: W. W. Norton and Company, 1961; orig. pub. 1930), speaking of the “struggle between Eros and Death, between the instinct of life and the instinct of destruction, as it works itself out in the human species” (chap. VI, p. 82). The theory of instincts was first developed by Freud in his 1920 book Beyond the Pleasure Principle, where he speaks of “the opposition between the ego or death instincts and the sexual or life instincts.” Sigmund Freud, “Beyond the pleasure principle,” trans. James Strachey, in Angela Richards (ed.), On Metapsychology: The Theory of Psychoanalysis, vol. 11 of the Pelican Freud Library (London and New York: Penguin Books, 1984), chap. VI, p. 316, first published in vol. XVIII of The Standard Edition of the Complete Psychological Works of Sigmund Freud (London: The Hogarth Press and the Institute of Psychoanalysis, 1955). In Civilization and Its Discontents (n. 126), Freud takes the view that “the inclination to aggression is an original, self-subsisting instinctual disposition in man” (chap. VI, p. 81). Freud and Einstein, “Why war?” (n. 125), 213.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

parallel worlds

361

make himself worthy of humanity by actively struggling with the obstacles that cling to him because of the crudity of his nature.129

And the same play of opposing forces can be appreciated in Freud’s account of the civilizing process, which in his own description entails both “a strengthening of the intellect, which is beginning to govern instinctual life, and an internalization of the aggressive impulses, with all its consequent advantages and perils.”130 Furthermore, and not unlike what Kant suggests in speaking of our ability to live in a society with human beings, the taming effect of culture described by Freud has enabled us to follow “a path that led from violence to right or law.”131 Then, too, if on the one hand Freud appreciates that this process is excruciatingly slow and drawn out – suggesting to him the grim image of “mills that grind so slowly that people may starve before they get their flour”132 – he also sees the progress it charts as having a momentum quite unarrestable. And just as Kant reasons that the prospect of peace is very likely unattainable, but is nonetheless unrenounceable, so Freud recognizes that even if war is in all likelihood irrepressible (as is the death drive), we cannot but “react to war in this way because everyone has a right to his own life, because war puts an end to human lives that are full of hope, because it brings individual men into humiliating situations, because it compels them against their will to murder other men, and because it destroys precious material objects which have been produced by the labours of humanity.”133 So, in conclusion, while we cannot arrive at certainties, we can at least reasonably envision a trajectory driven by an irresistible, unarrestable struggle for peace, and hence for a constructive ideal of harmony among peoples. 129

130 131 132

133

Immanuel Kant, Anthropology from a Pragmatic Point of View, trans. and ed. Robert B. Louden (Cambridge: Cambridge University Press, 2006), pt. II (“Anthropological characteristic”), III (“The moral predisposition”), pp. 229–30; italics in original. Originally titled Anthropologie in pragmatischer Hinsicht, ed. Oswald Külpe (Ak. 7:325). Freud and Einstein, “Why war?” (n. 125), 213–14; italics added. Ibid., p. 204. Ibid., p. 212. I am grateful to my wife, Patrizia, for pointing this passage out to me in Freud’s letter. Ibid.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:18, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.015

GLOSSARY OF ARAB TERMS

‫( ﺃَﻟ َّﺸ ِﺮﻳ َﻌﺔ‬al-šarīʿa) The Arabic word for the revealed law of Islam. The šarīʿa is the body of rules, principles, and values that govern human activities, both public and private. These prescriptions are contained in the Qur’an and the hadīt, the latter based on the ˙ ¯ igˇ māʿ (the consensus that forms within the Muslim community) and on the qiyās (the reasoning through which new cases are worked out by analogy from cases previously solved in the Qur’an, the hadīt, and the igˇ māʿ). Out of the interpretation ˙ ¯ of the šarīʿa has come the fiqh, the body of Islamic case law. ‫ َﺣ ّﻖ ﺁ َﺩ ِﻣ ّﻲ‬/ ‫( َﺣ ّﻖ ﺍﻟﻠﻪ‬haqq Allāh / haqq ādamī) ˙ ˙ God’s law as distinct from human law. ‫( َﺑﺎ ِﻃﻞ‬bātil) ˙ “Vain,” from the Arabic root btl, meaning “to be false, vain.” It is set in contrast to ˙ haqq, which in addition to the meaning “law” also means “truth.” ˙ ‫( ﺃُ َّﻣﺔ‬umma) A community of Muslim believers. In the pre-Islamic context, the term designated a tribe based on family and gentilitial bonds. Then, with Muhammad, this became a politico-religious community. ‫( ُﺷﻮ َﺭﻯ‬šūrā) A Qur’anic term meaning “consultative assembly.” Many Muslim intellectuals consider it a precursor to the institution of parliaments. ‫( ِﻓ ْﻄ َﺮﺓ‬fitra) ˙ From the root ftr, whose meaning includes “to have a natural inclination for.” ˙ In the Qur’an, fitra refers to the theocentric conception of nature as closely bound ˙ up with the Creation. ‫( ﺇِ ْﺟ ِﺘ َﻬﺎﺩ‬igˇ tihād) “Struggle, effort.” In Islamic legal doctrine, this term refers to an independent, discretionary interpretation of the Qur’an and the hadīt whose purpose is to ˙ ¯ ascertain what the law is. It is distinguished from the use of the established interpretations contained in authoritative texts of law (a practice referred to in Arabic as taqlīd).

362

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:09, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.016

glossary of arab terms

363

‫( ِﺳ َﻴﺮ‬siyar) Manner of conduct. It is the plural form of sīra, which derives from the Arabic root syr, meaning “to walk, move along.” In the Muslim tradition, sīra refers to the biography of Muhammad. ‫ َﺩﺍ ُﺭ ﺍ ْﻟ َﺤ ْﺮﺏ‬/ ‫( َﺩﺍ ُﺭ ﺍ ِﻹ ْﺳ َﻼﻡ‬dār al-islām / dār al-harb) ˙ The territory subject to Muslim law was traditionally known as dār al-islām (“house of Islam”). Believers of the most ancient religions (Hebrews, Christians, and Zoroastrians) were granted the status of dhimmī (“protected person”), which gave them the right of residence, freedom of religion, and their own judicial system, but it also made them liable to pay a per capita yearly tax (gˇ izya). All other territories were considered dār al-harb (“house of war”). ˙ ‫( ُﻣ ْﺴ َﺘ ْﺄ ِﻣﻦ‬mustaʼmin) “He who has faith in somebody,” a term deriving from the root amn. ِ ‫( ِﺫ ّﻣ ّﻲ‬dhimmī) A non-Muslim person who belongs to the “people of the book” and enjoys the legal protection of an Islamic government. ‫( ﺃَ ْﻟ َﺒﺎ ِﻏ ّﻲ‬al-bāġī) A tyrant or oppressor. The term derives from the Arabic root bġy, whose meaning includes “to oppress.” ‫( ِﺟ َﻬﺎﺩ‬gˇ ihād) The term ˇgihād derives from the Arabic root ˇghd, meaning “to make an effort, to apply oneself,” and refers to the effort made along the path of God in order to spread his word. It also refers to the personal effort that each believer makes in the commitment to act according to God’s will, and in this sense it is understood as the purely spiritual effort needed to apply the teachings of Islam. The term is regularly translated as “holy war” (though it would be more appropriate to speak of “legal war”), referring to the verse in the Qur’an (2:190) that reads: “Fight in God’s cause against those who fight you, but do not overstep the limits: God does not love those who overstep the limits.”1 1

The Qur’an: A New Translation by M. A. S. Abdel Haleem (Oxford: Oxford University Press, 2005), p. 21. In a footnote after the colon, the translator comments that “the Arabic command la taʿtadu is so general that commentators have agreed that it includes prohibition of starting hostilities, fighting non-combatants, disproportionate response to aggression, etc.” See also the discussion of the term jihad in Section 10.8, and footnote 88 in that same section.

Downloaded from https://www.cambridge.org/core. University of New England, on 12 Feb 2019 at 07:40:09, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.016

INDEX

Abd-el-Kader, 114 Adam, Robert, 117 Afghanistan War, 327–28 Aggression, war of, 171–72 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 348–49 Alexander VI (Pope), 33–34 Alexander the Great (Macedon), 33 Alexandrine Bulls, 33–34 Alexandrowicz, Charles Henry, 128–29 Algeria Constitution, 254, 260–61 Western laws in, 256 Allgemeines Preußiches Landrecht, 73 American Anthropological Association, 356–57 Anand, R.P., xxiv The Anarchical Society (Bull), 184, 189–90 Anghie, Antony, xxiv, 277, 278, 325 An-Na‘im, Abdullahi Ahmed, 244–47, 249–52 Anthropology, international law and, 359–61 Anthropology from a Pragmatic Point of View (Kant), 302 Anti-Personnel Mines Convention, 322–23 Anzilotti, Dionisio, 122 Apologia (Las Casas), 17–18 Aquinas, Thomas, 3, 13, 22, 32, 157–58 Arab Charter on Human Rights (2004), 236–42, 312 Arab Standing Committee on Human Rights, 238–39 Arendt, Hannah, 98, 211–12 Aristotle, 42, 302–3

Asian Legal Consultative Committee, 133–34 Association Internationale pour le Progrès des Sciences Sociales, 109 Augustine, 13 Äußere Staatsrecht (external public law), 145–48 Austin, John, 188 Ayala, Balthazar, 43, 44, 54 Bacon, Francis, 61 Balance politique (political balance), 66–68 Bandung Conference (1955), 133–34, 190–91 Barbeyrac, Jean, 183 Barcelona Declaration (1995), xxiii–xxiv, 263–66 Baroody, 222, 224–25 Bartolo da Sassoferrato, 22 Baxi, Upendra, 285, 288 Beitz, Charles R., 214–15 Ben Achour, Yadh, 132, 137, 138, 139, 256, 262–63 Ben Bella, Ahmed, 260 Benhabib, Seyla, 303 Between Naturalism and Religion (Habermas), 313 Biological and Toxic Weapons Convention, 322–23 “Bipolar world,” 192 Bluntschli, Johann Caspar, xx, 109–10, 112, 117–19 Bobbio, Norberto, 154–55, 156, 159 von Bogdandy, Armin, xxiv, 335–36, 337–38 Bogotà Conference (1948), 134 Boumédiène, Houari, 260 Bourguiba, Habib, 260

364

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

in dex Boutros-Ghali, Boutros, 282–83 Bryde, Von Brun-Otto, 334 Bull, Hedley generally, xviii, 182 on cosmopolitan culture, 197 on cosmopolitan law, 86, 87–88 on cosmopolitical law, 195 Grotian approach (See Grotian approach) on international society of states, 48–51 on state system, 196–97 on world order, 187 Bush, George W., 331, 332, 333 Bush Doctrine, 325, 327, 340 Cairo Declaration on Human Rights in Islam (1990), 229, 234–35, 236–37, 238, 252 Calvinism, 21 “Capability and well-being” (Sen), 284 Carneades of Cyrene, 37–38 Catholic Church, 207 Charfi, Mohamed, 246 Charles V (Spain), 3–4, 167 Charron, Pierre, 26, 183–84 Charter of Economic Rights and Duties of States (1974), 192–93, 196, 277–78 Charter of Fundamental Rights of the European Union (2000), 339, 342, 343 Chatterjee, Partha, 350–51 Chekir, Hafidha, 241 Ch’ien-lung, 129 Chimni, Bhupinder, xxiv, 287 China Eurocentric nature of international law and, 129, 130 population control in, 214 Chomsky, Noam, 210 Cicero, 21–22, 38, 49, 157–58, 306–7 Civilization, concept of, 122–25 Civilization and Its Discontents (Freud), 302 Civilized nations concept of, 121–22 international law of, 129–30

365

Civil rights, 77, 78 Civitas maxima (society of peoples), 148–51 “Clash of civilizations,” xx Colloquium on Human Rights in Islam, 228–29 Colonialism Alexandrine Bulls and, 33–34 anti-colonial conflict, 190 anticolonial perspective on international law, 272–74 cosmopolitan law and, 91–96 Decolonization Charter, 357, 358 Eurocentric nature of international law and, 115–17 Grotius on, 31–35 Islamic law and, 224–25 Kant on, 91–96 Pufendorf and, 61–62 strong anticolonial doctrine, 273 war and, 34 weak anticolonial doctrine, 273 Comprehensive Nuclear Test Ban Treaty, 322–23 Comte, August, 322 Confessional laws, 138 Congress of Vienna (1815), 177 Conrad, Joseph, v Constitutionalization of international law overview, xxiv, 333–35 development and, 351–54 Europe as “civilian power,” 341–42 federalism and, 345–48 globalization and, 343–45 institutional solutions, 335–38 multicultural constitutional democracy, 318–20, 321 rights of peoples and, 355–58 social movements and, 354–55 supranational federalism, 341–42 Third World and, 348–51 world republic, possibility of, 343–45 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), 246

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

366 Convention on the Elimination of All Forms of Discrimination Against Women (1979), 137, 243 Convention Relating to the Status of Refugees (1951), 241–42 Corpus Juris Civilis, xix Cosmopolitan law overview, xxi–xxii colonialism and, 91–96 federation of states under, 81–84 hospitality and, 85 human nature and, 83–84 individuals under, 80–81 ius pacis versus ius belli, 86–91 juridical state in, 79–80 permanent congress of states under, 84 states under, 81 statism versus, 86–91 unwritten law and, 85 Cosmopolitical law, 195 Crimes against humanity, 96, 104 Criminal law Global War on Terror and, 325–26, 327, 331–32 Islamic international law and, 229, 230–31 Cultural identity, 193 Cultural pluralism, 314 Cultural relativism, 16–19 Cultural rights overview, xxiv, 311–12 collective rights versus, 314–15 as “derivative rights,” 315 ethics and, 314 Habermas on, 313–17 ICCPR and, 317–18, 319–20 as individual rights, 313, 314–15 justice versus, 313–14 limitations on, 315–18 morality and, 314 Rawls and, 313 Dār al-harb (house of war), 126–27 ˙ Dār al-islām (house of Islam), 126–27 Das moderne Völkerrecht (Bluntschli), 109–10

in de x Das Problem der Souveränität und die Theorie des Völkerrechts (Kelsen), 141 The Declaration of the Rights of Man and of Citizens (Jellinek), 297 De Finibus (Cicero), 38 Deformalization of law, 322 De Groot (family), 28 Dehio, Ludwig, xxi, 166–69, 170, 179 De Iure et Officiis Bellicis et Disciplina Militari Libri Tres (Ayala), 43 De iure naturae et gentium libri octo (Pufendorf), 55, 183 De Jure Belli et Pacis (Grotius), 26, 35–36, 38, 39, 40–41, 48, 49, 56, 267 De Jure Praedae Commentarius (Grotius), xx, 26, 27–29, 35 Democracy development and, 283–85 human rights and, 285–86 Islam and, 262–63 multicultural constitutional democracy, 318–20, 321 resistance to development and, 283–85 supranational levels of, 347 Third World and, 281–83 Democrates alter, seu de iustis belli causis apud Indios (Sepúlveda), 17–18 Demosthenes, 40–41 De Officiis (Cicero), 21–22 Déprez, Jean, 137 De Temperantia (Vitoria), 6 Development democracy and, 283–85 “development discourse,” 291–93 human rights and, 353 ICCPR and, 191 ideological bias and, 354 resistance to, 285–86 sustainable development, 353 Western agenda and, 353–54 Development as Freedom (Sen), 284 Digest (Justinian), 22 Dignity balancing with other rights, 310

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

in de x concept of, 310–11 historical evolution of, 306–7 Kant on, 309–10 natural law versus, 308–9 Pufendorf on, 63–64 as quality, 309 rights versus, 308–9 Second Scholastic and, 307 Universal Declaration of Human Rights and, 311 “Discriminating concept” of war, 174–76 Distributive justice, 214–16 The Divided West (Habermas), 337–38 Draft Charter on Human and Peoples’ Rights in the Arab World (1986), 235–36 Due process, 330–31 Dupuy, René-Jean, 278 Durkheim, Émile, 322 Dworkin, Ronald, 101, 303–6, 329–31 Economic justice, 191–93 Egypt Constitution, 253–54 Western laws in, 255–56 Eichmann, Adolf, 212 Einstein, Albert, 359–60 Empire, resurgence of, 322–23 Enemy combatants, 328–31 England Civil Wars, 297 Putney Debates, 297 Western hegemony and, 167, 168 Escobar, Arturo, 293 Ethics cultural rights and, 314 Kant on, 302–3 Eurocentric nature of international law overview, xx–xxi, 111 Aryan peoples and, 112–13 China and, 129, 130 civilization, concept of, 122–25 civilized nation, concept of, 121–22 colonialism and, 115–17 humanitarianism and, 115–16 international law of civilized nations, 129–30

367

international society of states and, 130–33 Japan and, 130 “lawless space” and, 119–20 multiculturalism and, 133–40 (See also Multiculturalism) Muslims and, 112–15 natural law and, 112–13 in nineteenth century, 109–10 Ottoman Empire and, 125–26, 128, 129–30 positive law versus natural law and, 117–19 rights of man and, 116–17 superiority of, 115 de Tocqueville and, 113–15 European Bank for Reconstruction and Development, 284–85 European Convention on Human Rights (1950), 101, 138, 334–35 European Court of Human Rights, 334–35 European Economic Community, 187 European Union, 340–41, 344, 345, 346, 347 Europe as “civilian power,” 338–43 “Even a Nation of Devils Needs the State” (Höffe), 301 The Expansion of International Society (Bull and Watson), 190 Falk, Richard A., 195–96, 355 Fanon, Frantz, 291, 350–51 Fear, 219–20 Febvre, Lucien, 123 Federalism, 345–48 Ferrajoli, Luigi, 9, 101, 345–47 Fiore, Pasquale, 116 First Gulf War, 159 Florentinus, 41 Foucault, Michel, 94, 290–91 Fourth World Conference on Women (1995), 323 Fragmentation of law, 322 France Constitution, 260 Western hegemony and, 168 Francis I (France), 128, 167

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

368

in de x

Franco-Moroccan Convention (1981), 138 Freedom of seas, 27–31 coexistence and, 29 justice and, 29 self-preservation and, 29 trade and, 30 Freud, Sigmund, 302, 358, 359–61 Friedmann, Wolfgang, 269 Friend/enemy dualism, 176–77 Gaius, 23 Gallie, W.B., 86 Gathii, James Thuo, xxiv General Resource Dividend (GRD), 215 Gentili, Alberico, 43, 44, 53, 54, 128–29 Gentle Civilizer of Nations (Koskenniemi), 321–22 George III (England), 129 Germany Basic Law, 307–8, 309 dignity in, 307–8, 309, 310 Islamic Charta, 265 Nazism in, 168 Western hegemony and, 168 Ghannouchi, Rachid, 258 Gheddafi, Muʿammar, 259–60 von Gierke, Otto, 77 Globalization, 343–45 Global War on Terror consequences of, 325–26 criminal law versus military action, 325–26, 327, 331–32 due process and, 330–31 enemy combatants and, 328–31 habeas corpus and, 329–30 military commissions and, 331 political versus legal aims, 325–26, 327 prisoners of war and, 327–29 Gong, Gerrit W., 122 Grewe, Wilhelm G., 42, 177, 178–79 Grotian approach overview, 182 anti-colonial conflict and, 190 cosmopolitan culture and, 197 cosmopolitical law and, 195 cultural identity and, 193

economic justice and, 191–93 Hobbes versus, 184–85, 186 human rights in, 193–97 international society of states in, 184–88 Kant versus, 184–85, 186 methodology of, 182–84 morality versus law in, 182–84 nature of international law in, 188–90 revolt against West in, 190–93 sovereignty and, 190 state system and, 196–97 Grotius, Hugo generally, xviii, xxi, 3, 11, 19, 115–16, 267 overview, xx on colonialism, 31–35 on freedom of seas, 27–31 Grotian approach (See Grotian approach) human rights and, 206 on ius gentium, 21–22, 128–29, 152 on just war, 41–45, 157–58, 161 Kant and, 71, 89–90, 95–96 as “miserable comforter,” 71 on natural law, 37–41, 152 Pufendorf and, 38, 55–56, 57, 61 on rights, 45–48 on rights of natives, 31–35 rights of peoples and, 356 Second Scholastic and, 25–26, 31, 33, 34–35 on sovereignty, 45–48 Vattel and, 64–65 Vázquez and, 25, 29–30, 33 Vitoria and, 25–26, 29–30, 32, 33, 49 on Western hegemony, 35–37 Grovogui, Siba N’Zatioula, xxiv, 272 Guantanamo Bay, 328, 333 Guizot, François, 123 Haass, Richard N., 340 Habeas corpus, 329–30 Habermas, Jürgen generally, xxi, xxiv, 303, 322, 343–44 on cultural rights, 313–17 on Europe, 342–43

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

in de x on human rights, 100–1 on Kant, 96–97 on supra-state institutions, 96–97, 337–38 on war, 103–4 Haggenmacher, Peter, 44 Hague Convention (1907), 130 Hall, Stuart, 293 Hamdan, Salim Ahmed, 331 Hamilton, Alexander, 346 Hanafi school, 249–50 Hassan II (Morocco), 260 Hegel, G.W.F., xxii, 48, 82, 145–48 Heilborn, Paul, 145 Hinsley, F.H., 86 Hirschman, Albert O., 283 Historiography of international law of Dehio, 166–69 of Schmitt, 169–71 Hitler, Adolf, 168 Hobbes, Thomas generally, 57, 302 Grotian approach versus, 184–85, 186 on law of peoples, 52–53, 64–65 realism of, 48, 61, 62 Höffe, Ottfried, 76, 301, 343–45 Hoffmann, Stanley, 217–20 Hofmann, Hasso, 342 Hondrich, Karl Otto, 347 Horace, 31 Hornung, M. Joseph, 129 Hospitality in cosmopolitan law, 85 Pufendorf on, 60 Human Development Report (1998), 353 Human nature, 83–84 Human rights democracy and, 285–86 development and, 353 in Grotian approach, 193–97 Grotius and, 206 Habermas on, 100–1 international human rights law, 136–37, 195, 287–88 Kant and, 100–2

369

as normative principle, 101 Rawls on, 101–2 Third World and, 285–86, 287–88 Vitoria and, 206 “Human Rights and World Politics” (Bull), 194 Human sacrifice, 18–19 Huntington, Samuel P., xx Hurrell, Andrew, 67, 86, 87–88, 91 ICCPR. See International Covenant on Civil and Political Rights (1966) ICESCR. See International Covenant on Economic, Social and Cultural Rights (1966) “Idea for a Universal History from a Cosmopolitan Point of View” (Kant), 87 ’Igˇ tihād (struggle), 245 Imperialism, 153–56 India, population control in, 214 Institut de Droit International, 109–10 Institutes (Justinian), 22 Institutiones iuris naturae et gentium (Wolff), 72–73 Inter-American Court of Human Rights, 349 Intercultural perspective. See Cultural rights International Bill of Human Rights, 236, 240–41, 347 International Commission of Jurists, 228, 241–42 International Convention on the Elimination of All Forms of Racial Discrimination (1965), 190–91 International Court of Justice, 271, 322, 344, 349 International Covenant on Civil and Political Rights (1966) overview, 101 cultural rights and, 317–18, 319–20 development and, 191 federalism and, 347 Islamic international law and, 225–26, 237–38, 242–43 rights of peoples and, 357

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

370

in de x

International Covenant on Economic, Social, and Cultural Rights (1966) overview, 101 federalism and, 347 Islamic international law and, 225–26, 227, 228, 237–38, 242–43 prisoners of war and, 329 rights of peoples and, 357 International Criminal Court, 165, 344 International Criminal Tribunal for the Former Yugoslavia, 322 International human rights law, 136–37, 195, 287–88 International law. See also specific topic anthropology and, 359–61 constitutionalization of (See Constitutionalization of international law) cosmopolitan law (See Cosmopolitan law) Eurocentric nature of (See Eurocentric nature of international law) governance versus, 321–25 Grotian approach (See Grotian approach) Islamic international law (See Islamic international law) ius gentium (See Ius gentium (law of nations)) Koskenniemi on, 321–25 “law of peoples” (See “Law of peoples”) monisitic theory (See Monistic theory) realism (See Realism) TWAIL (See Third World Approaches to International Law (TWAIL)) International Monetary Fund, 281, 282, 347, 351 International society of states, 48–51 absence of international organisms, 51 birth of, 130–33 constitutive elements of, 186 in Grotian approach, 184–88

groups and individuals and, 50 ideology of, 185 institutions of, 185 natural law and, 49 solidarism and, 51, 185, 186 universalism of, 49–50 Ipsen, Knut, 90 Iraq War, 324, 327–28 Islamic Council of Europe, 229 Islamic international law. See also specific document overview, xxiii–xxiv centrality of religion in, 227–28, 230, 233, 235 colonialism and, 224–25 constitutionalism in, 258–59, 262 constitutions and, 252–56 criminal law and, 229, 230–31 cultural interchange and, 263–66 dār al-harb, 126–27 ˙ dār al-islām, 126–27 democracy and, 257–63 Eurocentric nature of international law versus, 125–29 freedom of religion and, 223–24, 225, 228, 237 freedom of speech and, 235 gender equality and, 222–23, 234, 241 glossary, 362–63 ICCPR and, 225–26, 237–38, 242–43 ICESCR and, 225–26, 227, 228, 237–38, 242–43 ’igˇ tihād, 245 jihad and, 250–51 marriage and, 222–23, 228 minority rights and, 241 modernization attempts, 238–42 nation-states in, 127–28 nondiscrimination and, 240 political rights, 232–33 public versus private law, 230–31 reconciliation with Western international law, 242–49 refugees and, 241–42 reservations in international agreements, 243

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

in de x revelation in, 247–48 rights of man, concept of, 226–27, 252–56 rights versus duties in, 231–32 rule of law and, 240, 260–62 šarīʿa and, 232, 235, 237, 241, 243, 244, 249–52, 255–56, 257–59 separation of powers and, 260–62 siyar, 126–27, 249–50 social rights, 233 sovereignty in, 128 šūrā and, 259 trade unions and, 228 ummah and, 232 United Nations Charter and, 236, 240–41 Universal Declaration of Human Rights versus, xxiii–xxiv, 221–25, 226, 227, 228, 232, 242–43, 248–49, 252, 254–55, 311–12 Western concept of rights versus, 221 Italy, Constitution, 319–20 Iuris et Iudicii Fecialis, sive, Iuris inter Gentes, et Quaestionum de Eodem Explicatio (Zouch), 53–54 Ius fetiale (law of diplomacy), 53–54 Ius gentium (law of nations) cultural relativism and, 16–19 Grotius on, 21–22, 128–29, 152 historical background, 21–24 Hobbes on, 52–53 Las Casas on, 16–19 liberty and, 19–21 natural law and, 19–21, 37–38, 40, 55–57 as positive law, 53–54 Pufendorf on, 55–57 Vázquez on, 4, 19–21, 23 Vitoria on, 5–8, 23 war and, 40–41 Japan, Eurocentric nature of international law and, 130 Jellinek, Georg, 147, 297, 298 Jenks, C.W., 268–69 Jeremiah, 47 Jihad (force), 250–51 Juridical state, 75–76, 79–80

371

Jus Gentium (Wolff), 148, 149 Jus publicum Europaeum, 169–71, 326–27 Justice cultural rights versus, 313–14 distributive justice, 214–16 economic justice, 191–93 freedom of seas and, 29 Kelsen on, 161–63 “law of peoples” and, 204 in monistic theory, 161–63 utility versus, 57–60 Justinian, 22 Just war defensive war, 11 Grotius on, 41–45, 157–58, 161 “invincible ignorance” and, 11–12 just enemy, 173 Kant on, 173 Kelsen on, 156–61 in monistic theory, 156–61 Muslims and, 13–15 questions regarding, 13 Rawls on, 211 Schmitt on, 12, 42–43, 44–45, 173 self-defence and, 211 Spanish Conquest and, 11–13 Vattel on, 157–58 Vitoria on, 11–16, 44 von Kaltenborn, Carl, 150 Kant, Immanuel generally, xviii, xxi, 337, 345 anthropology and, 359, 360–61 on civil rights, 77, 78 on colonialism, 91–96 cosmopolitan law (See Cosmopolitan law) on “devils,” 302 on dignity, 309–10 on ethics, 302–3 federalism and, 346, 347 on freedom, 300–1 Grotian approach versus, 184–85, 186 Grotius and, 71, 89–90, 95–96 Habermas on, 96–97 on human nature, 83–84

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

372

i nde x

Kant, Immanuel (cont.) human rights and, 100–2 on juridical state, 75–76 on just war, 173 Kelsen and, 156 “law of peoples” and, 201, 202, 216 on limitations on freedom, 301–2 on “miserable comforters,” 71 on natural law versus positive law, 72–79 on origin of rights, 300–3 on pluralism, 98–99 on public versus private rights, 72–79 Pufendorf and, 60, 61, 63–64, 71, 89–90 racial views of, 93–95 Rawls and, 216 Schmitt and, 102–5 on social contract, 77–78 supra-state institutions and, 96–97 Vattel and, 71, 88–90, 95–96 Vitoria and, 95–96 on Weltbürger, 97–100 Keene, Edward, 124 Kellogg-Briand Pact (1928), 158, 163, 172, 178 Kelsen, Hans federalism and, 347 Hegel and, 146–48 on imperialism, 153–56 on justice, 161–63 on just war, 156–61 Kant and, 156 monistic theory (See Monistic theory) on Nuremberg Trials, 163–64 on pacifism, 153–56 on peace, 156–61 on sanctions, 188 on sovereignty, 142–43 on United Nations, 158 on war, 103 Wolff and, 148–51 Keohane, Robert O., 186, 187 Khadduri, Majid, 135 Kleingeld, Pauline, 95 König, Siegfried, 100–1 Koskenniemi, Martti

generally, xviii on constitutionalization of international law, 348–49 on Eurocentric nature of international law, 109, 110, 112, 119 on international law, 321–25 on international relations, 179–81 on Vattel, 67–68 Kosovo War, 323–24, 336 Krasner, Stephen D., 187 Kriele, Martin, 81 Kymlicka, Will, 314–15, 341 Laeken European Council, 343 de Lapradelle, Albert, 67 de Las Casas, Bartolomé, 16–19 “Lawless space,” 119–20 Law of Nations (Vattel), 66 “Law of peoples” overview, xxii–xxiii burdened societies and, 213–16 Catholic Church and, 207 distributive justice, 214–16 duty of assistance, 213 General Resource Dividend (GRD), 215 hierarchical societies and, 209 human rights and, 205–9 ideal theory, 203–5, 209 justice and, 204 Kant and, 201, 202, 216 liberal democratic peace and, 205 “liberalism of fear” and, 219–20 morality and, 203 Muslims and, 207 nonideal theory, 209–13 nonliberal peoples and, 205–9 outlaw regimes and, 209–13 proper conduct of war and, 211–13 realist criticism of, 217–20 sovereignty and, 202–3 states versus peoples, 201–3 “The Law of Peoples” (Rawls), 201, 208, 217, 218 The Law of Peoples (Rawls), 201, 208 League of Arab States, 226–27, 236, 238–39

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

in de x League of Nations generally, 130, 158 Bull on, 186, 194 as international society of nations, 132–33 jus publicum Europaeum and, 170–71 Scelle on, 174–75 Schmitt on, 175, 176 United States and, 177 Le Droit des Gens ou Principes de la Loi Naturelle, Appliqués à la conduite & aux affaires des Nations & des Souverains (Vattel), 64 Legitimacy of postcolonial states, 278–81 Leibniz, Gottfried Wilhelm, 56–57, 72–73 “Les rapports de système entre le droit interne et le droit international public” (Kelsen), 141 Leviathan (Hobbes), 52 Lex mercatoria (law of merchants), 287–88, 322 Liberal democratic peace and, 205 “Liberalism of fear,” 219–20 Liberty, 19–21 Lissitzyn, Oliver James, 269 von Liszt, Franz, 147, 153 Locke, John, 63, 298–300, 302 London Agreement (1945), 163–64 Lorimer, James, xx, 112–13, 129 Louis XIV (France), 167 Machiavelli, Niccoló, 48 Mare Liberum (Grotius), 25, 26, 27–29 Marini, Giuliano, 84, 91 Marriage Islamic international law and, 222–23, 228 private international law and, 138–39 Marxism, 285–86 Maus, Ingeborg, 76 Mawdudi, Sayyid Abul-A‘la, 258 Mayer, Ann Elisabeth, 247 The Metaphysics of Morals (Kant), 72, 73–74, 78, 80–81, 82–83, 87, 88, 93, 95, 173, 300–1

373

Military commissions, 331 Mill, John Stuart, 125, 202 “Miserable comforters,” 71 Mohammed V (Morocco), 260 Monarchomachs, 21 Monistic theory overview, xxii, 164–65 äußere Staatsrecht and, 145–48 civitas maxima and, 148–51 dualism, rejection of, 144–45 framing of problem, 141–44 Hegel and, 145–48 justice in, 161–63 just war in, 156–61 methodology, 141–44 natural law and, 152–53 Nuremberg Trials and, 163–64 pacifism versus imperialism in, 153–56 primacy of international legal order in, 152–53 sovereignty in, 142–43 Wolff and, 148–51 Monroe Doctrine (1823), 171 de Montaigne, Michel, 26, 59, 183–84 Morality cultural rights and, 314 “law of peoples” and, 203 law versus, 182–84 origin of rights and, 303–6 Morgenthau, Hans, J., xxi, 179–81 Morocco Chambre Constitutionnelle, 261 Constitution, 260–61 Muhammad (Prophet), 245–46, 250–51 Multicultural Citizenship (Kymlicka), 314–15 Multiculturalism, 133–40 international human rights law and, 136–37 limitations on cultural rights, 315–18 (See also Cultural rights) multicultural constitutional democracy, 318–20, 321 private international law and, 137–39 (See also Private international law) “Multipolar world,” 192

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

374

in de x

Napoleon (France), 167, 168 Nardin, Terry, 207–8 National Alliance of People’s Movements, 352–53 Natural law dignity versus, 308–9 Eurocentric nature of international law and, 112–13 Grotius on, 37–41, 152 Hobbes on, 52–53 international society of states and, 49 ius gentium and, 19–21, 37–38, 40, 55–57 Kant on, 72–79 monistic theory and, 152–53 positive law versus, 40, 72–79, 117–19, 162, 221, 298–300 rationalism and, 39 Vattel on, 64–66 Vázquez on, 19–21 Nazism, 168 Nino, Carlos Santiago, 247 The Nomos of the Earth (Schmitt), 169 Normative approach cosmopolitan law (See Cosmopolitan law) monisitic theory (See Monistic theory) Normative pluralism, 305 Nuremberg Trials, 163–64, 327 Nye, Joseph S., Jr., 186, 187 Obama, Barack, 332–33 “On the common saying” (Kant), 80, 81, 87, 98, 303 Onuma, Yasuaki, 132, 136 Organisation of Islamic Cooperation, 226–27, 229, 234 Origin of rights dignity versus rights, 306–11 Kant on, 300–3 Locke on, 298–300 morality and, 303–6 religious origin, 297–98 Ottoman Empire Eurocentric nature of international law and, 125–26, 128, 129–30 Western laws in, 255

Pacifism, 153–56 Panaetius of Rhodes, 306–7 Paris Peace Conference (1918–1919), 170, 172, 177, 327 Peace of Augsburg (1555), 49, 127 Peace of Westphalia (1648), 48–49, 51, 127, 177, 278 Peace through Law (Kelsen), 156, 157 Penn, William, 70 Permanent Court of International Justice, 130 Perpetual Peace (Kant), 76, 80, 87, 88, 95, 96, 301, 302–3, 337 Peter the Great (Russia), 168 Philip II (Spain), 3–4, 167 Pico della Mirandola, 307 Pluralism, 98–99 Plutarch, 33 Pocock, J.G.A., 182 Politics (Aristotle), 302–3 Positive law ius gentium as, 53–54 Kant on, 72–79 natural law versus, 40, 72–79, 117–19, 162, 221, 298–300 Postclassical international law, 177–79 Precarious Balance (Dehio), 166 Prisoners of war, 327–29 Private international law, 137–39 confessional laws, 138 marriage and, 138–39 Muslims and, 137–39 public order and, 138 Pro Balbo (Cicero), 21–22 Protestant Reformation, 3 Pufendorf, Samuel generally, xviii, 72, 118, 183 colonialism and, 61–62 on dignity, 63–64 Grotius and, 38, 55–56, 57, 61 Hobbes and, 61, 62 on hospitality, 60 on ius gentium, 55–57 Kant and, 60, 61, 63–64, 71, 89–90 as “miserable comforter,” 71 revolution and, 62–64 on utility versus justice, 57–60 Vattel and, 64–65

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

in de x Vitoria and, 59 Western civilization and, 61–62 Qur’an, 228, 233, 244–46, 250–51, 259, 312 Racial equality, 190–91 Rajagopal, Balakrishnan, xxiv, 282, 285–86, 350, 351, 352–53, 354 von Ranke, Leopold, 167, 169 Rawls, John generally, xviii, xxi cultural rights and, 313 on distributive justice, 214–16 on duty of assistance, 213 on human rights, 101–2 on just war, 211 Kant and, 216 “law of peoples” (See “Law of peoples”) on proper conduct of war, 211–13 realism versus, 217–20 Reagan, Ronald, 352 Realism “discriminating concept” of war, 174–76 friend/enemy dualism, 176–77 of Hobbes, 48, 52–53, 61, 62 international relations and, 179–81 “law of peoples,” realist criticism of, 217–20 postclassical international law, 177–79 Rawls versus, 217–20 Schmitt and, 48 of Vattel, 65–66 war of aggression, 171–72 Western hegemony (See Western hegemony) Reibstein. Ernst, 4 Relectio de Indis (Vitoria), 6, 8, 13, 32, 267 Relectio de Iure Belli (Vitoria), 6, 13, 14, 15 Religion within the Bounds of Bare Reason (Kant), 302 Religious origin of rights, 297–98

375

Revue de Droit International et de Législation Comparée, 109 Rigaux, Francois, 156 Rights of peoples, 355–58 Rio Earth Summit (1992), 323 Rolin-Jaequemyns, Gustave, 109 Russia, Western hegemony and, 167, 168 Sanctions, 188 Sarin, Manohar L., 271 Šarīʿa (revealed law of Islam), 232, 235, 237, 241, 243, 244, 249–52, 256, 257–59 Saudi Arabia, declaration on rights, 227–28, 311–12 Sauvy, Alfred, 289–90 von Savigny, Friedrich Carl, 75, 110 Scelle, Georges, 53, 174–75 Schmitt, Carl generally, xviii, xxi, 54, 177, 178–79 on “discriminating concept” of war, 174–76 on friend/enemy dualism, 176 historiography of international law, 169–71 on international relations, 179–81 on jus publicum Europaeum, 169–71 on just war, 12, 42–43, 44–45, 173 Kant and, 102–5 on “lawless space,” 119–20 Morgenthau and, 180 realism and, 48 on Spanish Conquest, 9–10 on Versailles, 172 on war, 102–5, 172–74 School of Salamanca generally, xix, xx dignity and, 307 Grotius and, 25–26, 31, 33, 34–35 Vitoria and, 3–5 Second Opium War, 129 Second Scholastic generally, xix, xx dignity and, 307 Grotius and, 25–26, 31, 33, 34–35 Vitoria and, 3–5

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

376

in de x

Second Treatise of Government (Locke), 298–99 Sen, Amartya, 213, 283–84 Seneca, 30, 36, 41 de Sepúlveda, Juan Ginés, 17–18 Shklar, Judith N., 219, 220 Short Account of the Destruction of the Indies (Las Casas), 16 Siyar (manner of conduct), 126–27, 249–50. See also Islamic international law Skinner, Quentin, 182 Social contract, 77–78 Social movements constitutionalization of international law and, 354–55 Third World and, 293–94, 354–55 Solidarism, 51, 185, 186 Sovereignty foreigners and, 68–71 Grotius on, 45–48 in Islamic international law, 128 Kelsen on, 142–43 “law of peoples” and, 202–3 in monistic theory, 142–43 peoples versus nations, 275–78 of postcolonial states, 278–81 Third World and, 187, 190, 274–81, 288–89 Vattel on, 66–71 Soviet Union, Western hegemony and, 172 Spanish Conquest ius gentium and, 5–8 just war and, 11–13 Vattel on, 70 Vitoria on, 9–11 Steiger, Heinhard, 22, 131 Stiglitz, Joseph E., 283 Stoicism, 19, 20, 38, 306–7 Strange Multiplicity (Tully), 319 Strong anticolonial doctrine, 273 Substantive equality, 305 Suleiman the Magnificent (Ottoman Empire), 128, 167 Sunna, 126, 228, 232, 233, 244, 245, 250 Supranational federalism, 341–42 Šūrā (consultative assembly), 259

Sustainable development, 353 Syria, Constitution, 253 Tacitus, 60 Taha, Mahmoud Mohamed, 245–46 Talbi, Mohamed, 248 Telò, Mario, 338, 340–41 Terrorism. See Global War on Terror Texaco, 277–78 Themistius, 40 Theory of Justice (Rawls), 218 Third Geneva Convention (1949), 327–29 Third World Approaches to International Law (TWAIL) overview, xxiv, 267 anticolonial perspective on international law, 272–74 colonial legacy and, 280 conflicts of interest and, 270–72 constitutionalization of international law and, 348–51 cultural differences and, 269–72 decentralization of international law, 287–88 “deconstruction” of term, 289–94 democracy and, 281–83 development and democracy, 283–85 “development discourse,” 291–93 “good governance” and, 281–83 human rights and, 285–86, 287–88 legitimacy of postcolonial states, 278–81 nations, sovereignty of, 275–78 natural resources and, 274–75, 277–78, 288–89 neocolonialism and, 287 nonintervention and, 280 peoples, sovereignty of, 275–78 postcolonialism and international law, 268–70 postcolonial states, sovereignty of, 278–81 poverty and, 292 property rights of former colonial powers, 276–78 resistance to development, 285–86

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

in dex social movements and, 293–94, 354–55 sources of international law and, 281 sovereignty and, 187, 190, 274–81, 288–89 strong anticolonial doctrine, 273 weak anticolonial doctrine, 273 Thomasius, Christian, 72 Tibi, Bassam, 244, 247 de Tocqueville, Alexis, 113–15 Tokyo Trials, 327 Tomuschat, Christian, xxiv, 336–37, 347–48 Treaty Establishing a Constitution for Europe (2004), 343 Treaty of Berlin (1878), 120 Treaty of Lisbon (2009), 343 Treaty of London (1827), 120 Treaty of Nanjing, 110 Treaty of Paris (1856), 126 Treaty of Versailles (1919), 44–45, 158, 159–60, 168, 170, 179 Treaty on European Union (1992), 342 Triepel, Heinrich, 144–45 Truman, Harry, 292 Trump, Donald, 333 Truyol y Sera, Antonio, 53–54 Tuck, Richard, 26, 182 Tully, James, 319 Tunis Declaration, 242–43 Tunisia Administrative Tribunal, 261 Code of Personal Status, 252–53 Conseil Constitutionnelle, 261 Constitution, 252, 260–61 Council of State, 261 Tunisian Human Rights League, 254–55 TWAIL. See Third World Approaches to International Law (TWAIL) Twelve Years’ Truce (1609), 28 Ulpian, 30 Ummah (community of believers), 232 Union of Arab Lawyers, 228 United Kingdom Human Rights Act 1998, 334–35

377

proper conduct of war and, 213 United Nations generally, 344, 345 Bull on, 186, 194 Charter (See United Nations Charter (1945)) Children’s Fund (UNICEF), 282 Commission on Human Rights, 223, 227, 328–29 cosmopolitan law and, 97, 99–100, 104 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (1970), 357 Declaration on Territorial Asylum (1967), 134 Declaration on the Establishment of a New International Economic Order (1974), 191–92, 351–52 Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), 357 Declaration on the Right to Development (1986), 191, 352 Development Programme, 284–85 Economic and Social Council, 227 federalism and, 346, 347 Food and Agriculture Organization, 189, 282 Human Rights Committee, 319–20 Kelsen on, 158 law of the sea and, 271–72 Office of the High Commissioner for Human Rights, 284–85, 318 Working Group on Arbitrary Detention, 328–29 United Nations Charter (1945) generally, 322 cosmopolitan law and, 97 Grotian approach and, 185 Islamic international law and, 236, 240–41 monisitic theory and, 158, 159–61 rights of peoples and, 355–56 Third World and, 280

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

378

in de x

United States Agency for International Development (USAID), 284–85 disengagement from treaties, 322–23 due process in, 330–31 habeas corpus in, 329–30 League of Nations and, 170–71 military commissions in, 331 proper conduct of war and, 211 school desegregation in, 305 Treaty of Versailles and, 170 Western hegemony and, 172 United States-Peru Trade Promotion Agreement (2006), 289 Universal Declaration of Human Rights (1948) generally, xxi–xxii, 264 colonialism and, 224–25 cosmopolitan law and, 99–100, 101 dignity and, 311 federalism and, 347 freedom of religion and, 223–24, 225 gender equality and, 222–23 Islamic international law versus, xxiii–xxiv, 221–25, 226, 227, 228, 232, 242–43, 248–49, 252, 254–55, 311–12 marriage and, 222–23 Third World and, 288 Universal Islamic Declaration of Human Rights (1981), 229–33, 257–58 Utility versus justice, 57–60 Valens, 40 de Vattel, Emer generally, xviii on ius fetiale, 54 on just war, 157–58 Kant and, 71, 88–90, 95–96 as “miserable comforter,” 71 on Muslims, 71 on natural law, 64–66 on occupation, 70–71 realism of, 65–66 on sovereignty, 66–71 on Spanish Conquest, 70

Vázquez de Menchaca, Fernando generally, xviii, xix Grotius and, 25, 29–30, 33 on ius gentium, 4, 19–21, 23 on natural law, 19–21 Vienna Convention on Diplomatic Relations (1961), 134 Vienna Convention on the Law of Treaties (1969), 243 Vienna Declaration and Programme of Action (1993), 311 de Vitoria, Francisco generally, xviii, 19, 21, 25, 50, 115–16, 267 overview, 3 Grotius and, 25–26, 29–30, 32, 33, 49 human rights and, 206 on ius gentium, 5–8, 23 on just war, 11–16, 44 Kant and, 95–96 Pufendorf and, 59 rights of peoples and, 356 School of Salamanca and, 3–5 on Spanish Conquest, 9–11 Völkerrecht (law of peoples), 24 Walzer, Michael, 207–8 War of aggression, 171–72 colonialism and, 34 “discriminating concept” of, 174–76 friend/enemy dualism in, 176–77 Habermas on, 103–4 individual responsibility for, 172 ius gentium and, 40–41 just war (See Just war) Kelsen on, 103 new concept of, 171–74 Schmitt on, 102–5, 172–74 Ward, Robert, 124 Waswo, Richard, 62 Watson, Adam, 190 Weak anticolonial doctrine, 273 Weltbürger (world citizens), 97–100 Welwod, William, 27–28 Western hegemony breakdown of feudalism and, 167

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

in dex England and, 167, 168 France and, 168 Germany and, 168 Grotius on, 35–37 historical evolution of, 166–69 Russia and, 167, 168 Soviet Union and, 172 United States and, 172 Westlake, John, xx, 109, 110 Wheaton, Henry, 115 Wight, Martin, 57–58, 86, 87–88 Wilhelm II (Germany), 327 William of Ockham, 339 Williams, Roger, 297 Wilson, Woodrow, 170, 177

379

Wolff, Christian, xxii, 66–67, 72–73, 148–51, 152 World Bank, 189, 281, 282, 283, 323, 351 World Conference on Human Rights (1993), 242–43, 323 World Trade Organization, 284–85, 323, 347, 348–49 Wright, Quincy, 268 Yalta Declaration (1945), 179 Zapatista movement, 352–53 Zolo, Danilo, 159 Zouch, Richard, 53–54

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017

Downloaded from https://www.cambridge.org/core. University of Exeter, on 12 Feb 2019 at 07:41:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108565035.017