Universal international law: Nineteenth-century histories of imposition and appropriation

Harvard International Law Journal

Volumn 51, Issue 2, 2010, Pages 475-552

  Lorca, Arnulf Becker ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77956131589     PISSN: 00178063     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (452)

1. Wilhelm Grewe continues to be the most influential exponent of the idea of expansion of European international law in the nineteenth century.
2. See Wilhelm Grewe, Vom europaischen zum universellen Völker- recht, 42 ZaöRV (1982);
3. see also WILHELM GREWE, THE EPOCHS OF INTERNATIONAL LAW (Wilhelm Grewe & Michael Walter trans., de Gruyter 2000) [hereinafter GREWE, EPOCHS].
4. See generally id. at 445-82. More specifically see id. at 462-63 for a description of the process of expansion and a typical list of new states. This perspective, which is not without criticism (see infra text accompanying note 7) is widely reproduced not only in international law textbooks written by Western authors, but also in the scholarship of non-Western international lawyers. In the former, for example: "The old Christian States of Western Europe constituted the original international community within which international law grew up. But gradually the international community expanded by the inclusion of Christian states outside Europe (such as various former colonies of European states in America as they became independent) . . . and, during the latest, by inclusion of non-Christian states. Particularly significant was the express acknowledgement of Turkey's membership of the international community.
5. ROBERT JENNINGS & ARTHUR WATTS, 1 OPPENHEIM'S INTERNATIONAL LAW 87 (9th ed. 1996). For a more recent example: "tT]he prevailing view in the study of international law is that it emerged in Europe in the period after the Peace of Westphalia (1648).
6. PETER MALANCZUK, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW 9 (7th ed. 1997). In scholarship by non-Western international lawyers, consider, for example: "Modern international law has its origin in western civilization. It has, however, been expanding to the whole world.
7. Wang Tieya, International Law in China: Historical and Contemporary Perspectives, in 221 (1990-II) RECUEIL DES COURS 195, 204 (Hague Academy 1991). Assuming the Western nature of international law, the non-Western international lawyer tends to focus his effort into transforming contemporary international law into a more multicultural legal order. E.g.
8. Yasuaki Onuma, When Was the Law of International Society Born?, 2 (1) J. HIST. INT'L L. 1, 1-66 (2000).
9. See Ian Brownlie, The Expansion of International Society: The Consequences of the Law of Nations, in THE EXPANSION OF INTERNATIONAL SOCIETY 358 (Hedley Bull & Adam Watson eds., 1984);
10. see also Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law, 40 HARV. INT'L LJ. 1 (1999).
11. See generally ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY, AND THE MAKING OF INTERNATIONAL LAW (2005).
12. On recognition as a legal doctrine rather than as a decision based on national interest, see HERSH LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 1-6 (1947).
13. In some cases this correlation was strong: in 1894 Japan renegotiated the unequal treaties it had concluded with Western states, signing the first treaty under conditions of equality with Great Britain.
14. On the historical development of these legal regimes between some European and non-European Powers
15. see, for example, CHARLES HENRY ALEXANDROWICZ, AN INTRODUCTION TO THE HISTORY OF THB LAW OF NATIONS IN THE EAST INDIES (16TH, 17TH AND 18TH CENTURIES) 101-110, 158-177 (1967) (showing a thick net of treaty-based relations between European sovereigns and sovereigns in the East Indies);
16. Roberto Ago, Pluralism and the Origins of the International Community, 3 ITALIAN Y.B. OF INT'L L. 3, 13, 21-26 (1977) (arguing that at the beginning of the ninth century, an international community of coexisting sovereigns developed in the Euro-Mediterranean area, which after two centuries included interactions governed by treaties between sovereigns belonging to the Roman Christian, Byzantine and Islamic worlds);
17. Paul Guggenheim, Das Jus publicum europium und Europa, 3 JAHRBUCH DES OFFENTUCHES RECHTS DER GEGENWART 1, 2 (1954).
18. This redefinition of international law as European public law was in part created by the academic study of the history of international law. These were basically studies on the history of European ideas; in Wolfgang Preiser's words: "[W]hat these comprehensive works offer is largely international legal theory, i.e., the repetition and explanations of schools of thought in international law" in contradistinction to "a history of the law of nations as such, i.e., a history of law as had developed and had been applied in practice to govern the peaceful and hostile relations between States and State-like entities.
19. Wolfgang Preiser, History of the Law of Nations, in 7 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 126 (Rudolf Bernhardt ed., 1992). This type of criticism is not new.
20. See, i.g., Arnold McNair, Aspects of State Sovereignty, 26 BRIT. Y.B. INT'L L. 6, 6 n.l (1949) (noting that "most history of international law is either a history of its literature, or a history of international relations. It is difficult to find much history of the content, that is, the actual rules of law as applied in practice.").
21. Some authors contend that the nineteenth century witnessed the reduction of international law's scope of validity instead of its expansion. See ALEXANDROWICZ, supra note 5, at 9-10, 235-237 (sustaining the idea that the nineteenth century doctrinal shift from naturalism to positivism transformed a universal law of peoples into a regional European international law).
22. Juan Antonio, Carrillo Salcedo, Aspectos Doctrinales del Problema de la Universalidad del Derecho de Gentes, 17 REVISTA ESPANOLA DE DER- ECHO INTERNACIONAL 1, 5-10 (1964) (suggesting that the re-conceptualization of international law as a social phenomenon, that is, law as an expression of the juridical consciousness of a homogenous international community of civilized states resulted in the reduction of international law's geographical range). Grewe has disputed the idea that international law reduced its scope of validity, arguing that until the nineteenth century international law was a legal order between the Christian nations of Europe.
23. See GREWE, EPOCHS, supra note 1, at 451-452, 456, 469-470 (indicating that a universal definition of the legal community was in practice limited to the Christian-European world, thus legalizing the acquisition of overseas territory and the imposition of unequal treatment).
24. Set David Strang, Contested Sovereignty: The Social Construction of Colonial Imperialism, in STATE SOVEREIGNTY AS SOCIAL CONSTRUCT 22-49 (Thomas J. Biersteker & Cynthia Weber eds., 1996)
25. offering an explanation based not only on Western power, but also on an institutional analysis of the state system and the language of sovereignty and recognition, to explain why some non-Western states were able to avoid formal colonization in the nineteenth century). Strang identifies three situations in which non- Western polities successfully constructed their claim to sovereignty, thus achieving recognition by Western states. First, sometimes the non-Western state was able to both defend its territory militarily and frame that use of force within the Western rules of war so that it would not jeopardize its civilized status, thus decreasing the chances of other Western states intervening (e.g., Japan, Ethiopia). Second, sometimes there was direct competition between two or more Western states with interests in the same territory, which impeded formal colonialism and supported the maintenance of the non-Western state's sovereignty (e.g., the Ottoman Empire, China, Persia). Finally, Strang identifies a form of "defensive Westernization," primarily in the case of Japan and to a lesser extent in Siam, in which "explicit imitation of Western political and administrative institutions led to the abrogation of the restrictive treaties imposed by the West." Id. at 40. In this study of the work of non-European jurists I show that imitation meant not only mimicry, but also appropriation of the legal ideas that were transforming international law.
26. . I use ideal types, in the conventional Weberian sense, as heuristic devices to draw historical comparisons between different non-Western political entities that established international legal relationships with European powers. The construction of ideal types does not entail the analysis of all the cases fitting under them. I have therefore excluded or given marginal treatment to the appropriation of classical international law in places like Ethiopia, Persia or Poland.
27. Jörg Fisch argues that expansion came along only after the progressive weakening of European states' power in the international world. See Jötg Fisch, Power or Weakness? On the Causes of the Worldwide Expansion of European Law, 6 J. HIST. INT'L L. 21-26 (2004). The argument is sustained by a wide- ranging historical study.
28. See JORG FISCH, DIE EUROPAISCHE EXPANSION UND DAS VÖLKERRECHT: DIE AUSEINANDERSETZUNGBN UM DEN STATUS DER U&DIEBERSEEISCHEN GEBIETE VOM 15 JAHRHUNDERT BIS ZUR GEGENWART (1984) [hereinafter FISCH, DIE EUROPAISCHE EXPANSION].
29. In consequence, I supplement the interpretation put forward by Fisch arguing that diminishing power does not completely explain the expansion of European international law. The decisive appropriation of international law by semi-peripheral lawyers also contributed to the expansion. Although one can identify a general trend in international power relations explaining European economic and military expansion and the use of international legal arguments by non-European states to resist, there was considerable diversity in the strategies and outcomes of semi-peripheral international lawyers' appropriations of international law. Sometimes they challenged the content of the rules by invoking underlying principles; at other times they contested the fact that the rules applicable within the West did not apply to them, achieving results ranging from partial success (formal recognition as a sovereign equal) to partial failure (renegotiation of treaties under unequal treatment).
30. In light of the professional relevance attained by these lawyers, it seems contradictory to qualify them as semi-peripheral. I have dealt previously with the problem of interpreting the work, professional trajectory, and contributions of semi-peripheral lawyers situated at the intellectual and political centers of the world.
31. See Arnulf Becker Lorca, Alejandro Alvarez Situated: Subaltern Modernities and Modernisms that Subvert, 19:4 LEIDEN J. INT'L L. 879, 927, 929 (2006).
32. On the continuities and changes between the earlier period of European colonial empires and nineteenth century imperialism, see H.L. WESSEUNG, THE EUROPEAN COLONIAL EMPIRES 1815-1919 (Diane Webb trans., 2004).
33. I would like to stress that this study has adopted a narrow and particular definition of international law and is therefore circumscribed to three ideal types of interactions between Western and non- Western sovereigns. The reasons to focus only on certain actors and contexts are consequently historical rather than normative. Nor is this study inspired by political correctness and the ensuing effort to find "forgotten voices" in the history of international law. Elites from regions of the world that were under colonial rule or beyond reach of European and American commercial and geopolitical interests during the nineteenth century either had no need or only limited possibilities to make use of international law and thus did not belong to this group of semi-peripheral international lawyers. It was not until the decolonization struggles of the 20th century that elites from Africa, the Pacific, and Central Asia appropriated, used, and influenced the international legal tradition. For example, in nineteenth-century Africa only Ethiopia could make use of international law to support the claim to sovereignty based on their Christian affiliation. On the other hand, as Henry Richardson has shown, other Africans or African Americans had to invoke legal claims "outside law" to confront slavery.
34. HENRY J. RICHARDSON III, THE ORIGINS OF AFRICAN-AMERICAN INTERESTS IN INTERNATIONAL LAW 441-446 (2008).
35. To acquire knowledge about international law, non-European governments sponsored the translation of foreign textbooks or directly hired foreign international lawyers. For example, in 1874, French international lawyer Pradier-Fodéré was hired by the Peruvian government to teach international law and serve as a legal advisor. Gustave Rolin-Jacquemyns, renowned Belgian lawyer and cofounder of the In- stitut de Droit International, after accepting a personal invitation by the king of Siam, served as a counsellor to the crown between 1892 and 1902.
36. See WALTER TIPS, GUSTAVE ROUN-JAEQUEMYNS AND THE MAKING OF MODERN SIAM: THE DIARIES AND LETTERS OF KING CHULALONGKORN'S GENERAL ADVISER (1996). Western international lawyers were also hired in Asia.
37. See infra text accompanying note 173.
38. See Victor Karady, La migration Internationale dttudiants en Europe, 1890-1940, 145 ACTES DE LA RECHERCHE EN SCIENCES SOCIALES 22, 47 (2002).
39. For example, according to Miyasaki, during the mid-nineteenth century, Japanese nationals Shin- ichiro Tsuda and Shusuke Nishi were sent to Leiden University and Takeaki Enomoto to Holland, while Chinese Ma Chien-Chung studied international law at the University of Paris.
40. Shigeki Miyasaki, History of the Law of Nations Regional Development: Far East, in 2 ENCYCLOPEDIA OP PUBLIC INTERNATIONAL LAW 802, 806 (Rudolf Bernhardt ed., 1992). Also, Japanese lawyers Tsurutaro Senga and Shingo Nakamura studied during the end of the nineteenth century at the University of Berlin.
41. See Fuji Ito, One Hundred Years of International Law Studies in Japan, 13 THE JAPANESE ANN. INT'L L. 19, 28 (1969). Japanese Sakutaro Tachi studied in France, Germany, and England between 1900 and 1904.
42. See II ANNUAIRE DE I'INSTITUTE DE DROIT INTERNATIONAL 517 (1950). Russian Andre Mandelstam took courses with Renault in Paris from 1897-1898.
43. See id. at 483.
44. Onuma has argued that one of the reasons nations entering the "Eurocentric international society" as "later-comers" shared similar characteristics is the small size of their elites, so that a single individual had to play double or triple roles.
45. See Yasuaki Onuma, Japanese International Law in the Prewar Period: Perspectives on the Teaching and Research of International Law in Prewar Japan, 29 JAPANESE ANN. INT'L L. 42 (1986).
46. Kennedy, however, suggests that the idea of the nineteenth century as characterized by the triumph of positivism and the centrality of sovereignty was itself a result of the critique of sovereignty and positivism advanced by modernist international lawyers during the first half of the twentieth century. Kennedy's study sheds light on the reasons why contemporary liberal internationalists see sovereignty and positivism as backward elements of the legal tradition that should be overcome and thus why the nineteenth century history of international law has remained mostly unexplored.
47. See David Kennedy, International Law and the Nineteenth Century: History of an Illusion, 65 NORDIC J. INT'L L. 385, 386-87, 412-413 passim (1996). In this study, I suspend the preconceptions about the nineteenth century identified by Kennedy and examine the rationale behind non-Western jurists' support of a legal theory and disciplinary sensibility that would seem problematic ro contemporary observers.
48. According to Kunz, "it is against the long predominance of the 'classic' natural law and its extravagances that, at the beginning of the nineteenth century, positivism came as a reaction in Europe." Josef Kunz, Natural-Law Thinking in the Modern Science of International Law, 55 AM. J. INT'L L. 947, 952 (1961).
49. See also Stephen Hall, The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism, 12 EUR. J. INT'L L. 269 (2001).
50. Kunz, for instance, revising the history of the debate between naturalism and positivism, argues that positivism provides a better theoretical framework during periods of peace, because of its emphasis on interpretation and codification of existing law, as opposed to periods of change and wars, when problems of law-making and the politics of law make positivism too rigid.
51. See Kunz, supra note 20, at 953-54. In contrast, Anghie has revealed the historical and conceptual interconnections between positivism and colonialism.
52. See Anghie, supra note 2.
53. See, e.g., Benedict Kingsbury, The International Legal Order, in OXFORD HANDBOOK OF LEGAL STUDIES (Peter Cane & Mark Tushnet, eds., 2003).
54. Kingsbury argues that since the late nineteenth century, the international lawyer, combining the roles of both scholar and practitioner, has followed a dispute settlement focus combined with a practice-oriented positivist jurisprudence, a model that emphasized the materials generated by recognized sources of law. According to Kunz, positivism "stood for the predominance of the state, for the dualistic construction, for the will of the state as the only basis of international law, for the unquestionable right of every sovereign state to go to war, against third-party judgment, against progressive development of international organizations, and so on." Set Kunz, supra note 20, at 957.
55. See, e.g., "In the science of international law, the nineteenth century was the great era of positivism. This means, first of all, that the conception of the law of nature and the kindred one of just war were to all intents and purposes abandoned." ARTHUR NUSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS 232 (1954).
56. Jacobini, for example, studies Latin American international lawyers in terms of their disposition toward positivism as the dominant trend of the epoch.
57. See H. B. JACOBINI, A STUDY OF THE PHILOSOPHY OF INTERNATIONAL LAW AS SEEN IN WORKS OF LATIN AMERICAN WRITERS (1954). Renowned non- European international lawyers like Russian Fedor Fedorovich Martens became central figures in the shift toward positivism.
58. See NUSSBAUM, supra note 23, at 179-85;
59. see also FEDOR FEDOROVICH MARTENS, VOLKERRECHT: DAS INTERNATIONALE RECHT DER CIVILISIRTEN NATIONEN (Carl Bergbohm trans., 1886). Baltic German/Estonian international lawyer Carl Bergbohm's work Staatsvertrage und Gesetze als Quellen des VöIkerrechts became a classic in the positivist tradition.
60. See CARL BERGBOHM, STAATSVERTRAGE UND GESETZE ALS QUELLEN DES VÖLKERRECHTS (1877).
61. Alcashi has argued that Japanese international lawyers' practice-oriented attitude toward the idea and concept of international law responded to the daring situation faced by Japan once opened by Western powers. Japanese jurists were indifferent to the long-lasting European debate between positivism and naturalism: "it is highly probable that the question whether it [international law] was natural or positive should have been a peripheral issue.
62. See Kinji Akashi. Japanese "Acceptance" of the European Law of Nations: A Brief History of International Law in Japan, in EAST ASIAN AND EUROPEAN PERSPECTIVES ON INTERNATIONAL LAW 19 (Michael Stolleis & Masaharu Yanagihara eds., 2004).
63. TSURUTARO SENGA, GESTALTUNG UND KRITIK DER HEUTIGEN KONSULARGERICHTBARKEIT IN JAPAN 10 (1897). The absence of solidarity between jurists from different non-European states is typical of the legal consciousness of this first generation of semi-peripheral international lawyers, which I characterize as a form of particularistic universalism. Set infra section IV.
64. In the nineteenth century, equality was denied not only on the basis of the standard of civilization, but also on the basis of natural law principles.
65. See, e.g., JAMES LORIMER, THE INSTITUTES OF THE LAW OF NATIONS: A TREATISE OF THE JURAL RELATIONS OF SEPARATE POLITICAL COMMUNITIES, (1883). Therefore, for instance, Fedor Fedorovich Martens insisted that international law is composed of juridical rules and not moral or religious laws.
66. FEDOR FEDOROVICH MARTENS, TRAITE DE DROIT INTERNATIONAL 24 (A. Leo trans., 1883).
67. On the "de facto principle" see JAMES LORIMER, THE INSTITUTES OF LAW: A TREATISE OF THE PRINCIPLES OF JURISPRUDENCE AS DETERMINED BY NATURE (1880);
68. in relation to international law, see id at 260-61. On the application of the theory of'de facto principle' to the doctrine of recognition, see id. at 104.
69. Hirohiko Otsuka, Japan's Early Encounter with the Concept of the "Law of Nations" 13 JAPANESE ANN. INT'L L. 35 (1969) (arguing that it was a strategy to breach the linguistic and cultural gaps). But see Akashi, supra note 25, at 19- In the Latin American context, Andres Bello follows a naturalist approach.
70. See ANDRES BELLO, PRINCIPIOS DE DERECHO DE GENTES (1832). Calvo, on the other hand, articulates the turn to positivism.
71. Set CARLOS CALVO, LE DROIT INTERNATIONAL THEORIQUB ET PRATIQUE: PRECEDE D'UN EXPOSE HISTORIQUE DES PROGRES DE LA SCIENCE DU DROIT DES GENS, TOMB PREMIER 154 (1896).
72. See CALVO supra note 29, at 154. For a similar opinion, see MARTENS, supra note 24, at 24.
73. See id., at 159-60 (affirming that treaties are the main source of international law).
74. See Kennedy, supra note 19, at 385-420.1 am using the notion of'abuse of deduction' in Duncan Kennedy's phenomenological sense, that is, the difference between what is experienced as deduction and as abuse of deduction, depend on the 'blocking level,' on the level of abstraction in which a proposition is experienced as permitting deduction. The blocking level varies over time according to usage rather than logical accuracy.
75. Set DUNCAN KENNEDY, THE RISE AND FALL OF CLASSICAL LEGAL THOUGHT xviii (1975).
76. See ARNULF BECKER LORCA, MESTIZO INTERNATIONAL LAW: A GLOBAL INTELLECTUAL HISTORY 1850-1950 (Cambridge Univ. Press, forthcoming 2011).
77. Michel Kebedgy, Principes du droit des gens, 19 ZEITSCHRIFT FUR SCHWEIZERISCHES RECHT 84, 84 (F. Fleiner et al. eds., 1900) (trans, by author).
78. Formalism, as a sign of dogmatism or excessive idealism, has long been used to discredit the views of adversaries. However, formalism, as both designating a critique of the mode of legal reasoning characterized by the abuse of deduction and calling for a renewal of thinking in the direction of contextualist or outcome-oriented modes of legal thinking, emerged only during the first decades of the twentieth century, during the transition from classical to modern international legal thought. See supra note 33.
79. Georgios Streit, Les Grandes Puissances dans le Droit International, 2 REVUE DE DROIT INTERNATIONAL ET DE LEGISLATION COMPAREB [R. DE D. INT. ET DE L. COMP.] 5, 5 (1900) (trans, by author).
80. See generally Michael Lobban, English Approaches to International Law in the Nineteenth Century, in TIME, HISTORY AND INTERNATIONAL LAW 65, 66 (Matthew Craven et al. eds., 2007).
81. Calvo's treatise, for example, reviews Vattel's definition of sovereignty as the capacity of the nation to govern itself, regardless of form, as along as it remains independent from any foreign people. Calvo then contrasts this definition with his own: "the essential character of a state's sovereignty does not rest on being more or less dependant from another state, rather it rests on the power that it has to give itself a constitution, establish its laws, establish its government, without any intervention of a foreign nation." CALVO, supra note 29 at 171.
82. Id. at 264. Absolute sovereignty necessarily implies complete independence. Hence for states, as moral persons, it implies a primary right, that of pursuing freely the achievement of their own destinies, and a no less pressing obligation of recognizing and respecting the sovereign rights and the absolute independence of other states.
83. Id. at 278.
84. Id. at 322-24.
85. Apart from the British and Russian interventions in the independence of Greece, Calvo also mentions the French intervention in Italy as a contributing factor to the latter's unification.
86. Id at 323.
87. Id. at 348.
88. If both intervention and non-intervention are general principles of the law of peoples, then the task becomes to identify the rule, which is non-intervention.
89. Id. at 348-51.
90. Note how Calvo takes on the principle of nationality at the center of reconstruction of Europe to give it a twist.
91. Id. at 351-55.
92. SENGA, supra note 26, at 134.
93. These four groups included: relations between European states, between European and American states, between Christian-European states and Turkish lands, and between European and Asian and African states.
94. See generally FRANZ VON HOLTZENDORFF, HANDBUCH DES VOLKERRECHTS: AUP GRUNDLAGE EUROPAISCHER STAATSPRAXIS (Franz von HolkendorfT, ed., 4th ed. 1889) (1885).
95. Cf. JOHN WESTLAKE, CHAPTERS ON PRINCIPLES OP INTERNATIONAL LAW (Cambridge University Press 1894);
96. LORIMER, supra note 27.
97. SENGA, supra note 26, at 134-35.
98. Specifically, consular jurisdiction violates the state's constitutional sovereignty (Staatsrechtliche Soveranitat), the sovereignty of the head of state (Fürstensouveränität), and international legal sovereignty.
99. Id. at 107-09, 123.
100. For studies exploring the construction of the standard by Western international lawyers, see generally GERRIT GONG, THE STANDARD OF "CIVILIZATION'' IN INTERNATIONAL SOCIETY (Clarendon Press 1984).
101. See also Anghie, supra note 2.
102. Georg Schwarzenberger, The Rule of Law and the Disintegration of the International Society, 33 AM. J. INT'L L. 56, 64 (1939) {hereinafter Schwarzenberger, Rule of Law}.
103. See generally Georg Schwarzenberger, The Standard of Civilization in International Law, in CURRENT LEGAL PROBLEMS 220 (George Keeton & Georg Schwarzenberger eds., 1955) [hereinafter Schwarzenberger, Standard]; Schwarzenberger, Rule of Law, supra note 51; GONG, supra note 50; Anghie, supra note 2.
104. It is important to note that surveying the ways in which semi-peripheral jurists internalized the standard of civilization in the context of the modernization and Westernization of their countries does not entail a positive, either political or normative, assessment of the consequences that this strategy imposed on their respective peoples. In fact, this type of critique should be levelled against both semi- peripheral as well as Western international lawyers.
105. Set Schwarzenberger, Rule of Law, supra note 51, at 62-66; Schwarzenberger, Standard, supra note 52, at 220.
106. Calvo was a founding member of both the Institut de Droit International, established in 1873 in Ghent, and the Association for the Reform and Codification of the Law of Nations (later renamed the International Law Association), established in Brussels in 1873.
107. Manuel Peralta, Carlos Calvo, 21 AN- NUAIRE DE L'INSTTTUT DE DROIT INTERNATIONAL 486, 488 (1906);
108. - 1 TRANS. INT'L L. ASS'NI (1873-74).
109. Kanelco reviews four periods of Japanese institutional history: primitive, ancient, middle ages, and modern.
110. Id at 342-44.
111. This mode of internalizing the standard of civilization is not uncommon. Other jurists have also identified the standard with European civilization while claiming non-Western roots that confirm the respective state's meeting of the standard. Takahashi illustrates this method: "It must be confessed that this generosity [of applying the standard] is chiefly owed to European civilization, which was introduced thirty years ago, but in general it may be said that if the graft was from Europe, the stock was an ancient one, deeply rooted in Japan from the earliest times.
112. Takahashi, infra note 182, at 4.
113. Kaneko, supra note 59, at 341.
114. Id at 356.
115. Id at 353.
116. "L'Amerique latine a ét́ découverte, conquise et peuplée par l'Europe, et cependant elle n'en est pas connue comme elle devrait l'être .. ." [Latin America has been discovered, conquered and populated by Europe, however, she is not known as it should be.] RECITED. COMPLET DES TRAITÉS, infra note 67, at i. Furthermore, Calvo contests that Latin America is either frequently confused with other uncivilized regions of the world or still mistakenly identified with the period of colonial domination, disregarding the incessant progress Latin America has made since independence. To him, America was seen as conserving "son état primitif et sauvage: ses habitants civilisés et intelligents sont considéréd comme des Indiens ou des négres d'Afrique, allant tout nus ou couverts des plumes . . . ." [its primitive and savage state: its civilized and intelligent habitants are considered as the Indians or the blacks from Africa, going all naked or covered with feathers.] Id. at ii.
117. CARLOS CALVO, RECUED. COMPLET DES TRAITÉS, CONVENTIONS ET AUTRES ACTES DIPLOMATI- QUES DE Tous LES ÉTATS DE L'AMÉRIQUE LATINE COMPRIS ENTRE LE GOLFE DU MEXIQUB ET LE CAP DE HORN, DEPUIS L'ANNÉE 1493 JUSQU'Á NOS JOURS, (Paris, Librairie de A. Durand, 1862) [hereinafter RECUEIL COMPLET DES TRAITÉS]. Dedicated to Napoleon III as an expression of gratitude of the peoples of the Latin race and published in Paris, Buenos Aires, and Madrid, both in Spanish and French, and in eleven volumes between 1862 and 1868, this work collects legal documents and various figures on geography, populations, and commerce, from discovery to mid-nineteenth century.
118. See also CARLOS CALVO, ANNALES HISTORIQUES DE LA RÉVOLUTION DE L'AMÉRIQUE LATINE: ACCOMPAGNÉES DE DOCUMENTS Á L'APPUI DE L'ANNÉE 1808 JUSQU'Á LA RECONNAISSANCE PAR LES ÉTATS EUROPÉENS DB L'INDÉPENDANCE DE CE VASTE CONTINENT (Paris, Librairie de A. Durand, vols. 1-5, 1864-1867).
119. Nagao Ariga, for instance, linked the political and social reforms implemented by Japan with the declaration of the Empire to carry on hostilities against China respecting the law of nations. NAGAO ARIGA, LA GUERRE SDMO-JAPONAISE AU POINT DE VUE DU DROIT INTERNATIONAL 4 (A. Pedone ed., 1896).
120. In particular, Japan signed the treaties that laid the foundations of the laws in war. For example, in 1886, Japan acceded to the 1864 (First) Geneva Convention for Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field and in 1887 acceded to The Paris Declaration of 1856 on maritime law in time of war.
121. See Douglas Howland, Japan's Civilized War: International Law as Diplomacy in the Sino-Japanese War (1894-1895), 9 J. HIST. INT'L L. 179, 183-84, 188 (2007) (arguing that Japanese adherence to basic international agreements was used to show its civilized status and thus to revise unequal treaties).
122. See Onuma, infra note 176, at 34 (arguing that "scrupulous compliance" with the "law of war was thought to contribute to the recognition of Japan as a 'civilized nation' . . . prerequisite to abolishing extraterritoriality and restoring tariff autonomy").
123. See also Howland supra note 69, at 193-98 (showing how Japanese jurists presented Japan's conduct, in the war against China, as civilized).
124. Takahashi, Cases, infra note 184, at 3. "So barbarous was the conduct of the Chinese authorities that if reprisal were the prevailing principle of International Law, Japan need have stopped at nothing in revenging herself. But Japan refrained from revenge, for it was her intention, in spite of the nature of her opponent, to set an example of generosity by carrying on hostilities in an enlightened fashion.
125. Id.
126. Ariga, supra note 68.
127. See, e.g., Calvo, supra note 29, at 155 (affirming that from a positivist perspective of international law, international law is limited only to the states of Europe and the Americas).
128. See Liliana Obregon, Completing Civilization: Nineteenth Century Criollo Interventions in International Law, 18-32, 93 (Sept. 2002) (unpublished S.J.D. dissertation. Harvard University) (on file with Harvard Law School Library).
129. See infra text accompanying note 222 (discussing the internalization of the standard by Martens).
130. M. Streit, Notices Necrologiquts, Eienne Carath & dory, 22 Annuaire de l'Institut de Droit International 342, 345 (1908) (trans, by author).
131. Japan can be proud to have taken such a noble and dignified resolution at the occasion of an event determinant of its destiny. However, my intention here is not to incite universal admiration, either from the public nor historians; I simply want to draw general attention on this point as a legal question. The Chinese, from the point of view of the laws of war, can be compared to the Turks, Arabs, and rough countries. The Japanese Empire, in its war against such a nation, wanted nevertheless to follow the laws that would apply to France, England, or Germany. Ariga, supra note 68, at 9.
132. Evoking Latin America's pre-Columbian civilizations was rhetorical not only because by the time of independence only tenuous ties existed between the elites and the indigenous peoples, but also because the Creole elites were committed to positivism and modernization.
133. Amancio Alcorta, Droit International Publique 202-13 (1887)
134. see also Amancio Alcorta, El Derecho International en las Antiguas Chilizaciones Americanos, in Nueva Revista de Buenos Aires 82 (Vicente G. Quesada ed., 1881).
135. I am not unaware of the resistance against the standard of civilization and against international law in general by non-European statesmen invoking alternative normative systems. As Gong puts it, the encounter between Western and non-Western peoples brought about a clash over different standards of civilization.
136. Gong, supra note 50.
137. See also Richardson, supra note 14, at 3-34 (discussing Africans' and African Americans' demands "outside law" to contest slavery). However, it is important to remember that this study primarily focuses on the appropriation and use of the international legal discourse by semi-peripheral publicists. I thus trace a trajectory starting from a loyal learning process of existing international law around the middle of the century, which shifted toward the deployment of given legal rules and arguments to support the interests of non-Western states, and then by the end of the century developed into an internal critique of the standard of civilization. An external critique of international law based on alternative non-European normative systems reappeared since semi-peripheral international lawyers of the first half of the century called upon their own Latin American, Islamic, African, or Third World traditions to support the critique.
138. Senga, supra note 26, at 135.
139. Id.
140. Id. at 136.
141. Most studies share this type of Eurocentrism. For example, in Grewe's long history of international law there is nothing to say about consular jurisdiction, nor is there much about non-European lawyers' attempts to reduce the scope of intervention.
142. See Grewe, Epochs, supra note 1. Grewe's work is not exceptional since most histories of international law do not fare any better.
143. See, e.g., Antonio Truyol Serra, Histoire du Droit International Public 132 (1995);
144. Nussbaum, supra note 23.
145. Some TWAIL (third world approaches to international law) scholarship, I would argue, also falls under this type of Eurocentrism, since it fails to recognize, and therefore study, the counter-hegemonic use of international law by non-Western jurists.
146. See Fisch, Die Europaische Expansion, supra note 10 (a study of these treaties)
147. Anghie, supra note 2, at 54-57 (a study of protectorates).
148. Philip Brown, for example, maintains that the treaty of 1535 "may be considered as the real commencement of the regime of the Capitulations .. Certainly all subsequent treaties were closely modeled on this treaty; and other nations have claimed as favorable treatment as therein accorded to France. In fact, it is stated in the body of this compact that the King of France reserved the right on behalf of the Pope, the King of England, and the King of Scotland, to adhere to the treaty should they so desire." Philip Marshall Brown, Foreigners in Turkey; Their Juridical Status 33-34 (1914) (internal footnote omitted). Other lawyers and historians have also recognized the role of the treaty of 1535 as a model for subsequent capitulations.
149. See Lucius Ellsworth Thayer, The Capitulations of the Ottoman Empire and the Question of Their Abrogation as It Affects the United States, 17 Am. J. Int'l L. 207, 211 (1923)
150. Thomas Naff, The Ottoman Empire and the European States System, in The Expansion of International Society (Hedley Bull & Adam Watson eds., 1984);
151. Gabriel Bie Ravndal, The Origin of the Capitulations and of the Consular Institution (1921).
152. British diplomat John Bowting, for example, participated in the negotiation of various treaties with the Ottomans, China, and Siam.
153. See Richard Horowitz, International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century, 15 J. World Hist. 445 (2004).
154. See Salahi R. Sonyel, The Protege"System in the Ottoman Empire, 2 J. Islamic Stud. 56, 56-66 (1991).
155. See Alexander H. de Groot, The Historical Development of the Capitulatory Regime in the Ottoman Middle East from the Fifteenth to the Nineteenth Centuries, 83 Oriente Moderno 575 (2003).
156. See Roberto Ago, supra note 5.
157. This interpretation is not novel. Travers Twiss, for example, argued in his late nineteenth-century treatise that after the dismemberment of the Western Roman Empire, and in the absence of a common law or religion, merchants abroad were governed by their own personal laws. The Latin Kings of Jerusalem, for example, had since the eleventh century concluded with Genoa, Venetia, and Pisa treaties conferring extraterritorial privileges. Also, the Byzantine Empire had entered into agreements with the Genoese and Venetians granting privileges to their merchants, including their Muslim subjects. Moreover, these agreements were confirmed by the Ottomans after conquering Constantinople. Travers Twiss, The Law of Nations Considered as Independent Political Communities (1884).
158. Late nineteenth-century treatises included considerable sections on capitulations and consular jurisdiction. For examples from the British, French, and German traditions, see respectively Twiss, supra note 90
159. Henry Bonfils, Manuel de droit international public 1259-67 (1898)
160. Johann Ludwig Kluber & Carl Eduard Marstadt, Europaisches Volkerrecht 30-36 (1851). The treatment given to the matter in these textbooks shows that capitulations were not regarded as exceptional or as necessarily in conflict with the main principles of international law. Instead they were a matter of international law's global expansion.
161. See Twiss, supra note 90, at 444 ("Treaties of this character [recognizing extraterritoriality] are not of novel device, as their origin may be traced back to a period, when race or nationality rather than tetritory was the basis of a community of law."). This can be compared with treatises as late as Vattel's or Wheaton's, defining sovereignty as people and government with less importance given to territory. In this sense, the extraterritorial regime instituted by the capitulations constituted a remnant of "legal conceptions of the later Roman [Empire].
162. Edwin Pears, Turkish Capitulations and the Status of British and Other Foreign Subjects Residing in Turkey, 21 L.Q.R. 408 (1905).
163. See Maurits H. van den Boogert, The Capitulations and the Ottoman Legal System: Qadis, Consuls, and Beraths in the 18th Century (2005). Boogert argues that, at the beginning, the Ottoman Sultan unilaterally issued capitulations granting trade privileges to the sovereign countries that had sent envoys. The main purpose of capitulations was to stimulate trade with the West and regulate the presence of foreign merchants.
164. See Roderic H. Davison, Ottoman Diplomacy and its Legacy, in Imperial Legacy: the Ottoman Imprint on the Balkans and the Middle East (L. Carl Brown ed., 1996). Davison argues that in the nineteenth century the Sublime Porte, as a weaker party, sought refuge in international law in front of Western powers. For example, since the treaty of Paris signed in 1856 established a territorial settlement that was relatively favorable to Turkey, Ottoman diplomats supported the observance of international law and the principle of pact sunt servanda.
165. "Ahd-name" was one of the official terms used by Ottomans for "treaty.
166. See J.M. Landau, Mu'ahada, in Encyclopaedia of Islam (P. Bearman Heinrichs et al. eds., 2d ed. 2008). Specifically, according to Inalcik, 'ahd-name was the document subscribed to confirm the covenant (ahd) guaranteeing protection (aman) to an enemy (Harbi).
167. Halil Inalcik, Imiyazat, in Encyclopaedia of Islam (P. Bearman et al eds., 2d ed. 2008). However, according to Feroz Ahmad, Ottomans used also the term "imtiyazat," which means "privilege" or "concession for foreigners," to refer to the capitulations.
168. Feroz Ahmad, Ottoman Perceptions of the Capitulations 1800-1914, 11 J. Islamic Stud. 1 (2000).
169. These documents were also called "ahd-name.
170. See Landau, supra note 95;
171. Thayer, supra note 86, at 224.
172. Inalcik, supra note 95.
173. Scholars of the nineteenth and early twentieth centuries heatedly discussed the unilateral or bilateral character of 'abdnames, as Turkey could only legally abrogate capitulations if they were conceptualized as unilateral concessions. Panaite has noted how the distinction was inconsistently drawn by using modern juridical criteria on documents of the fifteenth to the seventeenth centuries. Panaite also shows that on several occasions the Ottoman terminology, phrasing the agreements as unilateral concessions, contradicted the Latin, Italian, or French translations depicting capitulations as bilateral treaties.
174. Viorel Panaite, The Ottoman Law of War and Peace: The Ottoman Empire and Tribute Payers 239-42 (2000) [hereinafter Panaite, Ottoman Law].
175. See also Viorel Panaite, Notes on the Islamic-Ottoman law of peace, 41 Revue des etudes sud-est europeennes 191 (2003).
176. In Panaite's terminology these are Imperial charters (ahdnames-i hmyn). Viorel Panaite, Overview of the Empire in a Time of Change, H-Net Book Review, Mar. 2003, http://www.h-net.org/reviews/showrev.php?id=7325
177. reviewing Donald Quataert, The Ottoman Empire, 1700-1922 (2000)).
178. Late nineteenth-century international lawyers were well aware of this.
179. See, e.g., G. Pelissib du Rausas, Le Regime des Capitulations dans L'Empire Ottoman 1 n. 1 (1902);
180. Twiss, supra note 90, at 463 (arguing that the use of the term "capitulation" referred to discrete portions of treaties).
181. generally Panaite, Ottoman Law, supra note 98, at 240 (comparing the use of terminology in Turk and Western languages in various treaties concluded between Western sovereigns and the Ottoman rulers).
182. Once the struggle for the Holy Roman Emperorship between Charles I of Spain and Francis I of France was resolved in favor of the former with his coronation as Charles V in 1521 and the latter's capture in 1525, the French resumed negotiations with Suleyman to forge an alliance against the Habsburgs. Although the military agreements came to nothing after peace between Charles and Francis was imposed, the relation of friendship and cooperation between France and the Ottomans continued.
183. See Naff, supra note 86, at 146-47.
184. Other Western nations that pushed Turkey to include in their capitulations most favored nation treatment in order to enjoy the privileges granted in the French Capitulations of 1535 and 1740 included: England (1579), Holland (1579), Austria (1615), Russia (1711), Sweden (1737), Denmark (1756), Prussia (1761), Spain (1782), Sardinia (1825), United States (1830), Greece (1854), and Brazil (1858).
185. Brown, supra note 86, at 40-43.
186. According to Sonyel, by the eighteenth century, the French had claimed protection over Catholics, the British and Prussians over small Protestant communities and occasionally over Jews, and the Russians over Greeks and Armenians.
187. Salahi R. Sonyel, The Protege" System in tie Ottoman Empire, 2 J. Islamic Stud. 56, 58-59 (1991).
188. Sonyel claims that by 1860 in Istanbul alone, around 50,000 Ottoman subjects enjoyed foreign national status.
189. Id. at 58, 64.
190. See generally Van den Boogert, supra note 93.
191. See, e.g., Yilmaz Altug, Turkey and Some Problems of International Law 22-31 (1958) (adding administrative privileges such as post offices operated by capitulatory powers, the establishment of schools, hospitals and monasteries);
192. Nasim Susa, The Capitulatory Regime of Turkey, its History, Origin, and Nature 70-88 (1933).
193. Thayer, supra note 86, at 215, 217;
194. Susa, supra note 106, at 70-72.
195. Susa, supra note 106, at 72-75.
196. Id. at 75-77.
197. See generally Van den Boogert, supra note 93, at 159-79, 207-24 (showing that consular jurisdiction involved adjudicating disputes not only over private claims, but also over conflicts of law in inheritance, or bankruptcy).
198. Thayer, supra note 86, at 216.
199. Id. at 217.
200. The Paris Treaty of 1856 included Turkey in the European concert of nations. General Treaty for the Re-Establishment of Peace between Austria, France, Great Britain, Prussia, Sardinia, and Turkey, and Russia, Mar. 30, 1856, 114 Consol. T.S. 409.
201. See Esin Örürü, The Impact of European Law on the Ottoman Empire and Turkey, in European Expansion and Law: the Encounter of European and Indigenous Law in 19th and 20th-century Africa and Asia 39 (Wolfgang J. Mommson & Jaap de Moor eds., 1991).
202. This similarity was well known to international lawyers of the first half of the twentieth century and to contemporary historians.
203. See, e.g., Horowitz, supra note 87, at 460-61.
204. Among lawyers, see, e.g., Tseng Yu-Hao, The Termination of Unequal Treaties in International Law: Studies In Comparative Jurisprudence and Conventional Law of Nations 12 (1933);
205. Francis Bowes Sayre, The Passing of Extraterritoriality in Siam, 22 Am. J. Int'l L. 70, 70 (1928).
206. Two annexes and a supplementary treaty concluded in 1843 complemented the Treaty of Nanking. For an analysis of their rules, see Dong Wang, China's Unequal Treaties: Narrating National History 11-16 (2005).
207. This regime was further expanded after the Boxer rebellion and reached its peak influence in the 1920s and 1930s.
208. Gong, supra note 50, at 140.
209. Treaty of Peace, Friendship and Commerce between China and Great Britain, art. XI, June 26, 1858, 119 Consol. T.S. 167 [hereinafter Treaty of Tientsin].
210. See Treaty of Tientsin, supra note 118, arts. XV and XVI.
211. To prevent local officials from imposing taxes beyond the treaty ports officials when they collected inland transit duties, Article XXVIII granted foreign merchants the right to pay a single charge and obtain a transit pass exempting them from further taxation. It also allowed Chinese authorities appointed to oversee the collection of duties to declare the tax rates.
212. See Treaty of Tientsin, supra note 118, art. XXVIII.
213. See generally John Carter Vincent, The Extraterritorial System in China: Final Phase (1970).
214. John King Fairbank, Trade and Diplomacy on the China Coast: The Opening of the Treaty Ports, 1842-1854 371 (Stan. Univ. Press 1969).
215. John K. Fairbank, The Early Treaty System in the Chinese World Order, in Thb Chinese World Order: Traditional China's Foreign Relations 257, 258 (John King Fairbank ed., 1968).
216. See Par Cassel, Excavating Extraterritoriality: The "Judicial Sub-Prefect" as a Prototype for the Mixed Court in Shanghai, 24 Late Imperial China 156, 156-57 (2003). Studying the Mixed Court in Shanghai, Cassel argues that there was continuity between the traditional Qing legal system and the treaty port system's extraterritorial aspects. He argues the norms that regulated extraterritoriality were borrowed and adapted from Qing legal concepts that granted certain legal privileges to Manchus.
217. Treaty of Tientsin, supra note 118, art. II. According to Article II, diplomatic agents, their family and establishment could take permanent residence in the capital.
218. Id. art. II.
219. It also imposed rules of protocol that would reflect the recognition of equal standing: "[the ambassador] shall not be called upon to perform any ceremony derogatory to him as representing the Sovereign of an independent nation on a footing of equality with that of China.
220. Id. art. III
221. Tseng, supra note 115, at 16.
222. See D.A.G. Waddell, International Politics and Latin American Independence, in Thb Independence of Latin America 195 (Leslie Bethel ed., 1987).
223. See Arthur Preston Whitaker, The United States and the Independence of Latin America, 1800-1830, 546-63 (1962).
224. For example, in the twenty years following recognition of Spanish American governments in 1822 (1824 in the case of Brazil) the United States concluded treaties with: Colombia, October 3, 1824 74 Consol. T.S. 455;
225. Colombia, March 16, 1825, 75 Consol. T.S. 161
226. Central American Federation, December 5, 1825, id. at 433
227. Mexico, January 12, 1828, 78 Consol. T.S. 35;
228. Brazil, December 12, 1828, id at 249
229. Brazil, June 15, 1829, 79 Consol. T.S. 453;
230. Colombia, November 25, 1829, 80 Consol. T.S. 225;
231. Mexico, April 5, 1831, 81 Consol. T.S. 381
232. Chile, May 16, 1832, 82 Consol. T.S. 413;
233. Mexico, April 3, 1835, 85 Consol. T.S. 101
234. Venezuela, January 30, 1836, 86 Consol. T.S. 1
235. Mexico, April 20, 1836, id. at 103;
236. Peru-Bolivian Confederation, November 30, 1836, id at 257
237. Mexico, April 11, 1839, 88 Consol. T.S. 397
238. Ecuador, June 13, 1839, 89 Consol. T.S. 63
239. Chile, July 7, 1840, 90 Consol. T.S. 263
240. Peru, March 17, 1841, 91 Consol. T.S. 301.
241. Until 1825, negotiations or ratification of treaties had generally failed, sometimes because of domestic instability (as in the case of Chile and Peru) and other times because of British influence (in the case of Mexico).
242. See Whitaker, supra note 127, at 586-87. The treaty with Colombia of 1824 included a most favored nation clause, which put an end to the preferential treatment afforded to Britain.
243. See id. at 588.
244. General Convention of Peace, Amity, Commerce, and Navigation between the Central American Federation of the Centre of America, Dec. 5, 1825, 8 U.S.T. 1867. The treaty contained a most favored nation clause.
245. Id. art. II.
246. It placed commerce and navigation on the basis of perfect equality and reciprocity, granting mutually the right to "frequent all the coasts and countries of the other and reside and trade there, enjoying the rights and privileges that native citizens enjoy.
247. Id art. HI.
248. The treaty also established religious liberty, conferred reciprocity on import and exports duties, granted their respective citizens the power to dispose of personal goods according to law and gave special protection to the persons and property of the citizens of each other, according to law and access to justice.
249. Id.
250. The Treaty of Amity, Commerce and Navigation between Great Britain and Mexico, art. II, Dec. 26, 1826, 77 CONSOL. T.S. 39.
251. Id. arts. V, VI, VII.
252. According to Rodríguez, British diplomats agreed to grant preferential conditions because of Mexico's uncompromising position during negotiations. The post-independence excitement of Mexican politicians led them to refuse "to grant special privileges to any nation, even Great Britain. The new republic would assume her place as an equal among the great powers of the earth." JAIME E. RODRÍGUEZO., THE EMERGENCE OF SPANISH AMERICA: VICENTE ROCAFUERTB AND SPANISH AMERICANISM, 1808-1832 91 (1975).
253. A brief review of one of these treaties illustrates the typical norms governing the relationships between Latin American states and Britain. For instance, the Treaty of Amity, Commerce and Navigation between Great Britain and Rio de la Plata, signed in Buenos Aires on February 2, 1825, established in Article 2 "reciprocal freedom of commerce," according to which the citizens of each party "have liberty freely and securely to come, with their Ships and Cargoes, to all such Places, Ports, and Rivers .. to enter into the same, and to remain and reside in any part of the said Territories .. to hire and occupy houses and warehouses, enjoy the most complete protection and security for their Commerce; subject always to the Laws and Statutes of the two countries respectively"
254. Article 3 extends to British overseas territories the freedoms granted to citizens of Rio de la Plata;
255. Article 4 establishes reciprocal most favored nation treatment on import and export duties as well as on import and export prohibitions;
256. Article 10 appoints consuls for the protection of trade. Treaty of Amity, Commerce and Navigation between Great Britain and Rio de la Plata, Gr. Brit.-U.S. Provinces of Rio de la Plata, Feb. 2, 1825, 3 H.C.T. 44.
257. Note from Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia (Apr. 27, 1866), in 6 A DIGEST OF INTERNATIONAL LAW 660 (John Bassett Moore ed., 1906).
258. Note that the previous discussion of these three international legal regimes has mostly relied on the research carried out either by diplomatic and legal historians, or by international lawyers of the late nineteenth and early twentieth centuries. The main histories of international law give only cursory treatment to unequal treaties.
259. See generally NUSSBAUM, supra note 23;
260. KARL-HEINZ ZIEGLER, VOLKERRECHT- SGESCHICHTE: EIN STUDIENBUCH 2 (2d ed., 2007);
261. GREWE, EPOCHS, supra note 1. By the same token, none of the major encyclopedias of international law has an entry on unequal treaties.
262. See, e.g., Rudolf Bernhardt, German Nationality, in 8 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 258-60 (1992). Mathew Craven's work stands as a lonely exception.
263. See Mathew Craven, What Happened to Unequal Treaties? The Continuities of Informal Empire, in INTERROGATING THE TREATY: ESSAYS IN THE CONTEMPORARY LAW OF TREATIES, 43 (Matthew Craven & Malgosia Fitzmaurice eds., 2005).
264. The omission of unequal treaties in contemporary studies of the history of international law reflects the exceptional character that these treaties had conceptually and in terms of their impact. The absence also expresses a general indifference regarding the history of the rules of international law. McNair's 1949 criticism of most history of international law as "either a history of its literature, or a history of international relations" is still accurate: "It is difficult to find much history of the content, that is, the actual rules of law applied in practice." Arnold McNair, Aspects of State Sovereignty, 26 BRIT. Y.B. INT'L L. 6, 6 n.l (1949).
265. See, e.g., MICHAEL R. AUSLIN, NEGOTIATING WITH IMPERIALISM: THE UNEQUAL TREATIES AND THE CULTURE OF JAPANESE DIPLOMACY 4 (2004).
266. For example, Bethell writes, "Mommercial treaties were imposed on Mexico, Colombia, Argentina and other independent Spanish American republics (with little possibility of negotiation) as a precondition for much-sought-after recognition by Britain, the world's leading power." Leslie Bethell, Britain and Latin America in Historical Perspective, in BRITAIN AND LATIN AMERICA: A CHANGING RELATIONSHIP 4 (Victor Bulmer-Thomas ed., 1989).
267. In addition to the literature quoted above, see RICHARD T. CHANG, THE JUSTICE OF THE WESTERN CONSULAR COURTS IN NINETEENTH-CENTURY JAPAN 135 (1984), which challenges the interpretation that consular jurisdiction favors the interest of foreigners.
268. On the role of the interaction between foreign citizens and authorities of their respective home governments in shaping the extraterritorial regime in China, see EILEEN P. SCULLY, BARGAINING WITH THE STATE FROM AFAR: AMERICAN CITIZENSHIP IN TREATY PORT CHINA, 1844-1942 21-23 (2001).
269. I borrow the concept of legal consciousness from Duncan Kennedy. "The notion behind the concept of legal consciousness is that people can have in common something more influential than a checklist of facts, techniques and opinions. They can share premises about the salient aspects of the legal order that are so basic that actors rarely if ever bring them consciously to mind." KENNEDY, supra note 32, at 5.
270. For example, when Argentinean publicist Almacio Alcorta challenged Calvo for neither giving adequate treatment to Argentinean interests nor recognizing the existence of American principles of international law, Calvo retorted, "[e]stas palabras, por honrosas que sean, envuelven un reproche que no es comprensible de parte de un jurisconsulto argentino que sigue el movimiento cientffico del mundo .. [S]i como argentino acato la ley de mi pals, como autor de un libro de doctrina universal he debido colocarme bajo el punto de vista de la ciencia, buscando, si no el modo de uniformar el principio, al menos de conciliar los intereses de todos los pueblos. [These words entail a reproach that is not comprehensible for an Argentinean jurisconsult who follows the world's scientific movement .. As an Argentinean I comply with the law of my country, but as an author of a book of universal jurisprudence, I have had to situate myself under a scientific point of view, seeking, if not a mode to uniform the principles, at least to reconcile the interests of all peoples.]" Carlos Calvo, Polemica Calvo-Alcorta, 7 NUEVA REVISTA DE BUENOS AIRES 629, 632-33 (1883).
271. For a description of the disputes between universalist and particularist international lawyers in the Latin American context, see Arnulf Becker Lorca, International haw in Latin America or Latin American International Law? Rise, Fall, and Retrieval of a Tradition of Legal Thinking and Political Imagination, 47 HARV. INT'L L.J. 283 (2006).
272. The absence of bonds of solidarity resulted from the structure of the argument adopted by semiperipheral publicists; that is, unequal treatment applies not to "us" but to other "less civilized nations." As a result, I would argue that Latin Americans set themselves apart from their indigenous peoples; Japanese from the Chinese; Russians from the Ottomans; Ottoman elites from their own Islamists.
273. On the early twentieth-century semi-peripheral international lawyers as "vernacular cosmopolitans," see LORCA, supra note 33.
274. See generally JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW (2d ed., 2006).
275. The wars of independence at the beginning of the nineteenth century put an end to Spanish rule in Latin America and resulted in the creation of a number of new countries. Compared to Spanish America, Brazil followed a different trajectory, when in 1822 and with far less struggle it became a monarchy separate from Portugal. On the other hand, another group of independent countries (Greece, Montenegro, Romania) emerged from the defeat of Ottoman forces in the Greek war of independence and the Russo-Turkish war of 1877-1878. However, I will only explore the use of international legal language to obtain recognition in relation to Latin America.
276. See supra note 128;
277. see also, e.g., Treaty of Friendship, Commerce and Navigation, U.S.-Brazil, Dec. 12, 1828, reprinted in 79 CONSOL. T.S. 249.
278. See RODRÍGUEZ, supra note 133, passim.
279. See generally Waddell, supra note 126, at 225-26.
280. See John R. Davis, Britain and the European Balance of Power, in A COMPANION TO NINETEENTH CENTURY BRITAIN 34, 37 (Chris Williams ed., 2006);
281. Waddell, supra note 126, at 213-15.
282. This was especially true in the case of Brazil, where "independence . . . was won not on the field of battle but by diplomacy." Alan K. Manchester, The Recognition of Brazilian Independence, 31 HISP. AM. HIST. R. 80, 80 (1951).
283. This pattern is remarkably similar to the one followed by Greek international lawyers, both regarding their use of the classical synthesis to buttress Greek independence and deal with the Ottoman Empire and their migration to Europe's intellectual centers.
284. See, e.g., Nicolas Saripolos, La question grécoturque, ses commencements, sesprogrés, et son tat actuel, 11 R. DE D. INT. ET DE L. COMP. 119, 133-35 (1879);
285. Nicolas Saripolos, La question gréco-turque aprés I'acte final de la conference de Berlin, 13 R. DE D. INT. ET DE L. COMP. 231, 239-43 (1881);
286. see also M. Rivier, Notice nérologique sur M. Saripolos par M. Rivier, 10 ANNUAIRE DB L'INSTITUT DE DROIT INTERNATIONAL 52, 55-56 (1888).
287. WILLIAM SPENCB ROBERTSON, FRANCE AND LATIN-AMERICAN INDEPENDENCE 560 (1939).
288. Self-determination was not a new concept. Its revival marked a return to the influence that the French Revolution had exerted on pre-restoration international law. See Robert Redslob, Völkerrechtlicbe Idem der französiscben Revolution, in FESTGABE FÜR OTTO MAYER 273 (Scientia Verlag Aalen 1974) (1916).
289. CALVO, supra note 29, at 235.
290. Id. at 241.
291. For an example of one diplomatic mission, in 1860 Calvo represented Paraguay in London with the main task of requesting reparations for the Paraguayan government in the Cansatt case. "Calvo's success with the case opened the doors for him in the salons and intellectual circle of Europe." Obregón, supra note 74, at 96.
292. Calvo was a founding member of both the Institut de Droit International and the International Law Association.
293. See supra note 55.
294. In 1868, Calvo published DERECHO INTERNACIONAL TEÓRICO Y PRÁCTICO DB EUROPA Y AMÉRICA
295. which he published in French as CARLOS CALVO, LB DROIT INTERNATIONAL THÉORIQUB ET PRACTIQUE, PRÉCEDÉ D'UN EXPOSÉ HISTORIQUE DES PROGRÉS DE LA SCIENCE DU DROIT DES GENS. The fourth edition was translated into Chinese and Greek, and an abridged edition was translated to English. In the prologue to the fifth edition, Calvo notes the various translations and editions, commenting, "[i]s it not the best proof of the usefulness of our work?
296. Obregdn, supra note 74, at 91 n.178 (quoting CARLOS CALVO, LE DROIT INTERNATIONAL THÉORIQUB ET PRACTIQUB, PRÉCEDÉ D'UN Exposé HIS-TORIQUB DES PROGRÉS DE LA SCIENCE DU DROIT DES GENS (5th ed. 1986)).
297. This interpretation has been mainly put forward by Alexandrowicz. See C H. Alexandrowicz, Doctrinal Aspects of the Universality of the Law of Nations, VI BRIT. Y.B. INT'L L. 506, 506-15 (1961).
298. On the distinction between a universal law of nations and a European public law, see Guggenheim, supra note 5.
299. For an account of this emerging disciplinary sensibility, see MARTTI KOSKENNIEMI, GENTLE CIVIUZER OF NATIONS 11-97 (2001).
300. European international lawyers welcomed Calvo's inclusion of material relating to the Americas. For instance, in his book review of Calvo's Derecho Internacional Teórico y Páctico de Europa y América, (1869), Gustave Rolin-Jaequemyns notes, "(m]ais ce qui lui donne en outre une valeur speciale, c'est la part importante, et toute nouvelle, qu'il fait aux précédents historiques americains, dans l'examen des questions qu'il traite. [But what gives him added value, is the important role, altogether new, that he gives to historical American precedent in the examination of his questions.]" Gustave Rolin-Jaequemyns, 1 R. DB D. INT. ET DE L. COMP. 294, 294 (1869).
301. Carlos Calvo, Polémica Calvo-Alcorata, 7 NUEVA REVISTA DE BUENOS AIRES 629, 635 (1883) (Arg.) (trans, by author). The fact that Calvo mentions Heffter is remarkable. Heffter was renowned for maintaining that there was no single external public law (äuβeres Staatrecht) because there was no law extending its scope to all states and peoples of the globe. According to Heffter, law only developed and achieved validity within determined circles. Specifically, a general legal consciousness manifested itself only within Christian Europe and in the states with European heritage.
302. In the European realm, Heffter insisted, this law has acquired the name of European public law. AUGUST HEFFTER & FRJEDRICH GEFFCKEN, DAS EUROPÄISCHE VÖLKERRECHT DER GEGENWART AUF DEN BISHERJGEN GRUNDLAGEN 1-2 (1882).
303. See LAURENCE WHITEHEAD, LATIN AMERICA: A NEW INTERPRETATION 1-18 (2006).
304. For example, when Spain seized the Chincha Islands in Peru, Latin American authorities made diplomatic protests condemning the attack as not in accord with the practice of civilized nations. The Argentinean minister to Peru, D. F. Sarmiento, formulated his diplomatic protest using Christianity as a sign of civilization: "[t]he Republics of South America belong to the community of Christian nations which governs itself by international law; they exist by their own right, which they themselves have conquered, as proved by history, and secured by universal concurrence; whilst the people from whom they have severed themselves can in no manner deny their existence, by urging the absence of Treaties or of explicit acknowledgement, after forty years renunciation of all pretension of dominion, and virtual approval of the Treaties of Ayacucho, which put an end to the war between the metropolis and its former colonies.
305. Letter from Don D.F. Sarmiento to Señor Ribeyro in 32 ACCOUNTS AND PAPERS OF THE HOUSB OF COMMONS 15 (1864).
306. Luis Drago further developed Calvo's doctrine. This doctrinal development came after the blockade of Venezuelan ports by Great Britain, Germany, and Italy to obtain payment of compensation for injuries suffered by their nationals. For a detailed exploration of the Calvo and Drago doctrines
307. see supra text accompanying notes 40-44. The general literature on this case is vast and includes many non-Latin American semi-peripheral lawyers' writing.
308. See, e.g., C.G. Télnélcidfés, Considérations sur la Clause Calvo: Essai de justification du systhne de la nullit́ intégrale, 43 REVUE GÉNÉRALS DE DROIT INTERNATIONAL PUBLIC 270-84 (1936).
309. CALVO, supra note 29, at 323.
310. See id at 350-51.
311. For example, Auslin has shown a parallel between Japan, Burma, and Siam, in their dealings with Western powers and the efforts to renegotiate unequal treaties. AUSLIN, supra note 137, at 22-25.
312. See generally AUSLIN, supra note 137 (regarding Japan);
313. JOHN KING FAIRBANK, TRADE AND DIPLOMACY ON THE CHINA COAST: THB OPENING OF THE TREATY PORTS, 1842-1854 (1953);
314. DONG WANG, CHINA'S UNEQUAL TREATIES: NARRATING NATIONAL HISTORY (2005) (dealing extensively with China);
315. Craven, supra note 136 (considering these treaties in general).
316. Starting in the Sixteenth century, Japan had contact with Portuguese, Spanish, English, and Dutch envoys and merchants. In 1638, however, the regime adopted a policy of seclusion to eliminate the impact of Christian missionaries, as evidenced by the fact that only Dutch and Chinese merchants were exempted from the prohibition and were only allowed to engage in restricted trade.
317. See R.P. Anand, Family of "Civilized" States and Japan: A Story of Humiliation, Assimilation, Defiance and Confrontation, 5 J. HIST. INT'L LAW 1, 8 (2003).
318. See AUSLIN, supra note 137, passim. Thereafter, Japanese officials resisted U.S. pressure to extend the scope of the 1854 treaty by delaying negotiations. The Western intervention in China sent a powerful message which by 1857 caused Japanese elites to change their stance and sign a new treaty. Other Western powers rapidly followed suit.
319. See Anand, supra note 170, at 12-13.
320. On Western Europe as peripheral to China, see generally ANDRE GUNDER FRANK, REORIENT: GLOBAL ECONOMY IN THE ASIAN AGE (1998).
321. For example, the Japanese government employed an Italian, Alessandro Paternostro, to write an essay supporting Japan's lull admission into the international legal community.
322. See Alessandro Paternostro, La Revision des Traités avec le Japon au Point de Vue du Droit International, 23 R. DE D. INT. ET DE L. COMP. 5 (1891).
323. The Japanese government also invited German-Swiss international lawyer Otfried Nip-pold to teach at the Society of German Sciences in Tokyo between 1889 and 1892.
324. See OTFRIED NIPPOLD, WANDERUNGEN DURCH JAPAN: BRIEFE UND TAGEBUCHBLATTER (1901).
325. Miyasaki lists a number of Westerners who served as legal advisers to China, Japan, and Korea. Miyasaki, supra note 17, at 807.
326. Fuji, supra note 17, at 29 (noting the translation and publication of authors such as Hall, West- lake, Von Martens, Lawrence, and von Liszt).
327. Fuji, supra note 17, at 19;
328. Miyasaki, supra note 17, at 806.
329. Onuma Yasuaki, 'Japanese International Law' in the Prewar Period: Perspectives on the Teaching and Research of International Law in Prewar Japan, 29 JAPANESE ANN. INT'L L. 23, 23 (1986).
330. Early teaching and research of international law was, in the words of Onuma, "practical, statism-oriented, Eurocentric and passive.
331. Id. at 23.
332. Onuma argues that lawyers from nations that have entered the Eurocentric international society as "late-comers" share a similar pragmatism, passivism, and state-centrism in their understanding of international law.
333. Id at 42.
334. Along the same line, Yamamoto points out that Japan chose to "accept and comply with the international legal order as it was," even if it had not taken part in its creation. Consequently, Japanese lawyers' approach was "passive and conservative.
335. Yamamoto Soji, Japanese Approaches and Attitudes Towards International Law, 34 JAPANESE ANN. INT'L L. 115, 118 (1991).
336. See Jacobini, supra note 24, at 38-76 (presenting Latin American international law thinking in terms of writers ascribing to naturalism or positivism-the main theoretical currents in Europe-and finding most of them to be eclectic).
337. It is possible to draw this analogy because until the first half of the nineteenth century natural law was not completely out of fashion, particularly in the Western international law literature that was translated to Japanese.
338. See Hirohiko Otsuda, Japan's Early Encounter With the Concept of the "Law of Nations", 13 JAPANESE ANN. INT'L L. 35, 45-46 (1969).
339. Amane Nishi (1829-97) and Mamichi Tsuda (1829-1903), the first Japanese citizens who studied international law with Simon Vissering in Leiden between 1863 and 1865, are deemed to have followed the natural law perspective of their master. Once back in Japan, Nishi taught "universal law of nations" at the school of the Shogunate and published in 1868 a translation of his notes of Vissering's lectures, which influenced the first generation of Japanese internationalists. Kinji Akashi suggests that most Japanese scholars have thought that the first generation of international lawyers adhered to natural law because of the influence Nishi's notes had on Japanese internationalists.
340. Kinji Akashi, Japanese 'Acceptance' of the European Law of Nations: A Brief History of International Law in Japan, in EAST ASIAN AND EUROPEAN PERSPECTIVES ON INTERNATIONAL LAW 1, 3-5 (Michael Stolleis & Masaharu Yanagihara eds., 2004).
341. However, Akashi criticizes this conventional interpretation. See infra note 180 and accompanying text.
342. See Yamamoto, supra note 175, at 118;
343. see also Fuji, supra note 17, at 20-22 (mentioning the influence exerted by the works of positivist authors such as Wheaton, Woolsey, Kent, Halleck, and Bluntshli).
344. Kinji Akashi, supra note 178, at 3-6, 18-19.
345. Nagao Ariga, De la Protection Accordée aux Cbinois Résidant au Japan Pendant la Guerre Sino- Japonaise, 2 REVUB GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC 577 (1895);
346. La Capitulation de Port- Arthur, 5 REVUE GÉNÉRALE DB DROIT INTERNATIONAL PUBLIC 601 (1907).
347. Salaryé Takahashi, Le Droit International dans I'Uistoire du Japan, 3 R. DE D. INT. ET DE L. COMP. 188 (1901).
348. Many of the articles by Western authors were written under Takahashi's initiative. See, e.g., AEUSSERUNGEN ÜBER VÖLKERRECHTLICH BEDEUTSAME VORKOMMNISSE AUS DEM CHINESISCH-JAPANIS- CHEN SEEKRIEG UND DAS DARAUF BEZUGÜCHE WERK, "CASES ON INTERNATIONAL LAW DURING THE SINO-JAPANESE WAR" (Sakuyé Takahashi ed., 1900).
349. The book included a selection of reviews of Takahashi's work in various European outlets. Id
350. SAKUYEI TAKAHASHI, CASES ON INTERNATIONAL LAW DURING THE CHINO-JAPANESE WAR (Cambridge Univ. Press 1899) [hereinafter TAKAHASHI, CASES]. In 1908, Takahashi also published a study on the Russo-Japanese war, both in London and New York.
351. See SAKUYEI TAKAHASHI, INTERNATIONAL LAW APPLIED TO THE RUSSO-JAPANESE WAR WITH THE DECISIONS OF THE JAPANESE PRIZE COURTS (Banks Law Pub. Co. 1908);
352. SAKUYEI TAKAHASHI, INTERNATIONAL LAW APPLIED TO THE RUSSO-JAPANESE WAR WITH THE DECISIONS OF THE JAPANESE PRIZE COURTS (Stevens & Sons 1908).
353. See THOMAS ERSKINE HOLLAND, THE ELEMENTS OF JURISPRUDENCE 295 (2d ed. 1882) ("Within this charmed circle, according to the theory of International law, all States are equal. Without it, no State, be it as powerful and as civilised as China or Japan, can be regarded as a normal international person.");
354. THOMAS ERSKINE HOLLAND, THE ELEMENTS OF JURISPRUDENCE 322 (3d ed. 1886).
355. See THOMAS ERSKINE HOLLAND, THE ELEMENTS OF JURISPRUDENCE 373 (9th ed. 1900) ("Within this charmed circle, to which Japan has also some time since fully established her claim to be admitted, all States, according to the theory of international law are equal. Outside of it no State, be it as powerful and as civilized as China or Persia, can be regarded as a normal international person.").
356. I explain this interaction with greater detail. See LORCA, supra note 33.
357. Fuji, supra note 17, at 19;
358. AUSUN, supra note 137, at 146.
359. See AKASHI, supra note 178, at 3-6. I would argue that the slowing down or failure of the modernization projects in China and Persia also explains why local lawyers trained in Western international law appeared at the beginning of the twentieth century.
360. International law was invoked by Christian missionaries who entered China during the last part of the sixteenth century and by the Dutch in their contacts with Qing officials in the period between 1662 and 1690. In both cases, Chinese authorities refused attempts to validate the European law of nations and depart from their Sino-centered tributary system.
361. See Zhaojie Li, International Law in China: Legal Aspect of the Chinese Perspective of World Order 120-21 (1995) (unpublished S.J.D. Dissertation, Toronto University) (on file with Harvard Law School Library);
362. see also GONG, supra note 50, at 132-34. China first entered into a formal agreement with a foreign country on equal terms when China and Russia concluded the Treaty of Nerchinsk in 1869.
363. China agreed, for example, to reciprocate ritual observances to maintain the prestige of each civilization.
364. Id. at 134.
365. Chinese authorities appointed two Jesuits as translators and advisors precisely in order to conclude a treaty on the basis of equality and reciprocity. Their role was to ensure that the negotiations were carried out in accordance with the principles of international law. Wang Tieya, International Law in China: Historical and Contemporary Perspectives, in 221 RECUEIL DES COURS 195, 227 (1990).
366. IMMANUEL HSU, CHINA'S ENTRANCE INTO THE FAMILY OF NATIONS: THE DIPLOMATIC PHASE, 1858-1880 121 (1960). Gong has proposed an alternative interpretation explaining Chinese reluctance to give up the kostow, namely, the ritual by which foreign powers became a tributary of China. Rather than responding to an unreasonable and rigid formalism, China defended the kostow because recognizing foreign sovereigns as equals challenged its existing worldview.
367. GONG, supra note 50, at 130-33- By the same token, Liu contests the conventional suggestion that China's downfall is explained by its failure to abandon Sino-centric ways of thinking, especially its unwillingness to join free trade and to give up the tributary protocols and adopt modern European diplomacy.
368. Lydia H. Liu, Legislating the Universal: The Circulation of International Law in the Nineteenth Century, in TOKENS OF EXCHANGE: THE PROBLEM OF TRANSLATION IN GLOBAL CIRCULATIONS 127, 129-30 (Lydia H. Liu ed., 1999).
369. Hsu, supra note 191, at 121-23.
370. In 1838 the Emperor appointed Lin Tse-hsü to lead the campaign to suppress opium trafficking and consumption in Canton. Since it was mostly English opium that was smuggled from India to China, Lin sought to find a justification to prohibit the opium trade in Western publicists' writings and consequently ordered the translation of a number of texts on the law of peoples. In particular, Lin requested the translation of passages from the English version of Vattel's LE DROIT DES GENS on the right to prohibit the entrance of foreign merchandise, to confiscate smuggled goods, and to wage war. In 1839, Lin declared opium to be contraband and wrote a letter to Queen Victoria requesting her to stop the opium trade. Using European international law proved futile when the First Opium War broke out, resulting in the Treaty of Nanking being concluded with Britain in 1842 following China's defeat. In exchange for a withdrawal of troops, Britain forced China not only to accept opium as legitimate merchandise, but also to open five ports to trade and for the residence of British merchants, to abolish the monopolistic trade system, to pay indemnity (compensating the loss of opium and British lives and covering debts owed to British merchants by Chinese merchants), to recognize extraterritoriality, to cede Hong Kong, and to fix tariffs. Britain obtained further concessions in a series of treaties that came to be known as the treaty port system.
371. See Li, supra note 190, at 124-33;
372. GONG, supra note 50, at 136-46;
373. Hsu, supra note 191, at 138-45;
374. WANG, supra note 116, at 11-16.
375. The famous translation of Wheaton's Elements of International Law into Chinese in 1864 is commonly seen as a watershed in the introduction of international law. The usefulness of translation was tested the same year when the Prussian minister to China seized Danish ships as a prize of war. Chinese officials successfully argued that the ships were on Chinese territorial waters. Li, supra note 190, at 129.
376. Later, China began to teach international law and some diplomats specialized in international law. For example, Ma Jianzhang studied law in France in the 1870s, and an international law association was set up in 1898. Wang, supra note 190, at 236-37.
377. Li, supra note 190, at 210.
378. Consequently, I examine their work and professional trajectories elsewhere.
379. See LORCA, supra note 33- Chiu discusses China's delay in producing modern international lawyers.
380. See Hungdah Chiu, The Development of Chinese International Law Terms and the Problems of Translation into English, in CONTEMPORARY CHINESE LAW: RESEARCH PROBLEMS AND PERSPECTIVES 139 (Jerome Cohen ed., 1970);
381. see also Cheng Tiqiang, The People's Republic of China and International Law, 8 DALHOUSIB L J. 3, 8 (1984) (for the argument that from the Qing Dynasty to the Kuomintang only a handful of treaties were written and that the few lawyers that studied international law focused mainly on the unequal treaties, "since they followed indiscriminately the theories expounded and rules made by the imperialist powers for the imperialist powers, and given the subservient attitude of the then Chinese government, they could do very little to advance the Chinese cause.").
382. Dong Wang, on the other hand, argues that during the period of the first Republic (1912-1928) foreign relations were for the first time "taken over by a foreign-trained elite." WANG, supra note 116, at 35. Unlike Cheng, Wang maintains that both the Kuomintang and the Communist Party condemned the unequal treaties while disputing how they should be abolished. Id. at 87.
383. See ERNEST NYS, LES ORIGINES DU DROIT INTERNATIONAL (1894) (describing the origins of the law of nations in the early middle ages).
384. Ago, supra note 5.
385. For example, Russia participated in the Congress of Vienna, and the Ottoman Empire was included in the treaty of Paris of 1856.
386. See Karl-Heinz Ziegler, The Peace Treaties of the Ottoman Empire with European Christian Powers, in PEACE TREATIES AND INTERNATIONAL LAW IN EUROPEAN HISTORY 338 (Randall Lesaffer ed., 2004) (discussing the Ottoman Empire).
387. This argument does not assume that positivism fully superceded naturalism. To the contrary, both perspectives coexisted in the work of both early and late nineteenth century European international lawyers. Indeed, a consensus emerged among international lawyers that Western 'civilized' states should be governed by positive international law (of a higher normative standard that arguably attracted greater compliance) and non-civilized states should be governed by natural law (namely, moral rules of behavior).
388. See, e.g., LORIMER, supra note 27, at 101-03. European authors who had not fully endorsed the turn to positivism and remained attached to naturalism shared these views.
389. See, e.g., MANUEL TORRES CAMPOS, ELEMENTOS DE DERECHO INTERNACIONAL PUBLICO 58-59 (1890).
390. Set LORIMER, supra note 27, at 102 (maintaining that only moral rules of good conduct but no positive legal obligations applied outside the "family of civilized nations").
391. In his study on Anglo-Russian relations in Persia, Kazemzadeh recounts how diplomats justified Russia's military expansion in central Asia. In 1864, Prince A. M. Gorchakov, the Chancellor under Nicholas I, sent to Russian representatives abroad a dispatch that "became a landmark in the history of Russian diplomacy." Kazemzadeh quotes Gorchakov's dispatch: "The position of Russia in Central Asia is that of all civilized States which are brought into contact with half savage, nomad populations, possessing no fixed social organization. In such cases it always happens that the more civilized State is forced, in the interests of the security of its frontier and its commercial relations, to exercise a certain ascendancy over those whom their turbulent and unsettled character make most undesirable neighbours.
392. FIRUZ KAZEMZADEH, RUSSIA AND BRITAIN IN PERSIA, 1864-1914: A STUDY IN IMPERIALISM 8 (1968).
393. See, e.g., NUSSBAUM, supra note 23, at 190-91;
394. LASSA OPENHEIM, INTERNATIONAL LAW: A TREATISE 49 (Hersh Lauterpacht ed., 1955);
395. Tetsuya Toyoda, L'Aspect Universaliste du Droit International Européen du 19éne Siéele et le Statut Juridique de la Turquie avant 1856, 8 J. HIST. INT'L L. 1, 19-37 (2006).
396. I have already alluded to the legal rapport linking some European powers, Russia, and Turkey, which allows us to reinterpret the treaty of 1856 as signaling an admission of the political context that affected the doctrinal shift from naturalism to positivism. Set J.C. Hurewitz, Ottoman Diplomacy and the European State System, 15 MIDDLE E. J. 141 (1961).
397. See, e.g., GABRIEL NORADOUNGHIAN, RECUEIL D'ACTES INTERNATIONAUX DE L'EMPIRE OTTOMAN (1897).
398. ÉTTENNE CARATHÉODORY, DU DROIT INTERNATIONAL CONCERNANT LES GRANDS COURS D'EAU: ÉTUDE THÉORIQUE ET PRATIQUE SUR LA LJBERTÉ DE LA NAVIGATION FLUVIALE (1861).
399. I examine elsewhere the work and ideas of modernist Turkish international lawyers. See LORCA, supra note 33.
400. See generally WILLIAM BUTLER, RUSSIA AND THE LAW OF NATIONS IN HISTORICAL PERSPECTIVE (2009) (discussing Russian international law in general).
401. For biographical information about Martens, see generally PUSTOGAROV, infra note 219. At the time of his death, Martens had become immensely successful.
402. See, for instance, the obituary written by British jurist Thomas Holland. T. E. Holland, Frederic de Martens, 10 J. SOC'Y COMP. LEGIS. 10-12 (1909).
403. On the Martens clause, see, for example, Theodor Meron, The Martens Clause, Principles of Humanity, and Dictates of Public Conscience, 94 AM. J. INT'L L. 78, 79 (2000) (pending the codification of the law of war, the Martens clause established a supplementary or residual humanitarian protection based on common usages among civilized nations). The fact that he used the distinction between civilized and uncivilized warfare, and that he induced Russia to commit to the former as a marker of civilization was in itself an expression of Martens' semi-peripheral legal consciousness. See infra note 232 and accompanying text.
404. Lauri Malksoo has argued that in spite of Russian jurists' efforts to internalize European international law, Western European authors questioned Russia's standing as a civilized nation. As a consequence, "Russians felt that the Western alliance the country during the Crimean war (1851-1856) or the Balkan wars of the 1870s were not the 'usual' clashes between European Great Powers-they were alliances specifically against the influence of Russia and its dangerous 'otherness'.
405. Lauri Malksoo, The History of International Legal Theory in Russia: A Civilizational Dialogue with Europe, 19 EUR. J. INT'L L. 211, 219 (2008).
406. Malksoo, supra note 211, at 213.
407. Moreover, Malksoo argues that between Western and Russian international legal scholarship there has been not only a linguistic but also a mental divide. As a result, Russian jurists appear to be under the illusion of Russia's intellectual self-sufficiency. The flipside effect of the mental and linguistic divide is that Russian scholars emphasized Russia's contribution to the development of international law. Id. at 215.
408. TARJA LXNGSTROM, TRANSFORMATION IN RUSSIA AND INTERNATIONAL LAW 36-37 (2003).
409. See PETER HOLQUIST, THE RUSSIAN EMPIRE AS A "CIVILIZED NATION": INTERNATIONAL LAW AS PRINCIPLE AND PRACTICE IN IMPERIAL RUSSIA, 1874-1898, at 7 (Nat'l Council for Eurasian and E. European Research, 2004), available at http://www.ucis.pitt.edu/nceeer/2004-818-06g-Holquist.pdf.
410. LXNGSTROM, supra note 213, at 41.
411. HOLQUIST, supra note 214, at 7.
412. Most Russian international lawyers were on the side of Westernizers, who advocated for Russia to open itself to Western culture and science. Slavophiles opposed Westernization, urging Russia to follow its own path. Eric Myles, "Humanity", "Civilization" and the "International Community" in the hate Imperial Russian Mirror: Three Ideas "Topical for Our Days", 4 J. HIST. INT'L LAW 310, 313-314 (2002).
413. In particular, like Latin American and Ottoman modernizes, Martens deployed the civilized/barbarian distinction in the domestic context. As Malksoo has noted, "[i]t was Russia herself who had to be gently civilized in the hands of Martens and other Baltic German/Russian international law scholars-Westernizers." Malksoo, supra note 211, at 220.
414. See Myles, supra note 217, at 313-314.
415. Friedrich Fromholz Martens was born in 1845 in Pernov (Parnu/Pernau) a town on the gulf of Riga in the province of Livonia. VLADIMIR PUSTOGAROV, OUR MARTENS: F.F. MARTENS INTERNATIONAL LAWYER AND ARCHITECT OF PEACE 7 (William Elliott Butler ed., Kluwer trans., 2000) (1993).
416. Martens was born in extremely modest circumstances, and in spite of having been orphaned at an early age, he received a good education at a German school in St. Petersburg and, in 1863, the Law Faculty of St. Petersburg University admitted him for study. Id at 7, 14.
417. Upon graduation, the University offered to allow Martens to remain to prepare for a position as a professor. When Martens suggested choosing the chair of criminal law, the Dean replied, " 'No, remain at the chair of international law. Then we will have our Martens', alluding to the two noted European writers on international law . . . who bore this surname." Id. at 18-19.
418. Martens finished his magister, went abroad, attending lectures in Vienna, Heidelberg (by Johann Caspar Bluntschli), and Leipzig, received his doctoral degree in 1873 and became a professor in 1876. Id. at 19, 26.
419. Martens went on to become, among others, a member of the Institut de Droit International, and Russian delegate to a number of conferences, including the First and Second Hague Conferences. Moreover, Martens wrote some of the most influential treatises of his time. See supra note 24.
420. Pustogarov has determined that Martens was of Estonian origin, contradicting some German authors who affirm that he was a Baltic German. PUSTOGAROV, supra note 219, at 12-13.
421. Martens only adopted a Russian first name later on, when marrying and converting to the Orthodox faith. Even though he became known as Fedor Fedorovich Martens, according to Pustogarov, he continued calling himself Friedrich von Martens in German and Frederic de Martens in French. Id at 9.
422. The use of Western and Russian versions of his name point to Martens' commitment to both Russia's Westernization and imperial idea. MSlksoo has shown that Martens regarded the principle of nationality as unstable and dangerous, instead he believed that the state must respect the rights of citizens regardless their national origin and the language they spoke.
423. Lauri Mglksoo, The Science of International Law and the Concept of Politics. The Arguments and Lives of the International Law Professors at the University of Dorpat/Iur'ev/Tartu 1855-1985, 76 BRIT. Y.B. INT'L L. 383, 389 (2005).
424. According to Gong, this standard was consolidated only at the very end of the nineteenth century. See GONG, supra note 50, at 24-35.
425. - 1 MARTENS, supra note 27, at iii. "Les differences géographiques, économiques et celles qui marquent les divers degrés de civilsation des peoples, influent surleur developpement intérieur et sur leur droit. Le droit international ne peut devenir une réalité que chez les peoples arrives á un degree peu prés égai de développement civil et politique, car chez eux seuls la notion du droit est identique." [The geographical and economic differences and the ones that define the diverse degrees of civilization of peoples, have an influence on their domestic development and on their law. International law cannot become a reality except among peoples who have achieved much the same degree of civil and political development, for it is only among them that the notion of law is identical.] Id at 20.
426. Martens later affirms that no civilized state can find all the elements of its life and fulfillment within its territory, which is why contemporary nations have established relations with one another. Id. at 28.
427. "le droit international contemporain est le result de la vie civilisée et de law connaissance du droit chez les nations européennes. Ainsi que le démonstre l'histoire, les conditions essentielles de l'ordre juridique international.,. se sont recontrées d'abord en Europe et, jusqu'à present, ells sont loin d'exister dans tous les États du globe. II s'en suit que Taction du droit international ne s'étend qu'aux nations qui reconnaissent les principles fondamentaux de la civilization européenne et qui sont dignes du nom de peoples civilizes." [Contemporary international law is the result of civilized life and of the consciousness about the law among European nations. As history demonstrates, the essential conditions of the international juridical order .,. are first encountered in Europe and, up to the present, they are far from existing among all states of the world. Therefore, the effect of international law is only understood among the nations that have recognized the fundamental principles of European civilization, and that are worthy to be called civilized peoples.] Id. at 238.
428. According to Martens, collective goals can be religious, intellectual, economic, and political. Id at 27.
429. "J'ai la ferme conviction que les relations internationales et les principles du droit qui les determinant, tirent toute leur importance et toute leur force de la communauté des interest qui unissent les nations civilisées ou chrériennes." [I have the firm conviction that international relations and the principles of law that regulate them draw all of their importance and all of their force from the community of interests that unite civilized or Christian nations.] Id. at ii-iii.
430. Id at 239.
431. Id at 238-39.
432. See generally HOLQUIST, supra note 214, at 4-6.
433. See FEDOR FEDOROVICH MARTENS, RUSSIE ET L'ANGLETERRE DANS L'ASIE CENTRAIE (1879);
434. FEDOR FEDOROVICH MARTENS, DAS CONSULARWESEN UND DIE CONSULARJURISDICTION IM ORIENT (1874).
435. MARTENS, supra note 27, at 240-41. It is quite interesting that Martens indicates that when this moment of a similar degree of "instruction and civilization" is reached, international law will no longer be exclusively established based on Christian principles, and will not only be obligatory for Christian nations. However, Martens warns that at that point, it will be necessary that peoples and societies under the rule of international law ensure "les conditions raisonnables de 1'existence humaine" [the reasonable conditions of human existence] in accordance with "la civilisation séculaire des nations européennes" [the secular civilization of the European nations].
436. Id. at 270-71.
437. See, e.g., Daniel Marc Segesser, "Unlawful Warfare is Uncivilised": The International Debate on the Punishment of War Crimes, 1872-1918, 14 EURO. REV. HIST. 215 (2007);
438. Myles, supra note 217, at 318-19.
439. This is similar to Japanese international lawyers. See ARIGA, supra note 68. 234.
440. See e.g., MARTENS, supra note 229; PUSTOGAROV, supra note 219.
441. See Davison, supra note 94, at 185.
442. Lorimer famously states that "[a]s a political phenomenon, humanity, in its present condition, divides itself into three concentric zones or spheres-that of civilized humanity, that of barbarous humanity, and that of savage humanity. To these, whether arising from peculiarities of race or from various stages of development in the same race, belong, of right, at the hands of civilized nations, three stages of recognition-plenary political recognition, partial political recognition, and natural or mere human recognition." LORIMER, supra note 27, at 101. Lorimer places the European states in the first sphere and Turkey and the "historical states of Asia which have not become European dependencies" in the second, with the third sphere "extending! to the residue of mankind." Id. at 101-02.
443. Set Anghie, supra note 2 (suggesting a deep structure explaining the continuities with their opponents, underdeveloped dictatorships that were violators of fundamental rights). Carl Schmitt provides a conservative critique of liberal universalism. Schmitt bitterly resents the universalization of European international law, for it entailed not only its global expansion, but its radical transformation. In Schmitt's eyes, the Jus Publicum Europaeum, based on the concrete normative order of the European community (Hausgenossenschaft) of peoples, morphed into the spaceless universalism of a liberal international legal order open to heterogeneous states.
444. CARL SCHMITT, Die Auflösung der europäischen Ordnung im "International Law", in STAAT, GROβRAUM, NOMOS: ARBEITEN AUS DEN JAHREN 1916-1979, at 372-73 (Guenter Maschke ed., 1995);
445. see also CARL SCHMITT, DER NOMOS DER ERDE IM VOLKERRECHT DES JUS PUBLICUM EUROPAEUM: IM VOLKERRECHT DES JUS PUBLICUM EUROPAEUM (1950).
446. Matthew Craven describes the turn to history and the different ways in which international lawyers have engaged with the history of international law. See Matthew Craven, INTRODUCTION TO TIME, HISTORY AND INTERNATIONAL LAW (Matthew Craven, Malgosia Fitzmaurice, & Maria Vogiatzi eds., 2007).
447. Craven views the growing interest in the historiography of international law, in the aftermath of the end of the Cold War and the new "war on terror," as an effort to search for answers in the discipline's past, in the face of the political uncertainties of the present. Id at 3-4.
448. Various parallels could be drawn by looking at the tension between the principle of sovereign equality and actual forms of unequal treatment in contemporary and nineteenth century international law. For example, consular jurisdiction can be functionally compared with free trade agreements or investment treaties that bestow competence on international arbitration bodies to resolve disputes involving foreign actors. The standard of civilization as a doctrinal device to differentiate the legal regime applicable to privileged and subordinate states is paralleled in the nuclear non-proliferation regime. The invocation of anti-formal principles by powerful states and a response based on formal rules by weaker states continues to be a common argumentative pattern.
449. For example, when Armin von Bogdandy and Sergio Dellavalle study the conceptual preconditions of the various positions held by international lawyers, ordering them in two competing paradigms-universalism and particularism-they conceive of their task as providing a critical standpoint from which to assess and understand these positions, but also as supporting "intercultural dialogue on international law.
450. Armin von Bogdandy & Sergio Dellavalle, Universalism and Particularism as Paradigms of International Law, 5 (Inst, for Int'l L. and Just. Working Paper No. 2008), available at hnp.ll www.iilj.org/publications/ documents/2008-3.Bogdandy-Dellavalle.pdf. The fact that they only consider the ideas put forward by European and American international lawyers is considered unproblematic. Verdirame reviews and discusses the debate dividing American and European approaches to international law.
451. See Guglielmo Verdirame, The Divided West: International Lawyers in Europe and America, 18 EUR. J. INT'L L. 553 (2007).
452. Although throughout this article non-European international lawyers are presented in a sympathetic light, I recognize the costs and shortcomings of this strategy. For instance, the national policies supporting modernization, in line with the internalization of the standard of civilization, were brutal for the peoples who had to be modernized. I also fail to discuss the violence of European expansion. For an impressive account, see MIKE DAVIS, LATE VICTORIAN HOLOCAUSTS: EL NINO FAMINES AND THE MAKING OF THE THIRD WORLD (2001).