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The Oxford Handbook of the History of International Law edited by Fassbender, Bardo; Peters, Anne (1st October 2012)

V Methodology and Theory, 44 Identifying Regions in the History of International Law

Antony Anghie

From: The Oxford Handbook of the History of International Law

Edited By: Bardo Fassbender, Anne Peters

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 15 December 2018

Subject(s):
History of international law — Territory — Law of the sea — Airspace — Territoriality

(p. 1058) 44  Identifying Regions in the History of International Law

1.  Introduction

The topic of ‘regionalism’ and its relationship with international law has now acquired a particular and considerable significance. Contemporary scholars have argued that the emergence of regional organizations and the legal systems and institutions associated with them may result in the fragmentation of international law1—or, somewhat contrastingly, that it is through regional organizations that international law may actually achieve some sort of reality and effective enforcement.2 The idea of ‘regional international law’ acts as a complex bridge between the sovereign State and international law: on the one hand—as in the case of regional trade agreements—it (p. 1059) represents a desirable progress away from a narrow preoccupation on the nation-State towards a more international system. On the other, it represents a threat to the aspiration of creating a universal system of international law, precisely because its success could result in the fragmentation of international law. This dual, ambivalent character of regionalism animates a great deal of contemporary scholarship. Further, scholars have also been suggesting that something like ‘comparative’ international3 law may be emerging: a study of international human rights law, for instance, would be incomplete without a close examination of the jurisprudence of regional institutions such as the Inter-American Court of Human Rights, the European Court of Human Rights, and the African Commission of Human Rights. The myriad questions raised by these developments are a particular product of the unique character of international law and institutions at the beginnings of this millennium. But the question also arises as to how what we may broadly and provisionally term the problem of ‘regions’ has been understood in different periods of the history of international law. Inevitably, the issue of ‘regions’, whatever its commonplace meaning—Herodotus after all set about the task of examining the different customs that governed different societies—has been conceptualized in different ways according to the jurisprudence of the period, and the perception of what were the major issues confronting the discipline.

The concept of a region most basically suggests a geographical entity; ‘Europe’ or ‘Asia’ or ‘Africa’, for instance. However, the immediate problem confronting any attempt to base a history of international law on the concept of regions is suggested by Norman Davies when he examines the evolution of the idea of ‘Europe’ and the many different meanings associated with that term.4 The term ‘Third World’ is sometimes equated with a geography, with ‘Southern States’; but what each concept attempts to capture, however inadequately, is a political, economic, and social experience—hardship, impoverishment, under-development, imperialism—and to equate it with a geographic region. The construction of a particular region, then, is not simply a question of geography—which in any event, of course, has its own complexities; it is a political and ideological construct, and it is only by examining the particular context in which the terminology of regions is employed that we may understand its significance and use. While several of the major international law societies in the world are organized on a regional basis—the European Society of International Law and the Asian Society of International Law, for instance—the question of whether there is a distinctly ‘European’ or ‘Asian’ approach to international law occasions much soul searching and few clear answers.

Despite all the obvious difficulties associated with the concept of regions, however, it does play a useful and sometimes indispensable role when used in an appropriately (p. 1060) qualified and contextualized way, to enable an analysis and exploration of some of the fundamental features of the history and character of international law.

2.  The Concept of Regional Law

The idea that particular regions develop a set of rules or practices that enable the various entities that are members of that regional grouping to interact with each other on an ongoing basis is powerful, commonplace, and enduring. Many of the most venerable and classical works of history are animated by an understanding that, whatever the internecine struggles dividing them, the Greek city-states formed an entity quite distinct from the Persians.5 It is in many ways an extension of the idea that each community or society is unique in terms of its customs and traditions, political systems, and social institutions. Given this broad assumption, questions inevitably arise as to how these regional systems relate to international law—since international law is, almost by definition, universal, binding on all regions regardless of their unique characteristics, just as it is binding on all States, whatever their own legal systems.

It is common in many textbooks of international law that commence with a short history of the discipline to acknowledge that regional systems of what might be termed ‘international law’ had existed among the Greek city-states, and in ancient China and India among other places, before then asserting that modern international law began in Europe.6 It appears historically valid to assume that, whatever the other differences separating them, all people in a similar geographical region or proximity must engage with each other and develop a common culture, a shared history that somehow creates a distinctive legal regime. Divisions, even wars, within different entities within these regions do not undermine this thesis; rather, such events may even affirm and solidify the sense of belonging to a region, and result in the formulation of particular institutions or doctrines to deal with the ongoing tensions between such entities. The question of ‘regional’ international law then, appears in even the most cursory and introductory histories of international law.

Another approach to ‘regions’ focuses on the areas covered by particular political entities. This is the approach taken by Stephan Verosta, whose important historical (p. 1061) work examines the relationship between the Roman and Persian Empires, and the doctrines developed between the two empires to manage interaction between them.7 Verosta argues that these doctrines have endured in various ways and that versions of them may be found in modern international law. Many ancient and medieval political systems involved relations between entities which had very different capacities and power—ranging from empires to vassal States to tribes.8 As a consequence, a complex, differentiated, and variegated system of norms and obligations developed among these different entities. Nevertheless, it can be argued that these entities developed rules regarding diplomatic relations, treaties, the conduct of war, and religious tolerance.

The idea that international law is essentially European in character, that it is in effect a jus publicum Europaeum, is powerful and enduring, and has been an almost invariable starting point of histories of modern international law.9 Nevertheless, in his survey of the history of international law, Preiser points to the fact that non-European developments of international law are excluded from the consideration of many traditional histories of international law. This arises from the premise of many of these histories that international law begins with Grotius and/or the modern sovereign State.10 In arguing against such a Eurocentric approach to the writing of the history of international law, Preiser asserted that even if one focused on Europe, one could not properly understand intellectual developments within Europe without examining the way in which ideas originating outside Europe had affected this tradition. Secondly, any truly ‘universal’ history of international law would seek to include the forms of regional international law that emerged in ancient China or ancient South and South-East Asia. As such, Preiser urged an examination of ‘independently developed, functional international legal orders which helped influence the legal character of their respective eras’.11

Thus, the first and second edition of the Encyclopedia of Public International Law contains articles by several distinguished scholars such as Nagendra Singh on international law in South Asia and South-East Asia, Taslim O Elias on African International (p. 1062) Law, and Shigeki Miyazaki on East Asia.12 As discussed subsequently, the concept of ‘regions’ is connected in a complex manner with the concept of ‘civilizations’, which has perhaps played a more prominent role in histories of international law.13 This is also suggested by the fact that the entry by Ahmed El-Kosheri is titled ‘History of the Law of Nations Regional Developments: Islam’.14

The particular analytic or heuristic framework in which the question of regions has been located in the history of international law requires a closer examination of what is meant by the term ‘the history of international law’. It is hardly controversial to assert that the issue of how international law should be written has been the subject of ongoing and, in recent times, lively debate15—whether, for instance, it should focus on State practice, or the extant theories and jurisprudence of international law.16 Preiser, in his survey of the historiography of international law his article in the Encyclopedia of Public International Law, refers to the problems arising from the failures of early historians of the discipline to satisfactorily combine an account of international relations with international legal issues and the theories of international jurists. Historians of the discipline, Preiser noted, offered legal theory, ‘the schools of thought in international law which followed, one upon the other’.17 What might be termed the ‘problem of regions’ in international law would have featured very differently in the thinking of the great scholars of international law whose work provide the subject of such historians (a distinction may be made between the works of jurists such as Vitoria, Grotius, and Vattel, and the scholars who wrote about them as self-conscious historians of the discipline; the first such historian identified by Preiser is Robert Ward).18

Despite this, few jurists or international legal historians—as discussed below—have systematically attempted to identify the specific and unique problems and questions arising from this broad and somewhat unexamined concept, and the (p. 1063) accompanying analytic framework that it generates. The question remains open as to whether the idea of regions which seems fundamental to international law—given the premise that every region develops its own form of law—has featured significantly in the writing of the history of international law. What indeed are, what might be provisionally called, the problems of regions in international law? This chapter attempts to address some of these issues. I do so, first, by providing a broad, chronological overview of the jurisprudence of international law since its early modern beginnings in the 16th century, and by then considering the ways in which authors such as Wilhelm Grewe and Carl Schmitt who self-consciously set about the task of writing histories of international law, approached these issues in their own surveys of the jurisprudence and State practice of the time. A related question is the complex issue of the relationship between ‘regions’ and ‘civilization’ or ‘culture’.

In the second half of this chapter I point to a different approach to the issue of ‘regions’ in international law—an approach that focuses on issues of space and geography. If governance is intimately related to the conceptualization and management of space, then it would be useful to understand how international law deals with these questions. Carl Schmitt's work is helpful in identifying some of the issues raised by the relationship among space, sovereignty, and international law, and how this relationship has changed over time.

3.  Regions and the Early-modern Beginnings of International Law

Most eminent histories of international law attempt to combine an examination of the theories of international law, such as those propounded by thinkers such as Hugo Grotius, with an explication and assessment of contemporaneous State practice.19 Inevitably, the two approaches are linked in various ways, as State practice itself acquires a different significance depending on the extant jurisprudence, and as a jurists were anxious to provide theories of law that accorded with the immediate and pressing needs of their time. Grotius was not only a great jurist, but equally importantly, the legal adviser to the Dutch East India Company.20

(p. 1064) While acknowledging these complexities, I will focus here on the writings of some of the great jurists of the 16th and 17th centuries. For scholars such as Francisco de Vitoria, who, while inhabiting polity in which spiritual authority, the Pope, wielded enormous power, firmly adhered to the natural law tradition—even while accepting the existence of categories such as ‘man made law’ or ‘human law’—the issue of regions is not a major theoretical problem because all peoples were governed by a universal natural law.21 This natural law may have turned out, on inspection, to have been simply an idealized embodiment of the mores of Catholic Spain. But the larger point remains; that the customs and practices of other, foreign peoples, such as the Indians of the New World that Vitoria examines, are not in and of themselves of interest to Vitoria—except to the extent that they fail to comply with the prescriptions of natural law.

Grotius—whose early work in particular was heavily influenced by Vitoria—similarly operates on the assumption that natural law is universal. As recent scholars have argued, however, it is clear that the universal rules of natural law have to be implemented in different ways in different regions of the world. Thus, within Europe, the right to go to war in self-defence was monopolized by the sovereign State. In the East Indies, however, where no common political system existed, the natural right to go to war in self-defence devolved to individuals—and, as it so happens, corporations such as the Dutch East India Company, striving to protect its rights not only against the oriental peoples and rulers they encountered, but against other depredating European powers such as the Portuguese.22 As Edward Keene has argued Grotius distinguishes broadly between two broad spheres of law, law as it applied within European States, and a separate law that applied between European and non-European entities.23 While this broad distinction may suggest something comparable to what contemporary scholars might recognize as ‘the problem of regions’, the difference between the European and non-European worlds was conceptualized more in terms of a difference of culture or civilization, rather than a difference of regions. Inevitably, the relationship between ‘regions’ and ‘culture’ is a very complex one: we might conceptualize the problem of regions as being a problem, essentially, of the management of space, whereas the problem of civilizations has to do with the management of cultural difference.

With the gradual shift in international legal jurisprudence to positivism, European positivist scholars such as John Westlake developed a clearer sense of regions—even if regions were understood principally in terms of the problem of culture.24 Thus, European jurists distinguished between ‘civilized States’ that enjoyed a form (p. 1065) of civilization different from that of Europe, and were therefore excluded from the European family of nations—examples cited included States such as China—whereas peoples living in other regions such as Africa and the Pacific were denounced as primitive and backward, with no recognition given to the complex societies that had developed in these places. The focus on ‘civilization’ and on related concepts such as ‘society’ was driven in many ways by Darwinian ideas about progress and the evolution of societies.25 Different techniques were used to account for the acquisition of European sovereignty over non-European peoples. In the case of Australia, for instance, ‘discovery’ was posited as the basis of British title over the continent; the Aboriginal peoples of Australia, who had inhabited the land for thousands of years, were not regarded as ‘people’.26 In the case of Africa and Asia, as the work of Charles Henry Alexandrowicz reveals, European States claimed to acquire sovereignty through a combination of means including through conquest, and by way of cession—the ‘unequal treaties’ that European States and non-European States entered into.27

By the beginning of the 20th century, then, an international law originating in Europe had become universal, and in so doing, had extinguished all potentially competing regional systems of order—whether these were conceived of as regional systems based on Chinese power and its attendant Confucian values, or the systems that existed in Africa or in South and South East Asia. For many European scholars such as Jan Hendrik Willem Verzijl these developments represented the logical ‘triumph’ of Europe.28 This was the history of the relationship between European international law and ‘regions’ that was traditionally presented by many of the most prominent scholars of the discipline such as Verzijl and Arthur Nussbaum in his short history of the discipline. The focus of these histories was very much on what might be termed the issue of culture and civilization rather than ‘regions’. Indeed, ‘regions’ assumed some sort of significance within these histories principally as a rough approximation for civilizations.

While European international law had established itself as ‘universal’, the gradual emergence of the United States as a world power was recognized as presenting a new set of issues relating to ‘regional international law’. The United States had formulated the Monroe doctrine in 1823. Under this doctrine, broadly, the US claimed that it would regard any European interference or intervention in the affairs of the Americas as an act of war. By the time of the League of Nations, the existence of something akin to a regional international law was explicitly recognized in a regime, the most (p. 1066) ambitious up to its time, that purported to be universal. Article 21 of the League of Nations Covenant asserted that ‘regional understandings like the Monroe doctrine’ would remain unaffected by the principles outlined in the League Covenant with regard to the maintenance of peace.29 As commentators at the time were quick to point out, the implicit endorsement of something like a regional variation raised a number of issues. For instance, it was unclear as to what constituted a ‘regional understanding’, who articulated the nature of the understanding, and what the limits were of any such understandings with regard to the League.30 All these discussions suggested both an acknowledgement of the significance of regional developments for international law and a shifting approach towards the relationship between these developments and the broader body of purportedly ‘universal’ international law. They also indicate the problem of how ‘regions’ were to be conceptualized. However, with the outbreak of the Second World War, these questions were given less prominence than the broader question of how international law and institutions could create an effective system of international government. Article 53 of the UN Charter, which explicitly brings regional organizations under the control of the Security Council, addressed this issue.

Another major development in the ‘problem of regions’ was represented by the important work of the great Chilean jurist, Alejandro Alvarez. His pioneering article, ‘Latin American International Law’,31 published in 1909 in the American Journal of International Law provides an outline of how regional international law may be conceptualized, how it emerges, and how it relates to the ‘universal’ international law propounded by Europe. Alvarez is clear to demonstrate that Latin America borrowed from both the United States and Europe. In its public law, the United States as a recently independent nation was a model; in the case of private law Europe, and especially France, provided the model. As Alvarez notes, Latin American States were ‘exposed to the direct influence of Europe, as they were of the same civilization and connected with the Old World by powerful bonds of culture and commerce’.32

While recognizing that Latin American States were diverse, Alvarez argued that geographical factors, shared historical experiences, and political solidarity united them. In particular, they were united in resisting the dangers of European intervention, they understood that they experienced unique problems, and they sought to further their unity and resolve their conflicts in a manner compatible with their own traditions, customs, and needs.33

(p. 1067) Alvarez asserts a distinctive approach to international law in that he presents regionalism as having a dual relationship with European international law, from which Latin America received its earliest inspiration. In emphasizing the European elements of Latin American international law, Alvarez was essentially and strategically asserting that Latin America was indeed ‘civilized’ and thus properly belonged to the Family of Nations.34 At the same time, however, Latin American international law was in many respects unique and was seeking to depart from the strictures of European international law. For Alvarez, an appreciation of Latin American international law, and its own distinctive character, could enrich international law.35 Seen from a broader perspective, the timing of this article raises interesting issues. By 1909, European international law had triumphantly expanded beyond its original confines to become universally applicable. In so doing, it had overcome and replaced all the previous ‘regional systems’ that had existed in East Asia, Africa, and South Asia. It is in precisely this period, however, that Alvarez questions this primacy by pointing to the novel phenomenon of a regional system that had been a product of Europe and which was now transcending, if not challenging, the original source. The implications of this approach are disconcerting because of the suggestion that the universality of international law was in question. The Monroe doctrine, analysed by Alvarez, and cited by him as an element of Latin America distinctiveness, became a prominent issue around which the issue of regions was debated in the post-war period.36

4.  Conceptualizing Regions—The Third World Response

The history of international law, until relatively recent times, has been written by scholars from the ‘developed countries’, the successors of the imperial powers of the West. Once Third World States acquired sovereignty, however, scholars who were sympathetic to the concerns of developing countries provided very different (p. 1068) approaches to the history of international law. For scholars such as Ram P Anand,37 Taslim O Elias,38 Charles Henry Alexandrowicz and their colleagues, the history of international law needed to be rewritten in order to appreciate better the systems of law that appeared to operate in non-European areas such as Africa and Asia. Many of the essays and book chapters produced at this time deal with ‘regions’ and their connection with international law. For example, Taslim Elias’ chapter in the Encyclopedia of International Law is titled ‘History of the Law of Nations Regional Developments: Africa’.39 Nevertheless, an examination of the contents of the chapter reveals that the concept of a ‘region’—Africa—is a given, and what is presented is a history of the relations between various African societies and kingdoms, the advent of imperialism, and then, decolonization. Nagendra Singh's chapter on ‘History of the Law of Nations Regional Developments: South and South-East Asia’40 suggests the ways in which some of the fundamental concepts of Indian civilization—deriving from Buddhism and Hinduism, for instance—shaped the principles of inter-state relations, and extended out to influence the larger regions of South and South-East Asia. Singh further points out that, even in the Vedic period from 4000 BC to 1000 BC, different political entities had emerged in northern India; they were understood to possess different statuses based on the power they exercised. Importantly, however, they developed principles that governed relations among them. The work of scholars such as Kautilya41 in his treatise on statecraft provides accounts of such relations.42 Further, religiously inspired works—the Code of Manu, the Ramayana, and the Mahabharata—all provided principles of conduct that could be extended to deal with inter-state relations, which related, for instance, to what might now be termed ‘the laws of treaties’ and ‘the laws of war’. The concept of dharma or law was crucial to an understanding of the principles guiding inter-state behaviour at this time.

Singh's work, like that of another eminent international lawyer, Ram P Anand, is in many ways animated by the concerns of the period in which it was written. For this generation of Third World international law scholars, historical analysis was important to demonstrate that South Asia and India more particularly were not ‘strangers’ to some of the basic principles and doctrines of international law. Thus, detailed studies were made to demonstrate that the rules of inter-state relations that were found in ancient India were comparable to so called modern and Western doctrines relating, for instance, to the laws of war, the law of treaties, State (p. 1069) responsibility and the status of ambassadors.43 The developing country scholars of the 1960 and 1970s were attempting to write the histories of their own regions in part because international lawyers, almost by definition, would have to focus on a ‘region’ in order to articulate such a proto-history of international law, as it is only if different political entities within a region interacted with each other that some claim could be made that a transnational, inter-national system existed, and that the principles governing such a system could be seen as an early example of international law.44 Needless to say, the writing of history is an inherently political act. It is hard to avoid the conclusion that much of this scholarship was driven by an intention to contest the views of many Western scholars at the time, who were fearful that the entry of non-European States would undermine, if not destroy the system of international law that was ineluctably and inescapably Western—the further implication being that the non-European world could not adapt to a European based system of law. What is clear from a survey this literature, however, is that even the concept of ‘regional international law’ is presented in terms of several broad themes: first, how the politics and civilizations of a region—the concept of ‘region’ is generally treated as a given rather than problematized in any way—gave rise to certain principles that governed relations among entities in those regions; secondly, how European expansion affected that region and resulted in its colonization; and finally, how the entities of that region emerged as new States as a consequence of self-determination and decolonization. To the extent that the major theoretical concerns of these histories of regions can be identified, they had to do with the nature of the principles that governed relations among regional entities, the religious, and civilizational sources of these principles, and the relationship between these principles and contemporary international law.

5.  Regions and Geopolitics: International Law and the Management of Space

Another approach to the issue of ‘regions’ in international law is to focus less on the idea of regions as a political construct and more on their geographic dimension—to conceptualize regions in their original spatial terms rather than as a crude proxy for (p. 1070) political or civilizational entities.45 The control and management and regulation of space were of crucial significance to governance and statecraft even prior to the emergence of the modern State, as a survey of manuals of warfare and histories of conflict would suggest.

Several of the most crucial concerns of international law are geographically based. The modern idea of statehood is inherently connected with the concept of bounded territory. Territory is the foundation of the State. More broadly, numerous significant events in international law focus on demarcation. Thus Pope Alexander VI's edict of 1493 granted the Spanish rights to the newly discovered lands of the New World;46 the Treaty of Tordesillas in 1494,47 between Spain and Portugal,48 divided non-European lands between these two powers, with Spain claiming rights in the Americas, and Portugal rights in the East Indies. These divisions, inevitably contested by States that were not party to these treaties, attempted to prevent future disputes between great powers.

Geography provides a vital mode of defence; and international relations scholars and strategists from Sun Tzu49 to Halford Mackinder50 have focused on this reality in their analysis of conflict and Great Power politics. Further, the idea of ‘natural frontiers’, for instance, has preoccupied scholars dealing with territorial disputes and international legal approaches to nationalism and ethnic conflict. As Robert Redslob observes, natural frontiers refer to

boundaries which offer advantages by the geographical structure and the resources of the circumscribed country. To have natural frontiers is to possess a territory, which gives facilities of defence against an invasion, and which, on the other hand, is an important source of economic subsistence.51

This idea of ‘natural frontiers’ has resulted in a tension between what might be described a ‘geographical frontiers’ and ‘political frontiers’. The fact that a State's security is perceived to require control or influence over areas which are not within its sovereignty has resulted in the formation of ‘buffer zones’ and ‘spheres of influence’. Disputes over control of the seas has been another issue of ongoing importance to international law. Scholars ranging from Grotius to Alfred Thayer Mahan52 and beyond have been preoccupied with the question of control over the sea.

(p. 1071) If we interpret the issue of regions to be the control and management of space, then it is clear that this question is a central preoccupation of international law, as so many areas of the first importance to the discipline—the concept of territorial sovereignty itself, the law relating to the settlement of territorial disputes, the law of the sea, and indeed, the evolving law of outer space, all deal with this central issue, and the major works that deal with these subjects can be seen as addressing the problem of regions. It is inevitable and unsurprising, then, that international law has established numerous doctrines to deal with the regulation of space; that territorial disputes have generated an enormous jurisprudence; that entire treaties, conventions and dispute resolution mechanisms are devoted to the issues relating to sovereignty and rights over space. Clearly, then, histories of international law that systematically examine the different doctrines used in international law to deal with these issues are of major importance. It is notable, furthermore, that geographic explanations—which have been used to account for issues such as poverty and unequal development—are now once again becoming prominent, as witnessed by the work of Ian Morris53 and John Darwin.54 Given the clear importance of the management of space for international relations, the question arises as to how general histories of international law have dealt with this subject.

Of all the major historians of international law, it is perhaps Carl Schmitt who focuses most closely and explicitly on space, and who analyses both State practice and all the prominent thinkers of the discipline in terms of how they addressed the issue of space. Schmitt recognizes the management of space to be the central preoccupation of international relations. Every nomos of the earth addresses the fundamental issue of spatial ordering:

This is the sense in which the nomos of the earth is spoken of here. Every new age and every new epoch in the co-existence of peoples, empires, and countries, of rulers and power formations of every sort, is founded on new spatial divisions, new enclosures, and new spatial orders of the earth.55

What is powerful and striking about Schmitt's account is his attempt to demonstrate that all law emerges from the appropriation of land: ‘In every case, land-appropriation, both internally and externally, is the primary legal title that underlies all subsequent law.’56 The appropriation of land precedes the private/public distinction, private property itself; it is radical title.57 Schmitt traces the idea of (p. 1072) the fundamental importance of land appropriation in the writings of Giambattista Vico, Immanuel Kant, and John Locke. But his own and original contribution to this debate is his claim that the question of war was intimately and inseparably linked to the issue of land appropriation, and that what was achieved by the Jus Publicum Europaeum was a bracketing of war with regard to land appropriation.58 The governing and indispensable element of the nomos that Schmitt celebrated with such eloquence was the division of the earth into two spheres—the European and non-European spheres. The availability of ‘free land’ in the non-European world was fundamental to this spatial division of the world and the bracketing of war that followed.59 Schmitt calmly made the stunning assertion that non-European territories were ‘free land’ that could be appropriated by European powers. Together with this system is the idea that while the terrestrial world was spatially divided in this way, the sea remained free. The significance of scholars such as Grotius—who was not greatly esteemed by Schmitt, it seems—was his work on ‘The Free Sea’.

The crucial issues of war and peace were in turn based on this elemental distinction. Schmitt argued that different concepts of ‘enemy, war, and plunder’ were generated by these divisions.60 Indeed, the ‘bracketing of war’ that is such an essential aspect of his jurisprudence ‘pertained only to European land wars among States, pursued on European soil or on soil having the same status’.61 By this he refers to ‘a rationalization, humanization and legalization—a bracketing—of war’ achieved through this spatial division.62

The spatial order of Europe that is the subject of Schmitt's admiration and, indeed, nostalgia, was based on a specific structure of power that was managed by the Great Powers of Europe.63 However, the system was sufficiently flexible to allow for the emergences of new Great Powers—such as the as the United States and even Japan after its defeat of Russia. For Schmitt,

the recognition of a Great Power was the most important legal institution of international law with respect to land appropriation. It signified the right to participate in European conferences and negotiations, which was fundamental for this reality of European interstate international law.64

(p. 1073) This was the basic framework, one powerfully based on concepts of space and territory that Schmitt used to analyse major international events. Thus the Berlin Conference of 1885 was simultaneously the apogee and perigee of this system. It was a classical European conference in that it was intent on land appropriation and the carving up in a peaceful manner of another, different continent that was awaiting appropriation; the creation of a set of procedures to enable this was an indispensable part of this process. And yet, for Schmitt, the confusion about the status of non-European lands as a result of the uncertain characterization of the legal status of the Congo65 and the ambiguous involvement of the United States suggested disturbing trends, the breakdown of the system he espoused.

For Schmitt, the emergence of the United States resulted in a disruption of this spatial system and thereby introduces ‘a new concept of war into world history’.66 The United States, for Schmitt, rather than accepting its new status and the accompanying rules of spatial order—which it could itself now participate in applying and managing—undermined the system with an alternative system of order. Referring to the Monroe doctrine, Schmitt argued that ‘[t]he line of a Western hemisphere already contained a polemical challenge to the specific European concept of a global spatial order.’67 For Schmitt, the system collapsed with the League of Nations, when ‘the European order dissolved into spaceless universalism, and no new order took its place’.68 The League created a system of law based on an unreal universality ‘[t]he dissolution into general universality simultaneously spelled the destruction of the traditional global order of the earth.’69

Schmitt's arguments, however controversial and disconcerting—if not completely bizarre—demand some attention because they contain many original insights, and because they treated the issue of space and regions profoundly seriously. Schmitt's sweeping and in many ways disturbing vision raises a number of complex questions. What are the crucial elements of his jurisprudence, and how do the different elements of his jurisprudential structure connect together? How does the division of the world into sovereign European spheres and free (to appropriate) non-European spheres result in the bracketing of war? How does this system operate and evolve? How should we now think of Schmitt's work if approached in terms of the ideas of geography and space?70

The European res publicae for Schmitt embodied a ‘concrete order’. In this regard Schmitt was like many of the writers discussed earlier in his belief that a particular region, Europe, had developed a system of international law that was somehow more authentic and effective because it was based on a shared history and values. It (p. 1074) is clear that Schmitt was vehemently opposed to a ‘universalistic’ international law. For Schmitt, it would appear, a ‘concrete order’ is an order that is created by a specific community of States that share a common culture and consciousness and which, most importantly, manifests this unity by adopting a shared set of principles regarding space.71 For Schmitt, then, the idea of ‘international law’ somewhat paradoxically is specific to a continent or more particularly a real and shared culture. The League of Nations therefore is disastrous as it lacks such an underlying common culture or community—it has no regional basis—and because it correspondingly fails to articulate a coherent, concrete ‘spatial order’. The League was a ‘disorganized mass of more than 50 heterogeneous states, lacking any spatial or spiritual consciousness of what they once had in common’.72 It is understandable then, that despite their completely different approaches to the Monroe doctrine, Schmitt complimented Alvarez for his understanding of the importance of a regional international law as being the only possibility, a specifically American international law.73

Many of Schmitt's arguments bear a striking resemblance to the arguments made by post-colonial and Third World scholars regarding the character and geopolitics of international law. Schmitt is unerring and unrelenting in basically asserting that the European system of international law and relations, indeed, European order itself, was based on the endless appropriation of non-European lands and peoples against whom war could be waged without any limits or restrictions. International law is based on a fundamental distinction between European and non-European States, for instance, and the appropriation of the non-European world was crucial to the well-being and very existence of Europe. Schmitt is quite breathtaking in his simple assumption that conquest and exploitation are unavoidable features of any political system, and that the non-European lands were simply available for appropriation. It is startling to note, for instance, that Schmitt's principle criticism of the Monroe doctrine appears to be, in substance, that it prevented European appropriation of lands in the Western hemisphere. Schmitt, however, laments the collapse of this order whereas the Third World critique was intent on illuminating and denouncing its very existence.

Schmitt is telling in his analysis of why the League of Nations was a failure in terms of its inability to establish a ‘spatial order’ for the earth—a problem that could be attributed to many different factors. The principle of ‘nationalities’ asserted by Wilson's espousal of self-determination, for instance, disrupted the idea that territorial issues could be simply decided by the great powers; the ambivalence of the United States—both a powerful presence within the system and yet outside it—compounded the problem. But Schmitt never gives any sense of (p. 1075) how the system that he so ardently champions collapsed with such horrifying results: he does point to the beginning of the disintegration of the European system—which corresponded with the Berlin conference and its dual character, as both an affirmation of the system—the European powers were meeting to allocate ‘free lands’ in the non-European world and a process which led to its undermining, through the peculiar manner in which Belgium acquired rights over the Congo, and the beginning of the US practice that was to appear in a far more significant form in the Paris deliberations of 1919, of being both present and absent in major international negotiations. However, there is no clear link drawn between such events and the conflagration of the First World War.74 Whatever the many criticisms that can be made of Schmitt's work, for the purposes of this chapter he is crucial for his assertion that the management of space is the central task of any particular order and for writing a history of international law that is based on this premise. His work is also noteworthy for the suggestion that a key aspect of any civilization is its conceptualization and management of space—key because so many other issues such as war and peace and integrally related to it.

6.  Regions and Future Histories of International Law

A renewed interest in the history of international law is now taking place—and it is an interest that has engaged not only international lawyers, but political theorists and scientists, historians, and philosophers. History, by its very nature, is more preoccupied with questions of time rather than space, the developments of events and civilizations and empires and ideas over particular periods. However, it is clear that international law is unavoidably concerned with question of sovereignty, power, governance and empire, and none of these issues can be addressed without some conceptualization of space. Suggestively, for Foucault, the term ‘region’ is a ‘fiscal, administrative, military notion’.75 As the prominent colonial administrator, Lord Curzon put it, referring to another geographical term ‘[f]rontiers are indeed the razor's edge on which hang suspended the modern issues of war and peace, of (p. 1076) life or death of nations’,76 in other words, the central concerns of international law.

Recent important works have attempted to provide histories of the relationship between international law and geography. Thus Lauren Benton has written an illuminating history of the way in which European empires developed complex versions of sovereignty to deal with different geo-political realities. These empires seldom established one clear model of sovereignty over the territories and areas they controlled; rather, ‘[e]ven in the most paradigmatic cases, an empire's spaces were politically fragmented; legally differentiated; and encased in irregular, porous, and sometimes undefined borders’.77 Different and intricate regimes had to be devised to enable empires to control sea routes, mountainous regions, and estuaries, and the character of these regimes is the subject of Benton's important work.

The relationship between international law and geography is also a central theme in Tayyab Mahmud's work on the Durand line separating Afghanistan and Pakistan and splitting the Pashtun people. As Mahmud argues, ‘[n]ineteenth century constructs of international law, geography, geopolitics and the frontier, fashioned in the age of empire, were interwoven in the enabling frame that made the drawing of colonial borders like the Durand line possible.’78 The work of scholars such as Benton and Mahmud's provide models of the relationships between geography and international law, and how these issues may be explored.

The study of international law and geopolitics implicates, then, a whole series of questions that have been, historically, of the first importance to international law. Simply, borders and regions that have been dictated by external political imperatives and instantiated into international law rarely produce happy outcomes to the actual inhabitants. There is a vast literature on questions of ethnicity and borders. The works of anthropologists such as Thongchai Winichakul79 and James Scott,80 who deal in different ways with issues of nationhood, governance, and territory, may offer other important insights into the relationships between geography and law. Globalization, further has profoundly affected conceptualizations of space—commerce is (p. 1077) conceived of as ‘spaceless’, ideas of ‘political belonging’ and ‘the nation-State’ have been transformed—and this raises additional important issues whose genealogies remain to be traced by scholars of international law.

7.  Conclusions

Any attempt to discuss ‘regional international law’ is confronted by the difficulty that a ‘region’ may be defined in numerous ways, depending on geographical, political, and ideological criteria. Nevertheless, the idea that particular regions have developed a unique international law has persisted in the writing of histories of international law. If anything, the significance of ‘regional international law’ has increased in recent times as a result of the emergence of regional entities with carefully defined memberships, and corresponding adjudicatory systems. Such developments raise the question, once again, of the relationship between ‘regional’ international law and universal international law. This chapter has suggested that further research into the relationship between international law and regions—understood as the management of space—may provide important insights into the history and nature of international law.

  • Alexandrowicz, Charles H An Introduction to the History and Law of Nations in the East Indies (Clarendon Oxford 1967).
  • Alvarez, Alejandro ‘Latin America and International Law’ (1909) 3 American Journal of International Law 269–353.
  • Anand, Ram P Development of Modern International Law and India (Indian Society of International Law New Delhi 2005).
  • Benton, Lauren A Search for Sovereignty: Law and Geography in European Empires, 1460–1900 (CUP Cambridge 2010).
  • Elias, Taslim O Africa and the Development of International Law (AW Sijthoff Leiden 1972).
  • Grewe, Wilhelm G The Epochs of International Law (Walter de Gruyter Berlin 2000).
  • Legg, Stephen (ed) Spatiality, Sovereignty and Carl Schmitt: Geographies of the Nomos (Routledge London 2011).
  • Preiser, Wolfgang ‘History of the Law of Nations: Basic Questions and Principles’ in Rudolph Bernhardt (ed) Encyclopedia of Public International Law (Elsevier North-Holland 1995) vol 2, 716–21.
  • Schmitt, Carl The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (Telos Press Publishing New York 2003) at 79.
  • (p. 1078) Singh, Nagendra ‘History of the Law of Nations: South and South-East Asia’ in Rudolph Bernhardt (ed) Encyclopedia of Public International Law (Elsevier North-Holland 1995) vol 2, 824–39.
  • Slaughter, Anne-Marie and William Burke-White ‘The Future of International Law is Domestic (or, the European Way of Law)’ (2006) 47 Harvard International Law Journal 327–52.
  • Verosta, Stephan ‘International Law in Europe and Western Asia Between 100 and 650 ad’ (1964) 113 Recueil des cours 485–651.

Footnotes:

1  For exploration of this theme see International Law Commission ‘Report of the International Law Commission of its 57th Session’ (2 May–3 June and 11 July–5 August 2005) UN Doc A/60/10, ch XI, 204–25 (Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law).

2  See AM Slaughter and WB White ‘The Future of International Law is Domestic (or, the European Way of Law)’ (2006) 47 Harvard International Law Journal 327–52.

3  A Roberts ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 International and Comparative Law Quarterly 57–92.

4  N Davies Europe: A History (OUP Oxford 1996) at 7–16.

5  Further, conflicts between regional customs and understandings can lead to dire consequences: ‘The Asiatics, according to the Persians, took the seizure of women lightly enough, but not so the Greeks: the Greeks merely on account of a girl from Sparta, raised a big army, invaded Asia and destroyed the empire of Priam.’ Herodotus The Histories (A de Sélincourt trans) (revised edn 2003 Penguin Books 1954) at 4.

6  See eg P Malanczuk Akehurst's Introduction to Modern International Law (7th edn Routledge New York 1997) at 1–32.

7  S Verosta ‘International Law in Europe and Western Asia Between 100 and 650 AD’ (1964-III) 113 Recueil des cours 485–651.

8  See S Hamamoto ‘International Law: Regional Developments: East Asia’ in R Wolfrum (ed) The Max Planck Encyclopedia of International Law (OUP Oxford 2011) at <www.mpepil.com>, and DA Desierto ‘Regional Developments: South and South-East Asia’ in ibid

9  Cf the contribution by A Becker Llorca ‘The Problem of Eurocentrism in the History of International Law’ in this volume.

10  W Preiser ‘History of the Law of Nations: Basic Questions and Principles’ in R Bernhardt (ed) Encyclopedia of Public International Law (2nd edn Elsevier North-Holland 1995) vol 2, at 127.

11  History of the Law of Nations (n 10) 129. Preiser also makes it clear that such an undertaking would not in any way undermine the uncontestable achievement of Europe: the European achievement is ‘secure for all time by reason of the fact that European international law developed into world international law’.

12  ‘History of the Law of Nations regional Developments’ in Encyclopedia of Public International Law (n 10) vol 2: N Singh ‘South and South-East Asia’ (ibid 824–39); TO Elias ‘Africa’ (ibid 793–802); S Miyazaki ‘Far East’ (ibid 802–9).

13  For a far reaching analysis of international law based on the concept of ‘civilizations’ see O Yasuaki A Transcivilizational Perspective on International Law (Martinus Nijhoff Publishers Leiden 2010); also the contribution by L Obregón ‘The Civilized and the Uncivilized’ in this volume.

14  A El-Kosheri ‘History of the Law of Nations regional Developments: Islam’ in Encyclopedia of Public International Law (2nd edn Elsevier North-Holland 1995) vol 2, 809–18.

15  See for instance, M Craven and M Fitzmaurice Time History and International Law (Martinus Nijhoff Leiden 2007); I de la Rasilla del Moral ‘International Law in the Historical Present Tense’ (2009) 22 Leiden Journal of International Law 629–49; GRB Galindo ‘Martti Koskenniemi and the Historiographical Turn in International Law’(2005) 16 European Journal of International Law 539–59.

16  This is the problem Grewe attempts to address: ‘[I]t is important to recognize and demarcate the close connection between legal theory and State practice, and to comprehend that both are forms of expression of the same power, which characterize the political style of an epoch just as much as its principles of social, economic and legal organisation.’ WG Grewe The Epochs of International Law (Walter de Gruyter Berlin 2000) at 6.

17  History of the Law of Nations (n 10) 126.

18  R Ward An Enquiry into the Foundation and History of the Law of Nations in Europe and from the Time of the Greeks and Romans to the Age of Grotius (A Strahan and W Woodfall London 1795).

19  As Grewe argues, for instance, ‘[I]t is important to recognise and demarcate the close connection between legal theory and State practice, and to comprehend that both are forms of expression of the same power, which characterize the political style of an epoch just as much as its principles of social, economic and legal organization.’ The Epochs (n 16) 6.

20  The extent of this involvement has been studied in detail by M van Ittersum ‘The Long Goodbye: Hugo Grotius’ Justification of Dutch Expansion Overseas, 1615–1645’ (2010) 36 History of European Ideas 386–411.

21  F de Vitoria De Indis et De iure belli relectiones (E Nys ed, JP Bate trans) (Carnegie Institute Washington, DC 1917).

22  I Porras ‘Constructing the International Law in the East Indies’ (2005–6) 31 Brooklyn Journal of International Law 741–804; R Tuck The Rights of War and Peace (OUP Oxford 1999).

23  E Keene Beyond the Anarchical Society (CUP Cambridge 2002).

24  J Westlake Chapter on the Principles of International Law (CUP Cambridge 1894).

25  See in this volume, for an extended analysis, ‘The Civilized and the Uncivilized’ (n 13).

26  See the discussion of these issues in MF Lindley The Acquisition and Government of Backward Territory in International Law (Longmans, Green and Co London 1926).

27  CH Alexandrowicz The European-African Confrontation: A Study in Treaty Making (AW Sitjhoff Leiden 1973); CH Alexandrowicz An Introduction to the History and Law of Nations in the East Indies (Clarendon Oxford 1967)

28  JHW Verzijl International Law in Historical Perspective (AW Sijthoff Leiden 1968) vol 1.

29  League of Nations Covenant (signed 28 June 1919, entered into force 10 January 1920) 225 CTS 195, art 21.

30  GG Wilson ‘Regional Understandings’ (1933) 27 The American Journal of International Law 310–11.

31  A Alvarez ‘Latin America and International Law’ (1909) 3 American Journal of International Law 269–353.

32  ibid 273.

33  See eg ibid 270.

34  Many ‘semi-peripheral jurists’ as Arnulf Becker terms them in his important work, that is, jurists from States such as Chile, Argentina, Turkey and Japan, adopted the strategy of internalizing and reformulating the ‘standard of civilization’ that was so crucial to determining the legal status of a particular society. See A Becker ‘Universal International Law: Nineteenth Century Histories of Imposition and Appropriation’ (2010) 51 Harvard International Law Journal 475–552.

35  For a detailed study of the controversies arising from Alvarez's claims about a distinctive Latin-American international law, and the background to these claims, see the contribution by J Esquirol ‘Latin America’ in this volume.

36  ‘Latin America and International Law’ (n 31) 275.

37  See eg RP Anand Development of Modern International Law and India (Indian Society of International Law New Delhi 2005).

38  TO Elias Africa and the Development of International Law (AW Sijthoff Leiden 1972).

39  Cf  ‘Africa’ (n 12)

40  ‘South and South-East Asia’ (n 12).

41  Kautilya The Arthashastra (LN Rangarajan ed, rearranged, and trans) (Penguin Classics India 1992).

42  History of the Law of Nations (n 40) 825–6.

43  See also CJ Chacko ‘India's Contribution to the Field of International Law Concepts’ (1958) 93 Recueil des cours 117–221.

44  As Singh puts it, ‘[i]f the conditions necessary for the origin and development of international law are examined, it will be found that first, there must be the existence of separate political units.’ History of the Law of Nations (n 40) 825.

45  Cf the contribution by D-E Khan ‘Territory and Boundaries’ in this volume.

46  See The Epochs (n 16) 233.

47  Treaty of Tordesillas (signed 7 June 1494) reprinted in WG Grewe (ed) Fontes Historiae Iuris Gentium: Sources Relating to the History of the Law of Nations (De Gruyter Berlin 1988) vol 2, 110−16.

48  The Epochs (n 16) 234.

49  Sun Tzu The Art of War (5th century BC) (J Minford ed and trans) (Penguin Classics New York 2002).

50  HJ Mackinder ‘The Geographical Pivot of History’ (1904) 21 The Geographical Journal 421–37.

51  R Redslob ‘The Problem of Nationalities’ (1932) 17 Grotius Society Proceedings 21–34 at 21.

52  AT Mahan The Influence of Sea Power on History, 1660–1783 (Little, Brown, and Co Boston 1860).

53  I Morris Why the West Rules—for Now (McClelland & Stewart Ltd Toronto 2010).

54  J Darwin After Tamerlane: The Rise and Fall of Global Empires 1400–2000 (Bloomsbury Publishing London 2009).

55  C Schmitt The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (Telos Press Publishing New York 2003) at 79; B Fassbender ‘Carl Schmitt (1888–1985)’ in this volume.

56  ibid 46. Interestingly, Schmitt, cites Kant as being in agreement (referring to Kant's Philosophy of Law in this regard).

57  ibid 47.

58  The core of this nomos lay in the division of European soil into State territories with firm borders, which immediately initiated an important distinction, namely that this soil of recognized European States and their land had a special territorial status in international law. It was distinguished from the ‘free soil’ of non-European princes and peoples open for European land appropriations. ibid 148.

59  ‘Vast seemingly endless free spaces made possible and viable the internal law of an interstate European order.’ ibid 183.

60  ibid 184.

61  ibid 184.

62  ibid 100.

63  ‘The earlier European conferences demonstrated that the interstate international law of Europe was grounded in a comprehensive Eurocentric spatial order, which, in common consultations and resolutions, had developed its methods and forms for all significant territorial changes and had given the concept of an equilibrium beneficial meaning.’ ibid 190.

64  ibid 191.

65  Schmitt argued that Belgium, through skilful diplomacy and sleight of hand, acquired sovereignty over the Congo without regard to the established scheme of European public order—without the permission granted by Great Powers and instead, relying on the doctrine of ‘effective occupation’. ibid 223–5.

66  ibid 100.

67  ibid 191.

68  ibid 192.

69  ibid 227.

70  For an illuminating set of essays that focuses on this aspect of Schmitt's work, see S Legg (ed) Spatiality, Sovereignty and Carl Schmitt: Geographies of the Nomos (Routledge London 2011).

71  What this dissolution heralded was the collapse of a ‘concrete order, above all a spatial order, by a true community of European princely houses, states and nations’. Nomos of the Earth (n 55) 233–4.

72  ibid 234.

73  ibid 229.

74  There is a hint that Belgium, once again, deviated from the proper rules of the European system by denouncing the Germans who had just invaded their territory in violation of numerous treaties as being engaged in an ‘unjust war’. ibid 259.

75  M Foucault ‘Questions on Geography’ in J Crampton and S Elden (eds) Space, Knowledge and Power: Foucault and Geography (C Gordon trans) (Ashgate Hampshire 2007) 173–82 at 176.

76  GN Curzon Frontiers: The Romanses Lectures, 1907 (Clarendon Press Gloucestershire 1907, repr Elibron Classics New York 2006) at 7; cited in Mahmud ‘Colonial Cartographies, Postcolonial Borders, and Enduring Failures of International Law: The Unending Wars Along the Afghanistan-Pakistan Frontier’ (2010) 36 Brooklyn Journal of International Law 1–74. Curzon was one of the notable viceroys of India.

77  L Benton A Search for Sovereignty: Law and Geography in European Empires, 1460–1900 (CUP Cambridge 2010).

78  T Mahmud ‘Colonial Cartographies, the Postcolonial Borders, and Enduring Failures of International Law: the Unending War Along the Afghanistan-Pakistan Frontier’ (2010) 36 Brooklyn Journal of International Law 1–74.

79  T Winichakul Siam Mapped: A History of the Geo-Body of A Nation (University of Hawai’i Press Honolulu 1994) at 2.

80  JC Scott The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia (Yale University New Haven 2009).