Page:ELO 1(1), 6–25. European public law after empires.pdf/8

Rh Within positivist traditions, sovereignty is in general seen as the foundational concept of international law. As demonstrated by scholars such as Antony Anghie and Martti Koskenniemi but before them also Carl Schmitt, such an analysis is flawed since few political communities beyond Europe were recognised as sovereign states under ‘European’ international law. Within ‘European’ international law, sovereignty was reserved for the society of ‘civilised nations’ and law only prevailed among its members. ‘Civilisation’ and ‘society’, therefore must be included as co-constitutive concepts of ‘European’ international law because they determined which political communities were to be included as sovereign states and which communities were ‘outside’ the world of European international law. Droit Public de l’Europe is therefore not merely constituted on the basis of sovereign equality but also on the basis of the inequality between ‘civilised’ and ‘uncivilised’ peoples; the difference between Europe and its ‘other’. The European princes could recognise each other as equals exactly because they saw themselves collectively as distinct from and superior to non-Europeans.

In this way, ‘Europe’ had a special legal and political status as distinct from the rest of the world within Droit Public de l’Europe: ‘Even in the absence of a common sovereign, Europe was a political society and international law an inextricable part of its organization.’ What the Europeans shared with each other, which in their own eyes distinguished them from everyone else and made them capable of ‘discovering’ and ‘civilising’ the rest of the world, was a distinctive kind of consciousness or conscience. According to Koskenniemi:

"the founding conception of late nineteenth-century international law was not sovereignty but a collective (European) conscience – understood always as ambivalently either consciousness or conscience, that is, in alternatively rationalistic or ethical ways."

The interstate character of ‘European’ international law can be understood only if the spatial order that underpinned it is acknowledged. The Old World of Europe, where states recognised each other as sovereign equals, relied on its differentiation from the New World where, for most of political modernity, no communities were recognised as sovereign and where the law of ‘civilisation’ did not apply. It was this fundamental difference set out by a Eurocentric spatial global order that gave meaning to Droit Public de l’Europe. Following Schmitt, it was land