Rethinking the Principle of (Sovereign) Equality as a Standard of Civilisation Tanja E. Aalberts VU university, Amsterdam Published in: Millennium, 42(3), 2014, pp. 767789 doi: 10.1177/0305829814543731 http://mil.sagepub.com/content/42/3/767.abstract Abstract The standard of civilisation is most often identified as the infamous legal doctrine that legitimised imperialist rule and the exclusion of nonEuropean nonChristian states from the international society. In disciplinary narratives of both IR and IL this colonial project is usually presented as a mere interlude on the way to a mature and inclusive international society based sovereign equality as its organising principle. In line with more critical historiography, which shows how colonialism is the condition of possibility for both sovereignty and international law, this article investigates how a standard of civilisation is inherent in political legal practices of international ordering. Moreover, while usually presented as a practice of exclusion, this article will analyse the more intricate dynamic of in and exclusion as basis for international order by addressing the legal politics of subjecthood (as objects and subjects of the imagined global regime). More specifically, it will address how law operates as a technology through the interplay between a standard of civilisation, the principle of equality and legal subjectivity. The article will look into legal practices of different historical periods (in the age of discovery, during the colonial expansion, and in modern international society) to analyse the workings and transformations of these legal technologies. Together this will show how an (implicit) standard of civilisation is entrenched in the operation of law as a technology of international order. This does not stop with the universalisation of sovereign equality as the organizing principle of an inclusive or ‘global’ international society. This article will argue that this reveals the productive power of law which functions not just as a juridical rule to regulate relations between independent and equal sovereign subjects, but operates as norm to produce appropriate sovereigns as members of the international society. Keywords standard of civilisation, politics of international law, equality, sovereignty, governmentality, imperialism, liberal internationalism Corresponding author: Tanja E. Aalberts, Centre for the Politics of Transnational Law, VU university, Amsterdam, De Boelelaan 1105, 1081 HV, Amsterdam, The Netherlands. Email: [email protected]
Transcript
Rethinking the Principle of (Sovereign) Equality as a Standard of Civilisation
Tanja E. Aalberts VU university, Amsterdam
Published in: Millennium, 42(3), 2014, pp. 767-‐789 doi: 10.1177/0305829814543731 http://mil.sagepub.com/content/42/3/767.abstract Abstract The standard of civilisation is most often identified as the infamous legal doctrine that legitimised imperialist rule and the exclusion of non-‐European non-‐Christian states from the international society. In disciplinary narratives of both IR and IL this colonial project is usually presented as a mere interlude on the way to a mature and inclusive international society based sovereign equality as its organising principle. In line with more critical historiography, which shows how colonialism is the condition of possibility for both sovereignty and international law, this article investigates how a standard of civilisation is inherent in political legal practices of international ordering. Moreover, while usually presented as a practice of exclusion, this article will analyse the more intricate dynamic of in-‐ and exclusion as basis for international order by addressing the legal politics of subjecthood (as objects and subjects of the imagined global regime). More specifically, it will address how law operates as a technology through the interplay between a standard of civilisation, the principle of equality and legal subjectivity. The article will look into legal practices of different historical periods (in the age of discovery, during the colonial expansion, and in modern international society) to analyse the workings and transformations of these legal technologies. Together this will show how an (implicit) standard of civilisation is entrenched in the operation of law as a technology of international order. This does not stop with the universalisation of sovereign equality as the organizing principle of an inclusive or ‘global’ international society. This article will argue that this reveals the productive power of law which functions not just as a juridical rule to regulate relations between independent and equal sovereign subjects, but operates as norm to produce appropriate sovereigns as members of the international society.
Keywords standard of civilisation, politics of international law, equality, sovereignty, governmentality, imperialism, liberal internationalism
Corresponding author: Tanja E. Aalberts, Centre for the Politics of Transnational Law, VU university, Amsterdam, De Boelelaan 1105, 1081 HV, Amsterdam, The Netherlands. Email: [email protected]
Introduction
Disciplinary narratives in International Relations traditionally situate the globalisation of international society with the post-‐WWII transfer of sovereignty to former colonies and the expulsion of non-‐sovereign categories from the international plane. Legal discourse rather locates the expansion of international society a century earlier, when international law was sought to regulate the imperialist encounters and colonies were incorporated as objects of a global legal regime. While focusing on different periods, both narratives rely on an evolutionary perspective, in which international law figures as both symptom and cause of the evolution of international society,1 as it moves from an exclusive European club to an inclusive community of sovereign states. In this progressive narrative, the colonial period was a mere interlude on the way to a mature international society, from 1648 to 1945 (if we take the founding of UN as symbolic for its maturation), or the 1960s (the big wave of decolonisation).2
This perspective on the development of international law has been forcefully countered by recent historiography that inter alia shows how colonialism was the condition of possibility for the development of both sovereignty and international law as institutions of international society.3 Vice versa, nineteenth-‐century positivist international law was at once instrumental in governing international society. Moreover, the global realm as something to be governed existed before the emergence of modern international society, as a community between sovereign states. This transpires very clearly from the work of Francisco de Vitoria, who is usually conceived as one of the founding fathers of international law. His most important work, De Indes Novieter Inventis [1557/1917], is a lecture on the perennial question of how to govern relations and intercourse between different communities. While not yet an international issue in conventional modern terms, writing in the age of discovery this became a pressing question as the Europeans were confronting non-‐European communities in their expeditions across the globe.
1 Casper Sylvest, '"Our Passion for Legality": International Law and Imperialism in Late Nineteenth-‐Century Britain', Review of International Studies 34, no. 3 (2008): 403-‐423, 405 2 For a problematisation of such benchmark dates, Benjamin de Carvalho, Halvard Leira and John M. Hobson, 'The Big Bangs of IR: The Myths That Your Teachers Still Tell You about 1648 and 1919', Millennium 39, no. 3 (2011): 735-‐758; Barry Buzan and George Lawson, 'Rethinking Benchmark Dates in International Relations', European Journal of International Relations 20, no. 2 (2014): 437-‐462 3 Of crucial significance are Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005) and Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-‐1960 (Cambridge: Cambridge University Press, 2001). Within IR the role of international law in the (post)colonial project has been explored by inter alia Siba N'Zatioula Grovogui, Sovereigns, Quasi Sovereigns, and Africans. Race and Self-‐Determination in International Law (Minneapolis: University of Minnesota Press, 1996; Edward Keene, Beyond the Anarchical Society. Grotius, Colonialism and Order in World Politics (Cambridge: Cambridge University Press, 2002); Paul Keal, European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Society (Cambridge: Cambridge University Press, 2003).
While colonialism is usually presented as a politics of exclusion, this article will analyse the more intricate interplay between in-‐ and exclusion as basis for imagining and ordering global rule. It disrupts the popular distinction between a European zone of law and an extra-‐legal zone in the colonies, by addressing the legal politics of subjecthood that constituted both the colonial power and the colonial subject within a global legal order. As forcefully argued by Antony Anghie,4 this also disrupts the commonplace that international law is about the ‘regulation of relations between sovereign states’.5 Moreover, rather than focusing only on C-‐19th legal practice as the age of (colonial) expansion and globalisation of the international legal order, this article starts with the premodern conceptions of the global rule of law, that shows a similar practice of in/exclusion. While grounded in different doctrinal traditions, in both cases law functions as a technology of government and power. Its politics not only reside in the instrumentalisation of law by the powerful in their imperialist projects, but also in its productive power – law not merely regulates interactions between pre-‐existing entities, but at once creates subjects to be governed. The article investigates how both premodern and modern legal practice in this regard was imagining and constituting ‘the global’as a legal-‐political space,6 as the condition of possibility for legitimizing the colonial endeavour. Rather than merely an imposition of imperial rule or conquering terra nullius, this constituted a more intricate creation of subjectivity and legal personality of colonial entities, as objects and subjects of the imagined global legal regime.
In order to develop this argument, the article will first engage with Vitoria’s De Indis, which is generally considered to be the primitive origin of international legal scholarship.7 Then it will discuss the politics of in/exclusion during C-‐19th imperialism through the work of important contemporary publicists like John Westlake and James Lorimer. Two caveats are in order: first, though these are authoritative voices in the legal debate, it would be wrong to conceive legal discourse as homogeneous at the time. Nevertheless, both perspectives are illustrative of the politics of legal subjecthood at the day, and show how law serves as a governmental technology that not merely regulates international intercourse to establish and manage order, but to this end constitutes its own subjects as part of a global legal order. As will be elaborated below, the principle of (sovereign) equality is a crucial element of this practice of government. But rather than the standard and liberal conception of sovereign equality as a(n absolute) right that follows from the condition of states as autonomous and legally independent entities whose interactions develop into an international society and from whose will international law emanates, it will be argued that the principle of (sovereign) equality is a productive norm in the project of mastering and ordering the globe via in/exclusion. As will be
4 Anghie, Imperialism 5 As formulated in the classical Lotus case, PCIJ 1927 (series A) No. 10 6 See Peter Sloterdijk, Im Weltinnenraum des Kapitals : für eine philosophische Theorie der Globalisierung (Frankfurt am Main: Suhrkamp, 2004) Jens Bartelson, 'The Social Construction of Globality', International Political Sociology 4, (2010): 219-‐235 R.B.J. Walker, After the Globe, Before the World (London/New York: Routledge, 2010) 7 David Kennedy, 'Primitive Legal Scholarship', Harvard International Law Journal 27, no. 1 (1986): 1-‐98.
discussed in the third section, its functioning as a norm continues in contemporary inter-‐national society where in tandem with the principle of self-‐determination, the universalisation of sovereign equality turns into a norm to be equally sovereign. As such, it operates more as a (republican) norm than a (liberal) right. It is in this context that we can conceive of the principle of equality functioning as a standard of civilisation inherent in sovereignty as still one of the key institutions of international society.
The second caveat concerns the possible impression of (re)producing a grand historical narrative. This is not the intention of the article. Without suggesting a linear progression and continuity in legal discourse across centuries, we can recognise how legal rationalities based on particular constellations of sovereignty, legal subjecthood, and equality serve as the basis for ordering the globe in different eras, and moreover, how a standard of civilisation is inherent in such political legal practices of international ordering.
The Age of Discovery
While generally identified as an important legal foundation of international law, reading De Indis from a purely modern legal perspective is prone to anachronistic misunderstanding.8 Not only was its author a Dominican monk and a theologist, but the text is very much situated in the medieval order, with the dual authority of Emperor and Pope on the one hand, and a theological methodology of legal doctrine, inspired by the writings of St. Thomas Aquinas. Hence the text is interlarded with biblical references as proofs of Vitoria’s legal claims. Moreover, it is inspired by the spread of the gospel as the natural right of Christians. In addition, the text is written in the scholastic tradition, but not free of teleological reasoning, or inconsistencies. That it is nevertheless identified as one of the primate origins of modern international law, has amongst other things to do with Vitoria’s move beyond medieval perspective of infidelity as a just cause for conquest. Moreover, Vitoria refutes the universal authority of Emperor and Pope, and argues from the original emergence of political communities (or what he calls ‘perfect communities’)9 as natural entities of the global community. As the author himself explains, the treatise is occasioned by the controversy that emerged from the encounter with the aborigines of the New World ‘commonly called Indians – who came forty years ago into the power of Spaniards, not having been previously known to our world’.10
Vitoria systematically explores the rights by which the aborigines came under Spanish sway. The central question is whether the Indian aborigines were true owners (of their territory and other possessions) in public and private law prior to the Spanish encounter. We do not need to go into the details of Vitoria’s meticulous rejection of 7 proposed but inadequate grounds for appropriation. They refer to the medieval governmental 8 Franciscus de Vitoria, De Indis et de Ivre Belli Relectiones (Washington, DC: Carnegie Institution of Washington, [1539]1917) 9 According to Vitoria, “A perfect State or community […] is one which is complete in itself, that is, which is not a part of another community, but has its own laws and its own council and its own magistrates” (Vitoria, De Indis, 169) 10 Vitoria, De Indis, 116
structure, but Vitoria refutes that Emperor and Pope would automatically have civil or temporal power and dominium over the whole world, either on the basis of divine, natural or human law. This categorisation of law stems from Thomas Aquinas11 and is crucial to understand both the puzzle that Vitoria was confronted with – as Bartelson aptly pinpoints: as a scholastic writer, Vitoria was ‘predisposed to find universality and sameness’, yet had to come to grips with a ‘striking plurality and otherness’ as a result of the discovery of the New World12 – and his response to the legal problem, which reproduces the divine premises of the universal legal order, but attributes the issue of ownership to human law and the ius naturale as innate element of all humanity irrespective of religion.13
In this context, Vitoria refers to the division of the world ‘after Noah’ into different provinces and kingdoms, who appointed princes over themselves by common agreement, the so-‐called perfect communities: ‘Herein it is manifest that before the coming of Christ no one was vested with world-‐wide sway by divine law and that the Emperor can not at the present day derive therefrom a title to arrogate to himself lordship over the whole earth, and consequently not over the barbarians’.14 Hence the refusal of the aborigines to recognise Papal and/or Imperial power is no legitimate basis to make war or seize their goods. Neither does their identification as infidels, heathens, and sinners prevent true ownership, as ‘God has given temporal goods to the good and the bad’.15 Vitoria finally rejects their resemblance with slaves, infants and animals as a justification for their conquest on the basis of a lack of ownership.
The determinate prerequisite for ownership is the capacity of reason, and this Vitoria distils from practices, customs and institutions:
[Indians] are not unsound of mind, but have, according to their kind, the use of reason. This is clear, because there is a certain method in their affairs, for they have polities which are orderly arranged and they have definite marriages and magistrates, overlords, laws and workshops, and have a system of exchange, all of which call for the use of reason; they also have a kind of religion. Further, they make no error in matters which are self-‐evident to others; this is witness
11 In his Summa Theologica St. Thomas Aquinas presents four categories of law: (i) lex aeterna which refers to Divine Reason as the source or foundation of (the whole community of) the universe; (ii) divine law, pertaining to supernaturally revealed precepts for the salvation of man; (iii) ius naturale, or natural law as an innate element of all humanity (Christian or not), by which humankind executes eternal law through natural inclination; and (iv) positive law, which is the enactment of natural law principles as local laws within societies. It is through the local enactments that plurality emerges; yet as all particularistic positive law is founded on natural law, this plurality does not jeopardise the universal and unitary legal order which serves the common good and ultimately salvation of men, which are equally subject to divine power. 12 Jens Bartelson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995), 128, who also provides an insightful discussion of how these different legal orders are related. 13 Vitoria, De Indis, 123. See also Anghie, Imperialism, 13-‐31. 14 Vitoria, De Indis, 132 15 Vitoria, De Indis, 122
to their use of reason … Accordingly I for the most part attribute their seeming so unintelligent and stupid to a bad and barbarous upbringing, for even among ourselves we find many peasants who differ little from brutes16
Vitoria here allegedly applies a kind of premodern standard of civilisation, based on a comparison of institutional practices of different societies. However, apparently different from its C-‐19th successor, the logic is at first sight one of inclusion and sameness. That is to say: the aboriginal customs and institutions in fact are judged to be similar enough to be identified as political subcommunities, and to recognise their legal capacity as members of the global community of mankind. Moreover, if they suffer from a lack of knowledge, this is at least a vincible ignorance.17 Vitoria hence concludes that, like Christians, the aborigines ‘undoubtedly had true dominion’.18
It is on the basis of these critical remarks about legitimacy of the Spanish conquest in the New World, his rejection of Christianity as a universal standard and legitimation for conquest, and the identification of barbarians as reasonably similar and equal in terms of their legal capacity of true ownership that Vitoria is often identified as a kind of humanitarian-‐avant-‐la-‐lettre. However, a close reading of the third section of De Indis makes clear that both the conclusion of Vitoria’s rejection of the imperialist project, and the conclusion that his work ultimately justifies the Spanish conquest, are premature.19 In this section Vitoria presents 7 or 8 (he is unsecure about the validity of the last one) grounds for appropriation, that could legitimise the Spanish conquest.20 However, as this is written in a hypothetical modus representative of the scholastic tradition, it ultimately remains inconclusive about the legitimacy of the Spanish conquest. What is of most interest for the current discussion is the legal framework on the basis of which Vitoria argues we need to judge the (il)legality or (in)justice of the conquest, and in particular how both the Spaniards and the Indians figure in this framework – how they are identified as subjects within the law that through this very subjectivation seeks to govern them.
In addition to the conclusions in the first section that the Indian aborigines have sufficient reason, and legal capacity for ownership, Vitoria identifies Spaniards and the newly discovered Indians as fellows of global natural society, preordained from the days of Noah in the divine world order, ‘when everything was in common’.21 The aboriginal political communities hence are incorporated in the global legal community
16 Vitoria, De Indis, 127-‐8 17 Vitoria, De Indis, 140 18 Vitoria, De Indis, 128 19 see also Georg Cavallar, 'Vitoria, Grotius, Pufendorf, Wolff and Vattel: Accomplices of European Colonialism and Exploitation or True Cosmopolitans?', Journal of the History of International Law 10, no. 2 (2008): 181-‐209 20 The seven adequate or legitimate titles are : (1) natural society and fellowship; (2) right to spread Christianity; (3) protection of converted natives; (4) Christian prince given by Pope; (5) protection again tyranny of native lords; (6) true and voluntary choice; (7) alliance and friendship. A possible eighth title, which Vitoria is uncertain about, is defective intelligence (Vitoria, De Indis, 151-‐162) 21 Vitoria, De Indis, 151
of mankind,22 and as such subject to ius gentium as the natural or positive law of nations.23 This inclusion, however, turns out to be a double edged sword, as it not only postulates an equal right to particularity, difference and independence for the Indians, but also obliges them to stick to the universal rules of ius gentium. Paramount for the just co-‐existence of nations is the right to ‘travel and dwell’ (combined with the universal principle to treat visitors well unless they misbehave) and the right to travel, both dictated by natural and divine law and customary foundation for the good life in any society,24 as well as the Christian right to preach, publish and propagate the Gospel.25 By objecting and resisting these universal rights, the Indians are violating these defining principles of ‘natural society and fellowship’ to free trade and travel, and do an injury to the Spaniards, and as such their acts of aggression in turn would legitimise the forceful measures by the Spaniards:
[W]hen the Indians deny the Spaniards their rights [to trade and travel] under the law of nations they do them a wrong. Therefore, if it be necessary, in order to preserve their right, that [the Spaniards] should go to war, they may lawfully do so … [T]hey can make war on the Indians, no longer as on innocent folk, but as against forsworn enemies, and may enforce against them all the rights of war, despoiling them of their goods, reducing them to captivity, deposing their former lords and setting up new ones, yet withal with observance of proportion as regards the nature of the circumstances and of the wrongs done to them26
Thus the inclusion of the Indians in the global legal order of the ‘natural society’ basically legitimises their colonisation in which they actively partake. Moreover, it in turn allows their disciplining. For while at face value postulating a proto liberal pluralist vision on the co-‐existence of different communities with different values, religions and habits, at the same time Vitoria also refers to an implicit standard of civilisation, where Indians do not quite meet the standard of a perfect State.27 Like its more famous nineteenth-‐century twin, this standard officially is dictated by institutional architecture and capacity
22 Wilhelm G. Grewe, The Epochs of International Law (Berlin: de Gruyter, 2000), 148 23 Anghie, Imperialism, 20 identifies ius gentium as a form of natural law, but in fact Vitoria is somewhat inconsistent with regard to his identification of ius gentium as either natural or positive law. See also Pekka Niemelä, 'A Cosmopolitan World Order? Perspectives on Francisco de Vitoria and the United Nations', in Max Planck Yearbook of United Nations Law. Volume 12 eds Armin von Bogdandy and Rüdiger Wolfrum (Leiden: Brill 2008), 301-‐344, 318-‐319 24 Here Vitoria refers to Matthew chapter 25: ‘I was a stranger and ye took me not in’ as proof of the first proposition of the right to travel. Moreover, as their fellows and neighbours in the natural society, the barbarians are bound to love the Spaniards as themselves, following Matthew chapter 22, which also means that the Indians ‘may not causelessly prevent the Spaniards from making their profit where this can be done without injury to themselves’ (Vitoria, De Indis, 152-‐3) 25 Vitoria, De Indis, 156 26 Vitoria, De Indis, 154, 155 27 Keene, Beyond the Anarchical Society explores these two contradictory patterns of international order (tolerance and civilization) through the work of Hugo Grotius, as another founding father of modern international law.
for self-‐government. Here the metaphor of the infant comes in again, this time in its paternalist implications. For whereas the metaphor on the one hand serves to reject the argument that Indians are not true owners, as ‘the property of wards is not part of the guardian’s property’, it does not mean that they are capable to govern themselves, judged again by their habits and practices:
Although the aborigines in question are […] not wholly unintelligent, yet they are little short of that condition, and so are unfit to found or administer a lawful State up to the standard required by human and civil claims. Accordingly they have no proper laws nor magistrates, and are not even capable of controlling their family affairs; they are without any literature or arts, not only the liberal arts, but the mechanical arts also; they have no careful agriculture and no artisans; and they lack many other conveniences, yea necessaries, of human life.28
Here we see the logic of Foucault’s society of normalisation at work, where membership status, privilege and affiliation based on similarity and equality creates or imposes homogeneity, while at once making visible ‘all the shading of individual differences’ and gaps ready to be managed.29 In the other words, the Indian practices are similar enough to disclose their reason and include them as equal members in the orbit of the universal legal order, yet this also discloses that as its subjects they do not quite meet the standards of the lawful (Christian) state, which is universalised into a model for perfect communities under ius gentium.30 This intricate play of inclusion, universalism, equality on the one hand, and exclusion, particularity and difference on the other, then is translated into a responsibility for the Spaniards, that bears striking resemblances to the later sacred trust of civilisation:
It might, therefore, be maintained that in [the Indian] interests the sovereigns of Spain might undertake the administration of their country, […] [I]f they are all wanting in intelligence, there is no doubt that this would not only be permissible, but also a highly proper, course to take; nay, our sovereigns would be bound to take it, just as if the natives were infants. The same principle seems to apply here to them as to people of defective intelligence; and indeed they are no whit or little better than such so far as self-‐government is concerned, or even than the wild beasts, for their food is not more pleasant and hardly better than that of beasts.
28 Vitoria, De Indis, 160-‐1 29 ‘Within such a society, membership status, privilege and affiliation is supplemented by a whole range of degrees of normality .. In a sense, the power of normalization imposes homogeneity; but it individualizes by making it possible to measure gaps, to determine levels, to fix specialties and to render the differences useful by fitting them one to another. It is easy to understand how the power of the norm functions within a system of formal equality, since within a homogeneity that is the rule, the norm introduces, as a useful imperative and as a result of measurement, all the shading of individual differences.’ (Michel Foucault, Discipline and Punish: The Birth of a Prison (London: Allen Lane, 1977), 184). In his later lectures, Foucault prefers to talk about normation, rather than normalisation to emphasise the primary and foundational character of the norm as basis to distinguish the abnormal from the normal (Michel Foucault, Security, Territory, Population. Lectures at the Collège de France, 1977-‐78 (Houndmills: Palgrave Macmillan, 2007 [1978]), 56-‐7) 30 Anghie, Imperialism, 22-‐23. Says Vitoria (De Indis, 169): ‘[T]hat is imperfect in which there is something wanting’
[…] Let this, however, […] be put forward without dogmatism and subject also to the limitation that any such interposition be for the welfare and in the interests of the Indians and not merely for the profit of the Spaniards.31
Protection and guardianship of the Spaniards in this regard are presented as possible lawful title under which Indians have come under the Spanish sway, in addition to the Indians violation of the rules of the global international legal community of mankind, and the waging of war as strategies to transform and discipline the Indians into a more perfect community still.32 European expansion
As aforementioned, legal discourse generally locates the expansion of international society in the nineteenth century, when international law was transported to the non-‐European context in order to regulate the imperialist encounters and colonies were incorporated as objects of the European legal regime. As opposed to Vitoria’s recourse to natural law as the foundation of the global legal order, the C-‐19th publicists were relying on positivist law to ground the colonial project. Somewhat paradoxically, it is precisely the acknowledgement of law as a human institution that brought about the exclusionary legal practice of a dictated distinction between civilised and uncivilised nations.33 Whereas the premodern jurisprudence of naturalism conceived of law as eternal norms of justice, rendering it both naturally, God-‐given, universal, inclusive and immutable, the shift to legal positivism led to a conception of law as an institution of European states, which in turn obtained an absolute and supreme civilised status:
Once civilisation is related to the basic types of human association, it is no longer necessary to be content with the mere enumeration and description of a bewildering number of civilisations. It is then possible to evaluate and to measure individual civilisations in the light of a universally applicable test of the degree of civilisation which any such particular endeavour has attained34
Hence, in positivist jurisprudence ‘the myth of the state of nature is replaced … with the myth of a fixed set of principles and a scheme of classifications which reveals itself to the scrutiny of the expert jurist who uses this scheme to establish and develop
31 Vitoria, De Indis, 161 32 for a further exploration of war as an instrument of assimilation, see Anghie, Imperialism, 23-‐28 33 In addition to this doctrinal shift, Keal identifies developments in social theory and international political economy as drivers of the shift in thinking about legal subjecthood (Paul Keal, ''Just Backward Children': International Law and the Conquest of Non-‐European Peoples', Australian Journal of International Affairs 49, no. 2 (1995): 191-‐206, 201-‐203). See also Keene, Beyond the Anarchical Society. 34 Georg Schwarzenberger, 'The Standard of Civilisation in International Law', in Current Legal Problems, eds George W. Keeton and Georg Schwarzenberger (London: Stevens & Sons Ltd. 1955), 212-‐234
international law’.35 This scheme, or rather the civilised core of the scheme, subsequently obtained a ‘natural’ status, which then served as an objective and universal yardstick for the required degree of civilisation. This fits with a second element of positivism hinted at by Schwarzenberger’s statement: apart from the conception of law as man-‐made, i.e. as a positive institution based on the consent of sovereigns, it is characterised by the endeavour to provide a scientific, consistent, and truthful account as objective alternative to the subjective fallacies of naturalism. However, it required some legal gymnastics to come to an internally consistent scheme, which resulted in the exclusion of barbarian entities on the basis of the Standard of Civilisation as a legal mechanism, coupled to their (partial) integration into the framework of positivist international law in its expansion from a European to a global structure.36 An important caveat is in order, namely that much of the legal colonial project was focused on regulating the intra-‐European rivalries, rather than concerned with legitimating the colonial endeavours vis a vis its direct objects. However, rather than the specific purpose or addressees, what is of interest for the current discussion is the legal construction of sovereign subjecthood in relation to the principle of equality and the standard of civilisation as practices of in/exclusion. The puzzle that the nineteenth century publicists faced derived from the apparent sovereign behaviour of non-‐European entities. This not only related to the degree of political organisation of these aboriginal entities, making it impossible to consider the African continent as terra nullius and free to be conquested, but, crucially, also transpired in practices of treaty making of indigenous rulers with European powers themselves.37 Within positivist jurisprudence, treaty-‐making counts as a principle source of law, based on the consent of sovereign states.38 Treaties as such are indicators of the legal status of their signatories, and treaty making can hence involve an act of ‘implied recognition’ of an entity’s status under international law. Apart from that, and reasoning the other way around, the very possibility of entering into a treaty requires a minimally shared normative framework, that includes a conception of the institution ‘treaty’ as a legal instrument which entails mutual obligations to signatory parties. The European/ indigenous
35 Anghie, Imperialism, 55 36 For a more elaborate discussion of the relationship between positivism and colonialism, see Anghie, Imperialism, 40-‐65 37 For a classic and comprehensive study of these practices and their legal significance, see Charles Henry Alexandrowicz, The European-‐African Confrontation. A Study in Treaty Making (Leiden: A.W. Sijthoff, 1973). see also Anghie, Imperialism, 67-‐82. This has also informed a critical intervention into the English School ‘expansion’ thesis, and the distinction between international system and society on which it is based. See Tim Dunne and Richard Little, ‘The International System– International Society distinction’, in Guide to the English School in International Studies, eds Cornelia Navari and Daniel Green (Wiley-‐Blackwell 2014), 91-‐108. On the basis of practices such as these Keene proposes to shift the focus from the expansion of international society, to its stratification as the master concept to understand its historical development. See Keene, ‘The standard of ‘civilisation’, the expansion thesis and the nineteenth-‐century international social space’ in this issue. See also Gerry J. Simpson, Great Powers and Outlaw States. Unequal Sovereigns in the International Legal Order (Cambridge: Cambridge University Press, 2004). 38 art 38(1) ICJ Statute
treaty-‐making is then hard to reconcile with a lack of civilisation of one of the partners if that is defined in terms of institutions, as it is in the positivist account. The easy option out would have been to declare the treaties void, but this was hindered by the fact that these treaties in many cases served as basis for sovereignty claims of colonial powers within the African continent;39 a political-‐legal conundrum indeed. There was no uniform legal standpoint to solve this puzzle.40 A most radical view was put forward by John Westlake, who was a key publicist on the colonial issue at the Institute de Droit International, and was most explicit in the denial of any sovereign or legal status to ‘natives’. He rejected the argument of transferred or derivative sovereignty, relinquished on the basis of treaties, as sovereignty was a purely European concept, of which the native could not have a conception. And how could one transfer something he has no clue of?41 Colonial claims were original, and qualified as such under the Law of Nations. The treaties then served at most a political purpose, but, in his view, had no legal significance. However, in diplomatic practice the treaties were respected as such amongst the colonial powers themselves.42 In this context it could be argued that rather than their legal validity as such, what mattered was the mutual recognition of these claims amongst the European players, which rendered them valid in practice.43
What’s more: In spite of their dubious quality, both in terms of mutual understanding, and in terms of the circumstances of their conclusions, as well as the legal controversy surrounding them, the derivative title and legal significance of the treaties was confirmed retrospectively in the Western Sahara case (1975). This case dealt with a Moroccan claim to sovereignty over the Western Sahara, dating back to the Spanish
39 This has prompted questions regarding whether decolonisation in fact entailed a recovering of an original sovereignty. See Charles H. Alexandrowicz, 'New and Original States: The Issue of Reversion to Sovereignty', International Affairs 45, no. 3 (1969): 465-‐480 40 For a comprehensive account of the different viewpoints see Koskenniemi, Gentle Civilizer, chapter 2 and Antony Anghie, 'Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-‐Century International Law', Harvard International Law Journal 40, no. 1 (1999): 1-‐80 41 This is exacerbated by the fact that in most occasions the treaties were not drafted, but were standard forms in the coloniser’s language sent in from the metropole, which often only required the filling in of name and signature or cross. These colonial practices further complicate the proposed revision of the expansion thesis, as proposed by Dunne and Little, and Keene (see footnote 37), insofar as this is based on the presumption that social interaction lies behind treaty making practices in general. Keene’s social stratification could provide a very useful alternative conceptual framework to the much criticized expansion thesis, but the network analysis would need to take the actual context of the treaty making practices into account – including not only the language and knowledge issue, and the coercive consent, but also the fact that as an imperialist practice the treaties with indigenous rulers in fact served intra-‐European order between colonial powers. 42 Koskenniemi, Gentle Civilizer, 127-‐8, 138-‐141 identifies an alternative intermediate position, namely that colonial title was original rather than derivative, and the relevance of the treaties consisted in their evidence of ‘the peacefulness of the possession claimed by the colonizer’. This latter point is rather ironic given the actual circumstances in which the treaties often were drafted. 43 Henk L. Wesseling, Verdeel en Heers. De Deling van Afrika 1880-‐1914: Aula, 2003), 127
confiscation versus its status as terra nullius, which makes it available for occupation and appropriation. In its advisory opinion the International Court of Justice concluded that:
Whatever differences of opinion there have been among jurists, the State practice of the relevant period [1884] indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through ‘occupation’ of terra nullius by original title but through agreements concluded with local rulers. Such agreements with local rulers, whether or not considered as an actual ‘cession’ of the territory, were regarded as derivative roots of tile, and not original titles obtained by occupation of terra nullius.44
But where does this leave the uncivilised native rulers as signatory parties to alleged treaties of cessions? The ambiguity is nicely captured by Oppenheim in his observation that
[C]ession of territory made to a member of the family of nations by a State as yet outside that family is real cession and a concern of the Law of Nations, since such State becomes through the treaty of cession in some respects a member of that family. … No other explanation of these and similar facts [such as that these non-‐sovereign entities engaged in sovereign behaviour] can be given except that these [non-‐European] not-‐full Sovereign States are in some way or another International Persons and subjects of International Law45
Hence, in the scheme of argumentation that appears to reflect contemporary practice most closely, non-‐European states were first acknowledged to be more or less, or partially, sovereign. In any case sovereign enough to enable in turn the transferral of both rights and status—to dispose of themselves46—as matter of exercising this partial sovereignty. After all, the right to enter into international treaties—including ones that restrict sovereign power—is an attribute of state sovereignty.47 Subsequently, sovereignty was defined in terms of its origin as a European institution, a ‘gift of civilisation’,48 which hence by definition did not and could not apply to uncivilised nations. In the final analysis then, barbarian entities were lacking both sovereignty rights and full legal personality because they were excluded from—or positively formulated: not yet recognised as members of—the Family of Nations. By adhering to the constitutive doctrine of statehood, such status was conditional to participation in the Family of Nations, and such admission in turn depended on the exclusive discretionary act of recognition by established members of that Family, and application of the notorious Standard of Civilisation (SoC). While sovereign statehood was conceived a natural condition of European entities, the origins of which are ‘beyond history and inquiry’,49 in the case of non-‐European entities
44 Western Sahara Case, Advisory Opinion, ICJ Reports, 1975, para 80 45 Lassa Oppenheim, International Law: A Treatise. Volume I (London: Longmans, Green and co., 1912), 86, 110 46 Grovogui, Sovereigns, Quasi Sovereigns, and Africans. Race and Self-‐Determination in International Law, 79 47 S.S. Wimbledon case, PCIJ Series A, No.1 (1923), 25 48 Koskenniemi, Gentle Civilizer, 86, 110 49 Anghie, Imperialism, 102
international personality and sovereign statehood were not to be presumed but had to be endowed. This resulted in the dubious consequence of the constitutive doctrine, namely that the European powers were the judges in their own colonial cases.50
When Anghie rhetorically wonders what the commonplace ‘international law governs sovereign states’ means when non-‐European communities were denied that status,51 this very practice reveals how it operates as a productive power and ordering device, that not merely regulates interactions between given entities, but generates its own subjects and objects. International law in this context operates as a juridical rule, as an instrument of the sovereign power to say no and to exclude on the basis of deviance from an alleged universal and objective standard.52 But this sovereign power is itself not a given or prior subject, and the authoritative source of law, as positivist doctrine would have it. Rather, as Anghie also argues, it is in the colonial encounter that the Europeans are produced as the original sovereign powers who command and impose their universal law vis a vis the uncivilised, who in turn fall within the orbit of international law, and are recognised as partially or proto-‐sovereign for the purpose of their own subjugation, yet are produced as outlaws that need to be disciplined and civilized via sanctions and coercions at the same time.53
The aforementioned political-‐legal ambiguity of the constitutive doctrine was further exacerbated by the fact that the discretionary legal powers of the established civilized core were not bound to any explicit criteria to define the standard itself. Whereas Gong summarises a list of five requirements that generally were identified with the SoC (including Vitoria’s principle of guarantee of freedom of travel, commerce and religion of foreigners), it was a rule of customary law that was quite flexible in practice, as also transpires from the ‘subjective requirement’ of adherence to ‘accepted norms and practices of the “civilized” international society’.54 Schwarzenberger’s characterisation of the standard as ‘elastic but, nevertheless, relatively objective’ is telling in this context.55 The objectivity of the SoC was namely based on the conception of the difference between alien societies to one’s own: civilisation was ‘not part of some rigid classification but a shorthand for the qualities that international lawyers valued in their own societies, playing upon its opposites: the uncivilized, barbarian and the savage’.56 While mythical and impressionistic, the existence of a ‘standard’ provided its own legitimacy:
50 Gerrit W. Gong, The Standard of 'Civilization' in International Society (Oxford: Clarendon Press, 1984), 61 51 Anghie, Imperialism, 7 52 Michel Foucault, The History of Sexuality. Volume I: An Introduction (New York: Pantheon, 1978), 135 53 This resonates with Foucault’s suggestion to move from a theory of sovereignty to a theory of dominations which reveals ‘how actual relations of subjugation manufacture subjects’ (Michel Foucault, Society Must be Defended. Lectures at the Collège de France 1975-‐1976 (New York: Picador, 2003 [1976]), 45. 54 Gong, Standard of 'Civilization', 14-‐5 55 Georg Schwarzenberger, A Manual of International Law (Abingdon: Professional Books, 1976), 84 quoted by Gong, Standard of 'Civilization', 14 56 Koskenniemi, Gentle Civilizer, 103
‘the existence of a language of a standard still gave the appearance of fair treatment and regular administration to what was simply a conjectural policy’.57 Contrary to a common refutation, the subjective element of the SoC did, however, not entail the racialisation of international politics and law per se. Originally, the distinction between civilisations was indeed based on racial studies. One of its most prominent advocates, James Lorimer, famously declared that ‘[n]o modern contribution to science seems destined to influence international politics and jurisprudence to so great an extent as that which is known as ethnology, or the science of races’.58 The knowledge from racial studies led to his infamous tripartite categorisation of humanity into a civilised zone, a barbarous zone and a savage zone, that provided the basis for the further development of the SoC.59 However, under influence of the legal positivist turn the focus of attention – or at least the official discourse – shifted from racial features to institutions, as also follows from Westlake’s formulation that the ‘difference between civilized and uncivilized man [for the lawyer consists] in the presence or absence of certain institutions’.60 Indeed, the fixed hierarchy based on ‘immutabilities of race and colour’ that would follow from racial premises in fact contradicts with the principles of progress underlying the civilising mission: ‘At least in theory, the standard of “civilization” was colourblind. It discriminated neither in favour of, nor against, non-‐white, non-‐European countries’.61
This focus on institutions as test for civilisation and hence entitlement to full recognition as international person allegedly was informed by the commitments of legal persons under international law to protect the life, liberty and property of foreigners, as also transpired from Vitoria’s writings.62 Apart from neglecting the colonial expediency of the standard, such a focus however does not nullify its Eurocentric self-‐referentialism as the institutions were defined in terms of their similarity to European political infrastructure of the day.63 And whereas in principle the SoC left room for improvement for the uncivilised, at the same time the liberal modernisation notion in combination with the language of a ‘standard’ entails a misleading reference to civilisation as a definite goal and specific level to be reached in order to be (or gain) equal(ity) as international persons. That this was misleading follows from the combination of the elasticity of the SoC in relation to its alleged objectivity:
57 Koskenniemi, Gentle Civilizer, 135, emphasis omitted 58 James Lorimer, The Institutes of the Law of Nations. A Treatise of the Jural Relations of Separate Political Communities. Volume II (Edinburgh: Blackwood, 1883), 93 59 Lorimer, Institutes, 101 60 John Westlake, Chapters on the Principles of International Law (Cambridge1894), 137. On the basis of the same quote Anghie, Imperialism, 55 maintains that this shift to the character of institutions ‘facilitated the racialization of law by delimiting the notion of law to very specific European institutions’. Colonialism was hence based on the racialisation of sovereignty in his view (Anghie, Imperialism, 100 and passi; see also Grovogui, Sovereigns, Quasi Sovereigns, and Africans. Race and Self-‐Determination in International Law). This conclusion however seems to conflate ‘race’ with ‘culture’. 61 Gong, Standard of 'Civilization', 53 62 Schwarzenberger, 'Standard of Civilisation', 220 63 see also Keal, European Conquest
Like Sisyphys the less “civilized” were doomed to work toward an equality which an elastic standard of “civilization” put forever beyond their reach. Even to attain “civilized” status .. was not necessarily to become equal. The “civilized” had a way of becoming more “civilized” still.64
As the standard was derived from the gap between civilised and uncivilised, or more specifically, the differences between European and non-‐European societies, there was no absolute threshold to be reached. Instead, the production of the colonial subject as proto-‐sovereign was an ongoing, reiterative process and normative force.65 Moreover, it remained dependent upon judgement of the gap between the level of civilisation of the periphery in terms of the core. However, by definition the ‘other’ is and always will be different, and hence not (as) civil (as) or like ‘us’. This is what Anghie has labelled the dynamic of difference: ‘the endless process of creating a gap between two cultures, demarcating one as “universal” and civilized and the other as “particular” and uncivilized, and seeking to bridge the gap by developing techniques to normalize the aberrant society’.66 This then translated into the famous ‘white man’s burden’,67 and his responsibility to bring civilization and salvation to the barbarian and the savage, by replacing native institutions by European sovereignty and guardianship.68
While the imperialist project is –for obvious reasons– usually depicted as a project of exclusion of non-‐European states from the Family of Nations and its concomitant privileges, the above discussion revealed at least two more intricate ways in which nineteenth-‐century political-‐legal imaginaries and practices subjectivated the indigenous entities within a global legal order. As Keene suggests, they were insiders and outsiders at the same time;69 or as argued here, they became outsiders through their very capacity as insiders. On the one hand they were constructed as legal subjects of the imagined global legal regime through the treatymaking practices or rituals by which they officially ceded their ownership (and in a sense their sovereign identity) to the colonial powers. On the other hand, while excluding the non-‐European as equal sovereigns from the Family of Nations, the SoC at once entailed their inclusion as objects in the domain of international law through the ‘universal’ discourse of civilisation and humanitarianism.70 Hence, rather than a mere denial of their identity (both on the basis of their particularity and their failure to meet the universal standard), non-‐European entities were endowed with a subjectivity that rendered them subjects of law and ‘outlaws’ at the same time, as Oppenheim’s remarks also illustrate. And like the Indians in Vitoria’s treatise, this inclusion into the system was a double edged sword, as it not only included their own participation in the legitimation of their imperial subjection, but also rendered the SoC
64 Gong, Standard of 'Civilization', 63 65 cf. Judith Butler, Bodies that Matter. On the Discursive Limits of "Sex" (New York: Routledge, 1993), 94-‐5 66 Anghie, Imperialism, 4 67 Rudyard Kipling, 'The White Man's Burden', McClure's Magazine 12, (1899) 68 Koskenniemi, Gentle Civilizer, 130 69 Keene, ‘The standard of “civilisation”, the expansion thesis and the nineteenth-‐century international social space 70 Gong, Standard of 'Civilization', 44-‐5; Koskenniemi, Gentle Civilizer, 130, who refers to the discourse of exclusion-‐inclusion; Anghie, Imperialism, 238
applicable, which exposed the fundamental differences between the civilised core and savage periphery, which in turn rendered sovereignty and equality beyond the reach of non-‐European states. Globalisation of international society
Against the backdrop of the age(s) of imperialism, the 1960 General Assembly Resolution 1514 (XV) heralds a new era in international relations, which entailed a de-‐ideologisation, homogenisation and equalisation of the sovereignty game.71 The foundational principles of universality and equality were translated into the membership rules of the United Nations, which would be open to all ‘peace-‐loving states’, regardless of their internal architecture and ideology.72 This split between internal and external sovereignty allegedly signified an important break from colonial practices.73 It was also informed by a shift in the legal rationality of equality: whereas in the heydays of the imperialist era Lorimer had claimed that an equal status requires an empirical basis,74 in the early twentieth century Oppenheim turns the argument around and addresses equality as an attribute of a sovereign status.75 More specifically, equality before law is an invariable attribute of international legal personality, which in turn renders all other inequalities irrelevant from a legal perspective, as these are social or political, but not legal facts. This viewpoint, based on a separation of substantial or empirical equality and formal or legal equality, is almost directly translated into the 1970 General Assembly Resolution 2625 (XXV) on Principles of International Law Concerning Friendly Relations, which emphasises juridical equality of all states —both qua membership status and qua their rights and duties— irrespective of their economic, social and political differences.76
71 Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514 (XV), December 14, 1960. See also Simpson, Great Powers and Outlaw States 72 article 4(1), UN Charter. In the Admissions case the ICJ concludes that article 4(1) consists of an exhaustive list of criteria for membership (Conditions of Admission of a State to Membership in the United Nations, Advisory Opinion, ICJ Reports 1948, 57). Notorious exemptions to the new practice are the non-‐recognition of Southern Rhodesia and the South African homelands due to their racist regimes. 73 Jackson in this regard distinguishes between empirical and juridical statehood, and positive and negative sovereignty (Robert H. Jackson, Quasi-‐States: Sovereignty, International Relations and the Third World (Cambridge: Cambridge University Press, 1990)). For a critical analysis of his ‘quasi-‐statehood’ thesis and the implicit normative scale that underlies it, see e.g. Roxanne Lynn Doty, Imperial Encounters: The Politics of Representation in North-‐South Relations (London: University of Minnesota Press, 1996) and Tanja E. Aalberts, 'The Sovereignty Game States Play: (Quasi-‐)States in the International Order', International Journal for the Semiotics of Law 17, no. 2 (2004): 245-‐57 74 ‘All States are equally entitled to be recognized as States, on the simple ground that they are States; but all States are not entitled to be recognized as equal States, simply because they are not equal States’ (Lorimer, Institutes, 1884: 260). 75 ‘States are by their nature certainly not equal as regards power, extent, constitution, and the like. But as members of the community of nations they are equals, whatever differences between them may otherwise exist. This is a consequence of their sovereignty’. Oppenheim, International Law: A Treatise. Volume I, 19 76 Declaration on Principles of International Law Concerning Friendly Relations and Co-‐operation among States in Accordance with the Charter of the United Nations, GA Resolution 2625 (XXV), October 24, 1970.
The universalisation of the equality principle as such symbolises a fundamental reversal of legal practices. This radical break with the colonial practices is facilitated by a shift from the constitutive to the declaratory doctrine, which means that legal personality is no longer dependent upon a formal act of recognition, but follows from the empirical facts of statehood itself. It is further substantiated by the renunciation of any criteria of institutional preparedness, which was the one of the justificatory logics of the SoC in the nineteenth century.77 Whereas decolonisation on the one hand entailed the homogenisation of the international society by levelling it to one dominant category of sovereign and equal statehood, on the other hand the model itself allows for heterogeneity as ‘the right to differ is now proclaimed as one of the attributes inherent in the very notion of sovereignty’.78 Or at least, such pluralism or tolerance would follow from the decoupling of sovereignty to a particular set of cultural and institutional practices, as is the premise of the UN Charter and was reconfirmed in Resolutions 1514 (XV) and 2625 (XXV).
However, the universalisation of sovereignty as the right to be different and equal at the same time as the foundation of modern international society is only part of the story. For one thing, ‘peace-‐loving’ as a condition for membership is vague and broad enough a description to include other considerations as indicators of such peace-‐loving character, such as the popular links with democracy in the liberal international paradigm that will be elaborated below. Moreover, while it is generally accepted that the constitutive doctrine that was conducive to the imperialist project has now been replaced by a declaratory conception of statehood, the ‘international community’ still needs to judge as to whether the conditions are fulfilled. As Lauterpacht has pointed out: facts cannot exist without a subject to know it.79 But apart from the possible continuation of exclusionary practices through denial of statehood, what is of most interest to our current discussion is how the principle of sovereign equality itself provides the parameters for ordering and making distinctions between states and disciplining of those that do not adhere to the rules and norms of contemporary international society.80
77 The decoupling of rights and capabilities is stated most unequivocally in articles 3 and 5 of GA Resolution 1514 (XV), 1960: ‘Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence’ and ‘ Immediate steps shall be taken … to transfer all power to the peoples of those territories, without any conditions or reservations’. This was a complete reverse from the provisions of the 1885 Berlin Act, which identified deficiency in civilisation as the legitimate ground for colonialism. 78 Posper Weil, 'Towards Relative Normativity in International Law?', American Journal of International Law 77, no. 3 (1983): 413-‐42, 419 79 Hersch Lauterpacht, Recognition in International Law (Cambridge: The University Press, 1948) 80 see also Tanja E. Aalberts and Wouter G. Werner, 'Sovereignty Beyond Borders: Sovereignty, Self-‐Defense and the Disciplining of States', in Sovereignty Games. Instrumentalising State Sovereignty in Europe and Beyond, eds Rebecca Adler-‐Nissen and Thomas Gammeltoft-‐Hansen (Houndmills: Palgrave 2008), 129-‐150
In addition, there are persistent calls within the liberal internationalist paradigm to formalise such distinctions, which could be identified as rule through equality.81
While in political discourse sovereignty is often idealized as some kind of absolute status of autonomy, freedom, and privilege, in legal discourse such rights are invariably linked to an extensive set of duties and responsibilities. As formulated by the ILC:
States establish themselves as equal members of the international community as soon as they achieve an independent and sovereign existence. If it is the prerogative of sovereignty to be able to assert its rights, the counterpart of that prerogative is the duty to discharge its obligations.82
With the emphasis on duties as opposed to rights, sovereignty entails a task to fulfil, rather than a freedom to indulge.83 Crucially, the scope of sovereign obligations has expanded significantly in the course of the twentieth century. While they were still mainly formulated as a negative duty to respect each other’s sovereign rights in the beginning of the twentieth century,84 this was significantly expanded after the Second World War through notably the development of the human rights regime and the emergence of so-‐called erga omnes obligations vis a vis the international community as a whole.85 In other words, the content and scope of sovereignty is set by the legal rights and duties as its attributes. These in turn are contingent and evolve in light of normative developments in international relations,86 which raises the question of who gets to identify the universal norms of contemporary international society? In any case, as international legal subjects, states not only are bearers of power, authority and sovereign privileges, but are subject to international legal protocols and regimes of knowledge that empower them as subjects and structure their possible field of action,87 as also transpired from the discussion above. This means that rights are not just a privilege granted to legal subjects, but constitute their very personality and enable in Foucaultian terms the conduct of (their) conduct (governmentality).88 What is more, they further the
81 for an alternative proposal for reform of the international system based on a dualistic order that encompasses both sovereign equality and human rights, but seeks to avoid a new form of hegemonic international law and exclusion, see Jean L. Cohen, Globalization and Sovereignty. Rethinking Legality, Legitimacy, and Constitutionalism (Cambridge: Cambridge University Press, 2012) 82 Yearbook of the International Law Commission 1973, II, p. 177 83 To illustrate, the 1949 Draft Declaration on Rights and Duties of States by the International Law Commission lists 4 rights as opposed to 10 duties (www.un.org/law/ilc/texts/declar.htm) and also most articles in the 1970 Declaration on Friendly Relations are formulated in terms of international obligations. See Aalberts and Werner, 'Sovereignty Beyond Borders' 84 Island of Palmas case, Permanent Court of Arbitration 1928, 2 RIAA 829, p. 839 85 While there is not an exclusive list of such norms, the prohibition of genocide, slavery, racial discrimination and aggression are recognized as examples. See Barcelona Traction case (Second Phase), ICJ Rep 1970 para 33-‐34 86 Nationality Decrees in Tunis and Morocco case, PCIJ, Series B, no. 4 (1923), p. 24 87 Michael Dillon, 'Sovereignty and Governmentality: From the Problematics of the "New World Order" to the Ethical Problematic of the World Order', Alternatives 20, no. 3 (1995): 323-‐368 88 Michel Foucault, 'The Subject and Power', Critical Inquiry 8, no. 4 (1982): 777-‐95 Michel Foucault, 'Governmentality', in The Foucault Effect. Studies in Governmentality, eds Graham Burchell, Colin Gordon and Peter Miller University of Chicago Press 1991), 87-‐105. For a more elaborate discussion, see Tanja E. Aalberts, Constructing Sovereignty between Politics and Law (London: Routledge, 2012)
normalisation of the members of society, as they are based on a normative or moral idea of what subjects are supposed to be by their ‘nature’,89 based on the metavalues of contemporary international society.90
This also feeds into Foucault’s somewhat cryptic claim that ‘the law operates more and more as a norm’. In this regard he sought to distinguish between different dispositions of law – as sovereign command, constraint and sanctions on the one hand, and in its productive modality as a regulatory mechanism and technology of governmentality, on the other.91 Crucially, these norms are not exogenous (derived from either some transcendental source like Vitoria’s natural law or the sovereign command by European colonial powers), but emerge from ‘the group’s reference to itself’, which is why Ewald identifies them as ‘social laws’.92 Norms in this regard refer to the particular society, which aims to regulate, order and produce itself and its members on the basis of equality and universality through these very norms. Moreover, these norms not only work in the traditional sense as rules of behaviour, but also function as a standard of measurement, a rule of judgement to distinguish between the normal and the abnormal, i.e. identify gaps and manage deviance.93
Different historical variations of such classifications can be identified—civilized versus uncivilized, advanced versus backward, developed versus developing (or failed states),94 and in its most recent version: liberal versus illiberal or rogue (and failed) states as proclaimed most vehemently in the discourse on the New or Postmodern World Order and liberal internationalism. In this context there is a persistent call by scholars such as Anne-‐Marie Slaughter, Michael Reisman, Allan Buchanan, John Rawls and Fernando Tesón for a qualified right to differ amongst sovereign states based on an explicit link between universal liberal values and peace as a natural order on the one hand, and illiberal and irrational regimes and aggression on the other. Re-‐emerging in the context of the post-‐Cold War ‘end of history’ discourse to further progress and peace, the liberal internationalist paradigm materialised in international politics through a ‘muscular humanitarianism’ and a practice of illegal but legitimate humanitarian interventions. 95 After 9/11 it has become increasingly securitised, and
89 Brent L. Pickett, 'Foucaultian Rights?', Social Science Journal 37, no. 3 (2000): 403-‐421, 405-‐6 90 Christian Reus-‐Smit, The Moral Purpose of the State. Culture, Social Identity, and Institutional Rationality in International Relations (Princeton: Princeton University Press, 1999) 91 For recent contributions that discuss the power of international law from a Foucaultian perspective see inter alia Ben Golder and Peter Fitzpatrick, Foucault's Law: Routledge, 2009; Nikolas Rajkovic, ''Global law' and governmentality: Reconceptualizing the 'rule of law' as rule 'through' law', European Journal of International Relations 18, no. 1 (2010): 29-‐52, and a special issue of the Leiden Journal of International Law 25(3), 2012 92 François Ewald, 'Norms, Discipline, and the Law', Representations 30, (1990): 138-‐161, 159, 154-‐5 93 Ewald, 'Norms, Discipline, and the Law; Nikolas Rose and M. Valverde, 'Governed by Law?', Social and Legal Studies 7, no. 541-‐51 (1998) 94 Anghie, Imperialism discusses these shifts from colonialism toward neo-‐colonial practices of the mandate system and the Bretton Woods institutions, but does not include the liberal vs illiberal distinction as a contemporary practice of the dynamics of difference. 95 Anne Orford, 'Muscular Humanitarianism: Reading the Narratives of the New Intervention', European Journal of International Law 10, no. 4 (1999): 679-‐711. For a comprehensive overview of liberal internationalism, see Beate Jahn, Liberal Internationalism. Theory, History, Practice (London: Palgrave Macmillan, 2013). Bishai explores the link between IR liberal internationalism and liberal international law (Linda S. Bishai, ‘Liberal Internationalism and the law vs libery paradox’, Journal of International Relations and Development 15 (2012): 201-‐223).
the ensuing War on Terror has been cast in terms of a global war against the enemies of civilisation.96
While there are some significant differences within this discourse,97 it is united in the aim to redirect the legal rationality by claiming that states are not equal in their behaviour according to the prevailing universal liberal standards of international society and hence should not be treated as such, as this is detrimental not only to the well-‐being of individual citizens (from whose security the international community bears a responsibility to protect), but also a vital threat to international order and security. This, however, in their view would not be a transformation of the legal order, but an acknowledgement – at last – of the different behaviours that states expose in their foreign relations, and which are rooted in their domestic political regimes.98 As has been pointed out by others too,99 the logic mirrors that of the nineteenth-‐century SoC, in that liberal statehood—whose precise content remains unspecified, but is loosely characterised by human rights, market economy, and some form of democracy—is naturalised as a positive, objective and universal standard, a metavalue which is itself beyond scrutiny but against which all other members of international society are measured. In a telling quote, Slaughter for instance explains that ‘the classification of a state as non-‐liberal rests on evidence of adherence to fundamentally different values and institutions from those prevailing in liberal states’ as a matter of fact, yet in the same breath suggest that the line between liberal and nonliberal states is drawn on ‘a deep intuition of similarity and shared values, on the one hand, versus tacit recognition of difference and alienage on the other’.100 Obviously, the judgment call lies with the liberal states themselves, and as the boundary between liberal and illiberal statehood is explicitly defined in terms of a dynamic of difference, or what Slaughter calls the ‘principle of legitimate difference’ as Grundnorm for global governance,101 this seems to put those that are marked as illiberal in Sisyphus shoes. This is even more so as sovereignty and equality are separated, and equality is turned into a social fact, but with legal consequences: it is the similarly liberal states who are equal in the zone of law, whereas the others are denunciated to a ‘zone of politics’.102
96 Mark Neocleus, 'The Police of Civilization: The War on Terror as Civilizing Offensive', International Political Sociology 5, (2011): 144-‐159 Anghie, Imperialism, chapter 6 97 Jahn, Liberal Internationalis; Simpson, Great Powers and Outlaw States; Ronald Janse, 'The Legitimacy of Humanitarian Interventions', Leiden Journal of International Law 19, no. 3 (2006): 669-‐692 98 Anne-‐Marie Slaughter, 'International Law in a World of Liberal States', European Journal of International Law 6, no. 4 (1995): 503-‐538 99 e.g. Benedict Kingsbury, 'Sovereignty and Inequality', European Journal of International Law 9, no. 4 (1998): 599-‐625. Brett Bowden, 'In the Name of Progress and Peace: The "Standard of Civilization" and the Universalizing Project', Alternatives 29, no. 1 (2004): 43-‐68 100 Anne-‐Marie (Slaughter) Burley, 'Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine', Columbia Law Review 92, no. 8 (1992): 1907-‐1996, 1920-‐21. See also the Princeton Project that linked the academic debates to a concrete masterplan to bifurcate the international order by creating a Concert of Democracies G. John Ikenberry and Anne-‐Marie Slaughter, 'Forging a World Of Liberty Under Law. U.S. National Security in the 21st Century (Final Report of the Princeton Project on National Security)', The Woodrow Wilson School of Public and International Affairs, Princeton University, available 101 Anne-‐Marie Slaughter, A New World Order (Princeton University Press, 2005), 247-‐250 102 (Slaughter) Burley, ‘Law Among Liberal States’, 1917-‐21; Robert Cooper, The Post-‐Modern State and World Order (London: Demos 2001)
In its most extreme form, this discourse hence calls for a more explicit focus on conditional equality and exclusion, with the reintroduction of differentiated legal codes and zones, and ultimately the possibility of (preventive) forceful interventions to discipline those who are not equally sovereign in the liberal fashion.103 However, as has been shown by numerous studies on global governmentality, the norm of liberal international statehood also underlines mundane policies on aid conditionality, good governance, democratic peace, Washington consensus, as advocated by the major global governing institutions, to produce visible, responsible and predictable actors. It informs the numerous indices of state performances and governance indicators, on the basis of which failed states are identified and policies for their transformation, development and management are written, using mechanisms of more indirect rule and discipline, such as the production and review of country reports, providing technical assistance, and disseminating best practices.104
Together, these discourses and practices of contemporary international society shed a different light on the right to sovereign equality as the basis of international order. Contemporary international society, its universal and global character notwithstanding, still executes its ordering functions on the basis of the alleged schizophrenic combination of tolerance and civilisation.105 In this context, sovereign equality is not just a liberal right to individuality, but by the same token operates as a norm to be equally sovereign, that is to say, to be a sovereign of a similar (i.e. liberal) kind. Sovereign equality hence is more than a right or a given norm, but entails, in Cynthia Weber’s formulation, a process of normativity, ‘whereby “regular subjects” and “standards of normality” are discursively co-‐constituted to give the effect that both are natural rather than cultural constructs’.106 It is in this light that we can understand how numerous rules, norms and standards that inform contemporary international politics function as modern standards of civilisation that operate on the very basis of an international society founded on the principle of sovereign equality.
103 Lee Feinstein and Anne-‐Marie Slaughter, ‘A Duty to Prevent’, Foreign Affairs 83 (2004): 136-‐50; Fernando Tesón, ‘The Liberal Case for Humanitarian Intervention’, in Humanitarian intervention: Ethical, Legal and Political Dilemmas, eds J.L. Holzgrefe and Robert O. Keohane (Cambridge: Cambridge University Press 2003), 93-‐129 104 see e.g. Timothy W. Luke and Gearóid Ó Tuathail, 'On Videocameralistics: The Geopolitics of Failed States, the CNN International and (UN)governmentality', Review of International Political Economy 4, no. 4 (1997): 709-‐3; Laura Zanotti, 'Governmentalizing the Post-‐Cold War International Regime: The UN Debate on Democratization and Good Governance', Alternatives 30, (2005): 461-‐48; Jacqueline Best, 'Why the Economy is Often the Exception to Politics as Usual', Theory, Culture and Society 24, no. 4 (2007): 87-‐10; Oded Löwenheim, 'Examining the State: a Foucauldian Perspective on International 'Governance Indicators'', Third World Quarterly 29, no. 2 (2008): 255-‐27; Iver B. Neumann and Ole Jacob Sending, Governing the Global Polity. Practice, Mentality, Rationality: Michigan University Press, 2010; Hans-‐Martin Jaeger, 'UN Reform, Biopolitics, and Global Governmentality', International Theory 2, no. 1 (2010): 50-‐86; Tanja E. Aalberts and Wouter G. Werner, 'Mobilising Uncertainty and the Making of Responsible Sovereigns', Review of International Studies 37, no. 5 (2011): 2183 -‐ 2200; Kevin E. Davis, Angelina Fisher, Benedict Kingsbury and Sally Engle Merry, eds, Governance by Indicators. Global Power through Quantificaation and Ranking (Oxford: Oxford University Press, 2012) 105 Keene, Beyond the Anarchical Society, chapter 5. From a Foucaultian perspective, discipline and freedom go hand in hand in governmentality. 106 Cynthia Weber, 'Performative States', Millennium 27, no. 1 (1998): 77-‐95, 81
Concluding remarks
This article discusses equality as one of the guiding principles of international society from the perspective of the politics of international law. However, contrary to a common understanding of such politics, this article is not interested in the true motives behind colonial or hegemonic legal reasoning – was international law instrumentalised according to a sceptical reading of law in order to use it as an apology for colonial or hegemonic politics; or did these scholars see law as an objective source and truly believe in its message for distinguishing between just and unjust appropriation and the identification of lawful conquest? This article is more interested in another politics of international law, one that highlights how '[l]aw is politics, not because law is subject to political value choice, but rather because law is a form that power sometimes takes’.107 Addressing international law as a governmental technology, this article explored how international law is not only an external rule of constraint imposed upon subjects from above, but is a productive power by generating the subject it refers to. Or to put it differently, international law as a regulatory mechanism produces the very object it seeks to manage and control.108 And in the case of the colonial encounters, it does so by imagining a global legal order that the aborigines are part of and subjected to. Colonialism hence consisted of a more intricate interplay between in-‐ and exclusion as basis for imagining and ordering global rule. Yet, as Gong has also suggested, the Standard of Civilization ‘is not new, nor will it … ever become old. Some standard of civilization will remain a feature of any international society’.109 After decolonisation, we can identify the imposition of an implicit standard of civilisation as the paradoxical outcome of the universalisation of the principle of sovereign equality and expansion of European international society to a globalised one. The supposition of legally ‘like units’ in effect exposes differences between formally sovereign states. Having sovereign equality as a right then recoils in the form of the validation of equality in terms of sovereign being on the basis of the underlying metavalue of legitimate (or ‘norm-‐alised’) statehood. Acknowledgements Earlier versions of this paper were presented at the Annual Convention of the ISA, San Francisco, 3-‐6 April 2013, the workshop ‘Constructions of Globality’, Copenhagen, 17-18 June 2013 and the Annual Millennium Conference, 19-‐20 October 2013. I would like to thank Moran Mandelbaum, Rens van Munster, Erna Rijsdijk, Ole Jacob Sending, Casper Sylvest, Jaap de Wilde, Wouter Werner, Andrej Zwitter, the anonymous reviewers and editors of Millenium for their helpful comments.
107 Pierre Schlag, 'Foreword: Postmodernism and Law', University of Colorado Law Review 62, (1991): 439-‐, 448 108 Judith Butler, 'Sexual Inversions', in Feminist interpretations of Michel Foucault, ed. Susan J. Hekman The Pennsylvania State University Press 1996), 59-‐76, 64-‐; Foucault, Security, Territory, Population. Lectures at the Collège de France, 1977-‐78, 99 109 Gerrit W. Gong, 'Standards of Civilization Today', in Globalization and Civilizations, ed. Mehdi Mozaffari (London: Routledge 2002), 77-‐96, 94
