History of International Law and Western Civilization

This paper discusses the origins 19th-century international law through the works of such scholars as Bluntschli, Lorimer, and Westlake, and then traces out its development into the 20th century. Nineteenth-century international law was forged entirely in Europe: it was the expression of a shared European consciousness and culture, and was geographically located within the community of European peoples, which meant a community of Christian, and hence “civilized,” peoples. Despite this proclaimed superiority of European international law, and its underlying system of national sovereignties, it was recognized that “noncivilized” native peoples should be treated “humanely” as subjects entitled to the rights of man. This attitude strikes us as paternalistic today, considering that well into the second half of the 19th century the European system of laws was only one among a plurality of such systems across the world, prominent among which were the Sino-centric system in East Asia and the Islamo-centric system of the “Siyar.” It was only toward the end of the 19th century that an international law emerged as the expression of an international “global society,” when the Ottoman Empire, China, and Japan found themselves forced to enter the regional international society revolving around Europe. Still, these nations stood on an unequal footing, forming a system based on colonial relations of domination. This changed in the post–World War II period, when a larger community of nations developed that was not based on European dominance: it was now the consent of these nations that accounted for the existence of international law, which was being applied, or at least invoked, to assert various differences among them. This led to the extended world society we have today, made up of political systems profoundly different from one another because based on culture-specific concepts. So in order for a system to qualify as universal, it must now draw not only on Western but also on non-Western forms, legacies, and concepts. There are two areas of law that can illustrate how different civilizations might find such common ground, these being international private law and the international law of human rights. The paper’s focus is on the latter issue of human rights, which are accordingly discussed on the basis of an “intercivilizational” approach.