The complex history of international law.

Author:Ozsu, Umut
Position:International Law in a Multipolar World

This panel was convened at 2:15 pm, Friday, April 5, by its moderator, Steve Chamovitz of George Washington University Law School, who introduced the panelists: Kinji Akashi of Keio University; Umut Ozsu of the University of Manitoba; Ileana Porras of the University of Miami; and Iain Scobbie of the School of Oriental and African Studies, University of London.


By Umut Ozsu *

It has become fashionable in recent years to argue that non-Western states have exerted considerable influence over the creation and application of international law's most fundamental rules and principles. Equally fashionable are arguments to the effect that sustained growth in "emerging markets" is on the verge of destabilizing Euro-American dominance in the international legal and economic order. These claims tend to resonate with critics of Eurocentrism and American exceptionalism, who rely upon notions of "multipolarity" to develop "inclusive" accounts of international law's formation and operation. Rather than conceptualizing international law as a system with a clearly discernible core and periphery, such scholars typically regard international legal relations as fueled by "contributions" from a multitude of states, corporations, international organizations, and other actors.

The argument I will sketch today runs counter to much--though certainly not all--of this scholarship. I will argue that it is neither descriptively nor explanatorily inadequate to maintain that the architecture of what we now characterize as "international law" has for centuries been shaped to a significant degree by fundamentally European and American developments. Acknowledging the critical importance of Euro-American developments to the construction and transformation of the modern world economy, and the international legal order with which it has always been dialectically intertwined, neither warrants nor mandates the conclusion that non-Western experiences are unimportant or merely derivative. It simply forces us to confront the reality that the international legal order is inseparable from a global capitalist system with a largely Euro-American infrastructure, compelling us to craft socio-historically contextualized accounts of how non-Western elites have engaged international law with a view to negotiating prevailing configurations of power. Indeed, I will suggest, uncritical celebration of "multipolarity" of the liberal-internationalist variety mystifies the actual sources and relations of power, blinding us to the fact that much of international law continues to be organized around dominant classes, most of which continue to identify with predominantly Western interests.

In order to concretize this argument, I will consider three ideological formations that have proven to be influential as modes of conceiving what might broadly be termed "semi-peripheral" states: the late nineteenth-century attribution of "semi-civilized" status to certain extra-European states; the reliance by many Cold War jurists upon the notion of a socialist "Second World" and largely non-aligned "Third World"; and the current preoccupation, as legal as it is political and economic, with so-called "emerging markets." (1) It will be my contention that each of these constructs was internalized, or at least * instrumentalized, by semi-peripheral elites, which have nearly always understood themselves to operate in an interstate order characterized by highly uneven distributions of legal authority, not to mention extra-legal power.

Let me begin with James Lorimer's tripartite division of "humanity," which offers a classic illustration of the nineteenth-century notion of "semi-civilized" states. Influential during a time of rapid codification and professional organization, Lorimer regarded humanity as a general category, capable of being disaggregated into "three concentric zones or spheres." (2) In the first such "zone"--the innermost core of humanity, as it were--Lorimer placed the fully "civilized" European state, indirectly if not directly associated with high levels of legal formalization. In another "sphere," comprised of China, Japan, Persia, Siam, the Ottoman Empire, and the "separate States of Central Asia," (3) were "barbarous" states--states that fell short of the "standard of civilization" exemplified by a Britain but that were nevertheless able to stand on their own, either as independent sovereigns or as quasi-independent semi-sovereigns. The third "sphere," composed of ostensibly "savage" peoples, rounded out the picture, encompassing what Lorimer termed "the residue of mankind." (4) Lorimer sought to distinguish between the kind of political power and legal authority exercisable by members of each class. Whereas "civilized" states were entitled to enjoy "plenary political recognition," "barbarous" states were extended no more than "partial political recognition." For their part, peoples deemed "savage" were accorded even less--"natural or mere human recognition," or inclusion in the general category of humanity, but little in the way of genuine legal personality. (5)

Lorimer may have been an eccentric who wrote at the height of Victorian self-assurance. (6) But it would not be accurate to claim that either his Dantesque circles or their analogues, such as Franz von Liszt's division of states into "civilized," "semicivilized," and "uncivilized," (7) were byproducts of European imperialism that enjoyed little influence in the extra-European world. Ottoman negotiators at the 1878 Congress of Berlin and Japanese diplomats during the 1894-1895 Sino-Japanese War would not have countenanced a demotion of their state to "semi-civilized" status (whatever exactly that might have meant). But the states they represented made a point of supporting translation of European treatises, specialized training in European international law, and, most revealingly, socialization into or at least pragmatic reliance upon prevailing European conceptions of statehood and sovereignty--all with a view to benefitting from the norms of sovereign equality and non-intervention reserved to "civilized" states. Critical though it was to the amplification of European power, the "standard of civilization" was a device to which elites on the semi-periphery regularly felt compelled to adapt.

Turn now to the post-1945 context. Attempts to distinguish states belonging to a "First World" of market liberalism from those of a "Second World" purportedly hobbled by "democratic deficits" and an ideologically contested "Third World" marked by widespread poverty received their most naive formulations during the heyday of modernization theory in the late 1950s and 1960s, intimately related to the first wave of full-scale American-sponsored "law and development." Far from being the passive recipient of a conceptual construct imposed from above, this framework was appropriated, and often redeployed, by a great many non-Western states. A well-known example is provided by the preparatory work of Article 53 of the 1969 Vienna Convention on the Law of Treaties, drafted against the background of disputes concerning the status of peremptory norms. While Western states generally held firm to pacta sunt servanda while negotiating this provision, a large number of socialist and non-aligned states were determined to employ jus cogens as a means of nullifying substantively unjust treaties, reinforcing the normative inviolability of self-determination, and entrenching the prohibitions against slavery, genocide, and aggression. For every "First World" delegate who maintained that "States should not be able to invoke [jus cogens] unilaterally and without any control in order to repudiate obligations which had become irksome," there was a representative from a "Second" or "Third World" state who argued that "unequal treaties obtained by coercion" are "in violation of jus cogens rules of international law," with some going so far as to suggest that "[recognition of the existence of jus cogens was the first step towards the establishment of an embryonic universal 'public order."' (8) If the logic of the dominant Cold War vision of a stratified international order had purchase in the "First World," it also found support among policymakers in the "Second" and "Third Worlds," who adopted it even as they sought to alter the power dynamics that made it possible. Indeed, this was so even in the case of the project for a "new international economic order," which drew upon much the same framework of differential development to advocate debt relief, technology transfer, tighter regulation of foreign investment, permanent sovereignty over natural resources, and the elaboration of a full-fledged right to development and "common heritage of mankind" doctrine. (9)

Still newer frames of analysis came to the fore after 1989. The supposedly "post-ideological age" was to liberate markets from the tyranny of state power--if largely through privatization, "rule of law" promotion, and boilerplate structural adjustment. Accompanied though it was with all manner of triumphalist rhetoric, it was not long before this new order was itself subject to conceptual apportionment, fueling the proliferation of new analytical tools with which international structures might be parsed and spliced, broken down into smaller units and reassembled to form new composites. In 1999, the G-7 resolved to bring together their counterparts from a number of "systemically important countries" to form the G-20. (10) Regular meetings with finance ministers and central bank governors from "emerging markets" would, it was believed, help to service debt, control exchange rates, maximize data transparency, set codes and standards, prevent and manage financial crises, and secure quota increases in international financial institutions. In 2001, a mere two years after the inaugural meeting of this rather heterogeneous forum, Goldman Sachs took it...

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