‘Westphalian system’ of sovereign states opt for the right of communities to decide who may immigrate and who not. The sixth chapter analyses what the international lawyers Pufendorf, Vattel, Bluntschli and Verdross wrote about the right of immigration. All the authors argue for a qualified right of free movement. They differ in their respective background theories. Some are natural lawyers, some move towards legal positivism, some offer an eclectic, all-inclusive theory. But all reject the theory of absolute state sovereignty, a theory that was widespread in European legal theory roughly between 1870 and the First World War. Instead, they endorse a peculiar type of legal cosmopolitanism, something Hans Kelsen calls the primacy of international law over state law. They deal with a real problem concerning the right of immigration and the right of communities to determine who may come in and who not: Where do we draw the line, and how can we justify drawing it? They turn out to be halfway cosmopolitans: on the one hand, they argue for a qualified right of free movement. On the other hand, they accept that there is a fundamental asymmetry between those inside and those outside, and they see no reason to overcome this asymmetry. They wind up with some sort of middle position, which tries to balance out divergent claims.
Traditionally, authors like Vitoria, Grotius, Pufendorf, Wolff or Vattel have casually been assigned to the camp of the cosmopolitans. Quoting Patrick Henry and Sir James Mackintosh, Henry Wheaton, for instance, called them ‘illustrious authors’, ‘friends of human nature’, ‘kind instructors of human errors and frailties’, ‘impartial witnesses’ who developed the principles of international morality, writers ‘with enlarged views of the welfare of nations’.1
Many recent interpreters have seen, and usually condemned, these writers as accomplices of European colonialism and exploitation. In one way or another, the theory runs, they provided the ideological basis of conquest, and were thus implicated in one of the most appalling crimes of modern history. Robert Williams is a rather outspoken representative of this approach. He endorses three related claims: the West has tried to impose its vision of truth on other cultures since the Middle Ages, mistakenly believing in its own superiority and the corresponding inferiority of others. Secondly, the West has used (international) law as an effective instrument of empire, genocide and exploitation. Finally, Williams claims that Francisco de Vitoria was a kind of founding father of this discourse: ‘Vitoria’s Law of Nations provided Western legal discourse with its first secularly oriented, systematized elaboration of the superior rights of civilized Europeans to invade and conquer normatively divergent peoples.’2 According to Williams, Vitoria offered an apology of and ideology for Spanish colonial practice, endorsing Eurocentric norms. ‘While the normative foundation of Vitoria’s Law of Nations was constructed according to a secularized, as opposed to an ecclesiastically dictated, vision of reason, it was a vision no less totalizing and hierarchical in its outlook than the medieval response to radical difference.’3 Vitoria is modern in the sense that his thinking is more secularized, but the frame of thought has remained unchanged: it is still (or even more) totalizing, hierarchical, Western, repressive and exclusive.
In an influential essay originally published in 1996, Antony Anghie expounds four theses. First, he asserts that international law was created because of the Spanish–Indian encounter rather than preceding it. Secondly, pretended universalism is a mere fake: Vitoria is said to have been biased in favour of the Christians, thus creating a Catch-22 for the Amerindians (whatever they did, their wars were unjust). According to the third thesis, the international lawyers since Vitoria were accomplices of colonial exploitation and created an imperialist international legal theory whose allegedly universal language ‘was devised specifically to ensure [the natives’] disempowerment and disenfranchisement’.4 Finally, Vitoria paved the way for later legal constructions of the allegedly uncivilized other.
Once the initial determination had been made and accepted that the colonial world was not sovereign, the discipline could then create for itself, and present as inevitable and natural, the grand redeeming project of bringing the marginalized into the realm of sovereignty, civilizing the uncivilized and developing the juridical techniques and institutions necessary for this great mission. Within this framework, the history of the colonial world would comprise simply the history of the civilizing mission.5
Anghie’s thesis of a Western civilizing ‘project’ or ‘mission’ looks like a retrospective construction. The connections between Vitoria and nineteenth-century international law are suggested rather than demonstrated.
Brett Bowden draws on Williams and Anghie’s article. His claims are similar: international law was an accomplice of imperialism and implicated in the ‘Western imperial project’. The ‘standard of civilization’ was the ‘legal mechanism’ which admitted communities, peoples or states into the international society – in fact, usually excluded them. Part of this mechanism has been the construction of a non-European, exotic, uncivilized and barbaric ‘other’ – from the Middle Ages to the wars on terrorism of George W. Bush.6
In a 1995 article, Paul Keal partly follows a similar approach, referring to Western ‘universalising discourse’ and ‘cultural imperialism’,7 but is more considerate with the international lawyers. He is rather dependent on what Lindley, Todorov and others write about them instead of listening to what these lawyers themselves had to say. Keal’s criticism of nineteenth-century international legal theory is justified, but tends to project their thinking back to earlier periods. In his recent book (2003), Keal is even more nuanced, though he still refers to ‘cultural imperialism’. Following Lindley’s seminal 1926 study and its distinctions as a heuristic device, Keal differentiates among three groups of writers. The first group includes international lawyers ‘who recognised sovereignty in non-European peoples’, among others Vitoria, Gentili and Pufendorf. Authors like Grotius, Vattel or Philimore only granted ‘limited or conditional sovereignty’ to non-Europeans (the second group). Finally, the major representatives of nineteenth- and early twentieth-century international legal theory such as John Westlake or William Edward Hall simply denied that non-Europeans enjoyed sovereign rights.8 Keal concludes that ‘the earlier writers were more willing to concede rights to non-Europeans’. Things got worse in the nineteenth century, when rights were systematically denied. In particular, this was the case whenever peoples were regarded as ‘uncivilised’. Keal’s overall assessment is not only more nuanced, but also more lenient towards some writers. ‘Not all international law was either a universalising discourse or a form of cultural imperialism. Parts of it applied only to particular non-European entities and did not involve the imposition of European cultural values.’9
Unlike commentators such as Robert Williams, Antony Anghie or Brett Bowden, and like Paul Keal, I argue for a nuanced assessment. I emphasize the complexity of the history of international legal theory, which suggests that we cannot conveniently pigeonhole divergent authors under a heading such as ‘Western totalizing discourse’. Very often, false continuities are constructed, for instance, between the eighteenth and the nineteenth centuries. Against Keal, I argue that there is no linear development from a more cosmopolitan to a narrow Eurocentric international legal theory. Sometimes it seems that the influence of this theory on politics and international legal practice is overestimated. Some contemporary critics seem to have chosen the wrong authors and ignored the ambiguity of texts. I claim that several international lawyers endorsed, or tried hard to arrive at, some form of moral/ ethical, legal and/or intellectual cosmopolitanism.10
Francisco de Vitoria: Christian mission and thin justice
Francisco de Vitoria (1486–1546) is the author who has probably attracted the most divergent assessments. Williams claimed that Vitoria’s law of nations ‘justified the extension of Western power over the American Indians as an imperative of the European’s vision of truth’.11 Others,
