German International Law Scholarship and the Postcolonial Turn

International law scholarship from the German-speaking world has an impressive and much-invoked theoretical tradition. Nineteenth century German positivism centring on the will of the state as the formal basis of law (Jellinek and Triepel) made a lasting impression on modern Western international law scholarship and also induced two highly influential in depth critiques of Staatswillenspositivismus just after the First World War, those of Kelsen and Schmitt. These were contributions to the theoretical construction and critique of an international law moulded in European capital cities and expounded in European universities, an international law whose influence could be felt in almost every corner of the world by the end of the 19^th century.

European colonization and land appropriation and in particular through economic intervention, in which the German Empire played a significant role in the last two decades of the 19^th century, led not only to the establishment of global capitalist structures and the spread of European lifestyles, but also to the so-called ‘universalization’ of European international law (on the latter see the entries in the Oxford Handbook of the History of International Law and the critiques of these). From the very beginning, colonized societies made a variety of efforts to resist the invading economic exploitation, racist violence and socio-cultural hegemony. This resistance was also directed against the European international law and in particular against institutions and norms that served to reinforce the political and economic dominance of the West.

The postcolonial challenge

It’s no coincidence that this postcolonial struggle for a new international law reached its initial global peak during the era of decolonization (1955-1975) and was shaped by renowned international law authors from the Third World, many of whom had themselves taken part in anti-colonial liberation struggles (of particular note here are Elias, Anand, Abi-Saab, Bedjaoui). A second global wave of postcolonial criticism of international law has emerged since the mid-2000’s and is often identified with Antony Anghie’s pioneering book Imperialism, Sovereignty, and the Making of International Law. From the perspective of the Third World, the thread that unites this line of criticism is the continuity of asymmetrical North-South relations after decolonization: the South as an ongoing object of intervention by the North and a global economic order that remains fundamentally unjust.

For Anghie, the essence of European international law of the 19^th century is the divide between Western civilisation and other ‘non-civilized’ peoples, a gap he termed ‘the dynamic of difference’. In the 19^th century the dynastic alliances of the Europeans in the ius publicum europaeum led to a shared ‘civilizing’ attitude towards the ‘periphery’, i.e. the rest of the world. The periphery was the object of the ‘civilizing mission’ undertaken by the great European powers, who based their own superiority on transport and arms technology (steamboats and machine guns) that emerged from industrialization and modern science. This genetic code still persists – according to postcolonial approaches – in many of the institutions of international law. The ‘developing countries’ remain the objects of Western intervention via the World Bank, IMF, WTO and development aid against a background of continued economic exploitation of much of the Global South by the North and the few “emerging” economies in the South (for natural resources, as markets for subsidised agricultural products etc.).

The abstinence of German international law scholarship

Apart from a small number of exceptions, international law scholarship in the German speaking world was not greatly influenced by the postcolonial turn (but see e.g. here and here). This is one marked difference between German international law scholarship and research emerging from the Anglo-American and French traditions, to say nothing, of course, of the scholarship coming from the Third World. I will attempt to shed some light on this abstinence by briefly highlighting some of the important structures and narratives running through the German theoretical tradition.

Since the 19^th century both the strength and the weakness of the German theoretical tradition in international law has been its tendency to think in state-centred legal categories. Unlike in other systems, in particularly the English international law tradition, the central determining element of the most significant German-language international law traditions is the state. The German understanding of international law before and after 1871 was particularly influenced by the (non-) existence of a unified German state. At issue here is the German scholarly obsession with the philosophical basis of international law as a binding legal system in the absence of state-like centralized institutions, and the connected attempts to create a theoretical substitute or ‘placeholder’ for the non-existent world state. As early as 1882, Jellinek wrote of the European ‘community of states’ that had developed over time and that, as a social fact, in his view underpinned the binding force of international law. Over the course of the 20^th century this community narrative was replaced with a constitutional analogy. Under this interpretation international law resembled state law in that it had now acquired a constitution which later came to serve as a value-oriented Basic Law for the international community. In contradistinction to British scholarship, already in the 19^th century global economic structures played only a marginal role in the German positivist tradition of international legal scholarship. Authors like Hugo Preuss who in 1892 considered the world ecomony (“Weltwirtschaft”) as the real foundation of international law remained a rare exception.

Re-joining the international community

Returning to the fold of the Western community after two world wars became the main focus of both Western German diplomacy and German constitutional and international law scholarship after 1949. A critical revision of the institutions and norms that had been shaped by the West in the colonial era unsurprisingly was thus not high on the agenda of the major international law scholars of the nineteen fifties, sixties and seventies. A further factor was the ongoing stand-off between the East and the West during the Cold War and the division of Germany, a situation that required West Germany to differentiate itself from the GDR and to take a pro-Western stance. International law scholarship in Germany was also influenced by the renaissance of natural law theories in the 1950s. The avowal of universal values and the new commitment to the international community and binding international law left limited space to address colonial history and the persisting fundamental North-South antagonisms in international politics.

Another significant element of the conventional constitutional and community narratives in this context is the belief in international adjudication. Born of the pacifist struggles during the interwar period and re-emerging later as a defiant reaction to the Realists’ doubts regarding the enforceability of international law, ‘judicialization’ became a major theme in international law scholarship in Germany as elsewhere. When, around the end of the Cold War, this project began to become a reality in certain regimes such as world trade law, international investment arbitration and international criminal law, it was met with great euphoria: international law finally works! This faith in international courts and tribunals mirrored the almost unlimited trust placed in the new German Constitutional Court by an international law discipline much shaped by constitutional law analogies. What’s easily overlooked here, however, is that in the second half of the 20^th century, the establishment of obligatory and enforceable jurisdiction was essentially limited to the field of international economic law.

From a North-South perspective, a further point to consider is whether the normative logic of specific subsections of international law is tainted by structural power asymmetries and by a biased choice of judges and arbitrators. Questions as to whether sectorial courts and tribunals really are the appropriate forum and in a position to adequately take into account the colliding normative demands of the international legal system as a whole will often be countered with a further constitutional law analogy: that international courts and tribunals can resolve normative collisions through “balancing” the competing values at stake (in accordance with the famous German constitutional law principle of “Praktische Konkordanz”) and thus guarantee the integrity of the alleged “constitution” of international law. But when the substance of these conflicts is tied up in fundamental global antagonisms, problems of extreme poverty and structural economic disadvantages of entire regions of the world, reliance on fragmented judicial balancing acts does not appear to be terribly helpful. Furthermore, this approach is likely to stabilize the existing regimes in their current asymmetric structure.

A broader perspective for international legal scholarship

One could argue that (West) Germany has fared well with promoting European and global constitutional values and global free trade and investor protection regimes, as a major exporting nation that is dependent on importing raw materials from the Global South. But international legal scholarship as an institution should keep a reflexive distance vis à vis particular government interests and attempt to see the world from a decentred perspective (for a detailed discussion on the role of international law scholarship today: see Bernstorff, International Legal Scholarship as a Cooling Medium in International Law and Politics, EJIL 2014, forthcoming). Even as early as the interwar period, the Kelsen school in international law was already issuing well-founded calls for abandoning the then prevalent motto: ‘right or wrong – my country!’

UNICEF figures tell us that around the world more than 29,000 children under the age of five, mostly from the Global South, die every day from malnutrition and preventable diseases. Furthermore, it is getting increasingly difficult to claim that our prosperity is in no way linked to structural poverty and violence in the Third World. In the words of Emmanuelle Tourme-Jouannet: “The rules governing globalization are unfair as they are designed once again primarily with the advanced industrial nations in mind. Certainly, some emerging countries have benefitted from them, but the rules are not equitable (…) Contrary to the idea that globalization benefits everyone, there are losers on both sides, North and South”. (See What is a Fair International Society? International Law Between Development and Recognition (2013)). While in some countries, such as China, poverty in absolute numbers has fallen considerably, the same globalized economic order which has stimulated growth in some Asian countries has exacerbated poverty in other parts of the world. The Third World will also disproportionately suffer from the devastating consequences of climate change, which was initially brought about by the historical industrialization of the North, the same process that supported Western economic and military expansion in the 19^th century in the first place. In terms of research perspectives, the question of how the world has come to be the way it is today (“Gewordensein der Welt”) thus becomes ever more acute. From a North-South perspective, at what points could the history of international law and its institutions have taken a different course? What alternative international legal concepts have been considered and abandoned, when and by whom? It is worth asking what roads were left untraveled, even if we will never know for sure where they would have led.

This post first appeared in German language in a longer version on the new international law blog www.voelkerrechtsblog.com, run by the Association of Young International Lawyers based in German-speaking countries but with an international outlook. The post was translated by Fiona Nelson, University of Potsdam. The German version can be accessed here.