The Theory of the Clash of Civilisations and International Law in Estonia

History demonstrates that the conflict of civilisations has had a devastating effect on international law.

In the 1990s, two theorists constructed a “master narrative” of the future of world politics – Francis Fukuyama and Samuel Huntington. The latter has fared better, as he was the one who proposed the theory of the clash of civilisations.¹ As even a French political analyst has written that the American’s vision has proved to be “more right than wrong”,² Huntington must indeed have been onto something.
Since 1991, Estonian foreign policy thinkers have also endorsed Huntington’s ideas in one form or another: for example, noting that the limes between the Western and Russian civilisations runs along the Narva River.³
In principle, Huntington’s views were not all that new for Estonians. Discussions on the clash of civilisations began in the Baltic states as early as the middle of the 19th century, while scholars addressed similar topics even earlier, although they used slightly different terminology.
The purpose of this article is to provide an in-depth analysis of the ideological history of the theory of the clash of civilisations in the context of Estonia. First, I will describe how the Baltic German and Estonian experts on international law treated the topic of the clash of civilisations in the 19th and 20th centuries. Strictly speaking, the first part of the article aims to educate the reader.⁴ Second, I will analyse how the theory of the clash of civilisations has influenced international law.
Signs of the “clash of civilisations” are manifest in the science of international law promoted by Baltic Germans in the 19th century and Estonians in the 20th century
August Bulmerincq, Professor of International Law at the University of Tartu (1856-1875) and later at the University of Heidelberg, was among the most-respected international law professionals in Europe in the second half of the 19th century.⁵ His most important study concerning the situation in the Baltics was Russia. The German Baltic Sea Provinces, published in 1865.⁶ In hindsight, this study contains a prophecy of the conflict provoked by Juri Samarin and Carl Schirren a few years later – the so-called Broschyrenstreit. The argument centred around the age-old question: which national group should play the leading role in Estonia, Livonia and Curonia? For Bulmerincq, the answer to this question was obvious: the Germans had to remain the leaders. He substantiated his claim with reference to the higher civilisational level of Germans in comparison with not only Estonians and Latvians, but also Russians: “We leave aside the question whether since the ninth century the Estonians, Latvians and Livonians had to pay tribute to the Russians. In any case the mere duty to pay tribute could not be the basis of a closer and more efficient relationship. Therefore, the recently intensified dispute over the priority of civilisation in the Baltic Sea provinces ‘through the Russians or the Germans’ is superfluous since even if Russia has made civilising attempts, in any case for the Germans as the more civilised parties there remained, and still remains, enough work to do.”⁷
Bulmerincq saw the history of Estonia, Livonia and Curonia through the prism of the civilising mission the Germans had been carrying out despite the peculiarities of the local peoples and the conflicting aspirations of their neighbours. The Germans had incorporated the Baltic Sea provinces into the Christian Western world.
Nevertheless, Bulmerincq was concerned about the future. The fear of betrayal is the dominant theme in the foreign policy of every country that considers itself the last outpost of a civilisation. In times of weakness, its motherland or centre might surrender it to its opponents. Feeling a twinge of nostalgia, Bulmerincq investigated the causes of the end of the independence of Old Livonia (which was independent from the 13th century to 1560) and was forced to admit that Old Livonia could have continued to exist if, in addition to pressure from the neighbouring peoples, the scarcity of its own military forces and the lack of inner unanimity, “the German Reich had not left it helpless, notwithstanding the repeated requests for support.”⁸
In times of crisis, the most resolute statements on international law are occasionally made by people who do not represent the legal profession. (Was it not the physicist Endel Lippmaa who dramatically tabled copies of the secret protocols of the Molotov-Ribbentrop Pact in Moscow in 1989?) This happened in the 1860s. Carl Schirren (1826-1910), Professor of History at the University of Tartu, presented his own arguments against further Russification. Schirren raised the debate about the cultural differences between Russia and Germany to a new level and maintained that the Russification policy was in contravention of international law. Schirren claimed that Peter the Great did not “conquer” Estonia or Livonia, but got hold of the Baltic provinces on the basis of an agreement of sovereignty concluded with the Baltic Germans (the Accord-Puncten of 1710). This document did not constitute an act of charity by the Russian Tsar. On the contrary, it was a special treaty, from which Russia could not withdraw unilaterally, as prescribed by international law.
In The Livonian Answer to Mr Juri Samarin, Schirren concluded: “On that side is power; we have the law/right.”⁹ Hence, he regarded the conflict between the Baltic Germans and those in favour of further Russification as a confrontation between power and law.¹⁰ According to Schirren, St Petersburg was not only attempting to subjugate a foreign culture and the respective territory under its rule through Russification, but about to breach international law. He had thus managed to formulate a connection between the civilisational dissimilarity of the Baltic peoples and the Russians, on the one hand, and the possibility of breaking international law, which hangs over Russia’s head like the sword of Damocles, on the other hand.
Carl Bergbohm (1849-1927), who held the position of Associate Professor of the Chair of International Law at the University of Tartu, could be considered Bulmerincq’s successor. Bergbohm gained some first-hand experience of the “clash of civilisations”, as he was accused of having insufficient knowledge of the Russian language and showing disrespect towards Catherine II in his dissertation on the history of international law. Until his departure from Livonia, Bergbohm supported German as the language of tuition at the University of Tartu and stood by the words written in his dissertation: “The life of peoples and world history will without mercy surpass any law that is not ready to put up a fight.”¹¹
Bulmerincq’s and Bergbohm’s attitude is best characterised by a professor imported from Germany, who complained about his Baltic German colleagues at the University of Tartu: “Die baltische Kollegen sind alle noch die alten Schwertbruder.”¹² (“All the Baltic colleagues are old brothers in arms.”)
In order to counter the Russification efforts of 1865, Bulmerincq suggested to his fellow countrymen – the Baltic Germans – that there was a need for a wider inclusion of Estonians and Latvians in the government and that this inclusion had to be undertaken under German leadership.¹³ However, the Estonians did not appreciate such generosity and took power in 1918. The Baltic German philosopher Hermann von Keyserling (1880-1946) was astounded by this and wrote in 1928: “Where did the respective leaders come from? They were of course already there earlier, in our midst; they were simply not noticed.”¹⁴ But what was even more surprising was the speed with which the new ethnic Estonian elite accepted the Baltic German theory that treated Estonia as a borderland, despite the fact that the Baltic Germans had left the country. In addition, the Estonians incorporated this theory into their science of international law.
Ants Piip (1884-1942) played a more important role in the history of the Republic of Estonia than it is often recognised today: he was one of the leading foreign policy makers in Estonia (“a foreign minister by profession”) and, at the same time, as a Professor of International Law at the University of Tartu, he practically single-handedly created the science of international law in the Estonian language.
Piip’s first Estonian textbook on international law contained two intriguing statements about the history of Estonia.¹⁵ First, he claimed that when the Germans arrived, Estonia had already achieved statehood. Second, he asserted that the conquest of Estonia by the Brothers of the Sword did not destroy the country’s independence. Even though its upper class was replaced, Estonia – under the name of Old Livonia – remained sovereign until the Livonian War in the 16th century. Piip draw an analogy with the conquest of England by the Normans in 1066. (England remained independent despite the substitution of its elite.) Piip unequivocally rejects Carl Robert Jakobson’s idea about the seven-hundred-year-long night of slavery.
In 1932, Piip claimed that the disagreements between Estonia and Russia derived from different “cultural and economic concepts since the Baltic states are based on a Western European Christian culture and private property based on Roman law. However, Russia in contrast is the result of Byzantine or Eastern culture and the notion of private property has never gained ground among the masses.”¹⁶ “The Baltic states (…) do form and, indeed, they want to form a link between their Eastern neighbour and the Western civilised world. They are the furthermost outposts of Western civilisation that want to offer safe ground to the merchant who wants to go to the East, today just as in the days of the Hanseatic League.”¹⁷
Piip, who had studied law both in St Petersburg and in Berlin, continued to assert that the Baltic states constituted “a frontier outpost of Western culture in the East”¹⁸ – these were the words he used in 1935 when he gave a lecture to the German Association for East European Studies in Berlin.
As demonstrated above, Piip borrowed the idea of considering Estonia an outpost (Vorposten in German) of Western civilisation from the Baltic German theorists. Piip used relatively soft language: all he actually wanted was that the Baltic states should be left alone, so that they could “form a link between their Eastern neighbour and the Western civilised world”. However, you could go much further in stressing the differences between the Russian and European civilisations, as did Piip’s contemporary Axel Freiherr von Freytagh-Loringhoven (1878-1942), a Baltic German, who was a leading expert on international law in Nazi Germany.¹⁹ Freytagh-Loringhoven came from the island of Saaremaa, he belonged to the nobility and got his education in law at the University of Tartu (Iur’ev) at the beginning of the 20th century. He was wounded in the Russo-Japanese War (1904-1905) and worked as Professor of Roman Law at the Law Faculty of the University of Tartu from 1911 to 1914.²⁰ In 1917, he moved to Germany and became Professor of International Law in Breslau (now Wrocław) and a member of the Reichstag.
Before 1917, the Baltic Germans criticised Russian culture for being inferior to German culture. However, after the rise to power of the Communists, many claimed that Soviet Russia had completely severed its ties with Europe and turned into a “barbarian country”. The unity of international law was thus destroyed, because the same rules could not be applied to Russia and the European countries. Freytagh-Loringhoven expressed very harsh criticism of the decision of the League of Nations to admit the USSR: “History will one day form a judgement of those who did not realise the need for unity against the Bolshevist danger and had admitted the USSR to the international community.”²¹ He also wrote: “Facts that prove the magnitude of the Bolshevist danger are innumerable. The denial of international law stands in the beginning of the Soviet Union.”²² But to be completely honest, it was the Soviet scholars, and Evgeni Korovin in particular (International Law of the Intermediary Period, 1923), who first declared that the unity of international law had ended in Europe.
During the Soviet occupation, the theory of the clash of civilisations and the Estonian science of international law as such were kept alive by an Estonian émigré scholar Artur Taska (1912-1994). Taska wrote: “The conclusion of the Treaty of Nystad (…) marked the beginning of the Russian period or the period of darkness in the life of our people. (…) Of the great powers, Russia with its steady enlargement towards the West and later with its intense pressure and the politics of Russification has had the most destructive impact on the people of Estonia. Notwithstanding this, state structures on the territory of Estonia preserve their substantive affiliation with Christian Western states.”²³ Taska also claimed that, according to the Soviet interpretation, international treaties were not legal acts (which was the prevailing view in the Western states), but “political literature”.
How has the theory of the clash of civilisations influenced international law?
During the negotiations held in Moscow in 1939, Piip received a present from Stalin – a photo with a personal dedication.²⁴ When Piip was arrested by the NKVD in 1940 and sent to the Gulag camp in Nyrob in the Ural Mountains, he took this photo with him, hoping it might save his life.²⁵ It did not: Piip died in miserable conditions in 1942. A professor of international law holding onto a photo of a dictator and hoping to use it as his last argument – is this the most powerful symbol of the clash of civilisations? Piip had always promoted the rule of law, but he himself was destined to die in a place where there were no laws. Or, to be more precise, the laws that existed were not based on international law…
Some claim that every tribe or civilisation understands international law in a different way. What if they are right? In that case, the idea of the unity of international law is an illusion. In his master’s thesis, even Bergbohm quoted Montesquieu, who has said that the law of nations has always existed in a primitive form. International law is something that nations think they are allowed to do. For example, Bergbohm mentioned ironically that the international law of the Iroquois incorporated the ritual devouring of their prisoners.²⁶
History demonstrates that the conflict of civilisations has had a devastating effect on the authority of international law. The crimes perpetrated during World War II in Eastern Europe were only so brutal because the enemy (including the civilian population) was stripped of all humanity through hatred that was targeted against an “inferior civilisation” or a “reactionary ideology”. If there is no minimal level of trust or understanding between two parties, one party cannot believe that the other party will fulfil its promises. When representing the Estonian side at the Moscow negotiations in 1939, Piip was at first convinced that Stalin “as a Caucasian” would adhere to the treaty, but later he admitted that “the fate of Estonia hangs on a spider’s net that is called Stalin’s honesty”.²⁷
It is possible that the Baltic states are objectively undergoing a process that can be called a clash of civilisations. However, the way we speak about reality can have a significant impact on it. Let us now return to the present day and the critics of Huntington’s theory. The phrase his critics most often use is that the whole theory has turned into a “self-fulfilling prophecy”. The constructivist school of international relations (Alexander Wendt and others)²⁸ has explained this phenomenon quite persuasively. Namely, constructivists have demonstrated how a notion that is permanently and convincingly expressed becomes a reality in international relations or reinforces the tendency under discussion. A state cannot treat its neighbours objectively – every state is involved in a continuous process of subjective (re)construction of the image, identity and interests of its neighbours. If we are constantly repeating to ourselves that the behaviour of one of our neighbours cannot be interpreted rationally or logically or that this neighbour has always been aggressive, deceitful or uncivilised or wanted to dominate, enslave or destroy us, our own repetitive self-suggestive behaviour may increase the differences and conflicts between us and this neighbour. The words and mental models we use become real. Hate and mistrust in international relations, similarly to all human relations, breed only hate and mistrust.
A real conflict between neighbours cannot be wished away, as the flower children would prefer. On the other hand, Estonia’s ideological history has demonstrated that it would be wiser to be very careful when using the theory of the clash of civilisations. Only then might we have a chance of breaking the curse of the clash of civilisations.
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¹ See Samuel Huntington, The Clash of Civilizations and the Remaking of World Order, New York, Simon & Schuster, 1996.
² Dominique Moí¯si, “The Clash of Emotions”, Foreign Affairs, January/February 2007.
³ See e.g. Lennart Meri, Presidendikõned, Tartu, Ilmamaa, 1996.
⁴ This article contains an impressionistic summary of the following study, which will hopefully soon be published as a book in Estonian: Lauri Mälksoo, “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”, The British Year Book of International Law 2005, 76th Year of Issue, Oxford University Press, 2006, pp. 383-501.
⁵ For the respective era in international law, see Martti Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960, Cambridge University Press, 2001.
⁶ August Bulmerincq, “Russland. Die deutschen Ostseeprovinzen” in J. C. Bluntschli and K. Brater (eds.), Deutsches Staatswörterbuch, Vol. 9, 1865.
⁷ Ibid., p. 2.
⁸ Ibid., p. 9.
⁹ See Carl Schirren, Livländische Antwort an Herrn Juri Samarin, 1869, repr. by von Hirschheydt, 1971, p. 115. See also Juri Samarin, Okrainy Rossii. Serija pervaja. Russkoe baltijskoe pamor’e, Prague, 1868.
¹⁰ In this sense, Andrei Hvostov is mistaken when he (indeed playfully and wittily) claims that “the departure of the Baltic Germans meant the loss of all dignity and honour for Estonia: there was nothing left but truth and law.” As the case of Schirren demonstrates, the Baltic Germans also fought against Russia and used arguments based on truth and law. Estonians were the ones who learned from them. See Andrei Hvostov, “Urkade moraal, allalastute tõde”, Eesti Ekspress, June 29, 2005.
¹¹ Carl Bergbohm, Die bewaffnete Neutralität 1780-1783. Eine Entwicklungsphase des Völkerrechts im Seekriege, Berlin, 1884, p. 218.
¹² Ralph Butler, The New Eastern Europe, London, 1919, p. 31.
¹³ Bulmerincq, op. cit., p. 19.
¹⁴ Graf Hermann Keyserling, Das Spektrum Europas, Berlin, 1928, p. 371.
¹⁵ See Ants Piip, Rahvusvahelise õiguse süsteem, Tartu, 1927, p. 20.
¹⁶ See Ants Piip, Nüüdne maailmapoliitika ja Eesti. Sissejuhatus poliitikasse II, Tartu, 1932, p. 98.
¹⁷ Ibid., p. 111.
¹⁸ See Ants Piip, Estlands Weg zur neuen Verfassung. Vortrag, gehalten in Berlin am 25. Juni 1935 vor der Deutschen Gesellschaft zum Studium Osteuropas, 1936, p. 24.
¹⁹ See Peter K. Steck, Zwischen Volk und Staat. Das Völkerrechtssubjekt in der deutschen Völkerrechtslehre (1933-1941), Baden-Baden, 2003, pp. 46-53.
²⁰ See the Estonian History Archive, F 402/I/27784.
²¹ Freiherr Freytagh-Loringhoven, “Sowjetrußland im Völkerbund” in Völkerbund und Völkerrecht 1934-1935, p. 370.
²² Freiherr Freytagh-Loringhoven, “Sowjetrußland und das Völkerrecht” in Völkerbund und Völkerrecht 1936-1937, pp. 365-367.
²³ Artur Taska, Rahvusvaheline õigus, Lund, 1977, p. 34.
²⁴ See Elmar Tambek, Tõus ja mõõn, Part I, Toronto, 1964, p. 302.
²⁵ See Tamara Kask-Skolimowska’s memoirs in Lembit Lauri (ed.), Kirjutamata memuaare VI, Tallinn, 1991, pp. 176-177.
²⁶ Carl Bergbohm, Staatsverträge und Gesetze als Quellen des Völkerrechts, Dorpat, 1877, p. 3.
²⁷ Tambek, op. cit., p. 289.
²⁸ See Alexander Wendt, Social Theory of International Politics, Cambridge University Press, 1999.