Book Reviews 727

Martti Koskenniemi. The Gentle Civilizer of Nations: The Rise and Fall of 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 seem only an nation, State Succession, and Humanitarian Inter- obstacle to its ambitions’ (at 34). vention (2000) 6. 730 EJIL 13 (2002), 725–735

G9), using international law more effectively theless, even in such less than ideal situations, than, say, the 19th-century Concert of the observance of law is in the interest of most Europe, may be able to create an international people(s). Without law (and this applies order that corresponds more or less to their equally to international law), using the words vision of the world.3 As Risto Penttila of Thucydides, the eternal law ‘that the strong observes, ‘a concert of great powers is not a shall rule the weak’ would prevail, where perfect way to run the world, but it is certainly justice never keeps ‘anyone who was handed better than anarchy’.4 Changes in inter- the chance to get something by force from national law would reflect interests and getting more’.5 values of such a global alliance for security, Universalism and particularism both exist would reflect their politique juridique extérieure. and reflect real interests and values held by Consequently, we see that there may be two many. If a general tendency may be detected, competing attitudes in the international law it could be that, beginning more than 40,000 policies of hegemonic powers. On the one years ago when the homo sapiens left Africa hand, as international lawmakers, they have and embarked on the long journey to the a large stake in guaranteeing at least relative Middle East, Europe, Asia, Oceania and effectiveness of international law. On the America,6 the long-term tendency was other hand, as powerful states, they may be towards increasing particularization and more interested than other states in having heterogenization of human societies. As greater flexibility in their policy choices. How- humans have gradually occupied all hospit- ever, such an ambivalent attitude towards able, and even inhospitable, territories on the international law is not only the privilege of Earth and are becoming increasingly interde- powerful states. Smaller and weaker states pendent, there is a greater tendency towards often complain that international law does universalism and homogenization. This uni- not reflect their interests or values and must versalism tendency has rarely realized itself therefore be changed. They may have a through dialogues of particularisms. Historic- greater interest in clear, definitive and con- ally, it has more often occurred through crete rules of international law, but as they conquests, colonization or even ethnic-cleans- have less control over the content of such ing. Today, chances are greater than ever rules their discontent is also understandable. before that the voices of those who, using In this respect, too, international law differs Koskenniemi’s term, lack (resources, edu- not so greatly from the domestic legal systems cation, equality, etc.) can also be heard and of many, if not most, states. Those holding the even taken into account. To achieve this, he levers of economic and political power in explains, the particular has to express itself in society naturally exercise greater control over universal terms (at 505) and this, in turn, the laws of their country than those lacking requires that particular claims be formulated such power. In open, liberal-democratic wel- in ‘empty’ terms, negative rather than posi- fare states this paradox is resolved through a tive. This rather controversial observation constant balancing of interests of various leads to another powerful leitmotif in the social groups as well as by fine-tuning the book, particularly towards the end – formal- balance between liberty and equality. How- ism versus dynamism, or rule-oriented versus ever, such balancing mechanisms are absent policy-oriented approaches. As Koskenniemi in many domestic societies and are only shows, these two themes are related. rudimentary in international society. None- Martti Koskenniemi has always been a master of revealing concealed, or not so well concealed, antinomies within international 3 See, e.g., Allison, Kaiser and Karaganov, Inter- national Herald Tribune, 21 November 2001, at 8. 5 Thucydides, The Peloponnesian War (1998) 30. 4 International Herald Tribune, 28 December 2001, 6 See L. Luca Cavalli-Sforza, Genes, Peoples and at 8. Languages (2000) 36. Book Reviews 731 law as well as between the latter and its American empire, as both Schmitt and context, as his From Apology to Utopia,7 pub- McDougal had understood. This is not lished more than a decade ago, demonstrates. because of bad faith or conspiracy on any- In The Gentle Civilizer, Koskenniemi returns to body’s part. It is the logic of an argument – the Weimar argument8 – that hopes to the theme of formalism versus dynamism. He salvage the law by making it an instrument uses the 1965 US invasion of the Dominican for the values (or better, ‘decisions’) of the Republic as an example, analysing the ensu- powerful that compels the conclusion. (at ing debate over this invasion between Pro- 484) fessors A. J. Thomas and A. Berle, on the one hand, and Wolfgang Friedmann, on the other. However, liberating law from politics, we Koskenniemi concludes that two cultures also liberate politics from legal restraints and exist in international law: the culture of we are once again in a ‘Weimar situation’ dynamism ‘represented by the American anti- with ‘good’ international law and bad politics. formalists’ (at 507) and the culture of formal- It follows from Koskenniemi’s narrative ism. In a sense, a significant part of this book is that the collapse of international law in the devoted to a defence of the culture of formal- post-1914 world, the consequent loss of faith ism. He writes that ‘a culture of formalism – a in it and an overwhelming emphasis on the story of international law from Rolin to Fried- role of politics, national interest and ideology mann does have coherence’ (at 502), that led American international lawyers to develop ‘nothing has undermined formalism as a two basic responses to the ‘traditionalist, culture of resistance to power, a social practice “European” attitude towards international of accountability, openness, and equality law’ (at 481). One, represented, for example, whose status cannot be reduced to the politi- by and George Kennan, cal positions of any one of the parties whose retained this traditional formalistic and rule- 9 claims are treated within it’ (at 500) and that oriented understanding of international law, ‘a more determined defence of formalism and but found that international law was irrel- legal autonomy would be needed’ (at 492). evant in areas of vital national interest. Before dealing with what Koskenniemi calls An attempt to salvage international law a culture of formalism, we need to clarify what and its relevance for issues where vital inter- this culture is not. The culture of dynamism – ests of states were at stake was made by Myres the nemesis of the culture of formalism – is McDougal and his associates through their characterized by ‘a pervasive rule-scepticism’ policy-oriented approach; theirs was the most (at 475), by an emphasis on ‘flexible, policy- visible among such attempts. Koskenniemi dependent’ instruments (at 481), by the use of seems to underestimate the influence of the ‘a flexible concept of international law that policy-oriented approach when he writes that would serve their [decision-makers] preferred ‘McDougal’s and Harold Lasswell’s Yale values by facilitating decision-making in con- School was only the most visible but perhaps texts where they thought they were domi- the least influential of the new approaches nant’ (at 483). Koskenniemi continues: that grew up in the United States in the 1950s ‘Today, many lawyers in the United States persist in calling for an integration of inter- 8 Koskenniemi argues that American inter- national law and the- national relations theories (especially Realism) ory under a “common agenda”’ (at 483). as well as approaches to international law (e.g. Such an interdisciplinary agenda, he believes, Joseph Kunz) have been greatly influenced by people like Hans Morgenthau whose views were together with a deformalised concept of law, formed under the strong influence of the sad and enthusiasm about the spread of ‘liberal- experience of the Weimar Republic. ism’, constitutes an academic project that 9 Koskenniemi writes, for example, that John Herz cannot but buttress the justification of and Hans Morgenthau ‘both conserved a tra- ditional court and case oriented image of law’ (at 7 M. Koskenniemi, From Apology to Utopia (1989). 471). 732 EJIL 13 (2002), 725–735 and 1960s’ (at 475). I would rather agree right. His new book is much more mature and with him when he earlier wrote that ‘while an important indicator of this maturity is the many find it difficult to accept his [McDou- impossibility to categorize (label) him. gal’s] theoretical expositions and feel Koskenniemi believes that these anti-for- especially alien to his idiosyncratic language, malistic approaches had either an overt or an his assumptions about the relatedness of law inadvertent agenda — the justification of and politics are shared by perhaps a majority American dominance in the world. He quotes of modern international lawyers’.10 extensively from an article by Morgenthau, in Certainly, prominent American inter- which such an agenda was explicitly outlined national lawyers such as Oscar Schachter, (at 481–482). This is why Koskenniemi Louis Henkin or Thomas Franck, not being spares no effort in defending the culture of followers of the New Haven school, could formalism in international law. There is hardly be called traditional rule-oriented always a danger, he writes, that ‘the Empire scholars. This also seems to prove the point will project its internal morality to the world that original thinkers do not belong to any at large’ and ‘to avoid this, a more determined school and it is very difficult to categorize their defence of formalism and legal autonomy views. This, incidentally, also applies to Kos- would seem needed’ (at 492). kenniemi. In his From Apology to Utopia, he At the same time, Koskenniemi, either seemed to be overly influenced by critical legal inadvertently or intentionally, provides argu- thought, post-modernist or ‘new-stream’ ments against the culture of formalism. He approaches, with their characteristic excess- acknowledges that ‘formal rules are just as ive references to Foucault, Derrida and other capable of co-existing with injustice as infor- de-constructivist philosophers. I would have mal principles’ (at 496). Even more import- categorized him then as an able and original antly, the culture of formalism, which was follower of these post-modern trends. quite evident among the ‘men of 1873’ and Although Koskenniemi has recently written their followers, did not prevent international that he does not want to be labelled11 (but who law from being neglected or completely side- does?), his From Apology to Utopia was, if not lined when international society was chal- exactly within, then at least very close to the lenged by significant political changes, rather broad school called ‘critical legal stu- economic crisis or ideological clashes. dies’ or ‘new stream of international legal Koskenniemi draws our attention to auth- scholarship’,12 since the gist of his approach ors such as and Hans Morgen- was to disclose and attack hidden agendas of, thau who expressed the idea that in or to use Koskenniemi’s own words, decon- international society, as in domestic societies, struct, the ‘mainstream’. I now see From in periods of crisis the exception is more Apology to Utopia as a stage in the evolution of important than the rule. As Schmitt wrote, an original thinker, written at a time when ‘sovereign is he who decides on the exception’ the author, probably unconsciously, was still (at 428), and the exception, in his opinion, looking for an authority to follow. In The ‘confirms not only the rule but also its exist- Gentle Civilizer Koskenniemi has left the ence, which derives only from the exception’ shackles of these authorities behind and has (at 428). The end of the bipolar world has emerged as an original thinker in his own brought about such fundamental changes in the world (or has rather released hidden or suppressed tendencies) that some core prin- 10 Koskenniemi, supra note 7, at 171. ciples of international law are in the process of 11 Koskenniemi, ‘Letter to the Editors of the Sym- radical re-interpretation. We also see that this posium’, 93 AJIL (1999) 352. 12 See, e.g., Kennedy, ‘A New Stream of Inter- re-interpretation is mainly being undertaken national Legal Scholarship’, 7 Wisconsin Inter- by the United States with, or sometimes even national Law Journal (1988) 1; Koskenniemi, without, the support of its closest allies. supra note 11. ‘[D]eciding on the exception’ in times of Book Reviews 733 radical change and crisis, it is thereby setting by unveiling law’s formalism is it possible to patterns of behaviour for the future. Thus, the discover whose interests and values are pro- exception has a tendency to become the rule. tected and promoted by seemingly universal It thus seems that in times of significant impartial and formal rules. change there is more room for the culture of This aspect of the dilemma of the culture of dynamism than for the culture of formalism. formalism versus the culture of dynamism And, of course, the context determines the brings us close to the problem of values and balance between these two cultures. interests protected and promoted by inter- In Koskenniemi’s analysis of the debate national law and the value of international following the US invasion of the Dominican law as such. Law is never an end in itself. It is Republic, his recommendations on how the an instrument for achieving or preserving dispute should have been conducted go far certain ends. If we take today’s international beyond what I understand by formalism and law, those ends encompass general purposes rather indicate the way out of the dilemma such as peace, economic development, a clean between what he calls ‘the Scylla of Empire environment, the fight against terrorism and and the Charybdis of fragmentation’ (at 504). for human dignity, rational exploitation of To achieve that, he writes, arguments must renewable natural resources as well as quite open the way to ‘the possibility of a non- concrete objectives such as building dams and imperialist universality’. If the universalism of guaranteeing access to the sea for landlocked Thomas and Berle was one of complete differ- states. This is the content or context of ence — us against them, ‘Friedmann’s formal- international law and neither is really formal. ism would have required an open articulation However, international law promotes and of the universalist principle and its subjection protects these values and interests through to a critique that would have integrated specific means and methods which, indeed, Thomas and Berle in a single universe with include a significant degree of formalism. the communists — thus undermining the International law, like any other normative imperialist effect of their dichotomous world’ system, needs a considerable measure of for- (at 506). In the case of the Dominican Repub- mal definitiveness. There is certain intrinsic lic, Koskenniemi believes, ‘this might have value in observing formal requirements of involved looking into the claims of the local law, in achieving purposes and objectives factions, giving effect to the results of the promoted and protected by law through election, and examining the meaning of “com- methods and means provided by law and not munism” in the conditions of social depri- bypassing them even if doing so may at times vation that had existed in the country’ (at seem more expedient. In this respect, every 507). Such an approach, in my opinion, may lawyer is somewhat normativist, positivist have been exactly what the doctor would and formalist. However, interpretation and have ordered, yet how this approach could be application of law is seldom, and in difficult called an exercise of the culture of formalism is and complex cases never, automatic. Values beyond me. I would rather call it a contextual, and interests that form both the content and non-formalistic (even dynamic and certainly context of international law should not be multidisciplinary) interpretation and appli- sacrificed to the culture of formalism. The cation of international law. observation of the Roman-law maxim Fiat Koskenniemi believes that the culture of justitia et pereat mundus is not only an oxy- formalism helps particular (suppressed) voices moron since justice can exist only so far as be heard. I am not sure of this and his human society exists. arguments did not persuade me. I think that There are various reasons why there is less often, on the contrary, law’s excessive formal- formalism in international law than in most ism may serve to conceal the interests of the domestic legal systems. The Permanent Court powerful, where the particular (powerful’s of International Justice observed in Mav- particular) is disguised as the universal. Only rommatis Palestine Concessions: ‘The Court, 734 EJIL 13 (2002), 725–735 whose jurisdiction is international, is not pacht’s legal utopia seeks to revive on a bound to attach to matters of form the same cosmopolitan scale the Victorian liberalism degree of importance which they might pos- that failed to survive the offensives of sess in municipal law.’13 The International nationalism and socialism in Central and Court of Justice applied this principle in the Eastern Europe’ (at 406). Koskenniemi’s own Northern Cameroons case,14 as well as in conclusions may be seen as closer to the Nicaragua.15 Even the International Criminal utopian end of the spectrum of possible Tribunal for the Former Yugoslavia, in the approaches to international law than to the Tadic case of 15 July 1999, observed that ‘this apologetic end. If this sounds like a criticism, it body of law [international humanitarian law] is a mild one. A degree of utopianism is is not grounded on formalistic postulates. . . . necessary, since I agree with the author that Rather, it is a realistic body of law, grounded the idea that legal doctrines should reflect on the notion of effectiveness and inspired by ‘“social reality” is a deeply conservative tech- the aim of deterring deviations from its stan- nique that deflects criticism away from dards to the maximum extent possible’.16 “reality” and those responsible for it’ (at 304). Hence, there is an ever present need to At the same time, it seems that the culture of balance the cultures of formalism and dyna- formalism advocated and defended by Kos- mism in international law. The fact that in the kenniemi may sometimes bring him closer to process of interpretation and application of the apologetic end of the spectrum than the international law one has to constantly culture of dynamism. Of course, once again choose between the universal and the particu- we see that legal thought has to constantly lar, dynamism and formalism, and, as Kos- balance between apology (reflecting reality) kenniemi showed so well in his previous and utopia (attempting to change reality). book,17 between apology and utopia, makes There is an intriguing sentence containing our profession not only difficult but also an error, either by omission or intention.18 interesting. Koskenniemi writes that ‘Lauterpacht was The Gentle Civilizer has a certain what I (emphasis added) a Victorian liberal in a time would call Lauterpacht bulge. This is not only when the dialectic of the enlightenment is because by far the longest chapter devoted to (emphasis added) only slowly asserting itself’ an individual author is ’Lauterpacht: The (at 412). One may wonder whether Kosken- Victorian Tradition in International Law’. In niemi speaks here of the period when Lauter- my opinion, Koskenniemi considers Hersch pacht wrote his works or of today when he is Lauterpacht to have best continued the tradi- writing. Is the dialectic of the Enlightenment tions of the ‘men of 1873’, whilst freeing asserting itself today? This I do not know, but himself from their negative inheritance (justi- there certainly are many things to be learnt fication of colonialist practices, siding with from Enlightenment ideas and figures. Is a their own state). Koskenniemi writes: ‘Today, Victorian liberal able to adequately respond to international law remains one of the few today’s challenges to international law? Cer- bastions of Victorian objectivism, liberalism tainly not, but this does not mean that there is and optimism’ (at 360). At the same time, he nothing to be learnt from Victorian liberal often reminds us of Lauterpacht’s utopianism. cosmopolitans. Fred Halliday, agreeing that For example, he emphasizes that ‘Lauter-

18 There are a number of ambiguities in the book, 13 PCIJ, Series A, No. 2, at 34. which are not oversights of the author, but 14 ICJ Reports (1963), at 28. rather a style that allows different interpret- 15 ICJ Reports (1984), at 428–429, para. 83. ations, all of which are possible or perhaps even 16 Prosecutor v. Dusko Tadic, Appeals Chamber necessary. It seems that Koskenniemi does not ICTY, Judgment of 15 July 1999, available at always try to dot the ‘i’s and cross the ‘t’s and, as http://www.un.org/icty. in a good novel or film, he leaves space for the 17 Koskenniemi, supra note 7. reader’s imagination and interpretation. Book Reviews 735 the modernist Enlightenment project, as observed, ‘international liberalism is more envisaged earlier in the 20th century, was contradictory and ambivalent than domestic inadequate and often crudely developed, with liberalism’.23 One may go even further and say many of its claims of reason overstated, if not that so-called ‘international liberalism’ and repressively imposed, quite correctly points liberalism as understood in domestic societies out that ‘these enlightenment concepts are such different phenomena, with almost remain a foundation on which it is possible opposite consequences, that the use of the and, I would argue, necessary to build, as same word — liberalism — in international much as are our concepts of democracy, society and domestic societies and attaching it individualism, rights and tolerance. We to the state and to the individual respectively should be prepared to redefine and defend is more than confusing. On Vattel’s and them.’19 He also dismisses as inadequate those Locke’s approach to international society, responses derived from the critique of Western Richard Tuck writes that their ‘liberal picture domination and ethnocentrism (the critique was in effect the idea of raison d’état seen from based on cultural relativism), from post- the perspective of the relationship between modern deconstructivist indeterminacy and states, rather than from the perspective of from the camp of moral philosophy, which their internal arrangements’.24 Therefore, ‘lib- argues that one cannot be sure of any general eral politics, of the kind that both Vattel and moral principles.20 Rejecting the Enlighten- Locke amply subscribed to, went along in their ment heritage because of failures and even work with a willingness to envisage inter- crimes that may be associated with it, would, national adventurism and exploitation, and indeed, seem like what the Irish poet Yeats this was no accident: for the model of the described as ‘the best lack all conviction while independent moral agent upon which their the worst are full of passionate intensity’. liberalism was based was precisely the bel- In The Gentle Civilizer Koskenniemi con- ligerent post-Renaissance state’.25 stantly returns to the theme of liberalism. It is impossible to do justice to this import- Most lawyers whose ideas he analyses belong, ant and unique book. It is an erudite and in one way or other, to the category of liberals. in-depth analysis of the views of many dozens In From Apology to Utopia Koskenniemi of international lawyers from European and attacked ‘mainstream’ approaches that are Northern American countries. It is a wonder- based, as he wrote, on the assumptions fully written history of ideas (sensibilities) on grouped together under the label of liberal international law. Although Koskenniemi theory (at xvi). He considered that inter- defends the culture of formalism in inter- national law and international society as well national law, his analysis and narrative are as ‘mainstream’ theories of international law not formal at all. Doctrines, approaches and were, in substance, based on liberalism since the whole intellectual history of international ‘it is clear that sovereign equality, character- law are considered in their political and ised sometimes as the “fundamental premise economic context. One is struck by Kosken- on which all international relations rest” is a niemi’s profound analysis, his richness of liberal premise’,21 and ‘for better or for worse, sources and linguistic knowledge. And finally, reliance upon the classical law of sovereign there are very few academic volumes that equality entails accepting the liberal doctrine make such enjoyable reading. of politics’.22 However, as Robert Jackson has King’s College London Rein Müllerson

23 R. Jackson, Quasi-States: Sovereignty, Inter- 19 F. Halliday, Two Hours that Shook the World. national Relations and the Third World (1990), at September 11, 2001: Causes and Consequences 29. (2001), at 67–68. 24 R. Tuck, The Rights of War and Peace: Political 20 Ibid. Thought and the International Order from Grotius 21 Ibid, at 72. to Kant (2001), at 9. 22 Ibid, at 130. 25 Ibid, at 195.