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Martti Koskenniemi. the Gentle Civilizer of Nations: the Rise and Fall of International Law 1870–1960

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Martti Koskenniemi. the Gentle Civilizer of Nations: the Rise and Fall of International Law 1870–1960 Book Reviews 727 Martti Koskenniemi. The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960. Cambridge: Cambridge University Press, 2001. Pp. xiv, 569. $95; £65. It is impossible to categorize this book. It covers a long, eventful and interesting period in the development of international legal thought, analysing not only ideas and con- cepts but also providing fascinating biographi- cal information on our professional predecessors. Central to the book is the notion of ‘sensibility’, which, as Koskenniemi explains, encompasses a set of attitudes and preconditions about international affairs that is related to the notion of ‘culture’ and connotes ideas and practices, political faith, image of self and society, as well as the structural constraints within which inter- national lawyers live and work (at 2). The book begins with the founding fathers of the Institut de droit international, who, in 1873, saw themselves as ‘the legal conscience of the civilised world’. Here, as throughout the book, Koskenniemi places ideas and concepts in their historical (political, economic, mili- tary-strategic) context. 728 EJIL 13 (2002), 725–735 Central to the book are the issues of imperi- tion’ (at 98) – defended the Italian annexation alism and colonialism not only because ‘the of Abyssinia and hoped ‘that Abyssinia would men of 1873’ were intellectually most active see in Italy “a sincere friend and precious in the years of the ‘scramble for Africa’ but ally”’. Interestingly, something similar hap- also because these issues are closely related to pened at the outbreak of the First World War. one of the pivotal themes of the book – the As Koskenniemi writes, ‘most German law- relationship between universalism and par- yers took an impeccably patriotic line in the ticularism (or relativism). Koskenniemi analy- war’ (at 299). ses formal and informal empires (formal Today, in contrast, international lawyers of sovereignty is extended to colonial territories many countries are critical of their own in the former, not in the latter), the 1884– governments (examples abound: the harsh 1885 Berlin Conference, the ambivalence of criticism by many American lawyers of the the very notion of sovereignty in the colonial Vietnam War, critical writings by Western context and other practical and theoretical international lawyers on the 1999 NATO issues in relation to colonialism. operation in Kosovo and on the war against Although ‘international lawyers were not terrorism in Afghanistan). Similarly, many insensitive to the humanitarian problems that Western international lawyers strongly crit- accompanied colonialism’ (at 109) and in- icize their own government’s human rights deed criticized some colonial practices records in the light of international law as well (especially atrocities committed in the so- as their human rights policies, seeing in them called ‘Independent State of the Congo’ cre- a new kind of Western imperialism. Kosken- ated in 1884–1885 through the private niemi himself criticizes Western (American) actions of King Leopold II), Koskenniemi particularism in the guise of universalism. observes that most ‘men of 1873’ accepted Universalism versus particularism (or rela- colonialism as normal and beneficial for colo- tivism) is a central theme of The Gentle Civil- nized peoples. There even developed, in the izer. In the context of colonialism it is the context of colonial politics, a kind of paternal- ‘exclusion-inclusion’ discourse: istic concept of human rights (see especially at exclusion in terms of a cultural argument 130), which may have some relevance for the about the otherness of the non-European contemporary human rights discourse. that made it impossible to extend European One is particularly struck by the blind rights to the native, inclusion in terms of the acceptance on the part of these founding native’s similarity with the European, the fathers of the colonial adventures of their own native otherness having been erased by a countries, even by those who were critical of universal humanitarianism under which such practices by rival European powers. international lawyers sought to replace ‘Although all lawyers spoke in terms of homo- native institutions by European sovereignty. (at 130) geneous “Europe” acting upon an equally homogeneous “Orient”, in fact everyone’s This problem remains topical in today’s conscience juridique supported the contro- human rights discourse.1 On the one hand, versial colonial policy of his homeland’ (at 166). Koskenniemi observes that ‘in disputes 1 How many issues discussed, observations made with other powers, French lawyers loyally and conclusions drawn by our predecessors underwrote French positions’ (at 167). And even a century or more ago are still relevant they were not alone. The Russian lawyer of today. Koskenniemi’s book shows that our ideas often move in circles; we come to ‘new’ con- Estonian origin Fedor Martens – otherwise a clusions without knowing that our prede- sceptic of colonization – defended the Russian cessors, whom we have forgotten, had already penetration of the Caucasus (at 168). Even made similar points. Even if Koskenniemi’s book Italian Enrico Catellani – a fierce critic of a was only a history of international law, it would colonialism that ‘oppressed and impoverished be very interesting and useful. But of course, it is indigenous populations to the point of extinc- much more than that. Book Reviews 729 extreme universalism may lead at best to However, there is another aspect to it. paternalistic concepts of human rights or, Empires, or hegemonic states for that matter, even worse, to mindless humanitarianism do not make international law unilaterally and practical disasters. On the other hand, (otherwise we would have a world or at least a extreme particularism (or relativism), often regional state), but they do greatly influence serving to disguise or excuse atrocities against its content. McWhinney perceptively one’s own people, can be a form of racism describes the character of international law in since some people are seen to be so different as the bipolar Cold War world: to be not ready for human rights at all. The operational methodology and process of Of course, the universal versus the particu- negotiation and international law-making lar (or relative) discourse is not limited to during the Cold War in its post-Stalin, human rights. Koskenniemi, while sympath- what-might-be-called ’mature’, period flowed etic to Victorian liberals, is constantly uneasy logically and inevitably from its bipolar about Western liberal universalism because paradigm or model of world public order: its imperial implications and practical conse- direct, bilateral diplomacy between the two quences tend to suppress the voices of the bloc leaders, preferably in summit meetings a particular. However, he also insightfully deux, followed by model treaties reflecting observes, for instance, that ‘[t]here is no the bloc leaders’ bipolar consensus and then particular virtue in being tortured or killed by presented, after their own bilateral and negotiation and drafting, to the lesser, one’s own countrymen instead of foreign supporting bloc members on either side for invaders’ (at 177), thus revealing that if there signature and ratification, and this normally are hidden dangers in universalism, there without the possibility of serious modifi- may be even more to worry about in some cation or amendment on their part.2 prevailing particularisms. As with many of the dilemmas Koskenniemi discusses, univer- This observation, which reveals an import- salism and particularism are ‘empty’ and ant constitutional aspect of international ‘formal’ categories in the sense in which they society in the Cold War era, shows that are treated in The Gentle Civilizer, which have stronger states, by exercising greater impact to be weighed, in my opinion, not in the on the processes and content of international abstract but only when their content and law, should also be interested in its effective context are known, i.e. not as ‘formal’ and functioning. ‘empty’. Koskenniemi warns against a universality One controversial aspect of the univer- that may in reality be a disguised particularity salism versus particularism discourse is the (at 505). Enlightenment rationality, the issue of who needs international law more: French Revolution, the Christian Church, but the weak or the strong? Koskenniemi touches also international law and particularly its upon this issue, sometimes explicitly but more human rights component, may all be prone to often implicitly. For instance, he quotes Prime such criticism. If this is true – and Koskennie- Minister Salisbury, who in 1887 reported to mi’s narrative and analysis produce the Parliament in the Austinian spirit that additional arguments to support this view – ‘international law has not any existence in the those states or societies with greater potential sense in which the term “law” is usually in international law-making should also have understood. It depends generally upon the a greater interest in international law since prejudices of writers of textbooks. It can be their position has a greater chance of becom- enforced by no tribunal, and therefore to ing universal. Today’s P5 or G8 (or maybe apply to it the phrase “law” is to some extent misleading’ (at 34). As Koskenniemi com- 2 E. McWhinney, The United Nations and a New ments, ‘an Empire is never an advocate of an World Order for a New Millennium: Self-determi- international law that can
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