international law that the EU is contrasted with, where the default option is that political communities on a global scale are recognised as sovereign states, only came into existence as a consequence of the collapse of the global legal order of European empires. Moreover, as Jane Burbank and Frederick Cooper have demonstrated, the adoption of the nation-state as the alternative to empire was by no means a foregone conclusion.[1] Within the academic study of EU law, however, this is widely ignored or forgotten, and the EU is compared to a world where the ‘normal’ situation is assumed to be sovereign nation-states that precede international law.
3. Empire and European international law
International law is in its origins Eurocentric. For centuries, ‘European’ international law was a constitutive part of the public law order of European empires: Droit Public de l’Europe or Jus Publicum Europaeum.[2] Described as the ‘external’ aspects of the European public law order, European international law regulated the relationship between ‘civilised’ European states.[3] This public law order of European empires, founded on land appropriation in the new world and consolidated and formalised in the nineteenth century, was one of the casualties of World War II.[4] The foundations of Droit Public de l’Europe, however, were already undermined with World War I that destroyed the European land empires, exposed the weakness of the British Empire, while revealing the strength of the United States.[5] Nevertheless, the old European international legal order was not replaced by a new international legal order in the interwar period.[6] Until the demise of the European maritime empires, European international law regulated the relationships between the European states, as well as their relationships with the ‘uncivilised’ world outside Europe.[7]
Within the legal order of Droit Public de l’Europe, ‘Europe’ had a special status as the community of civilised, and hence, sovereign and equal nations.[8] Only the civilised nations in Europe, and later former white settler colonies ruled by people of European descent, were included in the community of ‘civilised nations’ that could be considered sovereign.[9] The ‘civilised’ world
- ↑ It is important to remember that it was not a given that the nation-state would emerge as the dominant form of political association after World War Two. For example, the French West Africans’ campaign for federation among their territories into an African Federal Union had horizontal aspiration that went beyond the political form of the nation-state, see Burbank and Cooper, Empires in World History. See also Gary Wilder, Freedom Time: Negritude, Decolonization, and the Future of the World (Duke University Press 2015).
- ↑ Carl Schmitt, The Nomos of the Earth: In the International Law of the Jus Publicum Europaeum (GL Ulmen ed) (Telos Press 2006) 228.
- ↑ For example, Hegel distinguished between internal and external aspects of public law: ‘innere Staatsrecht’ (internal public law/state law/constitutional law) and ‘äußere Statsrecht’ (external public law/state law/international law), George Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswissenschaft im Grundrisse (Friedrich Frommann Verlag 1964) 337ff, 440ff. Wheaton, similarly, distinguishes between ‘droit public interne’ and ‘droit public externe’, see Henry Wheaton, Elements of International Law (Stevens & Sons 1878) 29. For a discussion, see Martti Koskenniemi, ‘Histories of International Law: Dealing with Eurocentrism’ [2011] Rechtsgeschichte – Legal History; Koskenniemi, The Gentle Civilizer of Nations 31.
- ↑ Schmitt, The Nomos of the Earth 101.
- ↑ Westad, The Cold War 21; Burbank and Cooper, Empires in World History ch 12.
- ↑ In Carl Schmitt’s view, the first challenge to Eurocentric international law was the rise of the ‘Western Hemisphere’ with the American War of Independence; however, the effects of this challenge only started to manifest themselves in earnest in the nineteenth century, and they only developed fully in the twentieth century with the rise of the United States, see Schmitt, The Nomos of the Earth 100, 281–94.
- ↑ Koskenniemi, The Gentle Civilizer of Nations ch 1.
- ↑ Schmitt, The Nomos of the Earth 86. See also, Koskenniemi, ‘Histories of International Law’.
- ↑ In the years leading up to World War One, however, a number of non-European communities became included in the ‘family of nations’ and recognised as sovereign states. European jurists had started to accept that some non-European societies could live up to the ‘standard of civilisation’ and therefore be included as members of the international society. Writing in the early twentieth century, Lassa Oppenheim maintained that the family of nations no longer only included its original members, ie, the ‘old Christian states of Western Europe’, but also the former colonies in the Americas, as well as ‘the two Christian Negro Republics of Liberia in West Africa and of Haiti’ together with Turkey and Japan, see Lassa Oppenheim, International Law: A Treatise (Longmans, Green and Co 1920) 33–4. For a discussion, see Benedict Kingsbury, ‘Sovereignty and Inequality’ in Andrew Hurrell and Ngaire Woods (eds), Inequality, Globalization, and World Politics (Oxford University Press 1999). See also Hobsbawm, The Age of Empire 23.
