Eurocentrism in International Law: Analytical Essay

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Eurocentrism is under challenge in international law today.[footnoteRef:1] One may ponder what is eurocentrism. The term ‘Eurocentrism’ denotes a world-view that posits European history and values as “normal” and superior to others, thereby helping to produce and justify Europe’s dominant position within the global capitalist world system.[footnoteRef:2] In order to understand how eurocentrism had continuously affected the making of international law, we shall have a glance on the history of international law and its relationship with euro centricity. [1: A.A. Fatouros, ‘International Law and the Third World’ (1964) 50(5) Virginia Law Review accessed 19 August 2019] [2: Hannah Franzki, ‘Eurocentrism; InterAmerican Wiki: Terms – Concepts – Critical Perspectives.’ (Universitat Bielefeld, 2012) accessed 19 August 2019]

The history of international law can be traced back to the sixteenth century. It is used by the Western states to impose political, economic, and legal ideas and practices on the non-Western state through colonialism, capitulations, imperialism, and the standard of civilization. A structure for global civilization was built by the Western states based on the Westphalian model of international relations developed in post-Renaissance Europe.[footnoteRef:3] Westphalian civilization is composed of sovereign states interacting in a condition of anarchy. In order to maintain such a system, states require substantive rules to regulate their interaction, rules originally called the law of nations and international law.[footnoteRef:4] International legal literature recognizes that the structure and substantive rules of state interaction in international relations were entire of Western origin. [3: James Thuo Gathii, ‘International Law and Eurocentricity’ (1996) 9(98) EJIL < http://www.ejil.org/pdfs/9/1/1476.pdf> accessed 19 August 2019] [4: Martti Koskenniemi, ‘Histories of International Law: Dealing with Eurocentrism’ (2011) 19 University of Helsinki accessed 19 August 2019]

International Law began with the 1648 Peace of Westphalia Treaty, the symbol of the system of independent states, that was supposed to grant sovereign equality by dividing Europe into sovereign and independent states. Scholars had regarded the treaty as the formal beginning of the modern inter-state system, was applicable to the civilized European sovereign nations not the uncivilized world of the non-European. The Peace of Westphalia gave official birth to a European inter-state system that removed internal issues, such as whether a country was Catholic or Protestant, from the realm of international politics.[footnoteRef:5] Non-intervention in the domestic affairs of other states was, thus, a structural and substantive component of the Westphalian system. In short, Westphalian civilization began in the seventeenth century with an attempt to create a stable structure for inter-state relations that excluded the nature of domestic politics, economics, and society from being a concern of diplomacy and the law of nations.[footnoteRef:6] [5: Richard Cavendish, ‘The Treaty of Westphalia’ (Months Past, n.d) accessed 19 August 2019] [6: David P.Fidler, ‘Revolt Against or From Within the West?: TWAIL, the Developing World, and the Future Direction of International Law’ (2003) Articles by Maurer Faculty < https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3126&context=facpub> accessed 19 August 2019]

Therefore, it shows that international law consists of doctrines and principles developed in Europe, influenced by European history and experience.[footnoteRef:7] Tracing back to the Western history of international law, we can see that it is part of the expansion of European civilization over the world. It opened the classic Eurocentric Western historiography of international law to the pre-colonial experiences of Non-European peoples and religions.[footnoteRef:8] By the eighteenth century, as colonialism expanded, jurists gradually shifted from the universalist jus gentium[footnoteRef:9] to a law of nations used by diplomats and applicable among the European States. In the year of 1904, there were forty-six States with full sovereign rights in the ‘international community, which included 22 European States, 21 American States, Japan, Liberia, and the Independent State of the Congo, which we can see most of the states that take part are the Western states. [7: Shenali D Waduge, ‘International law is Eurocentric and Colonial – Time to change’ (Lankaweb, 23 March 2016) accessed 19 August 2019] [8: R.P. Anand, “On the Influence of History on the Literature of International Law” Essays in Legal Philosophy, Doctrine and Theory (1983) 341] [9: The law of nations.]

Everything changed when World War I lead Europe into conflict due to structural intolerance. The War had interrupted the homogenization of the non-Western world. In terms of international law, the War had changed the basis and framework of international law, by fading away the civilizational ideology and the indiscriminate extension of the international legal order to all states, regardless of their race, culture, or geographical location. After the end of World War II, the Soviet Union had emerged as a great power drove the West’s prior universal expansion. The imperial and colonial territories of the Soviet Union began to form new sovereign states in a decolonization process, diverse cultural and civilizational histories, and different political and economic interests from the West. The sovereign state has been accepted by non-European peoples to upload basic rules of co-existence. From here, we can see that international law become more ‘universal’ gradually. The Westphalian civilization was universalized under the forces of international politics after World War II.

The process of decolonization assisted procedural pluralization because it creased the amount of new, developing states in the international system. The involvement of developing countries after World War II had tried to expand and deepen the pluralization of international law, which is, change the euro-centricity of international law that was historically made and implemented.[footnoteRef:10] Such changes were take place in two ways. First, these states began to exercise their rights as states under international law, creating a significant body of state practice affecting treaty and customary international law that could not be ignored. Second, developing states became members of international organizations, such as the United Nations, and began to influence the process of international law through participation in debates, decisions, and cooperative activities undertaken in this institution. The United Nations is perhaps the most obvious example of an institution created on the basis of “Western” legal ideas and now being successfully utilized by the non-Western members of the third world.[footnoteRef:11] Developing counties used their growing quantitative presence in the international system to try to ensure that the manner in which international law was made and implemented no longer reflected only the interests and prejudices of the great powers of the West. [10: Mohammad Shahabuddin, ‘The ‘Standard of Civilization’ in International Law’ (Volkerrechtsblog, 12 December 2018) accessed 19 August 2019] [11: A.A. Fatouros, ‘International Law and the Third World’ (1964) 50(5) Virginia Law Review accessed 19 August 2019]

Despite international law is imported the character of universality, the scholars had perceived that the international law has failed to fulfill the true meaning of ‘international’ as it has rooted on historical and cultural beliefs of one region, hence it is in favour of Europeans, meanwhile, it has neglected the norms, cultures as well as concerns of third world. Undeniably, most of the rule-makers of international law are originated from the West, therefore the international law has been incorporated with the elements of Europeans and Christianity which is emphasis on capitalism, manifest destiny, and civilization. The Bible-carrying missionary has justified the colonization over the non-European states as European states opined that they are more humane and advanced, thus they had assumed the moral responsibility to civilize the nation and society which has undergone poor development. Antony Anghie, a very famous scholar, he was of opinion that imperialism has become legitimate by the sovereignty doctrine in international law. It is because the European state which is deemed sovereign can do whatever they want to the non-sovereign state as there is stringency of legal attribute for a non-sovereign entity to proclaim any legal confrontation. One must note that non-European states are excluded from the definition of sovereign by the virtue of positivist jurisprudence of that time.[footnoteRef:12] Therefore, any method used for imperialism has become legal and justified as they viewed the colonization is “benefit” to non-European states.[footnoteRef:13] [12: Antony Anghie, ‘Finding The Peripheries: Sovereignty And Colonialism In Nineteenth-Century International Law’ (1999) 40 Harvard International Law Journal accessed 20 August 2019] [13: Basil Davidson, Africa In History (Simon & Schuster 1991).]

For example, a famous international treaty, The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). It is an international legal agreement between all the member nations of the World Trade Organization (WTO). Such agreement laid down the minimum standards for the regulation by national governments of many forms of intellectual property for the countries that ratified it to be bind to it. However, since TRIPS came into force, it has been subject to criticism from developing countries, academics, and non-governmental organizations.

“TRIPS imposed on the entire world the dominant intellectual property regime in the United States and Europe, as it is today. I believe that the way that intellectual property regime has evolved is not good for the United States and the EU; but even more, I believe it is not in the interest of the developing countries.” Such line was said by Joseph Stiglitz, an American economist, in a book named Making Globalization Work. Many advocates of trade liberalization regard TRIPS as poor policy as its wealth concentration effects[footnoteRef:14] and its imposition of artificial scarcity[footnoteRef:15] on the citizens of countries that would otherwise have had weaker intellectual property laws. TRIPS also failed to accelerate investment and technology flows to low-income countries, such as India. Statements by the World Bank indicate that TRIPS has not led to demonstrable acceleration of investment to low-income countries, though it may have done so for middle-income countries. Less-developed countries have argued that TRIPS’s flexible provisions, such as compulsory licensing, are near-on impossible to exercise. In particular, less developed countries have cited their infant domestic manufacturing and technology industries as evidence of the policy’s bluntness.[footnoteRef:16] From the study above, we can see that even if the international law had become ‘universal’ nowadays, but it is still in favour of the developed countries, such as United States of America, a Western country, and neglecting the developing or undeveloped countries, such as India, an Asian country. [14: Moving money from people in developing countries to copyright and patent owners in developed countries] [15: The scarcity of items that exists even though either the technology for production or the sharing capacity exists to create a theoretically limitless or at least greater quantity of production than currently exists.] [16: Ben Willis, ‘The Arguments For and Against the TRIPS Agreement’ (E-International Relations Students, 23 December 2013) accessed 20 August 2019]

Asia today is underrepresented in various international regimes. For example, Asian states are the least likely to have signed many other human rights and international humanitarian law treaties. Asian states have the lowest take-up in the ICCPR[footnoteRef:17] and ICESCR[footnoteRef:18], but also the conventions against racism, torture, and discrimination against persons with disabilities, such as Malaysia. Malaysia did not ratify ICCPR and ICESCR.[footnoteRef:19] Apart from this, although Japan is an Asian representation on the UN Security Council, however, Asian states are underrepresented in the leadership positions of global governance. The continent has only one-fifth of the seats on the Council, including one permanent seat. Even where Asian states have appropriate representation, however, such as the UN General Assembly, they do not operate as a regional bloc. Unlike the African and Latin American states, for example, the Asia-Pacific Group at the United Nations never seeks to achieve common positions on policy matters, and discussion is generally limited to candidacies for international posts. Asian states have tended to have less of a voice in international affairs than their number, size, and power might otherwise warrant.[footnoteRef:20] Individual states, notably China, are exercising growing influence, but it is hard to identify areas in which Asian states have had an impact as a group.[footnoteRef:21] [17: International Covenant on Civil and Political Rights] [18: International Covenant on Economic, Social and Cultural Rights] [19: Simon Chesterman, ‘Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures.’ (2015) NUS Law Working Paper 2015/014 accessed 20 August 2019] [20: B.S. Chimni, ‘Asia, International Law, and International Institutions: A Comment’ (Opinio Juris, 17 January 2017) accessed 20 August 2019] [21: Teemu Ruskola, ‘Where Is Asia? When is Asia? Theorizing Comparative Law and International Law’ (n.d) 44(879) the University of California, Davis < https://lawreview.law.ucdavis.edu/issues/44/3/Concept%20of%20Asia%20in%20International%20Law/Ruskola.pdf> accessed 20 August 2019]

To sum up, the international law nowadays is still eurocentric, which it is neglecting Asian social and cultural values. Asia countries are still in low participation in the law-making of international law and even the acceptance of international law. The involve of Asian countries in law-making process and the removal of euro-centricity in international law should be put into effort. As Asian tradition has its own, culturally distinct notions of rights, duties, and sovereignty, which differ from those of Western liberalism, should be notable. For example, so-called Confucian capitalism has been taken quite seriously as an economic phenomenon — as a major competitor and even a possible model for the West to emulate. In order to remove the euro-centricity of international law, the Third World Approach of International Law had come into picture.

References

Online Journal

A.A. Fatouros, ‘International Law and the Third World’ (1964) 50(5) Virginia Law Review accessed 19 August 2019
Antony Anghie, ‘Finding The Peripheries: Sovereignty And Colonialism In Nineteenth-Century International Law’ (1999) 40 Harvard International Law Journal accessed 20 August 2019
David P.Fidler, ‘Revolt Against or From Within the West?: TWAIL, the Developing World, and the Future Direction of International Law’ (2003) Articles by Maurer Faculty < https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3126&context=facpub> accessed 19 August 2019
Hannah Franzki, ‘Eurocentrism; InterAmerican Wiki: Terms – Concepts – Critical Perspectives.’ (Universitat Bielefeld, 2012) accessed 19 August 2019
James Thuo Gathii, ‘International Law and Eurocentricity’ (1996) 9(98) EJIL < http://www.ejil.org/pdfs/9/1/1476.pdf> accessed 19 August 2019
Martti Koskenniemi, ‘Histories of International Law: Dealing with Eurocentrism’ (2011) 19 University of Heisinki accessed 19 August 2019
Simon Chesterman, ‘Asia’s Ambivalence About International Law & Institutions: Past, Present and Futures.’ (2015) NUS Law Working Paper 2015/014 accessed 20 August 2019
Teemu Ruskola, ‘Where Is Asia? When is Asia? Theorizing Comparative Law and International Law’ (n.d) 44(879) University of California, Davis < https://lawreview.law.ucdavis.edu/issues/44/3/Concept%20of%20Asia%20in%20International%20Law/Ruskola.pdf> accessed 20 August 2019

Websites

B.S. Chimni, ‘Asia, International Law and International Institutions: A Comment’ (Opinio Juris, 17 January 2017) accessed 20 August 2019
Ben Willis, ‘The Arguments For and Against the TRIPS Agreement’ (E-International Relations Students, 23 December 2013) accessed 20 August 2019
Mohammad Shahabuddin, ‘The ‘Standard of Civilization’ in International Law’ (Volkerrechtsblog, 12 December 2018) accessed 19 August 2019
Richard Cavendish, ‘The Treaty of Westphalia’ (Months Past, n.d) accessed 19 August 2019
Shenali D Waduge, ‘International law is Euro centric and Colonial – Time to change’ (Lankaweb, 23 March 2016) accessed 19 August 2019

Journal

R.P. Anand, “On the Influence of History on the Literature of International Law” Essays in Legal Philosophy, Doctrine and Theory (1983) 341

Book

Basil Davidson, Africa In History (Simon & Schuster 1991).

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Eurocentrism in International Law: Analytical Essay

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