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IV Interaction or Imposition, 38 The Civilized and the Uncivilized

Liliana Obregon

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, 2021. All Rights Reserved. Subscriber: null; date: 17 April 2021

Subject(s):
History of international law — Recognition of states — Freedom from slavery or forced labour

(p. 917) 38  The Civilized and the Uncivilized

1.  Introduction

The word ‘civilization,’ coined in the 18th century, has a complex history, multiple meanings, and considerable baggage.1 It has been used to describe a process, destination, benchmark, fact, or an ideal that evaluates the social self-understanding of the ‘civilized’ in reference to those they considered ‘barbarian’, ‘savage’, or ‘uncivilized’. Civilization is a key concept to understand the imagined values of 19th-century political communities and their relation to international law.

As with other core 19th-century concepts, civilization was closely related to the idea of progress and the theory that nations advance through different stages of development. The usage of the word ‘civilization’ spread quickly among learned Europeans who, in relation to other societies, believed they were endowed with an advanced level of social complexity in opposition to ‘barbarous’ nations, who could possibly acquire civilization if they conformed to certain values, or ‘savages’, who were condemned to never access it.

(p. 918) As a politically efficient concept, the nature and consequences of ‘civilization’ changed as new ‘horizons of expectations’ opened up.2 There was little agreement among those who considered themselves ‘civilized’, on what were the values or the means to obtain them for an ‘uncivilized’ society to become ‘civilized’. The multiple contents assigned to civilization made it an enduring, ubiquitous, and inescapable concept that burdens the history of international law.3 Furthermore, international law carries the weight of being pronounced the ultimate product of civilization, making it into an utopian ideal of a transnational organized legal system that would bring progress and peace to the world.

In the 19th century, the adjective ‘civilized’ and its counter-concept ‘uncivilized’ made their way into the writings of publicists, judicial decisions, treaties, and institutional documents. The pair described and evaluated peoples, nations, or States in their relation to sovereignty. Applying the civilized/uncivilized to international law simplified the world by dividing it in two. When ‘civilized’ was used to describe a people, nation or State, it constituted and was constituted by its opposite, the ‘uncivilized’. The civilized, those endowed with civilization, were recognized as proper subjects of international law. The uncivilized, those lacking civilization, were left outside of international law.

This labelling had an optimistic and productive side: the possibility of collective progress and improvement through human intellect and work without the interference of nature. The forward looking movement made the possibility of normative consequences acceptable and sustainable.4 The downside, however, was that those who believed themselves ‘civilized’ assumed a missionary project which self-legitimized them to enslave, conquer, manage or submit the ‘uncivilized’ to persistent hierarchical legal, economic, social, and/or political relations.

The dichotomous division of positive and progressive civilized subjects and their negative and regressive contraries denied the possibility of comparison or mutual recognition among them and placed an inherent contradiction to the principle of universal applicability of international law and the equality of nations. These descriptions implied unresolvable and incoherent claims based on a heterogeneity of content ascribed in different localities and times.5 By excluding the political or social agency of the ‘uncivilized’, only ‘civilized’ nations could participate in the project of (p. 919) international law. Resistance or political action by the ‘uncivilized’ constituted them as illegal, subversive, barbarian or, at a minimum, marginal.6

2.  The 16th and 17th Centuries of Christians and Non-Believing Barbarians

A precedent to the 19th century distinction between the civilized and the uncivilized can be found in the 16th- and 17th-century division between Christians and non-Christians. As Europeans conquered and colonized American lands and peoples, new normative questions challenged their Christian vision of law and morality. In his lectures On Recently Discovered Indians and On the Law of War Made by the Spaniards against the Barbarians Francisco de Vitoria (c. 1486–1546) approached the Indians as subjects of theological inquiry and Spanish sovereignty (potestas) in his effort to advise the Spanish crown.7 ‘This whole dispute  …  has arisen’, argued Vitoria, ‘because of these barbarians in the New World, commonly called Indians, who came under the power of the Spaniards some forty years ago, having been previously unknown to our world.’8

Vitoria's judgment of the Indians as barbarian outsiders to the Spanish world is founded on the Aristotelian division between noble, intelligent, virtuous, and god-like Greeks and beastial, mentally inferior, logos-lacking babblers who could not speak their language.9 In ancient Greece, moral and legal order was based on an idea of social and cultural unity among men who should follow primary norms (prima praecepta) to obtain a life of happiness (eudaimonia), the highest end (telos) of all men.10 Primary norms distinguished between good and evil and ranged from prohibitions of killing, theft, or adultery to behavioural norms such as ways of eating, interacting, or wearing clothes. Barbarians were outsiders with no access to eudaimonia because they were thought to be lacking in language and did not build, live in cities, or follow the primary norms.11

Like Aristotle, Vitoria's universal legal/moral order (ius gentium) was divided in two worlds: a Spanish ‘us’ of ‘our world’ and a barbarian or Indian ‘them’ of the New (p. 920) World. Both worlds and people were assumed under a Christian universe and a unique normative moral/legal order. For Christians, non-Christians were outsiders who, like the earliest men, behaved violently, in ‘uncivil’ ways and could not progress because of their idolatry and ignorance of God's laws.12 Christians, differently from Greeks, however, allowed for baptism as a door to access their world. Once a barbarian was baptized he left his savage life and could live virtuously under God's laws, in order to obtain the telos of all Christians: the glory of God.13

The Spaniards differentiated themselves from the barbarians in order to distinguish the limits of sovereign rule.14 Vitoria regarded the Indians as ‘not fully unintelligent’ since they ‘had precise notions of things,’ and forms of organization evident in their marriage rituals, family life, laws, and magistrates. However, he argued, they were still barbarians because, they lacked the ‘letters, arts, crafts, systematic agriculture, manufacture and other things  …  indispensable for human use’.15 Also, due to an inadequate education and their idolatry, Indians ‘were no better than wild beasts’ in the art of self-government or in the food they ate. Vitoria concluded that the Spaniards, wiser men, were responsible for providing Indians with a Christian education, baptism, and the administration of their country.16 Education and conversion did not give Indians equal treatment because they still remained under Spanish potestas as subjects of their indoctrination.

3.  The Humanistic 18th Century and the Coining of Civilization

In the 18th century, when the word ‘civilization’ appeared, the concept of the civilized/uncivilized entered legal discourse through the language of the Enlightenment. Christian Wolff (1679–1754) defined civilized nations in his Jus Gentium as those who conformed to standards of reason and politeness, cultivated, and perfected intellectual virtues, and trained the mind. Barbarous nations neglected their intellect and followed ‘their natural inclinations and aversions’. For Wolff, the Christian individual (p. 921) and the nation had a new telos: to be civilized and ‘to direct all their efforts to this end’.17

Later on, Immanuel Kant (1724–1804) argued in Perpetual Peace that ‘peoples or nations, regarded as states’ could be judged ‘like individual men’: they were either ‘savage’ or ‘civilized’. Civilized nations had constitutions, they preferred ‘rational liberty’, ‘a legal constraint constituted by themselves’ and demanded constitutions from each other to avoid ‘mutual injury’ and favour their own security. Savage nations, on the other hand, did not want a constitution and remained attached to their ‘wild freedom’ and ‘lawless liberty of  …  being engaged in incessant conflict with each other’. Civilized nations looked upon uncivilized ones ‘with profound contempt’ and characterized their condition ‘as barbarism, coarseness, and a brutal degradation of humanity’. Kant's telos for civilized nations went further than Wolff's: ‘a continuously growing state consisting of various nations (civitas gentium) which will ultimately include all the nations of the world’. Since Kant recognized that a world State was a utopian goal, he also proposed more feasible alternatives reached through the civilizing process: a league of nations, a federation of free States or alliances that would limit or avoid war.18

4.  The 19th- and Early 20th-Century Civilizing Mission

The 19th and early 20th centuries epitomized the use of the civilized/uncivilized in its relation to international law, in particular with the doctrine of recognition and the promotion of an implied standard for Europe's ‘civilizing mission’.

4.1.  The Declaration on the Abolition of the Slave Trade

The 1815 Declaration of the Powers on the Abolition of the Slave Trade was one of the first international instruments to identify nations as civilized: ‘the commerce known by the name of “the Slave trade” has been considered by just and enlightened men of all ages, as repugnant to the principles of humanity and universal morality’ and ‘the (p. 922) public voice, in all civilized countries, calls aloud for its prompt suppression’.19 The declaration regarded ‘civilized countries’ as both ‘Christian powers’ and ‘European States’. According to the text, ‘just and enlightened men of all ages’ and ‘the public voice in all civilized countries’ considered the slave trade—but not necessarily slavery—as repugnant to the principles of humanity and universal morality.20

4.2.  Recognition of New States

Further into the century, the new American States sought recognition of their independence to participate in the ‘community of civilized nations’. A former colony that was not recognized was perceived as a savage or barbarian entity. Thus recognition by European States, especially by the ‘mother country,’ served two purposes: to avoid recolonization and to allow for commercial treaty-making. The first constitutions of the United States (1787), Haiti (1805), and the former Spanish American colonies (after 1811) were written to demonstrate they were not in a ‘savage state of lawlessness’ as well as to organize their governments.21

The framers of the United States’ constitution incorporated the language of the law of nations into the text as a practice of civilization.22 France recognized the US in 1777, Britain and Netherlands in 1782, Spain, Sweden, and Denmark soon followed. However, US recognition of her American neighbours was complicated by the problem of slavery and the perceived racial composition of the new States.

Indeed, in 1791, half a million slaves revolted in the French colony of Saint Domingue and declared themselves free, initiating a struggle for independence that lasted over a decade of fighting against Spanish, British, and French armies. Soon after the defeat of Napoleon Bonaparte's largest military expedition sent to recover the colony and to reinstate slavery in 1802, the former slaves declared their independence and renamed the territory they controlled as ‘Hayti’. At that moment, they became the second independent State of the Americas after the US, but their process of recognition was long deferred.

(p. 923) The 1804 Haitian declaration of independence and 1805 first constitution inverted the civilized/barbarian labelling: the French were described as the ‘barbarians who have bloodied our land for two centuries’ while the Haitians were ‘a people, free, civilized and independent’. The texts declared ‘eternal hatred of France’ and portrayed French language, customs, and laws as barbarian interventions, but praised Haitians for abolishing slavery ‘forever’ and declaring themselves ‘black’ while prohibiting future property ownership by any ‘white’ male.

Spanish American leaders admired Haitians for having defeated the strongest European armies, but lived in extreme fear of ‘another Haiti’ occurring in their territories as the invitations to Simón Bolívar's 1826 Congress of Panama made evident. The congress’ purpose was to build regional strength by uniting the new States in hopes of recognition by Spain. The majority of the new States opposed inviting Haiti arguing that it would give her a de facto recognition of statehood, bring negative consequences to the cause of Spanish American independence, show ‘considerations of etiquette  …  reserved for civilized nations’ and ‘incite a disastrous racial revolution on the continent’.23 They also did not want to antagonize the United States representatives who opposed Haiti's participation because slavery and the slave trade continued to be essential to the US economy.

France recognized Haiti in 1834, but only in exchange for an agreement made in 1826 for Haiti to pay a 150 million franc indemnity to French plantation and slave owners.24 The United States recognized Haiti in 1862 after the civil war, and Spanish American States began to recognize Haiti after Brazil in 1865. In 1934, Mexico became the last American State to recognize Haiti.25

Spanish American States were concerned with how their status of civilization would affect their recognition and looked to demonstrate it through various means. For example, Simón Bolívar (1783–1830) promoted the unification of principles, forms of government and institutions in hopes that Spain and the other European countries would see it as a proof of internal stability and civilization. Andrés Bello (1781–1865) promoted the teaching and learning of international law, as well as a (Spanish) American literature, grammar and laws to ‘complete the civilization’ that the Spanish had left unfinished.26

(p. 924) 4.3.  Civilization Defined

During the second half of the 19th century, international law continued to appear as an image of civilization. In his Dictionnaire de droit international public et privé of 1885, Carlos Calvo (1824–1906) defined civilization as:

[T]he state of man in society, in opposition to barbarity. Civilization is the result of the reciprocal action of industry, the arts, the sciences, literature, morals and of religion, in one word, of all that can have an influence over the spirit of man, contribute to exercise the development of his potential, and of the satisfaction of his needs and his well-being in general. International law is one of the most precious fruits of civilization: because it has become one of the bases of the organization of societies and therefore an essential element in the harmonic march of humanity.27

For Calvo, civilized nations were ‘endowed with’ civilization because they had ‘the polished manners, the customs, the uses that denote a certain moral, political and economic education’ and were ‘organized on stable and rational basis, on the principles of order, justice and humanity’. As they were ‘in opposition to barbarous or savage nations’ civilized nations had a mission: ‘to promote the education, the guidance, in one word, the civilization of savage peoples, to extend the territory of civilized States more and more, to constitute civilized authorities in the greater name of barbarous regions’. A limit was added, nonetheless: ‘civilized nations do not have the right to expel the savage or barbaric races, to destroy them, exterminate their race, or to take away the lands in which they live’.28

Late 19th-century Latin American, Japanese, Chinese, Ottoman, and other peripheral lawyers upheld Calvo's definition as they included their States as part of the civilized world but at the same time used the civilizing mission to conquer and control ‘noncivilized peoples’ in their own States and regions.29 Peripheral lawyers exceptionally criticized the language of civilization, as did the Japanese lawyer Tsurutaro Senga (1857–1929):

[E]ach religious denomination or philosophical school cherishes a peculiar conception of civilization. When European international law scholars speak about ‘civilization’ or ‘civilized states’, they do so likewise from the subjective standpoint of their own Weltanschauung.30

4.4.  The Berlin Act and the Blessings of Civilization

The 19th century ended with the General Act of the Conference at Berlin on West Africa (The Berlin Act) of 1885. That document reflected the colonial discourse of late (p. 925) 19th century that structured the relation between the civilized and the uncivilized, despite its multiple ideas of civilization and the lack of a coherent standard. The Berlin Act signers agreed ‘to regulate the conditions most favourable to the development of trade and civilization in certain regions of Africa’ and

[T]o bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being, and protect and favour all  …  institutions and undertakings  …  which aim at instructing the natives and bringing to them the blessings of civilization.31

‘Certain regions’ of Africa were considered free space for occupation due to their status as uncivilized or as land that was ‘empty’ and not possible to consider a State.32 By legitimizing occupation as an instrument of the civilizing mission, the Berlin Act promoted European private interests as public ones in the ‘scramble’ for Africa. The designation of protectorates that would bring the ‘blessings of civilization’ avoided the burden of full formal administration. The absence of fixed rules of territorial entitlement eliminated the possibility of violating them and negated indigenous pretensions to sovereignty.33

4.5.  Civilized Nations in the Permanent Court of International Justice's Statute

In 1920, the Council of the League of Nations appointed a committee of jurists to draft the rules and statute of the new Permanent Court of International Justice. Though the statute's article 38—still part of the current ICJ statute—instructed judges to apply the ‘general principles of law recognized by civilized nations’ to any dispute submitted to it, the committee members displayed different views on civilization and civilized nations but never defined those terms.34 For the committee's rapporteur, Leon Bourgeois (1851–1925), progress and civilization was the growing interdependence and regulation of political, economic, financial, and social matters as indispensable to the peace and prosperity of each and all.35 (p. 926) He presented international law as the ultimate sign of civilization and the court as its new tool. The court would be the ‘judicial power of humanity’ and the ‘empire of justice’ as the ‘supreme institution whose decisions must establish the sovereignty of law in all the world’.36 Speaking on the ruins of four years of war and millions of dead, Bourgeois considered it a ‘victory of the soldiers of civilization and of liberty  …  as conquered peoples have been freed and states have the right to be recognised’. Bourgeois was hopeful of ‘humanity as a whole,’ the future of international justice, and of a ‘universal civilization’ no longer divided into ‘old’ and ‘new’ worlds.

For the committee's president and Belgian representative, Édouard Descamps (1847–1933), the world was divided into civilized and uncivilized peoples differentiated by their levels of access to law and justice. He proposed that article 38(c) instructs judges to apply the ‘rules of international law as recognised by the legal conscience of civilized nations’.37 The balance of power system for Descamps was unreliable and archaic and thus he saw the committee's role as establishing a coordinated system of international affairs based on principles of justice. International law would be the new system's centre and the heroes would be the ‘jurisconsults of authority’ who were able to interpret the principles of justice derived from ‘the public conscience of civilized nations’. Descamps argued that after a judge had failed to rule based on conventional norms and custom, he must apply general principles of law found in ‘the doctrines of publicists carrying authority’ as stated by ‘the great Chancellor Kent’38 and the ‘legal conscience of civilized peoples’ as found in the Martens clause of the second Hague Convention of 1899. He thought his version would limit the arbitrariness of the judge's opinion because ‘the fundamental law of justice and injustice—deeply engraved on the heart of every human being—  …  is given its highest and most authoritative expression in the legal conscience of civilized nations’.39 He was only opposed by Albert Geouffre De Lapradelle (1871–1955), the representative from France, who agreed that article 38(c) should make reference to ‘the general principles of law’ but argued that using the term ‘civilized nations’ was superfluous ‘because law implies civilization’.40

The role of ‘civilized nations’ came up again in the discussion on what criteria to adopt for nominating and electing judges. The Spanish jurist, Rafael Altamira (1866–1951), proposed that judges should represent the ‘different types of civilization’ as (p. 927) distinguished by language and the ‘different legal systems on the Court’.41 Altamira's proposal was supported by Descamps who argued that the modification would make the clause much more precise because the ‘difference between the various legal systems was based upon the relation between law and the civilization of which it was the reflection  …  a difference deep(ly) rooted in history’.42

For Bourgeois, the Permanent Court's judges should be

[C]hosen not by reason of the state of which they are citizens, but by reason of their personal authority, of their past career, of the respect which attaches to their names known over the whole world. These judges will represent an  …  international spirit which is the safeguard of [national] interests, within the limits of their legitimacy.43

Elihu Root (1845–1937), the US representative, disagreed and insisted that world peace was based on the coexistence of the ‘Principal Powers’ with other States and that ‘from all points of view: population, territory, wealth, trade and commerce, finance, history, race, systems of civilization and jurisprudence, vital interests, regional interests, etc  …  it was imperative that  …  the five great Powers be represented on the Court’.44 Juridical equality of States, for Root, did not coincide with the inequality of practical interests which depended upon the national life of peoples. He argued that his was a ‘method of civilization to find the means of conciliating, for a useful end, conflicting political views’ like the one made by the United States in 1787 when it created two chambers, one based on the principle of equality of States and the other on population’.45

Altamira viewed some of the opinions as containing ‘the experience and the psychological sense of some of the great Powers’ and thus argued that they should be taken into account because the court's existence depended on their goodwill. Nonetheless, he still thought that the number of the judges should be based on public opinion and the judges’ moral qualities, because weaker nations had a greater need that justice be done since law was their only defence. Altamira finally gave in and concluded that, in practice, the powers were ‘great’ because of their military power, economic development, and their contribution to civilization. The great powers, as they had a more developed civilization, he thought, would have ipso facto a larger pool of intellectual men who would represent them on the court, if the simple principle of choosing the best men be followed.46

It turns out then, that the PCIJ's committee's discussion was the only international law forum before 1945 where the concept of civilized/uncivilized was interrogated albeit individual perceptions on its meaning differed. But it is only in the second half of the 20th century when academic lawyers began to analyse the meanings, uses, and consequences of the concept of civilization in international legal history.

(p. 928) 5.  20th-Century Reflections on the Power of Civilization

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,

European international law considered Christian nations to be the creators and representatives of an order applicable to the whole earth …  . Civilization was synonymous with European civilization …  . In this sense Europe was still the center of the earth. With the appearance of the ‘New World’, Europe became the Old World.49

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

(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 subhuman55 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)

that the concept of the international law was a specific European international law. That was self-evident on the European continent, especially in Germany. This also was true of such worldwide, universalist concepts such as humanity, civilization and progress, which determined the general concepts of the theory and vocabulary of diplomats. However, the whole picture thereby was understood to be Eurocentric to the core, since by ‘humanity’, one understood, above all, European humanity. ‘Civilization’ was self-evidently only European civilization and ‘progress’ was the linear development of European civilization …  . The great English and French works of this epoch all have a Eurocentric concept of civilization, and distinguish among civilized, semi-civilized and barbarian peoples. But they left this problem in the background  …  in titling their books International Law or Law of Nations.59

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

[N]o longer could be used to form institutions of international law  …  Europe was no longer the sacral center of the earth …  . The belief in civilization and progress had become nothing more than an ideological facade  …  in this confusion, the old nomos of the earth determined by Europe dissolved.61

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 (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’:

Turkey cannot enter into the political system of Europe; for the Turks are not Europeans. During the nearly four centuries that people have been encamped upon the finest soil of the Continent, so far from becoming one of the families of Christendom, they have not adopted one European custom. Their habits are still Oriental, as when they first crossed the Bosphorus. They scrupulously exclude their females from the society of the other sex; they wear the Asiatic dress; sit cross-legged, or loll upon couches, using neither chair nor bed; they shave their heads, retaining their beards; and they use their fingers still, in the place of those civilized substitutes, knives and forks …  . A printing-press may be said to be unknown in Turkey; or, if one be found at Constantinople, it is in the hands of foreigners. The steam-engine, gas, the mariner's compass, paper money, vaccination, canals, the spinning-jenny, and railroads, are mysteries not yet dreamed about by Ottoman philosophers. Literature and science are so far from finding disciples amongst the Turks, that that people have been renowned as twice the destroyers of learning: in the splendid though corrupt remains of Greek literature at Constantinople; and by extinguishing the dawn of experimental philosophy, at the subversion of the Caliphate.75

(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:

At first the world was destined to become Christian, then it was destined to become civilized, while now it is destined to become legally  …  egalitarian, in the sense of the spread of democracy and human rights.83

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: (p. 936)

No stable standard of civilization emerged to govern entry into the ‘community of international law.’  …  the concept never worked and was never intended to work, as an all-or-nothing litmus test …  . The existence of a ‘standard’ was a myth in the sense that there was never anything to gain. Every concession was a matter of negotiation, every status dependent on agreement, quid pro quo. But the existence of a language of a standard still gave the appearance of fair treatment and regular administration to what was  …  a conjectural policy …  . Without such language, it would have been impossible to  …  explain, let alone to justify, why non-European communities could be subjected to massive colonization …  . Here was the paradox: if there was no external standard for civilization then everything depended on what Europeans approved. What Europeans approved  …  depended on the degree to which aspirant communities were ready to play by European rules. But the more eagerly non-Europeans wished to prove that they played by European rules, the more suspect they became.90

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

6.  Conclusion

From the 16th century to the early 19th century, the concepts of civilized/uncivilized (and other pairs such as progressive/backward, cultured/barbarian, modern/primitive, white/black) which categorized and stratified peoples, nations or States were key to the language of informal European imperialism. In the late 19th century, the language of civilization transitioned to formal imperialism sustained by international law. Though the legal and moral arguments changed throughout the centuries, the hierarchical description of insiders and outsiders of a legal community, the teleological view, and its missionary spirit are central to understand the history of international law.

In the 16th and 17th centuries, the holistic Christian vision of law and morality was the entitlement for European expansion, as Native Americans entered into the universe of European sovereignty. Indigenous people became liable to management and land appropriation by those who described themselves as being at a higher stage of human evolution because of their religious beliefs and particular forms of social interaction. As barbarians, the indigenous could access Christianity through baptism and the adoption of European cultural and linguistic practices. They then had the possibility of obtaining the individual telos of receiving God's glory, but they remained subjects of European indoctrination. Africans also fared a dismal fate, as they were categorized at an even lower stage of human evolution that did not foresee the possibility of progression, and thus allowed the moral and legal justification for their enslavement.

In the 18th century, Enlightenment thought brought forth the concept of the ‘human’ and its other (the ‘inhuman’ or ‘subhuman’) which allowed for an alternative conceptual pair to the previous Christian/non-Christian universal view. The century ended with proposals for the individual human's telos to contribute to national civilization and a collective purpose for humanity to reach the unity of all civilized nations through law. Essentially, however, humanity and the law of nations were considered European.

(p. 938) In the 19th century, civilization became the new a priori claim to European expansion based on an accepted way to classify the progress of peoples or States through a range of imagined values. Civilization was a conjectural policy based on contextual variables and a belief in the teleology of the modern State as a product and an agent of modern evolutionary development. In legal terms, those who promoted civilization had rights inherent to their status, entitlement over uninhabited territories or ‘uncivilized’ political communities. The international legal community was ‘the community of civilized nations’ and the European law of nations was the common law of civilized nations.

By the end of the 19th century, the civilizing mission was used as an argument in the ‘scramble for Africa’. In the interwar period, the idea of civilized nations was institutionalized in article 38 of the PCIJ statute as source for the origins of principles of international law though it was not defined. After the Second World War, several studies acknowledged the relevance of the concept of civilization in the history of international law and began to study the existence of a standard of civilization. Critical authors questioned its continuity or appropriateness as a tool of influence, domination or subordination while others viewed it as a necessary form of universal progress that needed to be updated with current ideas of standards.

In the mid-20th century, as a result of two devastating wars, the term came into crisis. In the context of the decline of Europe's image as ‘civilized’, the end of the century brought new variables of progress, such as free trade, democracy, and human rights.95

To conclude, international law surged in the 19th century as a discipline constituted by the tension in defining its inner and outer limits between the civilized and the uncivilized. The events that mark the dates of international law's historical narrative and origins are defined around these spheres, with the final utopia of international law as the ultimate achievement of civilized progress. To be in international law was to be a part of civilization while to be out of international law was to be lawless and savage. For many authors of the 19th century and later, reading civilization into international law meant that the moments when there was no international law, or the peoples that did not have it, were barbarous moments or barbarous peoples. The main tenants of international law—the regulation of peace and war—can also be understood as trapped in the dualism of civilized/uncivilized. As a project in expansion, international legal scholars and practitioners built up the chronology of the discipline based on the idea of a normative progress in regulating peace and war constrained by the dichotomy revolving around the limits and conditions of sovereignty. Yet a comprehensive history of the concept of civilization, and its accompanying adjectives civilized/uncivilized in international law has to be written. This overview, taken from a sample of legal scholars’ reflections on the topic, hopes to contribute to the debate and open some questions for further research.

  • Anghie, Antony ‘Francisco de Vitoria and the Colonial Origins of International Law’ in Eve Darian-Smith and Peter Fitzpatrick (eds) Laws of the Postcolonial (Law, Meaning, and Violence) (The University of Michigan Press Ann Arbor 1999) 89–107.
  • Anghie, Anthony Imperialism, Sovereignty and the Making of International Law (CUP Cambridge 2005).
  • Bowden, Brett ‘The Colonial Origins of International Law: European Expansion and the Classical Standard of Civilization’ (2005) 7 Journal of the History of International Law 1–23.
  • Bowden, Brett (ed) Civilization: Critical Concepts in Political Science (4 vols Routledge New York 2009).
  • Bowden, Brett The Empire of Civilization: The Evolution of an Imperial Idea (The University of Chicago Press Chicago 2009).
  • Fisch, Jörg Die europäische Expansion und das Völkerrecht: die Auseinandersetzungen um den Status der überseeischen Gebiete vom 15. Jahrhundert bis zur Gegenwart (Steiner Verlag Stuttgart 1984).
  • Fisch, Jörg ‘Zivilisation, Kultur’ in Otto Brunner, Werner Conze, and Reinhart Koselleck (eds) Geschichtliche Grundbegriffe: Historisches Lexikon zur politisch-sozialen Sprache in Deutschland (Klett-Cotta Stuttgart 1992) vol 7, 679–774.
  • Fisch Jörg ‘The Role of International Law in the Territorial Expansion of Europe 16th–20th Centuries’ (2000) 3 International Center for Comparative Law and Politics Review 5–15.
  • Gong, Gerrit W The Standard of ‘Civilization’ in International Society (Clarendon Press Oxford 1984).
  • Grewe, Wilhelm G Epochen der Völkerrechtsgeschichte (Nomos Baden-Baden 1984); The Epochs of International Law (M Byers trans) (de Gruyter Berlin 2000).
  • Koskenniemi, Martti The Gentle Civilizer of Nations: the Rise and Fall of International Law, 1870–1960 (CUP Cambridge 2002).
  • Pagden, Anthony The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnology (CUP Cambridge 1990).
  • Schmitt, Carl Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Duncker & Humblot Berlin 1950); The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (Telos Press New York 2003).
  • Schwarzenberger, Georg ‘The Standard of Civilisation in International Law’ (1955) 8 Current Legal Problems 212–34.(p. 940)

Footnotes:

1  See B Bowden The Empire of Civilization: The Evolution of an Imperial Idea (The University of Chicago Press Chicago 2009).

2  R Koselleck Futures Past: On the Semantics of Historical Time (Columbia University Press New York 2004) at 160.

3  Brett Bowden's four volume compilation on civilization also demonstrates its centrality to the histories of the humanities and the social sciences. See B Bowden (ed) Civilization (4 vols Routledge New York 2009).

4  J Fisch ‘Zivilisation, Kultur’ in O Brunner, W Conze, and R Koselleck (eds) Geschichtliche Grundbegriffe: Historisches Lexikon zur politisch-sozialen Sprache in Deutschland (Klett-Cotta Stuttgart 1992) vol 7, 679–774.

5  Futures Past (n 2) 156.

6  Futures Past (n 2) 158.

7  A Pagden The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnology (3rd edn CUP Cambrige 1990) at 64.

8  F de Vitoria ‘On the American Indians’ in A Pagden and J Lawrance (eds) Vitoria: Political Writings (CUP Cambrige 1991) 231–92 at 233.

9  The Fall of Natural Man (n 7) 16.

10  ibid 69.

11  ibid 94.

12  The Fall of Natural Man (n 7) 20–4.

13  ibid 21.

14  A Anghie ‘Francisco de Vitoria and the Colonial Origins of International Law’ in E Darian Smith and P Fitzpatrick (eds) Laws of the Postcolonial (The University of Michigan Press Ann Arbor 1999) 89–108.

15  ‘On the American Indians’ (n 8) 290.

16  ibid 290–1; see also Pagden's explanation in The Fall of Natural Man (n 7) 79–93.

17  C Wolff Jus Gentium Methodo Scientifica Pertractatum (Oceana Publications for Carnegie Institution Washington 1964) at 33.

18  I Kant ‘Perpetual Peace’ in Hans Reiss (ed) Kant's Political Writings (CUP Cambrige 1996); see also the contribution by P Kleingeld ‘Immanuel Kant (1724–1804)’ in this volume.

19  Congress of Vienna ‘Déclaration des Puissances sur l’abolition de la Traité des Nègres (8 février 1815)’ in Congrès de Vienne: Acte principal et traités additionnels, édition, complète collationnée sur les documents officiels (Imprimerie de Gerdès Paris 1874) 119–20 at 119.

20  On slavery and international law see the contribution by Drescher and Finkelman in this volume.

21  R Gargarella The Legal Foundations of Inequality: Constitutionalism in the Americas, 1776–1860 (CUP Cambrige 2010); J Gaffield ‘Complexities of Imagining Haiti: A Study of National Constitutions 1801–1807’ (2007) 41 Journal of Social History 81–103; DM Golove and DJ Hulsebosch ‘A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition’ (2010) 85 New York University Law Review 932–1066.

22  ‘A Civilized Nation’ (n 21).

23  Cited in P Verna Petión y Bolívar: Cuarenta años (1790–1830) de relaciones haitianovenezolanas y su aporte a la emancipación de Hispanoamérica (Ministerio de Educación—Dirección General Departamento de Publicaciones Caracas 1970).

24  Haiti defaulted on the first payment and was soon forced to take loans from French banks (and later American and German banks) converting the indemnity into a ‘double debt’. It took more than a century for Haiti to pay off the indemnity debt to France.

25  IM Wallerstein The Modern World-System (University of California Press Berkeley 2011) fn 308.

26  L Obregón ‘Construyendo la región americana: Andrés Bello y el Derecho Internacional,’ in B González Stephan and J Poblete (eds) Andrés Bello y los Estudios Latinoamericanos (IILI University of Pittsburgh 2009) 189–218.

27  C Calvo Dictionnaire de droit international public et privé (Puttkammer & Muhlbrecht Berlin 1885) vol 1, at 149 (emphasis added).

28  ibid 148.

29  A Becker Lorca ‘Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation’ (2010) 51 Harvard Journal of International Law 475–552 at 497.

30  Cited in ibid 482.

31  General Act of the Conference at Berlin (signed 26 February 1885) (1885) 165 CTS 485. The Act was signed by the representatives of Great Britain, Austria-Hungary, Belgium, Denmark, France, Germany, Italy, the Netherlands, Portugal, Russia, Spain, Sweden And Norway, Turkey, and the United States.

32  M Koskenniemi The Gentle Civilizer of Nations: the Rise and Fall of International Law, 1870–1960 (CUP Cambridge 2002) at 121–7.

33  J Fisch ‘Africa as Terra Nullius: The Berlin Conference and International Law’ in S Forster, W Mommsen, and R Robinson (eds) Bismarck, Europe, and Africa: the Berlin Africa Conference 1884–1885 and the onset of partition (OUP Oxford 1988) 347–75.

34  League of Nations, Advisory Committee of Jurists Procès-verbaux of the Committee, June 16th–July 24th 1920, with Annexes (Van Langenhuysen The Hague 1920).

35  ibid 9.

36  ibid 5 and 11.

37  ibid 306.

38  Descamps referred to James Kent's argument written a century before ‘ …  no civilized nation, that does not arrogantly set all ordinary law and justice at defiance, will venture to disregard the uniform sense of the established writers on international law’. J Kent ‘Of the Law of Nations: Lecture 1’ in Commentaries on American Law (O Halsted New York 1826) vol 1, pt 1, 1–20 at 18.

39  Procès-verbaux of the Committee (n 34) 306–11.

40  ibid 335.

41  ibid 370.

42  ibid.

43  ibid.

44  ibid.

45  ibid.

46  ibid 135.

47  J Morsink The Universal Declaration of Human Rights: Origins, Drafting, and Intent (University of Pennsylvania Press Philadelphia 1999) at 24.

48  See the contribution by B Fassbender ‘Carl Schmitt (1888–1985)’ in this volume.

49  C Schmitt and GL Ulmen The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (Telos Press New York 2003) at 86 (original emphasis).

50  ibid 137.

51  ibid 103.

52  ibid.

53  ibid 111.

54  ibid 109 (original emphasis).

55  ibid 104.

56  ibid 108.

57  ibid 107.

58  ibid.

59  ibid 228 (original emphasis).

60  ibid 228.

61  ibid 226.

62  G Schwarzenberger ‘The Standard of Civilisation in International Law’ (1955) 8 Current Legal Problems 212–34.

63  LC Green ‘Georg Schwarzenberger (1908–1991)’ (1992) 86 The American Journal of International Law 341–2.

64  S Steinle Völkerrecht und Machtpolitik: Georg Schwarzenberger (1908–1991) (Nomos Baden-Baden 2002) at 171.

64a  ‘The Standard of Civilisation in International Law’ (n 62) 212.

65  ‘The Standard of Civilisation in International Law’ (n 62).

66  ibid.

67  ibid.

68  ibid 296.

69  ibid 297.

70  ibid.

71  Grewe's book was translated by Michael Byers in 2000 as the Epochs of International Law with a new epilogue and minor modifications.

72  B Fassbender ‘On Writing the History of International Law in the “Third Reich” and After’ (2002) 13 European Journal of International Law 479−512 at 491.

73  Citing Oswald Spengler's Decline of the Occident in G Grewe The Epochs of International Law (M Byers trans) (Walter de Gruyter Berlin 2000) at 447.

74  ibid.

75  R Cobden Political Writings (Wiliam Ridgway London 1867) vol 1, at 270–1, or R Cobden Russia and the Eastern Question (John P Jewett & Company Boston 1854) at 86–7.

76  ibid.

77  ibid 466.

78  In a review of the 2004 edition of the Geschichtliche Grundbegriffe Kari Palonen considers Fisch's essay as ‘one of the most brilliant and in many respects surprising original pieces of the entire work’ K Palonen ‘A Train Reading Marathon. Retrospective Remarks on Geschichtliche Grundbegriffe’ in H Buchstein (ed) Redescriptions: Yearbook of Political Thought and Conceptual History (Lit Verlag Berlin 2006) vol 10, 160–75 at 162.

79  J Fisch ‘The Role of International Law in the Territorial Expansion of Europe 16th–20th Centuries’ (2000) 3 International Center for Comparative Law and Politics Review 4–13.

80  ibid 9.

81  ibid 11.

82  ibid 11.

83  ibid 5.

84  Gong's book opens with: ‘The confrontation which occurred as Europe expanded into the non-European world during the 19th and early 20th centuries was not merely political or economic, certainly not only military. It was fundamentally a confrontation of civilizations and their respective cultural systems. At the heart of this clash were the standards of civilization by which these different civilizations identified themselves and regulated their international relations.’ GW Gong The Standard of ‘Civilization’ in International Society (Clarendon Press Oxford 1984) at 3. This idea was appropriated by SP Huntington for his 1993 essay and 1998 book The Clash of Civilizations and the Remaking of World Order.

85  The Standard of ‘Civilization’ in International Society (n 84).

86  ibid.

87  ibid.

88  ibid.

89  J Donnelly ‘Human Rights: A New Standard of Civilization?’ (1998) 74 International Affairs 1–23; DP Fidler ‘Return of the Standard of Civilization, The International Human Rights Law in Practice’ (2001) 2 Chicago Journal of International Law 137–57.

90  M Koskenniemi The Gentle Civilizer of Nations: the Rise and Fall of International Law, 1870–1960 (CUP Cambridge 2002) at 134–5.

91  A Anghie Imperialism, Sovereignty and the Making of International Law (CUP Cambridge 2005); B Bowden The Empire of Civilization: The Evolution of an Imperial Idea (The University of Chicago Press Chicago 2009).

92  L Obregón ‘Completing Civilization: Creole Consciousness and International Law in Nineteenth-Century Latin America’ in A Orford (ed) International Law and its Others (CUP Cambridge 2006) 247–64; A Becker Lorca ‘Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation’ (2010) 51 Harvard International Law Journal 475–552; P Singh ‘Indian International Law: From a Colonized Apologist to a Subaltern Protagonist’ 23 Leiden Journal of International Law 79–103; L Mälksoo ‘The History of International Legal Theory in Russia: A Civilizational Dialogue with Europe’ (2008) 19 European Journal of International Law 211–32; U Özsu ‘A Subject Which Excites the Deepest Interest throughout the Civilized World: The Greek-Turkish Population Exchange and the Craft of Diplomatic Nation-Building’ (2011) 24 Leiden Journal of International Law 823–47.

93  GW Gong ‘Standards of Civilization Today’ in M Mozaffari (ed) Globalization and Civilizations (Routledge London 2002) 77–96 at 94.

94  GW Gong ‘Empires and Civilizations: The Search for Standards Continues’ (2010) 12 International Studies Review 144–6.

95  ‘The Role of International Law’ (n 79) 6.