How can we construct universally binding standards of conduct in a world made up of such culturally diverse societies? What might broadly be termed “cultural difference” is an issue discussed in the earliest works of classical history. Herodotus, for instance, notes the different customs that exist among the Greeks and the Asiatics. In the world of international law, too, cultural difference is still a major concern. As its very name suggests, international law claims to be universal. So the question arises, what rules and principles are indeed universally valid and acceptable to all societies, despite their distinctive cultures, modes of government, and morals?
When it was developed in the 17th and 18th centuries, international law was posited as universally binding among all societies, because it was based on natural law, a law that applied to humankind collectively. By the end of the 19th century, the emerging disciplines of anthropology and sociology had formulated sophisticated ways of distinguishing between “civilized” European states and “uncivilized” non-European states, based on a study of their systems of government, social organization, economy, law, social customs, and even art and literature. A major change took place in international law also. It was no longer “universal,” but rather an explicit product of European culture and history. Now European standards were presented as the universal standard against which all societies had to be measured.
Furthermore, international lawyers of the time – invariably European – asserted that international law only applied to relations between “civilized” Western states that shared a common legal culture, whatever the differences between them. “Uncivilized” peoples from Africa and most Asian countries were condemned as irrational and lacking the understanding and customs that would enable them to adhere to Western norms regarding trade, the protection of property, or the laws of war. Thereby, they were excluded from the realm of international law, which meant also being deprived of sovereign status. Lacking in sovereignty, they could not participate as full equals in the making of international law; as such, they were the objects of the control of European international law. They played no role in formulating the rules for instance, of “free trade,” which were supposedly universally binding.
Despite such exclusion, resistance to these rules by non-Western states was treated as a violation of fundamental norms that could justify war. Thus, the British claimed to wage a legal war against the Chinese, who, in turn, attempted to suppress the harmful opium trade. A more extreme example of exclusion by European powers was the Berlin Conference of 1884‒85. Without the presence of any African it created a regime that opened up Africa to commercial exploitation and that – to name one example ‒ eventually gave Leopold II of Belgium control over the Congo Basin.
“European states refused to be subjected to the laws of ‘uncivilized states’ and
justified the violence of colonial conquest in the name of the ‘civilizing mission.’”
The so-called “standard of civilization” was a tricky one to define. European states could not deny, for instance, that societies such as China and Japan were highly civilized. In such cases, they asserted that these particular Asian states had a different civilization from Europeans and thus were only semi-civilized. Many African societies, however, were treated as completely uncivilized and thus suitable objects of conquest.
European states adopted at least two important practices to ensure these distinctions and incoherent hierarchies. First, they refused to be subjected to the laws of “uncivilized states.” Thus, various legal strategies and institutions were devised to ensure that European citizens and traders would be subject to civilized European laws only, even when operating in non-European territories. Second, European international law continuously developed doctrines and institutions that were devised to “civilize” the “uncivilized.” The violence of colonial conquest was justified in the name of the “civilizing mission.”
Europeans claimed that non-European states could win sovereignty for themselves by meeting the “standard of civilization.” Consequently, countries such as Japan made significant changes to their social and governmental structures, developing bureaucracies, armies, and political systems, based on European models, to achieve this goal. Japan gradually won European acceptance into the “family of nations.” The country’s victory over Russia in the battle of Tsushima, the first occasion in modern times that an Asian state had defeated a European power, was a crucial event in this process. Following this, a Japanese diplomat is said to have remarked: “We show ourselves at least your equal in scientific butchery, and at once we are admitted to your council tables as civilized men.”
“’Good governance’ initiatives undertaken by powerful international institutions have furthered a form of globalization that intensified inequality and is now subject to increased criticism.“
With decolonization and the condemnation of imperialism, the “standard of civilization” largely disappeared from the vocabulary of international law. However, the basic structure of the analytic framework was replicated in new vocabularies: civilized/uncivilized being replaced by developed/developing, liberal/non-liberal, civil/rogue. In each of these cases, international law devised doctrines to remedy the situation; to transform developing states into developed states, or “failed states” into “democratic states,” or to establish “good governance” in corrupt societies. Often, however, these projects of transformation were accompanied by large-scale violence that was justified as humanitarian. “Good governance” initiatives undertaken by powerful international institutions have furthered a form of globalization that intensified inequality and is now subject to increased criticism.
The fundamental rules of international law are now more truly universal, as they have been made with the consent of all states, including the African and the Asian. And yet, efforts are being made to change the rules to defend the new barbarians – those labeled terrorists and extremists. One of the most notable features of the “standard of civilization” and the “civilizing mission” is its enduring presence, in some version or another, in major policy debates and international initiatives. But can we do without the idea of the “standard of civilization”? After all, surely, it is vital to condemn countries that egregiously violate human rights and threaten the world order through war and intervention. What history suggests, however, is that the standard-of-civilization argument presents too crude an analysis of complex problems. What is regarded as “uncivilized” may be open to contestation, and the means of achieving civilization are themselves often violent and destructive even if dressed up in the guise of humanitarianism and legality.