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“Westphalian” Meets “Eastphalian” Sovereignty: China in a Globalized World

Published online by Cambridge University Press:  07 June 2013

Andrew COLEMAN and
Jackson Nyamuya MAOGOTO
Andrew COLEMAN*
Affiliation:
Monash University, Australiaandrew.coleman@monash.edu
Jackson Nyamuya MAOGOTO*
Affiliation:
University of Manchester, United KingdomJackson.Maogoto@manchester.ac.uk
*
*Senior Lecturer, Department of Business Law and Taxation, Monash University.
**Senior Lecturer, School of Law, University of Manchester.
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Abstract

It is the purpose of this paper to examine what challenges globalization poses to China, and “Eastphalian” sovereignty. Some commentators have suggested that globalization's advance will transform the globe into something more closely resembling the West. Accordingly, it could be said that it is inevitable that globalization's influences will bring Western perceptions of liberalism and democracy to China. The paper will briefly sketch the broad outlines of sovereignty and globalization to enable working definitions of “Westphalian” and “Eastphalian” sovereignty. The authors then discuss and assess the engagement of European powers with China as a means of contextualizing Eastphalian sovereignty's essence as ideology and worldview. This discussion sets the background for the following analysis of China's and Eastphalian sovereignty's reaction to the notion of a global community.

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Asian Journal of International Law , Volume 3 , Issue 2 , July 2013, pp. 237 - 269
Copyright
Copyright © Asian Journal of International Law 2013 

Much has been written about globalization and its effect upon the international community.Footnote 1 In particular, many predictions have been made about its challenge to the sovereignty of states and their ability to remain autonomous.Footnote 2 In a previous paper almost a decade ago, the authors examined the impact of globalization on states and whether globalization posed an insurmountable challenge to states and the exercise of their political authority—sovereignty,Footnote 3 eroding the state's “internal sovereignty” due to the emergence of global governance standards and regulatory regimes all of which are governed by a network of multilateral institutions.Footnote 4

That paper focused primarily on Western states and Westphalian sovereignty. It is the purpose of this paper to examine what challenges globalization poses to Asian states, primarily China, and “Eastphalian” sovereignty.Footnote 5 Some commentators have suggested that globalization's advance is akin to an unstoppable juggernaut, bringing increased WesternizationFootnote 6 and strengthening the rule of law.Footnote 7 Accordingly, it could be said that it is inevitable that globalization's influences will eventually overwhelm China, despite its attempts to protect itselfFootnote 8 and its defiance to any perceived interference in its internal affairs.Footnote 9 However, China's “peaceful rise”, and the power shift to Asia generally, have prompted commentators to question such an assumption.

Part I of the paper will briefly revisit sovereignty and globalization. It will sketch the broad outlines of the concepts and then adopt working definitions. Part II engages with the development of sovereignty. Of particular focus is the epochal historical phases that shaped “Westphalian” sovereignty and the engagement of European powers with China. Part III continues the theme of “Eastphalian” sovereignty, assessing its essence as ideology and worldview. In Part IV we will examine the role of international law, in particular how Eastphalian sovereignty reacts to the notion of a global community that is subject to “the rule of law” and its concomitant meta-narrative democratization. This section seeks to bring together the different strands of the article in a general reflection on the role and perception of China. It seeks to be a modest overview in the light of the complexity of the article's themes.

I. Sovereignty and Globalization: A Working Scribble

A. Globalization

The concept of globalization is difficult to describe, partly because the term is loosely used and is applied to many different processes.Footnote 10 In its simplest and most popular form, use of the terminology involves global restructuring characterized by “widespread economic liberalization and tremendous surges in international trade and investment”.Footnote 11 However, it would be simplistic to consider it as a purely economic phenomenon. It is a process that, in its march forward, integrates economics, politics, culture, and ideology.Footnote 12 Thus, globalization involves a “coalescence of varied transnational processes and domestic structures, allowing the economy, politics, culture, and ideology of one country to penetrate another”.Footnote 13 In short: “Globalization is a complex process of societal transformation.”Footnote 14 It refers “both to the compression of the world and the intensification of consciousness of the world as a whole”.Footnote 15 Globalization brings with it systems of governance and regulation that sit above states. This emerging polycentric legal order is concerned with implementing standards and regulatory principles that suggest global or universal governance.Footnote 16 There is another perception that globalization universalizes cultures and polities along the lines of Western liberalism.Footnote 17 This thesis is based on the modernization argument—that there is a strong correlation between development, increased wealth, and increased political liberalization; that democracy is more functional than authoritarianism in a modern industrialized state.Footnote 18 Globalization creates a “porous” world where barriers are dissolving and which opens the possibility of some kind of global consciousness, a uniform global culture based upon advanced capitalism. Accordingly, globalization is irreconcilable with socialism or the Marxist-Leninist tradition and the underlying tenets of the Chinese government's revolutionary ideals.Footnote 19

There are several preliminary points to consider when discussing the potential effect of globalization. First, whilst much debate took place in China about globalization,Footnote 20 Chinese leaders and the Chinese Communist Party (CCP) theorists embraced globalization.Footnote 21 China, whilst welcoming globalization, has sought to control and regulate its socioeconomic and political effects domestically, and thus counter the “negative” effects through the twin vehicles of nationalism and sovereignty.Footnote 22

Second, it should also be remembered that there are many “sources” of globalization, other than the US and Western Europe. Perhaps then, globalization may have originally been driven by American capitalism and its core values of the free market,Footnote 23 but there are many sources of globalization, including China.Footnote 24 Globalization is not “one-way traffic from the West”.Footnote 25 Globalization has actually enabled non-Western sources of capital, specifically Chinese, to become available to a broader range of markets, including those in the West. China can offer the developing world all the benefits of global capital, with none of the “political” baggage—concerns or conditions regarding the protection of human rights, increased political liberalization, and changes in how the governments of the developing world govern. More importantly, China provides an example to these developing states, that globalization can be managed.

Finally, these comments about the inevitability of globalization's triumph over Asia and Asian values are predicated on a false assumption: that Western liberalism has a universal appeal.Footnote 26 As summarized by former Singaporean leader Lee Kuan Yew:

With few exceptions, democracy has not brought good government to new developing countries. What Asians value may not necessarily be what Americans and Europeans value. Westerners value the freedoms and liberties of the individual. As an Asian of Chinese cultural background, my values are for a government which is honest, effective and efficient.Footnote 27

And further:

As an East Asian looking at America, I find attractive and unattractive features … But as a total system, I find parts of it totally unacceptable: guns, drugs, violent crime, vagrancy, unbecoming behaviour in public—in sum the breakdown of civil society. The expansion of the right of the individual to behave or misbehave as he pleases has come at the expense of orderly society. In the East the main object is to have a well-ordered society so that everybody can have maximum enjoyment of his freedoms. This freedom can only exist in an ordered state and not in a natural state of contention and anarchy.Footnote 28

The rise in crime, the breakdown of the family unit, the loss of civility, and racial tensions, combined with the spectacular growth of the Asian economies in the later part of the twentieth century, have resulted in an ideological shift—the US is no longer the exemplar, and there is a problem with liberal democracy per se.Footnote 29

Thus it is difficult to accept that China or any Asian state will simply become a carbon copy of the West, adopting Western lifestyles of individualism and liberal free-market democracy. In fact the reverse is true.Footnote 30 More importantly, China has a genuine ability to influence the world's consciousness in the developing world, and especially in Africa.Footnote 31

B. Sovereignty

Sovereignty is also a difficult term to define.Footnote 32 It is an intangible concept that has been traded amongst rulers, but it is more than mere property: sovereignty is the basis of our international legal and political system.Footnote 33 Sovereignty also has a “split persona”: internal and external. The internal dimension of sovereignty refers to the application of political authority within the geographical borders of a polity, and the external dimension refers to the application of political authority by a polity beyond its borders.Footnote 34 Finally, sovereignty is a very fluid concept,Footnote 35 thus making the defining of sovereignty even more difficult. Despite all of this, most commentators agree that sovereignty basically means the source of final overriding authority within a community of humans.Footnote 36 For example, Bodin, one of the West's architects of sovereignty, stated:

But as for subjects and what they may do, one has to know whether the prince is absolutely sovereign, or is properly speaking not a sovereign. For if he is not absolutely sovereign, it follows necessarily that sovereignty is in the people or the aristocracy.Footnote 37

Inherently important within this concept is the link between political authority and a defined geographical territory:Footnote 38 “Fundamental to the edifice of current international order is the doctrine which endows state governments with absolute jurisdiction over a specified piece of real estate and exclusive authority over the individuals who reside upon it.”Footnote 39 Thus, sovereignty as a concept of monopolized political authority and powerFootnote 40 translates into a “bundle” of various legal principles,Footnote 41 namely: (1) equality in law; (2) non-aggression and respect for an entity's territorial integrity; and (3) a right to non-interference in a polity's internal/domestic affairs.Footnote 42

Whilst the authors accept such definitions for the purposes of this article's analysis, it is the degree of absoluteness in these definitions that raises difficult questions in the modern international community. Furthermore, as previously noted, sovereignty is a very fluid concept, changing over time as the context in which it operates changes. Commentators argue, therefore, that sovereignty has reacted to forces of globalization which often seek to overlay a state's authority with a supranational system of regulation, thus creating a polycentric legal order and minimizing the “absoluteness” of a state's sovereignty.Footnote 43 One example cited is the Basel Committee and its creation of capital adequacy standards. However, commentators forget that regulatory systems, such as those suggested by the Basel Committee, are adopted by state governments enacting relevant legislation. There may be sound reasons to adopt them, but there is an element of “free will”.Footnote 44

Commentators often use the expression “Westphalian sovereignty” when discussing national sovereignty, thus revealing how significant a role the Peace of Westphalia (1648) plays in the Western concept of political authority and international relations. The treaties that created the Peace of Westphalia were signed at the end of the Thirty Years War in the area known as Westphalia, currently the modern-day provincial state of North Rhine-Westphalia, Germany.Footnote 45 Westphalia is a long way from the Forbidden Palace in Beijing. Why should Westphalian sovereignty, the Western concept of sovereignty, apply to an entity that had existed some 3,000 years before the Peace of Westphalia, and thousands of miles away?

The argument in favour of applying Westphalian sovereignty to Asia, and in particular China, is simple: the state is the dominant form of political entity and its ascendency, despite many challenges, is unquestionable.Footnote 46 Many commentators believe that the state, and therefore national sovereignty, was created in Western Europe in the aftermath of the Peace of WestphaliaFootnote 47 and was then transplanted to (or rather imposed on) the rest of the globe through the successful era of imperialism and colonialism as European states created their empires in Asia and Africa.Footnote 48 The imperial powers sought to impose not only structures of economic production and systems of government but also cultural changes in language and education. In addition, European colonialism was linked to the processes of global capitalist development.Footnote 49 This capitalist model of development enabled colonies to undergo successful economic transformation despite variations in culture and politics.Footnote 50 This fostered the idea that the “Western Model” would ultimately become the standard model for any polity. The process of creating a state-centric international community was then consolidated by the era of decolonization, when peoples seeking independence from the European empires formed states rather than other forms of political organization.Footnote 51 In conclusion, China as a state asserts the same sovereignty as other states, which is Westphalian sovereignty. There is no doubting the existence of states in Asia, or that China itself fits the accepted definition of a state found in Article 1 of the Montevideo Convention of 1933 on the Rights and Duties of States.Footnote 52 Should China's perception and understanding of political authority be judged from the Western perspective of Westphalia?Footnote 53 Chinese perceptions of sovereignty are contained in their Five Principles of Peaceful Co-existence.Footnote 54 These are: (1) mutual respect for territorial integrity and sovereignty; (2) mutual non-aggression; (3) mutual non-interference in internal affairs; (4) equality and mutual benefit; and (5) peaceful co-existence. These principles were first set forth by Chinese Premier Zhou Enlai at the start of the negotiations that took place in Beijing from December 1953 to April 1954 between representatives of the Chinese and Indian governments on relations between the two countries.Footnote 55 These principles remain important to China, as demonstrated by China's vigorous celebrations of their fiftieth anniversary at the Great Hall of the People in Beijing in 2004 and then Chinese Premier Wen Jiabao's vow to continue to practise and advocate for them.Footnote 56 Their import is in the fact that, though anchored in Westphalian conceptions, they sought to elaborate a practice and world that was non-Eurocentric and encompassed the international community and all its variegations. Their unpacking was aptly captured by the words of Qian Qichen, then China's Foreign Minister, in 1991 at the 46th Session of the UN General Assembly:

The old order founded on the unequal relations [among states] will not do. A new international order should be established on the basis of mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other's internal affairs, equality and mutual benefit, and peaceful coexistence. Nations, big or small, strong or weak, rich or poor, should have the right to choose their own social systems and ways to development, which fits into the circumstances of their own countries. States should respect each other, treat each other equally, and adhere to peaceful solution of their disputes through negotiations. Only when all states promise to implement these principles will it be likely to establish genuine democracy in international relations.Footnote 57

Such announcements, accompanied by China's increasing ascendency in global affairs, suggest that a new vision of sovereignty is being proclaimed, but when China's Five Principles are examined, such suggestions in the words of Chang are “misleading”. In reality, the Five Principles are nothing new and not even Asian in origin.Footnote 58 Examining them closely, Lo argues that the Five Principles are simply reiterating traditional “Westphalian” perceptions of sovereignty.Footnote 59

However, it is argued here that there is indeed a difference of perception. In the West, from its very inception sovereignty was always limited, initially by God,Footnote 60 and then through the work of theorists like Grotius, who successfully managed to secularize sovereignty limited by the norms of international law.Footnote 61 Even Bodin acknowledged that sovereignty was limited by the “rules of God”, natural law, and the law of nations.Footnote 62 No such limitation would seemingly apply to China and Eastphalian sovereignty; in fact, Eastphalian sovereignty jealously guards the right to non-interference. The degree of absoluteness is also the key difference between Western and Eastern perceptions of sovereignty. This difference is subtle, but important when discussing the effects of globalization on China, and how China views the role of international law, and its place in the world. The difference lies in the origins of how the East and West resolved the chaos of their respective feudal eras.

II. Westphalian And Eastphalian Sovereignty: Fruit of Different Trees?

The feudal era in Europe began with the collapse of the Western Roman Empire in approximately ad 476, when the Roman emperor, Romulus Augustulus, was deposed by the German General Odoacer.Footnote 63 Although open to contention, the feudal era lasted until the emergence of the state as the dominant political entity after the Peace of Westphalia in 1648. The collapse of the Western Roman Empire resulted in a power vacuum and increased vesting of political authority in former “barbarian tribes” and their leaders, who naturally claimed “sovereignty”. Their claims were rather dubious, since their authority was often very limited and constantly challenged,Footnote 64 perpetuating a cycle of war and expansion.Footnote 65 Van Crevald, in his examination of the emergence of states, noted that the nascent and emerging states faced challenges from the following: (1) the nobility; (2) the towns and urban centres; (3) the Holy Roman Empire; and (4) the Catholic Church.Footnote 66

Initially, the greatest threat was from the aristocracy, upon whom an emerging sovereign was often dependent for their military forces, and often for their very existence.Footnote 67 English and French history is full of incidents where powerful nobles or alliances between nobles deposed or promoted a sovereign at will, and rebelled when it suited them.Footnote 68 This challenge laid the foundation for the idea that subsequently developed a consciousness or awareness, initially by an elite, but later more broadly in the larger community of Western states, that the sovereign's authority was not absolute, but was limited.Footnote 69 However, as the emerging sovereigns consolidated their power internally, the Holy Roman Empire, and the Catholic Church, emerged as the major threats. Both sought to unite the various communities in Europe under a single hierarchy of authority,Footnote 70 a form of Imperium Christiana,Footnote 71 or, as one commentator describes it, each sought to impose universal sovereignty.Footnote 72 The struggle lasted centuries and involved a series of tumultuous events, such as the Reformation and the Counter-Reformation.Footnote 73 These events shook Western Europe to its core, culminating in the Thirty Years War (1618−48).

The Thirty Years War was one of Europe's most destructive wars. Whilst it was primarily a religious war,Footnote 74 its significance far exceeded spiritual matters, since the conflict soon morphed into a struggle for military and political supremacy in Western Europe.Footnote 75 This attempt at imposing universal sovereignty failed, and Imperium Christiana was defeated.Footnote 76 Neither the Church, nor the Empire, was sufficiently powerful enough to assert its authority over states, the “new” form of polity emerging in Western Europe.Footnote 77 On the other hand, states were sufficiently powerful, and not only did they defeat the aspirations of the Church and Empire, their victory changed the political structure of Western Europe and arguably the very nature of political authority on a global scale.Footnote 78 Gone was the hierarchical and complex relationship with the Holy Roman Empire. In its stead was a system of independent polities that were the final “supreme” authority within their territories, and considered equals regardless of their actual wealth or military power. It was an epochal change,Footnote 79 a culmination of a series of events that had been building for centuries,Footnote 80 and resulted in the series of treaties collectively known as the Peace of Westphalia.Footnote 81

States emerged from the Peace of Westphalia not only with the ability to remain independent of the authority of the Empire and Church, but also an all-consuming desire not to be dominated by any “foreign” entity.Footnote 82 However, whilst states argued that their sovereignty was “absolute”,Footnote 83 the fact remained that there existed multiple absolute sovereigns, in a community whose members refused to accept a hierarchy: a “welter of competing sovereignties”.Footnote 84 Thus the idea of a split legal persona, that is internal sovereignty and external sovereignty, was born as a direct result of this inherent contradiction in Westphalian sovereignty;Footnote 85 and this led to the acceptance that a state's external sovereignty was restricted, but its internal sovereignty was “absolute”.

Thus the traditional view is that the Peace of Westphalia was notable because of the “package of sovereignty” that commentators argue emerged: (1) state equality; (2) non-interference in the internal affairs of a state; (3) territorial integrity, and the inviolability of territorial borders; and (4) sovereign immunity.Footnote 86 These aspects of sovereignty—in particular points (1) to (3)—have become the cornerstones of modern international relations and international law, ultimately enshrined in the UN Charter.Footnote 87 However, the true significance of the Peace of Westphalia is that right from its very inception Westphalian sovereignty was limited; and not just in its external component, but also in its “domestic” or internal aspect.

The Peace of Westphalia was established by a series of meetings with some 176 plenipotentiaries, 109 delegations representing various territorial polities—not just the Church and the Empire—as well some 27 delegates that represented “interest groups” (nearly half of the participants were lawyers).Footnote 88 All participated as equals in a negotiating process to resolve the chaos threatening to destroy Western Europe. The key point is that political authority was negotiated, not imposed by a single “superior” authority.Footnote 89 In other words, sovereignty could not be a divine right, and more importantly it was not absolute, despite what individuals might claim.Footnote 90

The idea that sovereignty was limited was reinforced in other ways: first, by promoting religious equality between Catholics and Protestants (in the German Diet, for example) and by protecting religious freedom;Footnote 91 and second, by the separation of Church and state.Footnote 92 The first point sought to ensure that the ruled could practise a different religion from their rulers free from persecution, and thus established the seeds for modern international law and the protection of human rights—the 1948 Universal Declaration of Human Rights and the Articles of State Responsibility.Footnote 93

Whilst there was a triumph of secularism, Christianity, like Judaism and Islam, with its emphasis and traditions of a mortal soul, and a monotheistic god, laid an important restriction on wielding power, because it established a power above the sovereign: God.Footnote 94 Ultimately all sovereigns would be answerable to God for their actions.Footnote 95 Over time, as that influence within Western culture as well as politics waned, God as a limitation was replaced with the notion that states’ sovereignty was curtailed, by necessity, by the norms (positivist and natural) of international law.Footnote 96

The idea that sovereignty was limited was taken up by commentators like Hobbes, Vattel, Spinoza, Bacon, and Grotius.Footnote 97 In response to the chaos that characterized the period, they prescribed the establishment of a strong secular state as a solution to the anarchy that threatened to destroy Western Europe.Footnote 98 Perhaps inevitably, states’ desire to be free from domination post Westphalia led to the development of nationalism,Footnote 99 competition, and ultimately warfare between the new sovereigns, with catastrophic consequences.Footnote 100 Ginsburg summarized these views very succinctly: “It is not too much to say that Westphalia stood for peace in theory and war in practice.”Footnote 101 All of this meant that Western political thought evolved in isolation from an overriding international organization, and where international relations were concerned primarily with warfare.Footnote 102 Thus the overriding goal of commentators was peace and stability underpinned by the rule of law.Footnote 103 And this is how the West now perceives Westphalian sovereignty, as limited by international law:

The concept of sovereignty … is not in terms of its history or in terms of political science a concept which may properly be used to explain—let alone to justify—whatever the state or the political society does or may choose to do. It is a principle which maintains no more than that there must be a supreme authority within the political community if the community is to exist at all.Footnote 104

Such a definition raises an important question: Can national sovereignty be simply expressed as the power of the state to act according to its free will but within the limits of international law?Footnote 105 China, and its perception of political authority, Eastphalian sovereignty, would probably answer in the negative.

Turning now to China and “Eastphalian” sovereignty, we first place Chinese history into a Western timeline for some perspective. China's history stretches back almost 5,000 years, dating back to approximately 2701 bc.Footnote 106 The Roman Empire was founded during the Han dynasty and ended in the gap between the Han and the Tang; the British Empire began during the Qing Empire and only outlived it by forty-odd years.Footnote 107 The first recorded Chinese polity or dynasty appears to be the Xia dynasty (2205−1766 bc), followed by the Shang dynasty (1766−1122 bc), which was followed by the Zhou dynasty (1122−221 bc). Although the Zhou dynasty lasted some 800 years, in its final days it ruled in name only, and while the Zhou dynasty did not collapse in a manner similar to the Western Roman Empire, the Zhou dynasty's power was so weak that, in realistic terms, its political authority was as fragmented as much as was the Western Roman Empire's after it collapsed.

Historians have divided the Zhou into two periods based on the location of the capital: Western and Eastern. The Eastern Zhou dynasty is further divided into two periods: the Spring-Autumn period, and the Warring States period. The Warring States period in particular was very similar to feudal Europe. There were eight large state-like polities,Footnote 108 and many smaller entities, each with their own written script, language, coinage, weights, and measures.Footnote 109 The Warring States period was an “interesting time” indeed, and there was very little evidence of a feudal code of morality; practicality and survival was the game of the day. During this period each sovereign sought and often competed for the advice of strategists on how to establish an empire.Footnote 110 Ultimately, the smaller states were gobbled up by the more powerful. The consequence was an Empire formed by Qin Shi Huang, the First Universal Emperor, from the State of Qin in 221 bc.Footnote 111

Qin Shi Huang introduced a standard written script and imposed a “universal” standard of weights, measures, and coinage. Even the axle-lengths of carriages were standardized, which enabled the standardization of roads linking the Empire.Footnote 112 Most importantly, he was instrumental in developing a civil service that was so crucial in the maintenance of the Emperor's political authority that it lasted virtually unchanged in its form until the Chinese Republic thousands of years later. The civil service officials (“mandarins”) were part of a hierarchy that ended with the Emperor himself, and administered all matters relevant to exercising authority, such as taxation, food production, and carrying out the census. They enabled Chinese officials, and through them the Emperor, to strictly control their people's daily lives.Footnote 113 The bureaucracy was incredibly efficient. For example, in the late third century bc, Qin officials, in addition to details such as a citizen's surname, address, and trade, had reliable and detailed records for rainfall, and the condition of a farmer's livestock (they rewarded those farmers whose oxen increased in size, and punished those whose oxen decreased in size), as well as crops on a field by field basis, throughout the entire Qin Empire.Footnote 114 More importantly, the civil service broke the power of the aristocracy, which had previously inherited government and official positions, and its potential stranglehold over the Emperor's authority.Footnote 115 The civil service was open to any citizen who passed the rigorous examinations, and each official was appointed by the Emperor, and reported to the Emperor. Furthermore, these officials did not have rights or freedoms, but privileges that could be withdrawn by the Emperor.Footnote 116 The Chinese civil service was effective in nullifying the aristocracy and other challenges to its exercise of political authority, ensuring its active role in controlling society.

Nonetheless, Imperial China was a turbulent period. There was often a cycle of a benevolent dynasty becoming corrupt, and slowly declining until it was replaced by a charismatic leader who then formed his own dynasty. For example, the first dynasty, the Qin, in its last years saw many peasants rebelling against the harshness of Qin Shi Huang. One such rebellion, led by a peasant named Liu Ban, eventually defeated the Imperial Army and formed the Han dynasty in 206 bc.Footnote 117 During the Qing dynasty (China's last dynasty), there were rebellions by Muslims in the west, and the Taiping Rebellion (1851−64), where an estimated twenty-five million people perished.Footnote 118 There also was the constant preoccupation with nomadic invaders from the north, who twice established dynasties that ruled China. The Mongols formed the Yuan dynasty, and the Manchus formed the Qing dynasty—the last dynasty before the Republic of China was declared. These events did not result in the state-like community that had evolved in Europe. Chinese sovereigns did not, unlike their European counterparts, seek to create multiple sovereign states.Footnote 119 For the next 2,000-odd years, succeeding dynasties instead sought to restore the Empire; they expanded its frontiers when they could, particularly the Qing, who conquered and absorbed vast territories of the Uighur Empire in the west.Footnote 120

A state-centric community and “state-consciousness” also failed to develop in China because of several key differences. The efficiency of the civil service and the defeat of the aristocracy have been discussed. What this meant for the centralized authority in China was that its power (and even its legitimacy) was never challenged, it never “shared” power.Footnote 121 In the West, the monotheistic nature of the region's religion was reflected in the concept of Westphalian sovereignty. All princes and rulers were accountable to God.Footnote 122 In China, however, religion and religious leaders did not challenge the Emperor or his authority. Indeed, during the fifth and eighth centuries, some Buddhist monasteries which displayed the potential to develop into independent and powerful institutions, were crushed.Footnote 123 The most dominant religions, Buddhism and Confucianism, did not provide a means to check the exercise of political authority. The basic premise within Buddhism, in contrast to Christianity, was the enlightenment of individuals and a means to achieve this, but, as commentators have noted, it did not develop the concept of individual freedom as conceptualized in Western culture. Buddhism “[o]riginated from a set of psychological and ontological assumptions totally unlike those of a modern Western thought. The Buddhist teaching about the individual denied the very existence of any permanent and substantial self of which rights to freedom of any sort could be predicated.”Footnote 124

It is important to note that “[t]he freedom that Buddhism calls for is something different from people's expectations; it is not freedom from all discipline or restraint, but freedom from the limited particularistic values of kin and local community”.Footnote 125 Thus, Buddhism did not result in a consciousness that eventually limited or indeed played any sort of role in the perception of the relations between governed and government.Footnote 126

Confucianism is a strong, spiritually inclined set of teachings, but not a religion in the Western sense of a faith based on the belief of a deity.Footnote 127 Instead, it is a moral code based upon the teachings of Confucius and the scholars who followed him.Footnote 128 Confucius was one of the itinerant intelligentsia who wandered from state to state during the Spring-Autumn period (770−476 bc), just prior to the Warring States period. Although he was not successful as an advisor, he was by far one of the most influential of the intelligentsia, if not the most famous of all of China's philosophersFootnote 129 and teachers.Footnote 130 His influence can be measured by the simple fact that knowledge of Confucius’ teaching was essentially the basis of selection for those seeking to enter the civil service, even as late as the twentieth century, some 1,500 years later.Footnote 131

Confucianism's teachings influenced Eastphalian sovereignty dramatically. The Confucian cosmopolitan outlook became integrated into the practical aspects of social and political life in China and formed the most dominant political and cultural force in shaping the traditional Chinese view of the world order.Footnote 132 Confucius supported the concept of “meritocracy”, a policy that China adopted centuries before the West did. Confucius’ thoughts on how to assist China emerge from chaos and maintain order were based around a system of respect from an inferior to a superior, extending all the way to the Emperor, the Son of Heaven.Footnote 133 Confucius sought to introduce change gradually, through education, the spread of culture, and the provision of moral examples.Footnote 134 Hence a government official sought to improve the governance of a state through education, respecting authority, and acting in a moral and virtuous manner.Footnote 135 Thus, whilst Confucianism did not challenge the Emperor's authority, Confucius did not preach despotism; an Emperor's authority, their “mandate from heaven”, was limited only by their own sense of morality.Footnote 136

Confucius and his teachings were heavily criticized by his contemporaries, as they have been by more recent commentators, for being over-ritualistic and backward-looking, but mainly because his teachings were conservative and endorsed authoritarianism.Footnote 137 Although such criticisms have themselves been criticized,Footnote 138 the emphasis that Chinese sovereigns placed on knowledge of his teachings as the basis of selection for government officials did contribute heavily to the intellectual, economic, and technological stagnation of China.Footnote 139 This stagnation was responsible in part for China's vulnerability to European imperialism after the collapse of the Qing dynasty.Footnote 140 His teachings were conservative, reinforcing the status quo,Footnote 141 and this acceptance flowed through and was evident in the manner in which the civil service operated. Furthermore, these teachings were still being used to select government officials as late as 1900. Even the edict that declared the Republic referred to the “harmony of the ancient sages”.Footnote 142 His work still influences Chinese thinking today on many levels, and “Confucianism” is in fact experiencing a revival.Footnote 143

Thus, reinforced by an immensely influential moral spiritual system, “universal sovereignty” prevailed in China, and it was absolute, in both the external and internal application of its political power. As noted by Lo: “China still believed that it was the zenith of civilization and the centre of the political universe”,Footnote 144 and any “barbarians” wishing to trade with China had to “kneel down and kowtow before him [the Emperor]”.Footnote 145 China recognized no equals in the surrounding territories, with Korea, Thailand, Vietnam, and Tibet all acknowledging Chinese sovereignty as vassal states during the Ming dynasty.Footnote 146 Having defeated all internal challenges, Eastphalian sovereignty was absolute domestically in a manner that many Western sovereigns claimed, but in reality did not have. This absoluteness of political authority was never challenged, nor ameliorated; instead it was the prize that all claimants sought. Even after the collapse of empire with the declaration of the Chinese Republic in 1912, the first President of the Republic, Yuan Shikai, the most powerful general of the former Manchus, used his position to attempt to declare himself Emperor and form a new dynasty in the traditional Chinese “manner”.Footnote 147 Arguably, the warlords that followed, such as Chiang Kai-shek, during the period 1912−49, and even the war against the Communist Party were all about claiming the “Dragon Throne”, with its perception of absolute sovereignty.Footnote 148

In conclusion, both Eastern and Western perceptions of sovereignty evolved as a response to chaos, and the desire to find order and stability in what were very violent and uncertain environments. It is no coincidence that the work of leading philosophers in both spheres, Grotius in the WestFootnote 149 and Confucius in the East,Footnote 150 were primarily concerned with war and peace. It is also no coincidence that military strategists and their published works played a prominent role in their respective societies.Footnote 151 The key difference between the two is that in the West the Empire “failed” and universal sovereignty collapsed with the rise of the European state. The political fragmentation and the lack of a single hegemonic empire in Europe enabled it to invent institutions of freedom from political authority that in later centuries were understood as “universal values”: democracy and human rights.Footnote 152

In the East, the Empire won, and the concept of Eastphalian sovereignty was absolute, particularly in its internal dimension. This perception is the subtle difference that distinguishes Eastphalian sovereignty from its Western counterpart. Whilst Westphalian sovereignty from its inception was limited in both its external and internal aspects, Eastphalian sovereignty was absolute in both. This conclusion then raises questions about how Eastphalian sovereignty conceptualizes international law. In particular, how does China react to attempts to impose democracy and human rights, concepts which could be conveniently labelled as not universal in nature, but as creatures created purely by the West, China's antithesis? In a nutshell: What happens when Westphalian sovereignty “meets” or “collides” with Eastphalian sovereignty? China's initial confrontation with the West in the nineteenth century can only be described as a cataclysmic event of epic proportions, and changed Eastphalian sovereignty so that it became similar in scope to its Western equivalent.

III. Western Imperialism or a Genuine Movement to Universal Values?

Anghie has observed that “[i]nternational law is universal. It is a body of law which applies to all states regardless of their specific and distinctive cultures, belief systems and political organizations.”Footnote 153 Nonetheless, the universal characteristic did not emerge until the end of the nineteenth century.Footnote 154 Until then, international law was really European law,Footnote 155 or more accurately, the European practice of international law. Burke's connection of the law of nations with the geographical, historical, and cultural region of Europe was accurate because the origins of modern international law are from there.Footnote 156 In a succinct assertion, Fidler notes:

During the course of the European century, what for Burke represented a set of rules for relations among European nations became the set of rules regulating the interactions of countries around the entire world. The European century's most distinctive mark on international law was its universalization as an instrument of international governance.Footnote 157

The universalization of international law was a European projection of superior power in non-European parts of the world.Footnote 158 Although Japan managed to transform itself into a European-type regional power by the end of the nineteenth and beginning of the twentieth centuries, Japan's rise occurred within the parameters set by the universalization of international law and did not constitute a fundamental challenge to the system.Footnote 159 This has important ramifications for China's acceptance of Western liberalism's perceptions of the universal right to democracy.

A. Keeping the Hackles Up: Hegemony and Imperialism in Far Lands

A central feature of the nineteenth century was the distinction that was made between civilized (European) and uncivilized (non-European) states.Footnote 160 This development was at the expense of the natural school of thought and its well-articulated views of the unity and validity of similar standards and laws that applied to all peoples.Footnote 161 Naturalist thought flourished with Europe's discovery of new lands in the fifteenth to the seventeenth centuries. However, positivism gradually displaced the naturalist notion that a single, universally applicable law governed the society of nations.Footnote 162

Positivist theory, as applied to the international community of states, is founded on the primacy of the state, and this has important consequences for the jurisprudence of international law:Footnote 163 first, that only states, as the principal actors of the international system, could be the subjects of international law; and second, that states are only bound by those norms of international law that they consent to, a premise which plagues the contentious jurisdiction of the International Court of Justice to the present day.Footnote 164 More importantly, the concept of a “gap” between “societies” provided the intellectual basis for the claim that international law was the exclusive province of civilized societies. Thus only European states could create international law.Footnote 165 Such a conclusion had dramatic and cataclysmic repercussions for non-European peoples, as it justified colonialism,Footnote 166 military conquest, and unequal trading treaties that were heavily weighted in favour of the European powers.Footnote 167 Put another way, positivism justified the domination and pillaging of (mostly) non-European peoples and their wealth.Footnote 168 Coercion and superior military force were used to bind them to a “legal” document that essentially allowed European peoples to do as they pleased.Footnote 169 Ironically, from a positivist perspective, these legal documents were also the very means by which these non-European peoples became “civilized”.Footnote 170

Modern international law as part of Christian civilization, while beneficially structuring the relations between states of European background, proved more destructive than constructive in the initial confrontation between China and the West. It was the challenge of survival in the face of national subjugation and extinction at the hands of Western imperialism that forced the Chinese to make serious efforts to bring international law into full play in their struggle to shake off the yoke of unequal treaty regimes and foreign meddling. The goal was to create and maintain a strong and unified China with a rightful place in the family of nations.

When Eastphalian sovereignty met Westphalian sovereignty in the nineteenth century, China grasped at the Western-centric norms of international law. However, this did not alter China's perception of the rule of law in international relations. For Chinese leaders and policy analysts, power remained the true decisive factor.Footnote 171 China's woes were caused because it lacked power against the Western powers.Footnote 172 Until China could once again become powerful enough to prevent such humiliations, international law would be China's guardian.Footnote 173 This humiliation was particularly significant for China, which had for thousands of years considered itself to be the civilized state.Footnote 174 In the space of one and a half centuries, China was reduced from the Middle Kingdom at the centre of the universe to a semi-colonial society. These humiliations at the hands of foreign imperialism were followed by the Chinese civil war. Such was extent of these tragedies that by 1938 the unthinkable became a very real possibility—that “China was about to be dismembered, that it would cease to exist as a nation, and that the four thousand years of its recorded history would come to a jolting end”.Footnote 175 It was with great reluctance that China surrendered its political system in favour of the (European) Westphalian state system.Footnote 176

However, with the rise of modern China, its Confucianist cosmopolitan outlook became integrated into the practical aspects of social and political life, forming the most dominant political and cultural force shaping the Chinese view of the world order.Footnote 177 Concomitant with such great changes was the radical transformation of Sino-centralism, based on Confucian culturalism, into modern Chinese nationalism, which embraced sovereign equality and independence.Footnote 178

In Part IV, we will examine the renaissance of natural law within the context of the universalist ambitions of international law in the twentieth century. Then we will return to the issue of China's perception of power and law, a dichotomy of some significance, considering the peaceful rise of China.

IV. International Law as a Universalizing Standard: A Renaissance of Imperialist Ambitions?

The twentieth century saw a revival of natural law, as jurists increasingly sought to justify the tenor of international law, setting universal standards in human rights and subsequently democratic entitlement. Of significant importance were the conflicts in 1914−18 and 1939−45. If nothing else, they highlighted the inherent liability within positivist theory—if sovereignty is absolute, how do you regulate state behaviour?

At the conclusion of each of these wars the survivors met to create international organizations to resolve this problem of warfare between competing absolute sovereigns. The first was the League of Nations after World War I, and the second was the United Nations (UN) after World War II.Footnote 179 The purpose of both was to prevent a repeat of conflicts on such a large international scale.Footnote 180 This meant placing a limit on the exercise of sovereignty, for the sake of the greater good of the international community.Footnote 181 The primary method by which the international community was to be protected was through the confirmation of two important principles: (1) the principle of non-intervention, and (2) the peaceful resolution of disputes.

However, somewhat controversially, and in direct conflict with the concept of Westphalian sovereignty, the League of Nations qualified the Westphalian right to territorial integrity and independence by permitting the League to take any appropriate action when the peace and security of other members was threatened.Footnote 182 The concept of a qualified right of intervention was continued in the UN Charter. Article 2(7) protected a Member State's domestic jurisdiction from intervention, but contained the proviso that intervention was permitted where it was necessary to maintain international peace and security. The interpretation of Article 2(7) has not been easy, because no reference was made to what matters lie within domestic jurisdiction and who should determine this.Footnote 183 Thus began the movement towards restraining the state through the development of universal norms. It is in this context that we examine whether Eastphalian norms reflect current European trends towards global constitutionalism as Asia emerges as a dominant region of the world.Footnote 184

A. Developing Norms to Restrain Government

In the 1980s, the “new public management” model was developed by a clutch of Western economic intellectuals as a tool for enforcing restraint on government as part of a larger economic and political programme.Footnote 185 Its demonstrated value lay in its postulation that it improved regulatory efficiency and effectiveness, and was being adopted in some form or other by a number of governments across the political spectrum in the West.Footnote 186 Efforts were made to emphasize performance and measurable results, to break up ossified institutional structures, and to prioritize responsiveness.Footnote 187 The new model was also a response to conceptual questions about the legitimacy of the modern administrative state.Footnote 188

Clapham writes that the increased economic and political external control beginning in the 1980s represented a “return to familiar conditions of subordination”.Footnote 189 This puts in perspective the initiatives from the middle of the last century towards “altruism” by international entities and organizations with an agenda of promoting democracy and good governance in the Third World. However, it is of note that the initiatives of relevant entities have been more or less Western-centric in style and form. International organizations and donors (predominantly Western countries) offer an increasing variety of technical support programmes, and these programmes come with a healthy dose of political induction to restructure the powers of the Third World states to reflect more closely Western institutions, with the basic dynamic and selling point being that such ordering in sociopolitical and economic organizations was a panacea to key problems spawned by dysfunctional and unprincipled governance.

The trend accelerated with the end of the Cold War and the expansion of demo-liberal doctrines in an atmosphere gripped with the assumed triumph of Western state liberalism.Footnote 190 This trend was postulated by Western states and international organizations as the basis of ensuring the effectiveness of not only representative democracy, but also mature frameworks of government and human rights.Footnote 191 There was an increase in activity promoting Western-style laws and electoral processes with an array of entities offering an increasing variety of technical support programmes. This entailed not only a certain degree of political induction, but most importantly initiatives to restructure and reform the powers of the state and of the state's social organizations.Footnote 192 The 1990s witnessed a number of developments spearheaded by the UN as it sought to match rhetoric and the triumphalism of the West over the East with the necessary normative and institutional framework.

While the authors are in no doubt of the need for reform, what is often lost is that such changes, while affecting the traditional forms of relationship between states and their own societies, do not robustly factor in consequentialism. The strengthening of “international” values while generating changes within states themselves omits the relationships between state authority and the individual at the local level, as well as at the level of social organizations. The activities of Western powers often disregard the social effects of their proposals or demands and frequently attempt to displace traditional organizations and institutions in the belief that they lack the ability to adapt themselves to “new” or alien sociopolitical dynamics. Third World states are forced to recognize and implement Western demo-liberal ideologies and structures, but without dealing with the problems that hinder adaptability to the general interests of the society in a given state:

Transformative changes in the nature of governance undertaken by the United States and the European Union are not, therefore, likely to characterize international relations in the twenty-first century. Instead, the twenty-first century may well tell the tale of how Asian countries individually and collectively address entrenched and emerging political, economic, technological and social problems through existing or newly created governance mechanisms. How Asia governs its problems will be of urgent concern for the world given Asia's rise in importance in world politics. Governance in Asia has become a “global public good”.Footnote 193

As noted in Part I of this article, the most important ideas that shape China's approach to international relations are the Five Principles of Peaceful Co-existence.Footnote 194 It is also instructive that India, Asia's other rising power, also considers these Principles (Panchsheel as they are termed in India) important in how it approaches its foreign policy and diplomatic relations in the twenty-first century.Footnote 195 Other Asian states have not only adopted the Five Principles as being indicative of a broader Asian perspective on sovereignty and diplomatic practice, but also rely on these Principles in their dealings with one another.Footnote 196 As such, the Five Principles act as a defence mechanism “against any temptations stronger Asian powers, especially China” may have.Footnote 197 The essence of the Five Principles is not so much that they demarcate a new approach to international law and relations; rather they are elaborations of already enshrined ideas of sovereignty. Their importance is pegged on the rise of China (and India). Thus, Eastphalia does not enunciate a simplistic leitmotif of another world view, but of a practice. In the incisive observation by Li Zhaojie:

Despite frequent references in and out of China to “Chinese international law”, there is no such thing as “Chinese international law” any more than there is such a thing as “Chinese mathematics;” there can only be a Chinese theory and practice of international law. In other words, there is greater continuity and stability in any state's international legal behaviour than its foreign policy behaviour.Footnote 198

B. China's Perception of the Rule of Law

How does China view the rule of law? First, what is meant by “the rule of law”? In essence:

[A]t its most basic level, the rule of law means the opposite of arbitrary government. Thus, the rule of law means that the laws of a country apply to everyone (including the government); that the laws apply equally; and that they are predictable. No one should be above the law.Footnote 199

China's perception of the rule of law in an international context is coloured by its historical experiences. In particular, the nineteenth-century humiliations, where norms touted as “international law” and “universal” were in fact used to cement European dominance, hegemony, and, in the words of one commentator, Asian “serfdom”.Footnote 200 As noted by Xue: “its [international law as imposed by Western powers through colonization] basic tenets of peace, justice, and equality were grimly tarnished by the cruelty of colonial and imperial governance imposed upon many Asian countries.”Footnote 201

This perception was unaltered by the developments in the twentieth century, the so-called pursuit of the science of international law, led by the US, saw an increase in attention on issues such as human rights and democracy becoming a crusade for a “right to democracy”.Footnote 202 China sees many double standards in the West's drive for the universalization of human rights, and the prosecution and pursuit of what they acknowledge as worthy ambitions, as creating an “imbalance”.Footnote 203 Xue has noted: “When the rule of law, democracy, and human rights are being advocated at the international level, they often tend to represent essentially one type of ideology, one form of culture, and one kind of political system.”Footnote 204

The double standards are obvious. Consider the example of humanitarian intervention, a controversial norm that conflicts directly with the norm of non-intervention as expressed in customary international law, and also the UN Charter. As noted by a Western commentator:

In international affairs, behind all questions of morality lie questions of power. Humanitarian intervention in the Balkans was possible only because the Serbian regime was weak, unlike the Russian regime, which was committing atrocities of a similar scale in Chechnya while the West did nothing.Footnote 205

Second, China's historical experiences tend to emphasize that the greatest threat to human rights take place during periods of instability, regime change, and threats to the authority of the ruling polity. Thus, it is understandable that the CCP may not prioritize matters which the West deem to be grave breaches of human rights, such as the presumption of innocence in criminal trials or the one-child policy. These are simple matters that can be explained through simple pragmatism in the case of the one-child policy, and the application of Chinese analysis in the case of the presumption of innocence.Footnote 206 Eastphalian sovereignty thus remains focused on the more “fundamental” questions of maintaining equality, peace and security, and equal access to development.Footnote 207 In all of this, Eastphalian sovereignty is merely seeking to find a path through norms of international law that truly are universal, rather than serving the interests of a few. To paraphrase Weiss, China is seeking to find the “legitimate” norms of international law that do not camouflage power and hegemony,Footnote 208 but truly represent all the actors on the world stage, including those that espouse Eastphalian sovereignty.

In summary, China and Eastphalian sovereignty recognizes, and agrees with the concept of, the rule of law. China takes its international obligations very seriously, but merely asks a valid question: Are international norms truly universal? In this regard, it is perhaps apt to conclude with a quote from Commissioner Lin Zexu, a Chinese magistrate, rebuking the intervention of the British and their merchants’ desire to introduce opium on Chinese society. Lin Zexu's opposition to a trade in a narcotic that caused such distress to Chinese society was one of the causes that led to the First Opium War of 1839−42, and China's exposure to “international” law:

The Way of Heaven is fairness to all: it does not suffer us to harm others in order to benefit ourselves … your country lies twenty thousand leagues away; but for all that the Way of heaven holds good for you as for us, and your instincts are not different to ours; for nowhere are there men so blind as not to distinguish between what brings life and what brings death, between what brings profit and what brings harm.Footnote 209

China and the CCP are opposed to such concepts as a universal right to democracy and humanitarian intervention, because they perceive them to lack universality,Footnote 210 and see them as thinly veiled attempts to continue Western subjugation.Footnote 211 There is much merit to their position, since there is much doubt concerning the so-called right to democracy articulated by some Western commentators.Footnote 212 As Petersen notes: “Therefore, international law only sets up a framework, leaving room for different cultural conceptions of political order and different social circumstances, for which an autocratic rule might sometimes be more appropriate than an unstable democracy.”Footnote 213

Thus, China's Five Principles are state-centric, conservative, and are arguably a reflection of nineteenth-century positivism, rather than proof of accepting the norms of natural law.Footnote 214 The question remains, however, whether it will, through an internal revolution, come to accept the concepts of natural law, albeit one based on Chinese experiences.

C. China's Peaceful Rise: “Heping Jueqi”

The rise of a major power can often result in drastic change in the international configuration and world order, and can even trigger a world war. An important reason behind this is that these major powers followed a path of aggressive war and external expansion. Such a path is doomed to failure. In today's world, how could we follow such a totally erroneous path that is injurious to all, China included? China's only choice is to strive to rise, more importantly, strive for a peaceful rise.Footnote 215

During the 1990s, Chinese planners and party officials coined a new phrase to describe China's engagement with the globe: heping jueqi or “peaceful rise”.Footnote 216 In much the same manner that they describe globalization, commentators have described China's rise, and ascendency, in world affairs as inevitable: “The question is no longer if the rise of China, India and Asia will affect world politics. The question is how.”Footnote 217 There is no doubt that China's increasing power and wealth provide it with massive potential to shape how other states think and act.Footnote 218 China's rise and economic success has come at a time of the opposite for the US and the West, reeling from the global financial crisis,Footnote 219 and their loss of international moral ascendency.Footnote 220 To place the timing into context, in January 2009 China announced its waixuan gongzuo programme,Footnote 221 an ambitious global media programme that aimed to tell the world about the advantages of China's economic/political model. China allocated an estimated US$6.8 billion for its implementation, at a time when US and Western governments, faced with the threat of the global financial crisis, were scrambling to find the funds to bail out their failing economies.Footnote 222

As mentioned in Part I of this paper, globalization is not a one-way street: China is a source of globalization. The rise of China has already altered the globalization landscape by creating new centres of economic autonomy that offer developing states alternative paths to economic development.Footnote 223 The significance of such alternatives, and their consequences, cannot be overestimated, since the global financial crisis has shown the public vulnerability to private risk-taking, greed, and incompetence. Globalization has enabled, and highlighted, how private actors, and the failure of regulation by central governments, can have a domino effect on other states, which causes great public trauma. Thus, the global financial crisis raises the spectre of what can happen in a free-market economy, and China's example shows what can happen in a state-controlled one: continued growth and stability.Footnote 224 The global financial crisis may reinforce perceptions of a greater need to reel in globalization, to reaffirm sovereignty, and a call for a stronger or greater role for government in the market in order to maintain economic stability, i.e. to reject the US model (the Washington Consensus) and adopt the China model—the Beijing Consensus.Footnote 225 China's example also shows that whilst the importance of economic stability on democratization cannot be overstated,Footnote 226 it is not fundamentally necessary to create a civil society in the image of the Western liberal model. In Halper's words, China's example has provided an “exit option” to many emerging, autocratic states in Asia and Africa.Footnote 227 As noted by Petersen, of the thirteen states whose economies have grown the most in the period 1950−90, only one was a democracy.Footnote 228 China is attracting “admirers” who desperately need and want global capital, but are not prepared to pay the price demanded by the West, and who wish to remain free from Western concepts of civil society, democracy, human rights, and liberalism.Footnote 229 China's admirers extend beyond AsiaFootnote 230 to encompass its trading partners in Africa, the Middle East, and Latin America.Footnote 231 States may follow China's example in preference to that of the US. For example, in 2003 a survey held in Latin America found that more than fifty percent of participants would prefer a non-democratic government if it would solve economic problems. States like Syria, Iran, and Vietnam have expressed a desire to emulate China's example because of the economic stability it appears to have brought. Other states like Mongolia may publicly embrace democratic reform but privately express their awe with the “Beijing Consensus”.Footnote 232 This model is simple: “the power of the market plus the stability of authoritarian rule.”Footnote 233 As such it is attractive to developing states, particularly in Africa, that may have a history of questionable “legitimacy” in the eyes of the West due to their lack of democracy, or their human rights record.Footnote 234

Whilst some commentators argue that China does not seek a military confrontation and genuinely seeks peaceful co-existence with other states,Footnote 235 others have questioned China's “peaceful rise”, because of disputes with its neighbours involving maritime borders and territorial claims in the South China Sea,Footnote 236 and claims that it is indulging in economic imperialism.Footnote 237 With the recent announcement of the sea trials of the Varyag, China's first aircraft carrier, alarm bells are sounding throughout Southeast Asia and the West.Footnote 238 Some commentators write that China may become even more assertive, increasing the risk of conflict not with just with its Southeast Asian neighbours, but also with India and the US, which has stated it has a national interest in the South China Sea.Footnote 239 Finally, how the West maintains relations with China in the “grand arena” of the international community will be influential in determining the future democratization of China. Many Chinese scholars are concerned that the US loss of ascendency and the continued decline of its power may cause the US to take an increasingly bellicose posture with regard to China, perhaps even leading to open military conflict.

If US policies towards China become more bellicose, they will promote nationalism and reinforce the CCP's legitimacy in the eyes of the Chinese people. Nationalism has already been successfully used by the CCP and, under growing pressure from the US, Chinese nationalism could be reinforced by moral righteousness. As Xue noted: “As a developing country, China fully appreciates what a superpower means in international relations. In Chinese philosophy, we follow the maxim: Don't do to others what you do not wish others to do to you.”Footnote 240

Nonetheless, some commentators, such as White, suggest that China may introduce a hegemonic entity similar to the US in relation to protecting their national interests in the Caribbean Basin.Footnote 241 Michael Ignatieff once described the US hegemony in these terms:

It is an empire lite, hegemony without the burden of direct administration and the risks of daily policing. It is an imperialism led by a people who remember that their country secured its independence by revolt against an empire, and who have often thought of their country as the friend of anti-imperial struggles everywhere. It is an empire … without consciousness of itself as such.Footnote 242

If the US empire can be described as “Empire Lite”, then China's would have to be described as “Empire-Zero”, as noted by White:

China's conception of itself is that of a benign, non-hegemonic power, one that does not interfere in the domestic philosophies of other states in the way the United States—with its busybody morality—does. Because China sees itself as the Middle Kingdom, its basis of dominance is its own inherent centrality to world history, rather than any system it seeks to export.Footnote 243

Fidler describes China's potential hegemony in Asia as a “Concert of Asia”,Footnote 244 whereas Chinese officials have often expressed the perception of international democracy. They do not believe in a “world government” with one global sovereign dictating to its “citizens”.Footnote 245 This view is made clear in its Five Principles, mutual benefit, and peaceful co-existence. The essence is that global problems or everyday affairs between members of the international community should be handled through co-operation and consultation. Thus, if China begins to exercise greater leadership in the global community, it will not do so by trying to impose its own perception of universal values, as the West did through colonialism and the pursuit of democracy.Footnote 246

However, such a political construction requires ensuring all members are equal, which they currently believe is not the case.Footnote 247 Thus China has expressed the desire of redressing the imbalance in the global economy. The Chinese leadership has repeatedly stated their desire that China should actually take action through international institutions such as the UN, the IMF, and the WTO, to change the “rules of the game”.Footnote 248 This will be an application of soft power rather than hard power.Footnote 249

What are the implications for all of this for the concept of Eastphalian sovereignty? One of the key questions is whether China's rise would alter their perception of sovereignty and begin a “universalist campaign”, similar to the West's democracy and human rights crusade? In other words, would Eastphalian sovereignty undergo the same metamorphosis that Westphalian sovereignty did?Footnote 250

Ginsburg raises and even accepts this as a possibility. He suggests that China's Five Principles and the current form of Eastphalian sovereignty reflects Asia's and China's focus on state-building.Footnote 251 This argument is attractive, since there is no doubt that the industrial revolution in Europe was the decisive difference between China and Europe in the nineteenth century, one which enabled Western Europe to impose its perception of political authority on the world. China's rapid industrialization has now given it an economic advantage, and thus it may adopt Europe's international constitutionalism, albeit with a distinct Chinese flavour. However, the authors disagree.Footnote 252 After all, China's history is very dissimilar to the West. When considering the question examined by this paper, it is wise to be reminded of the problems caused by preconceptions or false assumptions created by particularistic values and cultures.Footnote 253 Speaking in 1995, former US Secretary of State Robert McNamara, reflecting on the sociopolitical dimension of the Vietnam military campaign, noted:

We viewed the people and leaders of South Vietnam in terms of our own experience. We saw in them a thirst for—and a determination to fight for—freedom and democracy. We totally misjudged the political forces within the country. We underestimated the power of nationalism to motivate a people (in this case the North Vietnamese and Viet Cong) to fight and die for their beliefs and values.Footnote 254

In other words, we should not judge China's (and Asia's) rise through the “lens of Europe”.Footnote 255 It is true that the China's Emperor knew no earthly equals, and thus that Eastphalian sovereignty was absolute in its external dimension, but even during China's most imperialist stage in its history,Footnote 256 rather than conquer, China imposed a system of tribute and suzerainty on its neighbours.Footnote 257 The tributary system was not a form of proto-Confederation, or early form of regional governance. It was, according to Ginsburg, a “hub and spokes system with China at the centre”.Footnote 258 Furthermore, the tributary system was intended to create mutual benefits and, more importantly, was based on the concept of non-interference: China's Five Principles has a long historical tradition.Footnote 259

One thing is clear: China and Eastphalian sovereignty being in the ascendency would end the US democracy crusade, and limit militarist interventions by the West into other states.Footnote 260 One theme, which is consistently evident throughout Chinese history and its perception of the role of international law and sovereignty, is that peace and stability is achieved through upholding the principle of non-intervention. This rule is sacrosanct in Chinese policy, and will influence how China interacts with other states as much as how it feels other states should interact with it.

V. CONCLUSION

China's resistance to what it sees as Western intrusion and political-cultural imperialism does not necessarily mean that democratization in China cannot ever occur. What it means is that if it is to occur, it will happen on China's terms: in other words on the CCP's terms. It is clear that Chinese policy-makers are led by intellectuals who are not only adaptive, but are open-minded about examining the benefits of proposed changes. This statement may contradict Western clichés about the autocratic nature of Chinese governance, and the actions taken to repress what Chinese officials perceive as threats to the polity, but such comments are examples of “Western goggles” and incorrect assumptions. In any event, China will plot its own course and, buttressed by its Five Principles, will determine the future evolution of its political and economic system. As China's peaceful rise continues, perhaps it is the West that needs to make an adjustment. It may be that the West can learn from China's concept of “one state, two systems” and apply it on a global level: “one globe, different systems.”Footnote 261

Footnotes

1. KLEIN, Naomi, The Shock Doctrine (Canada: Knopf Canada, 2007) at 103

2. Honghua, MEN, “East Asian Order Formation and Sino-Japanese Relations” (2010) 15 Indiana Journal of Global Legal Studies 47 at 55−56

3. COLEMAN, Andrew and MAOGOTO, Jackson, “After the Party, is there a Cure for the Hangover? The Challenges of the Global Economy to Westphalian Sovereignty” (2003) 30 Legal Issues of Economic Integration 35

4. JAYASURIYA, K., “Globalization, Law and the Transformation of Sovereignty: The Emergence of Global Regulatory Governance” (1999) 6 Indiana Journal of Global Legal Studies 425 at 448−449

5. Won, KIM Sung, FIDLER, David, and GANGULY, Sumit, “Eastphalia Rising? Asian Influence and the Fate of Human Security” (2009) 26 World Policy Journal 53

FIDLER, David and GANGULY, Sumit, “India and Eastphalia” (2010) 17 Indiana Journal of Global Legal Studies 147

GINSBURG, Tom, “Eastphalia as the Perfection of Westphalia” (2010) 17 Indiana Journal of Global Legal Studies 27

Fa, LO Chang, “Values to be Added to an ‘Eastphalian Order’ by the Emerging China” (2010) 17 Indiana Journal of Global Legal Studies 13

FIDLER, David, “Introduction: Eastphalia Emerging? Asia, International Law, and Global Governance” (2010) 17 Indiana Journal of Global Legal Studies 1

6. CHITTIWATANAPONG, Prasert, “Challenges of and Responses to Globalization: the Case of South-East Asia” in Yoshinobu YAMAMOTO, ed., Globalism, Regionalism and Nationalism: Asia in Search of its Role in the Twenty-First Century (Oxford: Blackwell Pubishers, 1999) at 70−93

7. DIAMOND, Larry, “Foreword” in ZHAO Suisheng, ed., China and Democracy: Reconsidering the Prospects for a Democratic China (New York: Routledge, 2000)

8. BEISER, Vince, “Digital Weapons Help Dissidents Punch Holes in China's Great Firewall” Wired (November 2010)

HALPER, Stefan, The Beijing Consensus (New York: Basic Books, 2010) at 13−14

LAMPTON, David M., “What if China Fails? We'd Better Hope It Doesn't!” (2010) The Wilson Quarterly at 65

9. T.P., “Explain in Vain”, The Economist (10 December 2010)

10. STALKER, Peter, Without Frontiers: the Impact of Globalization on International Migration (Boulder, CO: Lynne Rienner Publishers, 2000) at 2

Chittiwatanapong, supra note 6 at 71

11. DUNOFF, Jeffrey L., “Does Globalization Advance Human Rights?” (1999) 25 Brooklyn Journal of International Law 125 at 136

ROSECRANCE, Richard N., SOLINGEN, Etal, and Arthur A. STEIN, “Globalization and its Effects: Introduction and Overview” in Richard N. ROSECRANCE and Arthur STEIN, eds., No More States? Globalization, National Self-Determination, and Terrorism (Lanham, MD: Rowman & Littlefield Publishers, 2006) at 8

12. MITTELMAN, James H., “How Does Globalization Really Work?” in James H. MITTELMAN, ed., Globalization: Critical Reflections (Boulder, CO: Lynne Rienner Publishers, 1996) at 229

13. Ibid.

14. Chittiwatanapong, supra note 6 at 71

15. ROBERTSON, Roland, Globalization: Social Theory and Global Culture (London: Sage, 1992) at 8

16. Coleman and Maogoto, supra note 3 at 45

17. Halper, supra note 8 at 43

18. FUKUYAMA, Francis, “Confucianism and Democracy” (1995) 6 Journal of Democracy 20 at 21−22

PARSONS, Talcott, “Evolutionary Universals in Society” (1964) 29 American Sociological Review 339 at 339−357

DIAMOND, Larry, “Economic Development and Democracy Reconsidered” (1992) 15 American Behavioural Scientists 450

19. KNIGHT, Nick, Imagining Globalization in China: Debates on Ideology, Politics and Culture (Cheltenham: Edward Elgar Publishing, 2008) at 16

20. For example, He Qing was critical of globalization. See He QING, Quanqiuhua yu guojia yishi de shuaiwei [Globalization and the Decline of National Consciousness] (Beijing: Zhongguo renmin chubanshe, 2003).

21. Knight, supra note 19 at 89−91

22. Ibid., 19 at 144, 149−50, 188, 200.

23. Halper, supra note 8 at 27−30

24. Chittiwatanapong, supra note 6 at 70−74

Jun, TANG and GENTLZER, Edwin, “Globalization, Networks and Translation: A Chinese Perspective” (2008) 16 Perspectives 169

Halper, supra note 8 at 22−28

ALDEN, Chris, China in Africa (London: Zed Books, 2007) at 128−130

25. Fukuyama, supra note 18 at 31

26. Halper, supra note 8 at 131

27. Halper, supra note 8 at 133

28. David KELLY, “Freedom—A Eurasian Mosaic” in David KELLY and Anthony REID, eds., Asian Freedoms (Cambridge: Cambridge University Press, 1998) at 5

Fukuyama, supra note 18 at 24−26

29. Fukuyama, supra note 18 at 23

30. Halper, supra note 8 at 26

31. Alden, supra note 24 at 128−130

32. MINKKINEN, Panu, Sovereignty, Knowledge and Law (Hoboken, NJ: Routledge, 2009) at 6

R.B.J. WALKER, State Sovereignty, Global Civilisation, and the Rearticulation of Political Space (1988) World Order Studies Program Occasional Paper No.18, Centre of International Studies, Princeton University at 8

J.G. STARKE, Introduction to International Law, 9th ed (London: Butterworths, 1984) at 96

J.H.W. VERZIJL, International Law in Historical Perspective, Vols. 1 and 2 (Leyden: A.W. Sijthoff-Leyden, 1968) at 256

CRAWFORD, James, The International Law Commission's Articles on State Responsibility: Introduction, Text, and Commentaries (Cambridge: Cambridge University Press, 2002)

33. KHAN, L.A., The Extinction of Nation-States: A World Without Borders (The Hague/London/Boston: Kluwer Law International, 1995) at 43

HEIBERG, M.ed., “Introduction” in M. HEIBERG, ed., Subduing Sovereignty: Sovereignty and the Right to Intervene (London: Pinter Publishers, 1994) at 12

Jayasuriya, supra note 4

Lo, supra note 5 at 17

34. PHILPOTT, Daniel, “Religious Freedoms and the Undoing of the Westphalian State” (2004) 25 Michigan Journal of International law 981 at 983

35. KELLY, Michael J., “Pulling at the Threads of Westphalia: ‘Involuntary Sovereignty Waiver’—Revolutionary International Legal Theory or Return to Rule by the Great Powers?” (2005) 10 UCLA International Law and Foreign Affairs 361 at 368

BARTELSON, Jens, A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995)

36. C. Brewin “Sovereignty” in J. MAYALL, ed., The Community of States: A Study in International Political Theory (Sydney: Allen and Unwin, 1982) at 40

Francis H. HINSLEY, Sovereignty, 2nd ed (Cambridge: Cambridge University Press, 1986) at 1−17

37. FRANKLIN, J.H.ed., On Sovereignty: Four Chapters from the Six Books of the Commonwealth (Cambridge: Cambridge University Press, 1992) at 114

38. Jayasuriya, supra note 4 at 431

39. Heiberg, supra note 33 at 12

40. Lo, supra note 5 at 17

41. In many ways the legal concept of sovereignty is similar to the rights of property owners in the common-law system, in being a bundle of dividable rights that can be foregone, suspended, and even transferred.

42. Lo, supra note 5 at 18

43. Jayasuriya, supra note 4 at 425−427

44. The Australian government's Prudential Regulatory Authority (APRA) received submissions before deciding whether to adopt the latest Basel III recommendations, online <http://www.apra.gov.au>.

45. Westphalia was the area between the Rhine and Weser rivers, near the cities of Arnsberg, Bielefeld, Bochum, and Dortmund.

46. DELAHUNTY, Robert J. and WOO, John, “Statehood and the Third Geneva Convention” (2006) 46 Virginia Journal of International Law 131 at 131–133

NEWMAN, M., Democracy, Sovereignty and the European Union (London: Hurst & Co. / New York: St. Martins Press, 1996) at 9

Kenichi OHMAE The End of the Nation States: The Rise of Regional Economies (London: Harper Collins, 1996)

NEWHOUSE, J., “Europe's Rising Regionalism” (1997) Foreign Affairs at 69

LEVINE, Andrew, The End of the State (London: Verso, 1987)

47. SPRUYT, Hendrik, The Sovereign State and its Competitors (Princeton, NJ: Princeton University Press, 1994) at 153−181

CREVALD, Martin VAN, The Rise and Decline of the State (Cambridge: Cambridge University Press, 1999)

NINIC, D., The Problem of Sovereignty in the Charter and Practice of the United Nations (The Hague: Martinus Nijhoff, 1970) at 2

FOWLER, M. and BUNCK, J., Law, Power, and the Sovereign State (University Park, PA: Penn State University Press, 1995) at 65

48. MAZURI, Ali A. and TIDY, Michael, Nationalism and New States in Africa (London: Heinemann, 1984) at 373

Khan, supra note 33 at 15

MORRIS, Christopher W., An Essay on the Modern State (Cambridge: Cambridge University Press, 1998) at 59

Hinsley, supra note 36 at 2

FERRO, Marc, Colonization: A Global History (New York: Routledge, 1997) at 6–7

49. Ferro, supra note 48 at 6–7

50. JACQUES, Martin, When China Rules the World (New York: Penguin Press, 2009) at 415

51. PHILPOTT, Daniel, Revolutions in Sovereignty (Princeton, NJ: Princeton University Press, 2001) at 151

Mazuri and Tidy, supra note 48

Morris, supra note 48 at 54

52. David HARRIS, Cases and Materials in International Law, 5th ed (London: Sweet and Maxwell, 1998) at 102

Crawford, supra note 32 at 45

53. Jacques, supra note 50 at 417

WEIWEI, Zhang, The China Wave: Rise of a Civilization State (Hackensack, NJ: World Century Publishing, 2012)

54. Hanqin, XUE, “Meaningful Dialogue Through a Common Discourse: Law and Values in a Multi-Polar World” (2011) 1 Asian Journal of International Law 13 at 14

55. Consulate-General of the People's Republic of China (Houston), “The Five Principles of Peaceful Co-existence” (28 June 2004), online: <http://houston.china-consulate.org/eng/nv/t140964.htm>.

56. WEN Jiabao, Premier of the State Council of the PRC, “Carrying Forward the Five Principles of Peaceful Coexistence in the Promotion of Peace and Development”, Address Commemorating the 50th Anniversary of the Five Principles of Peaceful Coexistence (28 June 2004), online: <http://www.fmprc.gov.cn/eng/topics/seminaronfiveprinciples/t140777.htm> (last accessed 19 October 2009).

57. Chinese State Councillor and Foreign Minister QIAN Qichen, Statement at the 46th Session of the United Nations General Assembly, 25 September 1991.

58. Lo, supra note 5 at 19−22

59. Ibid.

60. See the reference to Bodin's definition of sovereignty at supra note 37.

61. Khan, supra note 33 at 68

62. BEAULAC, S., “The Social Power of Bodin's ‘Sovereignty’, and International Law” (2003) 4 Melbourne Journal of International Law 1

NIETO-NAVIA, Rafael, International Peremptory Norms (Jus Cogens) and International Humanitarian Law (London/The Hague: Kluwer Law International, 2003) at 4

63. Edward GIBBON, The History of the Decline and Fall of the Roman Empire, Vol. 3 (London: Penguin Books, 1994)

64. OLIVIER, M., “Aspects of the Establishment of Sovereignty and their Transfer of Government Authority” (1988) 14 South African Yearbook of International Law 85 at 85−86

Hinsley, supra note 36 at 77−81

65. PORTER, B., War and the Rise of the State: The Military Foundations of Modern Politics (New York: The Free Press, 1994) at 58

66. Van Crevald, supra note 47 at 59−128

67. The emergence of the state of France is perhaps the best example of the challenges faced by a nascent central government from the aristocracy and their private armies: ibid., at 87−104.

68. The tale of Henry VI of England and the War of the Roses is fairly illustrative: it wasn't until Henry VII ascended the throne “did the English crown cease to be the happy hunting ground of aristocratic factions”; ibid., at 91.

69. Ibid., at 128.

70. Hinsley, supra note 36 at 82

71. Porter, supra note 65 at 25

BLEIMAIER, J.K., “The Future of Sovereignty in the 21st Century” (1993) 6 Hague Yearbook of International Law 16

72. Khan, supra note 33 at 43−45

Olivier, supra note 64 at 85

73. Philpott, supra note 51 at 110−111

74. GROSS, Leo, “The Peace of Westphalia 1648−1948” (1948) 42 American Journal of International Law 20 at 21

75. TRIGGS, Gillain D., International Law, Contemporary Principles and Practices (Chatswood, NSW: LexisNexis Butterworths, 2006) at 10

76. Philpott, supra note 51 at 47

Khan, supra note 33 at 43−45

Olivier, supra note 64 at 85

77. Khan, supra note 33 at 43−45

Gross, supra note 74 at 26−28

78. Gross, supra note 74 at 21

Philpott, supra note 51 at 138

79. Gross, supra note 74 at 26

80. Gross, supra note 74 at 30

Kelly, supra note 35 at 376

81. The Peace of Munster between the Dutch Republic and Spain, which ended an eighty-year rebellion by the Dutch Republic against Spanish sovereignty; the Treaty of Munster between the Holy Roman Emperor and France; and the Treaty of Osnabrück between the Holy Roman Emperor, Sweden, and their respective allies.

82. Khan, supra note 33 at 32

83. Hinsley, supra note 36 at 77−81

84. Kahn, supra note 33 at 25

85. Philpott, supra note 34 at 983

86. Kelly, supra note 35 at 375

87. The Preamble of the UN Charter, art. 2(1), and art. 2(4) and 2(7), respectively.

88. Philpott, supra note 51 at 82

89. As Philpott states: “it was victorious states and a defeated empire that negotiated the Peace of Westphalia”; ibid., at 47, 82−3.

90. Gross, supra note 74 at 26−27

91. Gross, supra note 74 at 22

92. Philpott, supra note 51 at 82−83

93. DUNN, F.S., “International Legislation” (1927) 42 Political Science Quarterly 577

Gross, supra note 74 at 26

Crawford, supra note 32

94. Verzijl, supra note 32 at 265

95. And if found wanting their soul would be damned to hell. Although monarchs may then have used the power of religious doctrine to legitimize their rule and their actions, there is a potential weapon that limits a conceptual viewing of their power.

96. Olivier, supra note 64 at 86

97. Kelly, supra note 35 at 374

98. Philpott, supra note 51 at 143−144

Winfield, P.H., The Foundations and Future of International Law (Cambridge: Cambridge University Press, 1941) at 18

Gross, supra note 74 at 26

Bleimaier, supra note 71 at 21

99. Khan, supra note 33 at 32

100. Treitschke described history as a “welter of competing sovereignties” and therefore inter-nation-state warfare the logical outcome; ibid., at 25.

101. Ginsburg, supra note 5 at 30

102. A. LARSON, C.W. JENKS et al., Sovereignty Within the Law (Dobbs Ferry, NY: Oceana Publications, 1965) at 21

103. Olivier, supra note 64 at 86

104. HANNUM, H., Autonomy, Sovereignty, and Self-determination: The Accommodation of Conflicting Rights (Philadelphia, PA: University of Pennsylvania Press, 1990) at 26

105. Verzijl supra note 32 at 265

106. CHEY, Ong Siew, China Condensed: 5,000 Years of History and Culture (Singapore: Marshall Cavendish, 2008) at 19

107. GASCOIGNE, Bamber, A Brief History of The Dynasties of China (London: Constable and Robinson, 2003) at 204

108. Samuel B. GRIFFITH (trans.), Sun Tzu, the Art of war, (London: Duncan Baird Publishers, 2005) at 37−38

109. Chey, supra note 106 at 26−27

110. C.P. FITZGERALD, China: A Short Cultural History, rev. ed (London: Cresset Press, 1950) at 70

111. Chey, supra note 106 at 26−27

Griffith, supra note 108 at 44

112. Chey, supra note 106 at 26−27

113. Kelly and Reid, supra note 28, 65−93

114. Jenner, supra note 113 at 75−76

115. Ibid., at 79.

116. Griffith, supra note 108 at 42

Jenner supra note 113 at 76−77

117. Chey, supra note 106 at 26−27

118. GRAFF, David A. and HIGHAM, Robin, A Military History of China (Boulder, CO: Westview Press, 2002) at 135−151

119. Gascoigne, supra note 107 at ix

120. TYLER, Christian, Wild West China: The Taming of Xinjiang (New Brunswick, NJ: Rutgers University Press, 2003) at 54−55

PERDUE, Peter C., China Marches West: The Qing Conquest of Central Eurasia (Cambridge, MA: Harvard University Press, 2005) at 1

121. Jacques, supra note 50 at 424

122. Khan, supra note 33 at 43−55

123. Jenner, supra note 113 at 78

124. MABBETT, Ian, “Buddhism and Freedom” in Kelly and Reid, supra note 28 at 19−36

125. Ibid.

126. “It soon becomes obvious that the concepts of freedom that a modern political scientist might articulate may not be at home in the traditional cultures of Asia”; ibid.

127. FAIRBANK, John King, “A Preliminary Framework” in John King FAIRBANK, ed., The Chinese World Order: Traditional China's Foreign Relations (Cambridge, MA: Harvard University Press, 1968) at 6

MANCALL, Mark, China at the Center: 300 Years of Foreign Policy (London: Collier Macmillan Publishers, 1984) at 22−23

128. E.g. Mencius.

129. Chey, supra note 106 at 62

130. Many of his students became advisors to state rulers: Gascoigne, supra note 107 at 34−5.

131. Ibid., at 204.

132. It was reinstated in the western Han dynasty (206 bc−ad 24) as the state ideological orthodoxy; Fairbank, supra note 127 at 6; and Mancall, supra note 127 at 22−3.

133. Gascoigne, supra note 107 at 34−35

134. Ibid., at 41.

135. Ibid., at 41−3.

136. Fukuyama, supra note 18 at 24−27

CALLICK, Rowan, Party Time: Who Runs China and How (Collingwood, VIC: Black Inc, 2013) at 117

137. HUNTINGTON, Samuel, “Democracy's Third Base” (1991) 2 Journal of Democracy 24

138. Jenner, supra note 113 at 73

KELLY, David, “The Chinese Search for Freedom as a Universal Value” in Kelly and Reid, supra note 28 at 93

Fukuyama, supra note 18 at 30

139. Chey, supra note 106 at 62

Jenner, supra note 113 at 65

ZHAO, Suisheng, “A Tragedy of History” in Zhao, supra note 7 at 33−35

140. HU, Shaohua, “Confucianism and Western Democracy” in Zhao, supra note 7 at 55−72

Jenner, supra note 113 at 68−69

141. Fukuyama, supra note 18 at 26−27

142. Gascoigne, supra note 107 at 204

143. Chey, supra note 106 at 62

Jacques, supra note 50 at 418

Callick, supra note 136 at 110−125

Wei-Hing, TU, “Confucian Ethics Today, the Singapore Challenge”, Singapore Curriculum, Management Development Institute of Singapore (1984) at 4

Fukuyama, supra note 18

144. Lo, supra note 5 at 14

145. Ibid.

146. Gascoigne, supra note 107 at 153

Lo, supra note 5 at 14−15

Ginsburg, supra note 5 at 39−41

147. Gascoigne, supra note 107 at 205

148. Ibid., at 205.

149. Triggs, supra note 75 at 148

150. Chey, supra note 106 at 62

151. Sun Tzu's The Art of War is well known throughout the East and the West and has even been translated and applied to modern-day society, to assist business managers, for example.

152. FACCHINI, Francis, “Religion, Law and Development: Islam and Christianity” (2010) 29 European Journal of Law and Economics 103 at 129

KENNEDY, Paul, The Rise and Fall of the Great Powers (London: Fontana Press, 1988)

153. ANGHIE, Antony, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2004) at 32

154. Ibid.

155. FIDLER, David P., “The Asian Century: Implications for International Law” (2005) 5 Singapore Yearbook of International Law 21

156. FIDLER, David P. and WELSH, J.M., “Burke and the Theory of International Relations” in David P. FIDLER and J.M. WELSH, eds., Empire and Community: Edmund Burke's Writings and Speeches on International Relations (Boulder, CO: Westview Press, 1999) at 44

157. Fidler, supra note 155 at 21

158. SONARAJAH, M., “The Asian Perspective to International Law in the Age of Globalization” (2001) 5 Singapore Journal of International and Comparative Law 284 at 287−290

OWADA, supra note 155

159. Owada, supra note 155 at 8

160. Anghie, supra note 153 at 37

161. Ibid., at 55.

162. Ibid., at 39−48, 53.

163. Ibid., at 33.

164. Ibid., at 33.

165. Anghie, supra note 153 at 33−35

166. Anghie, supra note 153 at 67

Triggs, supra note 75 at 245

Stephen HALL, International Law, 2nd ed (Chatswood, NSW: LexisNexis Butterworths, 2006) at 249−260

167. Anghie, supra note 153 at 84−85

168. COOPER, Mark, Rivers of Blood, Rivers of Gold (London: Pimlico, 1998)

BARKAN, Elazar, The Guilt of Nations (New York: W.W. Norton and Co, 2000)

MEYER, Karl E., The Dust of Empires: The Race for Mastery in the Asian Heartland (New York: Century Foundation Books, 2003)

169. Sonarajah, supra note 158 at 284

Triggs, supra note 75 at 367

170. Anghie, supra note 153 at 84−85

171. OGDEN, Suzanne, “The Approach of the Chinese Communists to the Study of International Law, State Sovereignty and the International System” (1977) 70 The China Quarterly 315 at 316

172. See the discussion in Part IV below.

173. Xue, supra note 54 at 14

174. China's long history of defeating barbarians, including the Mongols who had very nearly overrun Europe, gave China confidence that eventually it too would defeat these “barbarians”. It would simply take time.

175. Robert KAPLAN, “The South China Sea is the Future of Conflict” (25 August 2011) Foreign Policy, online: <http://www.cnas.org/node/6830>.

176. Jacques, supra note 50 at 418

177. Fairbank, supra note 127 at 6

Mancall, supra note 127 at 22−23

178. Zhaojie, LI, “Legacy of Modern Chinese History: Its Relevance to the Chinese Perspective of the Contemporary International Legal Order” (2001) 5 Singapore Journal of International and Comparative Law 314 at 315

179. Arguably the first attempt at international institutionalism was the Congress of Vienna after the final defeat of Napoleon in 1815.

180. Grotius's theories were created for much the same reasons.

181. KENNEDY, Paul, The Parliament of Man (London: Penguin Books, 2006)

182. Art. 11 of the Covenant of the League of Nations (28 April 1919). The Covenant (art. 15) required the League to obtain the unanimity of its members, including the members in dispute, before any action or recommendation could be made. The Covenant also did not allow intervention on the basis of human rights or “social justice” or if the Council determined a dispute to be within a Member State's domestic affairs: art. 15(8).

183. JONES, G., The United Nations and the Domestic Jurisdiction of the States (Cardiff: University of Wales Press, 1979) at 18

184. Ginsburg, supra note 5 at 44

185. FORD, Christie L., “In Search of the Qualitative Clear Majority: Democratic Experimentalism and the Quebec Secession Reference” (2001) 59 Alberta Law Review 511 at 519

186. Ibid.

187. COHEN, J. and SABEL, C., “Directly Deliberative Polyarchy” (1997) 3 European Law Journal 313 at 327−330

188. BOSTON, J., MARTIN, J., PALLOT, J., and WALSH, P., Public Management: The New Zealand Model (Melbourne: Oxford University Press, 1996) at 316−347

189. CLAPHAM, Christopher, Africa and the International System (Cambridge: Cambridge University Press, 1996) at 24

190. COLEMAN, Andrew and MAOGOTO, Jackson, “Democracy's Global Quest: A Noble Crusade Wrapped in Dirty Reality?” (2005) 28 Suffolk Transnational Law Review 175 at 181

191. HURTADO, Miguel DE LA MADRID, “National Sovereignty and Globalization” (1997) 19 Houston Journal of International Law 553 at 557

192. Ibid., at 558.

193. Fidler, supra note 155 at 27

194. Ministry of Foreign Affairs of the PRC, “China's Initiation of the Five Principles of Peaceful Coexistence”, 17 November 2000, online: <http://www.fmprc.gov.cn/eng/ziliao/3602/3604/t18053.htm> (last accessed 2 March 2011).

195. FIDLER, David P. and GANGULY, Sumit, “India and Eastphalia” (2010) 17 Indiana Journal of Global Legal Studies 147 at 150−151

Xue, supra note 54 at 14

196. Ginsburg, supra note 5 at 34

Kim et al., supra note 5 at 58

197. FIDLER, David, “Introduction: Eastphalia Emerging? Asia, International Law, and Global Governance” (2010) 17 Indiana Journal of Global Legal Studies 1 at 10

198. Zhaojie, supra note 178 at 325

199. Brendan SWEENY, J. O'REILLY, and A. COLEMAN, Law in Commerce, 4th ed (Chatswood, NSW: LexisNexis Butterworths, 2010) at 4

Zhaojie, supra note 178 at 325

200. Sonarajah, supra note 158 at 287−290

ALEXANDROXICZ, C.H., An Introduction to the Law of Nations in the East Indies (Oxford: Clarendon Press, 1967) at 2

Fidler, supra note 155 at 26

201. Xue, supra note 54 at 15

202. Coleman and Maogoto, supra note 190 at 175

203. Xue, supra note 54 at 17

204. Ibid.

205. Kaplan, supra note 175

206. KEITH, Ronald C., “Chinese Politics and the New Theory of ‘Rule of Law’” (1991) 125 The China Quarterly 109 at 112

207. Xue, supra note 54 at 19

208. Sonarajah, supra note 158 at 285

WEISS, Edith BROWN, “International Law in a Kaleidoscopic World” (2011) 1 Asian Journal of International Law 21 at 24

Xue, supra note 54 at 17

209. WALEY, Arthur, The Opium Wars Through Chinese Eyes (Stanford, CA: Stanford University Press, 1958) at 29

210. VOON, Tania, “Closing the Gap Between Legitimacy and Legality of Humanitarian Intervention: Lessons from East Timor and Kosovo” (2003) 7 UCLA Journal of International Law and Foreign Affairs 31 at 51

FIELD, Andrew, “The Legality of Humanitarian Intervention and the Use of Force in the Absence of United Nations Authority” (2000) 26 Monash University Law Review 339 at 343

SHEN, Jianming, “The Non-Intervention Principle and Humanitarian Interventions Under International Law” (2001) 7 International Legal Theory 1 at 10−16

211. Sonarajah, supra note 158 at 294

212. FOX, Gregory and ROTH, Bradeds., Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000)

Thomas M. FRANCK “The Emerging Right to Democratic Governance” (1992) 86 American Journal of International Law 46

HENKIN, Lewis and HARGROVE, Johneds., Human Rights: An Agenda for the Next Century (Washington, DC: American Society of International Law, 1994) at 73−102

213. PETERSEN, Niels, “International Law, Cultural Diversity, and Democratic Rule: Beyond the Divide Between Universalism and Relativism” (2011) 1 Asian Journal of International Law 149 at 157

214. Fidler, supra note 5 at 9

215. Bijian, ZHENG, “A new Path for China's Peaceful Rise and the Future of Asia”: speech delivered to the Boao Forum for Asia, 3 November 2003

216. Zheng, supra note 215

LIU Guoli, “The Dialectic Relationship Between Peaceful Development and China's Deep Reform” in GUO Sujian, ed., China's “Peaceful Rise” in the 21st Century: Domestic and International Conditions (Aldershot: Ashgate, 2006)

Halper, supra note 8 at 143

217. Kim, Fidler, and Ganguly, supra note 5 at 53

218. Lo, supra note 5 at 22

219. Halper, supra note 8 at 33−39

GOODSTADT, Leo F., Reluctant Regulators: How the West Created and How China Survived the Global Financial Crisis (Hong Kong: Hong Kong University Press, 2011)

220. Due to the war in Iraq, the scandal surrounding Guantanamo Bay, and the US policy of “rendition”.

221. Translated as “foreign or overseas propaganda”.

222. Halper, supra note 8 at 9

223. Halper, supra note 8 at 29

Knight, supra note 19 at 8−9

224. Halper, supra note 8 at 131

Goodstadt, supra note 219

225. Halper, supra note 8

Kim, Fidler, and Ganguly, supra note 5 at 53

226. Ginsburg, supra note 5 at 27

PEERENBOOM, Randall, China Modernizes: Threat to the West or Model for the Rest (New York: Oxford University Press, 2007) at 39−40

227. Halper, supra note 8 at 31

228. Petersen, supra note 213 at 157

229. Halper, supra note 8 at 31

230. Jacques, supra note 50 at 415

231. Lo, supra note 5 at 15

Alden, supra note 24

ROTBERG, Robert I.ed., China into Africa: Trade, Aid, and Influence (Washington, DC: Brookings Institution Press, 2008)

BRAUTIGAM, Deborah, The Dragon's Gift: The Real Story of China in Africa (New York: Oxford University Press, 2009)

232. Halper, supra note 8 at 131

233. Ibid., at 126.

234. Ibid., at 39.

235. LAMPTON, Donald M., The Three Faces of Chinese Power: Might, Money and Minds (Berkeley, CA: University of California Press, 2008)

Kaplan, supra note 175

Zheng, supra note 215

236. RAMZY, Austin, “Troubled Waters” (2011) 178 Time 28 at 30

Kaplan, supra note 175

237. Kaplan, supra note 175

238. Ramzy, supra note 236 at 30

239. Kaplan, supra note 175

240. Xue, supra note 54 at 19

241. WHITE, Hugh, “Power Shift: Australia's Future between Washington and Beijing” (2010) 39 Quarterly Essay 1

242. IGNATIEFF, Michael, Empire Lite (London: Vintage, 2003) at 2

243. White, supra note 241

244. Fidler, supra note 155 at 29

245. Xue, supra note 54 at 19

246. Ginsburg, supra note 5 at 40

247. Knight, supra note 19 at 183−185

248. Ibid., at 181.

249. Lampton, supra note 235

250. Ginsburg, supra note 5 at 44

251. Ibid., at 39.

252. Ibid., at 44.

253. Viewing events through “star-spangled” glasses, so to speak. One of the tenets of Buddhism is “right thinking” or “right mindedness”, namely, viewing an event or problem without preconceptions. It is perhaps appropriate to consider this tenet, given that Buddhism is one of Asia's “own” religions.

254. KELLY, David, “Freedom—A Eurasian Mosaic” in Kelly and Reid, supra note 28 at 1

255. Ginsburg, supra note 5 at 41

256. The Qing conquered and absorbed much of the Uighur Empire to China's west. It could be argued that this was just a continuation of the Manchu's own conquest of China, and thus was ethnic Manchu colonialism and not ethnic Han colonialism. However, an ethnic-Han dominated Communist China invaded and took over Tibet, but denies that this is a form of colonialism, but merely reclaiming lost territory.

257. Ginsburg, supra note 5 at 40

258. Ibid.

259. Jacques, supra note 50 at 418

260. Kim, Fidler, and Ganguly, supra note 5 at 61

261. FUNG, Edmund S.K., In Search of Chinese Democracy: Civil Opposition in Nationalist China, 1929−1949 (Cambridge: Cambridge University Press, 2000) at 12

Ginsburg, supra note 5 at 29