5.1. The Post-war Standard of Civilization
The devastation of two World Wars in the early 20th century brought into question the concepts of civilization and civilized nations. In 1947, the Saudi Arabian delegation protested to the drafting committee of the Universal Declaration of Human Rights that it had ‘for the most part taken into consideration only the standards recognized by Western civilization and had ignored more ancient civilizations which were past the experimental stage’, and that it was not the committee's task ‘to proclaim the superiority of one civilization over all the others or to establish uniform standards for all the countries of the world’.47
In his Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum
published in 1950, Carl Schmitt (1888–1985) engaged the concept of civilization as a product of the 19th century that eclipsed the view of history.48
Schmitt claimed that from the 16th to the 20th century,
For Schmitt ‘the first question in international law was whether the lands of non-Christian, non-European peoples were at such a low stage of civilization that they could become objects of organization by peoples at a higher stage’.50 As an example, he argued that the question was central to 16th-century Spanish theologians such as Juan Ginés de Sepúlveda (1489–1573) and Francisco de Vitoria, who both agreed with the process of conquest and Christianization but approached the issue of their ‘humanity’ differently. Sepúlveda used an Aristotelian argument to dispose natives of their human qualities by presupposing a higher humanity of the conqueror and making the Native Americans equal to savages and barbarians. Through this argument Spaniards could obtain legal title for land-appropriation and Indian subjugation.51 Schmitt wrote that ‘it is paradoxical than none other than humanists and humanitarians put forward such inhuman arguments, because the idea of humanity is two-sided and often lends itself to a surprising dialectic’.52
References(p. 929) Vitoria, on the other hand, had a theological and a-historical view on the difference between barbarians and Christians. Schmitt pointed out how Vitoria found the natives barbarous, but still considered them human and thus equal in rights to Christians. Vitoria's main argument in support of conquest and colonization was not about the inhumanity of the natives, wrote Schmitt, but about the legality of a ‘just war’ when barbarians opposed Spanish rights to free passage, free missions, free propaganda, and free commerce under ius gentium. Engaging in a just war ‘provided the legal title for occupation and annexation of American territory and subjugation of the indigenous peoples’. Schmitt, however, wrote that Vitoria must be seen in his historical context, as a representative of the Catholic Church and agent of the moral (and legal) authority created for the Crown of Castile's missionary mandate for land appropriation in the New World.53 ‘In reality’, wrote Schmitt, ‘despite his claim that the Indians are morally inferior, ultimately Vitoria's view of the conquista is altogether positive. Most significant for him was the fait accompli of Christianization’.54
Schmitt had no problem with Sepúlveda or Vitoria's justifications for conquest but rather with later interpretations and uses of their arguments. Sepúlveda's distinction of the conquistadors’ humanity became, in ‘the humanitarian 18th century’ as Schmitt called it, one side of absolute humanity versus the other side of ‘the inhuman’, or new enemy. 17th- and 18th-century philosophers from Grotius to Wolff developed the scholastic moral doctrine into a more neutral ius naturale and gentium without distinguishing between believers and non-believers, using Vitoria's Christian/non-Christian discriminatory moral theology for other political goals and intentions.
In the 19th century, argued Schmitt, in deep antithesis to 16th-century thinking, ‘the superhuman entered history with its hostile twin: the subhuman’55 in a historical mode of thinking that was humanitarian and civilizing, a ‘self-conscious arrogance of an idealist philosophy of history’ as exemplified by Hegel.56 Schmitt complained that though ‘Vitoria says nothing about the right of a superior civilization or culture, the right of civilized peoples to rule over half-civilized or uncivilized peoples or about “civilization”’, his contemporaries revived and misread Vitoria as embedded in a belief in progress and civilization. Since the destruction of the Christian view of history by the Enlightenment in the 18th century, Schmitt argued, the belief in civilization became so widely accepted that it ‘has been a decisive concept in European international law’57 and, along with the belief in ‘progress’ was ‘the main reason for contemporary misunderstanding [of Vitoria]’ who was so ‘far removed … from such concepts as progress and civilization’.58
During the 19th century, Schmitt observed that there was a ‘common and unproblematic view of a European civilization’ and (p. 930)
Schmitt pointed out that even in Wheaton's, Calvo's, or Fodéré's textbooks, where the new American States were considered civilized, there was still a common concept of a ‘unified European civilization,’ an unspoken standard presupposed and thought of as a general principle of international law, synonymous with liberal constitutionalism and ‘civilization’ in the European sense.60
The belief in civilization and progress declined after the Berlin conference of 1884–85 and until the First World War, when it
A few years after Schmitt's Nomos, Georg Schwarzenberger (1908–91) reflected on what he called ‘the standard of civilization’.62 But unlike Schmitt, who was a Catholic and supported the Nazi regime, Schwarzenberger was a Jew who had to flee Germany in 1934.63 Despite their obvious discrepancies, Schwarzenberger confessed to have a great admiration for Schmitt: ‘he is not only a “talent”, but a real genius, albeit an evil one … Like so many other intelligent people with whom I disagree, he makes me at least think over the reasons why I do so.’64 Indeed, he disagreed with Schmitt's appraisal that the belief in civilization declined after the Berlin conference and argued that ‘the nexus between Civilization and International Law was … a current legal problem of the first order’ but in a different way.64a
Schwarzenberger was anxious about the ‘analytical lawyer's’ encounter with the term ‘civilized nations’ in article 38(c) of the ICJ's statute and the court's interpretation for References(p. 931) understanding what civilized nations were, preoccupations that ‘for generations … have occupied the minds of historians, philosophers and sociologists’.65 He argued, therefore, that the ‘analytical lawyer’ had three options: to not give any meaning to the ‘embarrassing adjective’, to use ad hoc sociological knowledge to explain it, or to become aware of the ‘interdependence of all learning’, and accept the work of others to clarify the meaning using interdisciplinary tools.66
Schwarzenberger tried his own definition of a ‘civilized group’ as one that had ‘acquired a mature apparatus of thought and action and is characterised by the extensive use of rational behaviour patterns’.67 To define others as ‘groups of a rationally less calculable character’ was too formal and would not contain the full meaning of the term, though he recognized the existence of ‘a plurality and multiplicity of civilizations’ but could not accept them as absolutes, for they were ‘fragile and relative’ and ‘contained elements of barbarism’.68 Schwarzenberger decided it would be egocentric and naïve to identify one particular civilization with ‘Civilization’ which was, at most, an approximation to an ideal, ‘an ever continuing but always precarious effort’. Despite acknowledging the concept's instability, Schwarzenberger concluded that the ‘ultimate basis of any civilization is religious and ethical’ and is based on principles of agreement, reciprocity and voluntary cooperation. Lesser civilized societies are characterized by their reliance on the exploitation or force of man by man or of one group by another, on crude violence so that democratic States are civilized and totalitarian or authoritarian systems are uncivilized.69 Schwarzenberger made the distinction between ‘savage’ groups who had not yet reached any appreciable stage of civilization and ‘barbarian’ groups that had forsaken civilization, but his anxieties were evident: the Holocaust as his immediate past, the Cold War's bipolar world as his present, and a world nuclear war as the future.70
5.2. Three 1984 Books on Civilization and the History of International Law
In 1984, three books discussing the concept of civilization in the history of international law were published: Wilhelm G Grewe's Epochen der Völkerrechtsgeschichte,71 Jörg Fisch's Die europäische Expansion und das Völkerrecht: Die Auseinandersetzungen um den Status der überseeischen Gebiete vom 15. Jahrhundert bis zur Gegenwart, and Gerrit Gong's The Standard of Civilization in International Society.
(p. 932) Wilhelm Grewe (1911−2000) who in the Third Reich worked for the government-sponsored German Institute for Foreign Policy Research in Berlin, wrote his book as a Habilitationsschrift during the Second World War although it was only published in 1984.72 In the chapter the ‘Idea of Civilization and a Universal International Law in a Global State System’ Grewe distinguished between ‘civilization’ in English and French and ‘Kultur’ and ‘Zivilisation’ in German which, he argued, originated in the German intellectual elite's resistance to portray the First World War as conducted in the name of Western civilization.73 Grewe understood civilization as an expression of Western European and Anglo-French cultural consciousness ‘shaping the European cultural spirit’, as superior to others. As a concept closely linked with the intellectual and technical/industrial idea of progress and development, it achieved full precision in the 19th century when it differentiated ‘between the action of civilizing and the state of that which is civilized’.74
Grewe concluded that ‘the equation of the international legal community with the societé des nations civilisées in the 19th century was primarily an achievement of British policy and British thinking on the practice and theory of international law’. The requirements for a nation to be considered civilized, according to Grewe's assessment of British policy, was the abolition of the slave trade, the adoption of Christianity and of European social and cultural practices. He cited a passage from Richard Cobden's (1804–1865) work as exemplifying the classic criteria for belonging to the ‘civilized world’:
(p. 933) For Grewe, the spread of Britain's civilization ideology to continental theory culminated in the identification of the European law of nations with the ‘common world law of civilized nations’. The Christian European law of nations gradually grew into a global legal order or universal legal system, ‘the members of which were … only the “civilized nations”’. The system—deprived of its natural law foundation by the rise of positivism—introduced differentiation through the criterion of civilization and laid the foundation of a new and separate colonial law of nations.76 With this statement, Grewe opposed Schmitt's view that the international legal order's broadening and transformation began at the end of the 19th century. He denounced Schmitt's work as bad history, ‘not in conformity with the historical facts and … unconfirmed by the literature of this period’.77
Jörg Fisch, of the post-war generation, wrote on civilization in his 1984 study on European expansion and international law as well as a hundred page essay on the concept of ‘Zivilisation’ and ‘Kultur’ for Reinhart Koselleck's Geschichtliche Grundbegriffe.78 In Expansion, Fisch dedicated two chapters to reject Schmitt's thesis that extra-European colonial space, beyond the line of the Equator, was outside the law, and in a state of perpetual war in contrast to the European sphere of law-abiding States (Jus Publicum Europaeum) where war was contained (Hegung des Krieges) through a European peace by means of an externalization of war to the colonies. The colonies’ status of neutrality, Fisch argued, was ‘tenable neither empirically nor systematically’ because it was the European powers themselves that often declared their legal status in conflicts that arose between them.79
For Fisch, European expansion from the 16th to 20th centuries was different from other empire-building processes in world history because it was uniquely grounded in legal and moral justifications among Europeans themselves. Though the legal and moral arguments changed throughout these centuries, one constant theme was the ‘teleological view of history as a universalizing process’ with a missionary spirit that wanted to shape the world according to its own image. The main tool for European imperial expansion, argued Fisch, was through moral and legal a priori entitlements. From the 16th to the 18th centuries this unilateral entitlement was based on the spread of Christianity. Francisco de Vitoria argued for a universal Christian right of settlement and commerce in pagan territories. In the 18th century, writers such as Wolff, Kant, and de Vattel question the unlimited religion-based unilateral right to occupy territories and govern non-Europeans. During the second half of the 19th century, (p. 934) ‘civilization’ became the new far-reaching claim a priori ‘consciously or unconsciously … accepted by international lawyers, politicians and the general public in Europe and in North America’.80
Civilization was not a title, explained Fisch, but a belief in a new teleology: ‘the modern state was seen both as a product and an agent of modern civilization … . [T]hose who promoted civilization had more rights than those who were not interested in it … . In this context “civilization” had the emphatic meaning of “civilized life”.’81
On the other hand, civilization was the implicit foundation of a title based on a doctrine of ownerless sovereignty.82 Through the Roman law concept of occupation entitling the appropriation of ownerless objects, a subject of international law could appropriate the imperium rights (the sovereignty) over an uninhabited territory. The catch was that only ‘uncivilized’ political communities were subject to imperium by ‘civilized’ European or American States, the ones who decided who was ‘uncivilized’ in the first place. Further rights to occupation, showed Fisch, were justified to protect civilized life as for the perceived risks that civilized (European) nationals ran in uncivilized territories.
Fisch argued that the belief in civilization or intervention due to ‘lack of civilization’ and its superior value survived European imperialism and were updated in the 20th century as new claims a priori through a just title for intervention with the ‘lack of democracy’ argument:
Although Fisch's is the best historically grounded research of the 1984 books, Gerritt Gong's work is the most cited of the three. One of the last students of Hedley Bull, author of The Anarchical Society, Gong wrote the book as his PhD dissertation. He made a genealogical account of the ‘standard of civilization’ as a principle of international law in the 19th century and described how it eventually failed with the two world wars. Gong surveyed how China, Japan, Siam, Russia, Abyssinia, and the Ottoman empire were expected to conform to a European ‘standard of civilization’ that often ‘clashed’ with their own native standards.84
Gong defined the standard first, as ‘an expression of the assumptions, tacit and explicit, used to distinguish those that belong to a particular society from those (p. 935) that do not’ and second, as a general concept ‘which determined the domain of international law, and thereby defined the identity and delimited the boundaries of the ‘civilized’ international society’.85 Gong argued that the standard was a specific legal principle which developed towards the end of the 19th century. A State was considered civilized if it complied with five requirements that ‘reflected the norms of the liberal European civilization which arose to replace, though it remained firmly rooted in, the mores of Christendom’.86 The five requirements were (1) guarantees for the basic rights of liberty, dignity, property, freedom of travel, commerce, and religion, especially that of foreign nationals; (2) an organized and efficient political bureaucracy with capacity for self-defence; (3) adherence to international law—including the laws of war—and a domestic system of courts, codes, and published laws which guarantee legal justice for foreigners and nationals alike; (4) adequate and permanent diplomatic interchange and communication; and (5) adherence to cultural norms and practices of the ‘civilized’ international society so that actions like polygamy and slavery that were considered ‘uncivilized’ were also unacceptable.87
The ‘civilized’, according to Gong, would be ‘those who fulfil the requirements of a particular society's standard of civilization’, and the uncivilized are those who do not so conform and are left outside of the community as ‘not civilized’ or possibly ‘uncivilized’.88 Gong believed his standard was applied to individual States and societies as well as to systems of States or international societies of States.
Gong's work has been read in two directions: the first accepts his study as a realist interpretation of international relations which observes a historical normative fact of how States were ordered in a world system and interacted during the 19th century. According to this view, the standard of civilization surged in the 19th century, remained dormant during the Cold War era, and reappeared after the fall of the Berlin Wall in 1989 and again after September 11, 2001. These authors believe that the standard had some negative consequences in the past but is still beneficial and must be updated based on human rights protection or a broader ‘membership conditionality’ in international organizations that include political, economic, democratic, and good governance criteria.89
The second strand of works examine Gong's standard of civilization as the power and use of language and not as an international legal principle or natural rule. Martti Koskenniemi, in The Gentle Civilizer of Nations
, argued that the standard as such did not exist in the late 19th century:
The aspect of colonization and the usage of the standard by non-Europeans, highlighted by Koskenniemi in this passage, was taken further by Antony Anghie and Brett Bowden, who explore the ‘dark side’ of the standard and show its negative consequences as the language that allowed for the conquest and colonization of peoples and States by those who thought themselves civilized or at least ‘more civilized’.91 Other scholars have looked at how the concept of civilization was appropriated by non-European lawyers and worked into arguments to further their own national and international law projects.92
More recently, Gong has written about the standard and indicated that it ‘is not new, nor will it … ever become old. Some standard of civilization will remain a feature of any international society.’93 While Fisch warns against the uses of new standards of civilization for interventionists purposes in weaker States, Gong argues that standards of human rights, humanitarian law, sustainable development, the environment, international trade, and investment regulations are positive and must be followed for States to be considered ‘civilized’ by the international community in our modern world. Gong believes that today's international society searches and aspires (p. 937) for a ‘standard of civilization’ in order to continue organizing an otherwise anarchical international society and to show a normative path for constant improvement for the future.94