Within positivist traditions, sovereignty is in general seen as the foundational concept of international law. As demonstrated by scholars such as Antony Anghie and Martti Koskenniemi but before them also Carl Schmitt, such an analysis is flawed since few political communities beyond Europe were recognised as sovereign states under ‘European’ international law.[1] Within ‘European’ international law, sovereignty was reserved for the society of ‘civilised nations’ and law only prevailed among its members.[2] ‘Civilisation’ and ‘society’, therefore must be included as co-constitutive concepts of ‘European’ international law because they determined which political communities were to be included as sovereign states and which communities were ‘outside’ the world of European international law.[3] Droit Public de l’Europe is therefore not merely constituted on the basis of sovereign equality but also on the basis of the inequality between ‘civilised’ and ‘uncivilised’ peoples; the difference between Europe and its ‘other’.[4] The European princes could recognise each other as equals exactly because they saw themselves collectively as distinct from and superior to non-Europeans.
In this way, ‘Europe’ had a special legal and political status as distinct from the rest of the world within Droit Public de l’Europe: ‘Even in the absence of a common sovereign, Europe was a political society and international law an inextricable part of its organization.’[5] What the Europeans shared with each other, which in their own eyes distinguished them from everyone else and made them capable of ‘discovering’ and ‘civilising’ the rest of the world, was a distinctive kind of consciousness or conscience.[6] According to Koskenniemi:
the founding conception of late nineteenth-century international law was not sovereignty but a collective (European) conscience – understood always as ambivalently either consciousness or conscience, that is, in alternatively rationalistic or ethical ways.[7]
The interstate character of ‘European’ international law can be understood only if the spatial order that underpinned it is acknowledged. The Old World of Europe, where states recognised each other as sovereign equals, relied on its differentiation from the New World where, for most of political modernity, no communities were recognised as sovereign and where the law of ‘civilisation’ did not apply.[8] It was this fundamental difference set out by a Eurocentric spatial global order that gave meaning to Droit Public de l’Europe.[9] Following Schmitt, it was land
- ↑ Anghie, Imperialism, Sovereignty and the Making of International Law 99; Koskenniemi, The Gentle Civilizer of Nations 127ff; Schmitt, The Nomos of the Earth 147–8.
- ↑ Anghie, Imperialism, Sovereignty and the Making of International Law 100.
- ↑ As Anghie, Imperialism, Sovereignty and the Making of International Law 99 put it: ‘Positivists focused on sovereignty, but at least with respect to the European–non-European distinction, the powerful and defining idea that sovereignty was the exclusive preserve of Europe was enabled by an elaboration of the concept of “society”. Law properly prevailed only among the members of society. Consequently, for the positivists, the concept of law was intimately connected with the concept of society, rather than that of sovereignty.’ See also Koskenniemi, The Gentle Civilizer of Nations 51.
- ↑ Notwithstanding that late nineteenth century European jurists, such as Rolin, Bluntschli and Westlake, discussed colonialism in various different ways, Koskenniemi, The Gentle Civilizer of Nations 127 argues, ‘their discourse provides a uniform logic of exclusion-inclusion in which cultural arguments intersect with humanitarian ones so as to allow a variety of positions while at every point guaranteeing the controlling superiority of “Europe”’. For a more general debate about the ideas informing colonial administration, see Edward W Said, Orientalism (Penguin Books 2003).
- ↑ Koskenniemi, The Gentle Civilizer of Nations 51.
- ↑ Ibid 1. Schmitt, The Nomos of the Earth 132 alludes to the centrality of conscience/consciousness when he writes: ‘From the standpoint of the discovered, discovery as such was never legal. Neither Columbus nor any other discoverer appeared with an entry visa issued by the discovered princes. Discoveries were made without prior permission of the discovered. Thus, legal title to discoveries lay in a higher legitimacy. They could be made only by peoples intellectually and historically advanced enough to apprehend the discovered by superior knowledge and consciousness.’
- ↑ Koskenniemi, The Gentle Civilizer of Nations 51.
- ↑ Schmitt, The Nomos of the Earth 189, see also 210.
- ↑ International law, Anghie, Imperialism, Sovereignty and the Making of International Law, 274 argues, ‘is created in part through its confrontation with the violent and barbaric non-European “other”’. ‘Continental European international law since the 16th century, the Jus Publicum Europaeum, originally and essentially was a law among states, among European sovereigns’, Schmitt, The Nomos of the Earth 127 writes: ‘The European core determined the nomos of the rest of the earth. “Statehood” is not a universal concept, valid for all time and all peoples.’
