I. THE RISE OF CHINA AND INDIA, AND THE CHANGE IN INTERNATIONAL LAW

There is an industry producing books on the rise of China and India.Footnote ¹ Judging by the intellectual curiosity aroused by the impending effect on world politics of the emergence of these two states as economic and political powers, there is an evident need to consider the impact of the rise of the two states on the existing structure of international law. The rise of China, in particular, has significance. The dramatic changes in the political leadership of the US with the election of President Trump portended a change in approach in US policy on China. It accentuates the possibility of hostility between these two powers, premised on the theory that power changes inevitably provoke hostility,Footnote ² which may result in the clash between two different approaches to international law. India will be an inevitable participant in this clash of systems of international law, being a regional power with a role to play in such possible contests. It has supported the Chinese position on occasion but is ambivalent on many issues. However, an Indian move towards the US for security reasons is evident in recent Indian policies.

As editors of a recent work, China, India and the International Economic Order,Footnote ³ we thought it appropriate to begin a study of the potential impact of the rise of these two Asian states on international law. Others have attempted the study of the individual impact of the two states on international law.Footnote ⁴ Having benefited from the separate works on China and India, we believe there are also good reasons to put China and India together and discuss their joint bearings on the international legal order. Our project seeks to look at the impact of both states to determine whether they would act uniformly or differently, and the respective impact in either scenario.Footnote ⁵ That is because, first of all, whatever the eventual outcome, the attitudes that these two states take, either together or individually, will make changes in international law and shift it from its present Euro-American moorings.Footnote ⁶ The two states represent together almost a third of humanity. Greater legitimacy should attach to their joint views than to the existing normative propositions they may seek to oppose. They were states of historical opulence together commanding over half of the world’s manufactured and agricultural goods prior to the age of European dominance. If they rise to power again as major trading nations and as military powers, they are merely recovering a status that went into abeyance due to the intervention of European hegemony in the region and in the world.Footnote ⁷

They have a shared experience of eclipse due to the imposition of control by the European powers. China was not fully colonized but its trade was prised open after the Opium Wars. The British in particular financed their adventures in India through the selling of opium to the Chinese people. Despite protests, the opium trade, that enervated China in many ways, continued. China was also subjected to a system of extra-territoriality, which required that European traders and settlers in China were not subject to Chinese law but to the law of their own home states.Footnote ⁸ This ignominy, referred to as “a century of humiliation”, still agitates China and influences its foreign policy.Footnote ⁹ The Indian experience was similar. The manner of the ending of colonialism through peaceful agitation may not have left the same rancour against foreign control as it did in China.Footnote ¹⁰ The British East India Company conquered India in stages.Footnote ¹¹ It was an instance of private power, unrecognized in international law, conquering other peoples. The perfidy involved in the situation must not be overlooked, for it was but an instance where Eurocentric international law disguised an inequity by shielding the Company from any responsibility on the grounds that it did not have personality in international law, and denying any status to the people of the conquered areas on the grounds that they did not possess a standard of civilization necessary to enjoy such status. The hoary justification for colonialism was that the people needed to be brought up to the European standard of civilization. Civilizing India was the “white man’s burden”.Footnote ¹²

After the First War of Indian Independence (the Indian Mutiny of 1857), the British government took control of India until Indian independence in 1947.Footnote ¹³ Both China and India were denied personality on the pretext that they did not have a “standard of civilization” equal to that of the European states.Footnote ¹⁴ Despite being the cradles of human civilization, China and India needed, or so the Europeans maintained, to be elevated to the standards of European civilization through tutelage under imperial subjection.Footnote ¹⁵ However, in the modern age, as China and India emerge from that imperial aberration as significant economic, political, and military powers, they are bound to impact the existing international legal order and effect significant changes in the existing Eurocentric international law.

Change in international law results when epochal events take place, such as at the conclusion of the two World Wars or where there is substantial resistance to the norms of existing international law, either on the basis of their injustice or on grounds that they do not tie in with the visions for a world order of new actors who have emerged with sufficient power to change the norms they dislike.Footnote ¹⁶ They also take place when there is overwhelming recognition of the moral deficiency in the existing order or any of its normative prescriptions. Imperialism is now perceived as inconsistent with moral values based on self-determination. The norms that were associated with maintaining a system of inequality under imperialism became suspect and led to the decolonization of much of Africa and Asia, including India. To the extent that the imperialistic system may continue with hidden rules of inequality, the rules of that system will become suspect, will be objects of resistance, and will give way. Change then comes about when groups having significant power resist earlier unjust norms. With their increase in power, China and India can jointly marshal such power to displace rules of international law that emanate from imperial roots or are perceived as unjust. The rise of China and India presages changes. They may bring about the changes they desire when their interests coincide. It could also be that they may at some future time have the power to impose their will acting singly, at least within their immediate region. It is axiomatic that changes will result, consequent on their rise in status as big powers. One strong reason for such change is that both India and China share strong cultural and philosophical predispositions to legal and political orders based on morality. The task is to assess the changes that have taken place and anticipate those which may take place. An eventual aim of our project is to set out the changes that could take place and the context within which they may take place. The construction of a theoretical framework within which the changes will take place will also be useful.

Thus the connecting theme is change. We argue that the two states will lead other states, principally the newly industrializing statesFootnote ¹⁷ and the developing states,Footnote ¹⁸ in making changes to the existing structure of the law either by leading resistance to norms that have been laid down on the basis of hegemonic power by Western states or by creating counter-norms to these existing norms. They may bring about dissonance as a result of their attitudes to existing norms or the norms proposed by the Western powers. Change may result as other states may choose to follow the leadership of both or one rather than the other of these states. Since our model envisages, in one sense, conduct motivated by realist interests, each of the states could also oppose or conform to such conduct for their own reasons. The model also envisages policies based on claims to justice made by both or one of the states. It is likely that such claims are more readily espoused by other states, particularly developing states, triggering a pressure for change. When such situations eventuate, there could be change, depending on how strong the resistance to existing norms is.

While showing resistance to existing norms, the two states may also seek to profit from existing international law. This is particularly so when they have disputes between themselves or with other states. It is most evident in their boundary disputes, where arguments based on traditional Eurocentric international law on the acquisition of property are used.Footnote ¹⁹ The same applies in the South China Sea dispute, where China claims historical rights in almost the entire South China Sea from imperial days.Footnote ²⁰ China is inflexible in maintaining its claim, regarding it as a core interest of its foreign policy. This duality is a feature that has been noted, particularly when the two states make territorial claims or when they seek to advance their interests in international trade and investment. They do not confront the system but conform when the existing system can be utilized to further their ends. This ambivalence in their attitudes is perfectly consistent with the fact that they do not resist norms capriciously but only when necessary to secure a higher national interest or to secure interests that they jointly justify on moral grounds. They are content to live within the system while confronting rules they dislike. This duality does not dent in anyway the thesis that is advanced in this paper, as it does provide leeway for the explanation that the two states adopt a realist vision when it suits them. Such a realist vision condones conformity with existing norms of international law when they are seen as advantageous but does not find it inconsistent that the existing norms should be displaced when collective interests, either moral or politically beneficial, require them to be displaced.

Of course, China and India do not act or think alike in many areas. Yet, in the areas of their dissent from each other, the contrast will provide indications as to how they react to specific situations and what motivates them. This contrasting behaviour is itself significant in that the explanations for such difference will demonstrate internal and other constraints which dictate against a uniformity in approach that may exist in other areas.

As noted, this paper aims to set a framework and research questions for exploring the impact of the rise of China and India on the evolution of the international legal order, focusing on areas where there are possibilities for China and India to make meaningful contributions, in both state practice and theory-building, that may affect the direction of the future development of international law. The larger project includes the study of the security-based international political system, energy supply, climate change, and human rights, as well as international trade and investment, which would offer a look at the whole range of international law through the study of these issues, indicating how this law will be affected by the return to big power status of China and India. This paper does not have the same ambition as the whole project. It attempts to analyze and answer three topics: (1) the common and different stances of China and India on the existing international legal order; (2) the changes China and India have sought in the international status quo; and (3) the contributions that have been or could be brought by China and India to the development of international law, and their implications for the future.

We propose an analytical framework in which the impact of the rise of China on international law is viewed through two lenses, which we call the romantic vision and the realist vision. The romantic vision is the one that the leaders of the two states often attest to whenever they meet. It is inspired by the historical co-operation between the two states, and aspires that such co-operation will resume as the two rise together to big power status. It harks back to a past when the two states had deep cultural, religious, and social attachments. There is the assumption that this past will continue into the future. The second is the realist vision taken in the context of the fact that they co-operate in many matters but are equally rivals, competing for resources, trade, and, importantly, leadership of the region and the world. They also have an intractable boundary problem accentuated by the fact that the contested boundary involves Pakistan, an ally of China and a perennial enemy of India. Unresolved issues such as Kashmir and Tibet further complicate their relationship.

Needless to say, the two visions are, first of all, two different yet intertwined perspectives on China, India, and international law. In some sense, they are two ideal-type models of behaviour. None of them alone constitutes the reality. However, the international behaviours of China and India, jointly or individually, demonstrate more of the elements of one vision than the other at different times of history. We advance the proposition that the search for three factors determines the attitudes of China and India to international law and, more broadly, the orientation of their behaviours in the international order: national interest, power status, and justice. The three factors are embedded throughout our discussions of the two visions. The weight put by each country behind each factor will affect the formation of their individual and/or joint position in bilateral and international relations.

While it is clear that both China and India would relentlessly purse their national interests as well as global power status, it is the consideration of global justice which may determine whether the romantic vision will be eventually re-established. It involves revisiting the international order, including the international legal order, to help alleviate the economic, social, and political problems in developing countries. While many of these problems are essentially caused by the domestic political and legal structures of those countries, “the misery in many regions has a lot to do with the prevailing international system, comprising international law as its normative order and international politics as its actual practice”.Footnote ²¹ In other words, the problems are also attributed to unjust elements in the international system and the history of international law.Footnote ²² While the formation of international law is often a gaming process mainly influenced by the rise of power of the great powers, the pursuit of justice would require China and India, as leaders of the developing countries, to meet the demands of justice in international relations and global order in shaping the development of international law.Footnote ²³

The paper proceeds as follow. Part II describes the romantic vision and the realist vision. Part III sets out six broad questions on our research agenda which we believe should be studied in a comprehensive and systematic manner within the analytical framework of the romantic and realist visions. Part IV concludes.

II. THE TWO VISIONS OF CHINA-INDIA RELATIONS

III. RESEARCH QUESTIONS IN SEARCH OF A JUSTICE-BASED INTERNATIONAL LEGAL ORDER

Above we have outlined the two visions on China-India bilateral relations, as well as their individual and joint views on international law and the international order. As noted, the two visions offer mainly an analytical framework rather than any conclusive findings or substantiated analysis. We hope this framework can inspire further research on six broad questions. Our position is that the two broad visions will determine outcomes depending on circumstances. We realize that the two visions are not mutually exclusive and accept that what is put forward on the basis of the romantic vision is in reality what also serves the national interests of one or both states.Footnote ⁷⁶ On this basis, our project aims to investigate the following six research questions.

The first question is about whether there are better theoretical approaches to understanding the rise of China and India, individually and jointly, in international law and the international order. Theories in international relations are particularly important since, assuming changes are to be made in international law with the rise of the two Asian powers, the underlying forces behind those changes must be, in part, understood from the lenses of international relations theories. To what extent can prevailing Western international relations and legal theories explain Chinese and Indian attitudes and approaches to international law, from historical to contemporary?Footnote ⁷⁷ Is the rise of China and India so unique that new theories are needed to understand their international behaviours? The romantic vision is consistent with ethical viewpoints as well as constructivism, as it builds a profile of the states on the basis of thier past and recent history. The realist vision accords with the existing liberal notions which are in concordance with the notion of building up an international order that is suited to the hegemonic interests of the leading powers.

In examining China’s attitudes towards the regulation of natural resources by international law, Ben Saul soundly describes Chinese practice in international law as follows:

Nevertheless, solid further research has to be done to elucidate why China acts as it does with respect to the international legal order. Our proposition is that the Chinese approach to international law, ambivalent and ambiguous as it is, may be the fusion of the following five influences. First is China’s position in the US-led international system, in which rules of international law not only constrain China but also benefit China in the sense of providing a largely rule-based international economic environment and regional peace under Pax Americana for China’s own development. Apart in a few highly sensitive cases, China is mostly a good global citizen in terms of complying with international law.Footnote ⁷⁹ Second is Chinese ancient/traditional thoughts on law and order, which emphasize hierarchy, harmony, and, especially, a non-confrontational approach to dispute resolution. Third is the whole Chinese nation’s victimhood mentality as a result of suffering from the “century of humiliation” which led to a strong disbelief in the now America-dominated Eurocentric international order and the international legal system that sustains it. Fourth is a national determination to pursue power—or “great power status”—in international society which has been inspired both by the belief of luohou jiuyao aida (“lagging behind leaves one bullied and humiliated”) resulted from China’s past sufferings and by pride in the rapid rise of Chinese power and influence in the past few decades. Fifth is China’s self-identification as a developing country, which brings about its natural sympathy to Third World countries on a wide range of issues, even when taking such a position does not always conform to China’s own national (economic) interest. Existing theories in the Western discourse of international law and international relations do not seem to be able to accommodate these factors when examining China’s international behaviours as well as the Chinese approach to international law.

Some of these five factors identified for China are shared with India. While accepting and benefiting from existing international law, India, having suffered more years of colonial rule, has at least a similar inclination to dismantle offensive rules and create new ones. As in the case of China, the romantic vision drives India towards the creation of justice-driven rules and the development of the Third World. A difference may arise in the fact that China is the quintessential Asian developmental state, whereas India is the largest democracy in the world. But India also seeks to emphasize development while retaining democracy and goes along with the Chinese view that there are many paths to achieving such development, whereas the Western states advocate a uniform model through the financial architecture of the world they dominate.

A second broad question is about a general but critical concern on whether the rise of the two countries would bring down the Western-dominated “liberal world order” and undermine the rule-oriented international system. Essentially, it is about the past, present, and future attitudes of China and India towards the existing international order, which further concerns the legitimacy of the international order itself as well as the directions of these two countries’ own development. In March 2012, leaders of the BRICS countries met for the fourth time to discuss global governance in the new era. They issued a declaration not only to voice their concerns but also to put forward substantial reform proposals on the international financial infrastructure, the Doha Round of the WTO, climate change, food security, and energy security, among others, despite the traditional view that reforming the international order is within the power domain of Western countries.Footnote ⁸⁰ Not surprisingly, the summit did not receive much attention in the West. But, as Simon Tisdall observes: “this neglect, or disdain, may also reflect the fact that the BRICS, representing almost half of the world’s population and about one-fifth of global economic output, pose an unwelcome challenge to the established world order as defined by the US-dominated UN Security Council, the IMF and the World Bank.”Footnote ⁸¹ Indeed, Chinese leaders have constantly called for the joint efforts of emerging powers to create a new international political and economic order.Footnote ⁸² Vestiges of the romantic vision seem to appear only to be dimmed by the suspicion that China may project its increasing economic power through the new banks it has helped to establish.

G. John Ikenberry has argued that the current world order is based neither entirely on realism nor on idealism. Instead, it is an order that aims to establish international rule of law while still leaving tremendous room for balance of power games in great-power relations. As Ikenberry has put it:

Ikenberry’s liberal internationalism features economic openness and the rule of law. Particularly, the world order “has an unusually dense, encompassing, and broadly endorsed system of rules and institutions” which form the backbone of our international law today.Footnote ⁸⁴ In other words, the current system, in contrast with the previous international order, is maintained by a sophisticated body of rules in international law. “State sovereignty and the rule of law are not just norms enshrined in the United Nations Charter. They are part of the deep operating logic of the order … the overall system is dense with multilateral rules and institutions—global and regional, economic, political, and security-related.”Footnote ⁸⁵ For many—maybe even most—international affairs, states follow international law and resolve their disputes in accordance with the procedures and rules of international law, which led Louis Henkin to make the famous remark that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time”.Footnote ⁸⁶

However, the practice of realism-based power politics is still visible in international relations. The elements of openness and international law in this order preclude neither balance of power games nor states’ pursuit of wealth and power. States co-operate, but they also compete. In this sense, the rules and institutions in the international order can foster the former but cannot prevent the latter. In fact, “much of both the structure and substance of traditional international law appears to be built upon a Realist foundation”.Footnote ⁸⁷ The realist view of world order, as widely known, asserts that states, in order to maintain survival and security in an international society which is in a state of constant antagonism, must possess as much wealth and power as possible, even if doing so might undermine the security of other states.Footnote ⁸⁸

One may, of course, also believe that openness, the rule of law, and the pursuit of power can all co-exist in the existing international order. If “many aspects of traditional international law tacitly acknowledge the extent to which international relations are power relations”,Footnote ⁸⁹ the pursuit of wealth and power by states can certainly be carried out within the framework of today’s international law through co-operation and, if necessary, peaceful competition, thus avoiding violent confrontation. If that is true, a rising state’s pursuit of power and global status, if done within the framework of the current world order, should not be automatically viewed as a challenge to the order per se. That requires one to distinguish between a challenge to the norms of the international order and that to the dominant position of the status quo power in the international system. If a rising power questions and would like to change the prevailing norms of the international order, which currently include non-discrimination-based free trade, rule-based state relations, and the peaceful resolution of disputes, this can be considered as challenging the international order. However, if the rising power aims at becoming a more important or even dominant player in the international system, and in so doing replacing the dominant position of an existing power, as long as the rising power still follows the internationally recognized rules and customs, its rise shouldn’t be considered as a challenge to the world order. Will China and India challenge just some norms of the international system (and thus to choose to rise within the system), or would they aim to reshuffle the international order? The romantic vision and realist vision may converge in answering this question, but further research is required to investigate whether this view is consistent with the manner in which China and India approach international law. Ideally, and consistent with their historical struggles, they would seek an order based on norms of justice and not power.

A related question is about the legitimacy of the contemporary international system (together the underlying international law) itself. It is increasingly clear that the current system faces a legitimacy crisis as it does not reflect the new balance of power or adequately represent countries and peoples. It has both a power deficit and a democratic deficit, and hence needs substantial reform. The real question, however, is about the nature and direction of that reform. It is both hypocritical (considering the many problems and crises caused by the “liberal world order”) and impractical (given the immense size and rapidly growing power and interest of China and India) for the current West-dominated international order to ignore the demands from China and India to have more say in international decision-making. On the other hand, many would predict that the liberal internationalism would risk great uncertainties or even a downfall of the whole system if the “illiberal” elements in the value and practice of the emerging non-Western powers, and even more so of China, are introduced into the international order. To what extent the current international system and the rising Asian powers can mutually accommodate each other is thus an open question.

The third broad question concerns China, India, and the modern operation of the principles of the Westphalia system, which include, among others, sovereignty, equality of states, non-interference in domestic affairs, the liberal idea of collective security in the United Nations Charter, and the realist idea of great power co-ordination in the United Nations Security Council. It has been argued that China might be “more Westphalian than the West” in the international system since “the West has been seeking major modifications that weaken the norm, whereas China has championed the established rule and the international order based on it”.Footnote ⁹⁰ The same can be said about India. Both countries have a consistent record in defending the Westphalian norm of the primacy of national sovereignty and non-intervention. In a sense, the principles of Panchasila, which constitute the cornerstone of the foreign policy of the two states, include the Westphalian principles of equality of states and non-interference in domestic affairs, though they incorporate other ideas such as mutuality of interest and peaceful co-existence. Yet there is adherence to the Westphalian notions. China and India were among the five nations which abstained in the adoption of the United Nations Security Council Resolution 1973, which instituted a no-fly zone over Libya and authorized the use of “all necessary measures” to protect civilians in Libya.Footnote ⁹¹ It is widely known that China has unfailingly been opposed to or abstained from any resolution authorizing the use of force, although elements of pragmatism emerge from time to time in China’s state practice concerning sovereignty and intervention.Footnote ⁹² Both states vigorously oppose Responsibility to Protect [R2P] as interventionist.

As indicated, this practice in defending the Westphalian principles reflects the two states’ embodiment of the Five Principles of Peaceful Coexistence (Panchasila), which have their origin in both countries’ ancient philosophies, as noted previously, and were codified in the Sino-Indian Agreement on Trade and Intercourse between Tibet Region of China and India in 1954.Footnote ⁹³ Needless to say, history matters a lot as the “century of humiliation”, as well as the Chinese Communist Party’s self-claimed credentials of confronting foreign invasion to secure China’s independence, has shaped China’s obsession with state sovereignty. Further, the Party clearly would not want foreign interference in the People’s Republic of China’s [PRC] own internal affairs concerning, inter alia, human rights issues. In the case of India, it is a founder and leader of the Non-Aligned Movement [NAM], and was the driving force behind the NAM’s endorsement of the Five Principles of Peaceful Coexistence. In explaining its abstention on UNSC Resolution 1973, the Indian Ministry of External Affairs stated that “[i]t is, of course, very important that there is full respect for sovereignty, unity and territorial integrity of Libya”, indicating that India would put sovereignty over other values.Footnote ⁹⁴

One may, however, argue that the historical and present adherence to the Five Principles by China and India is still a makeshift to disguise the two countries’ true intention to pursue national interests and even geopolitical goals. For instance, in the Libyan case, India’s reliance on the Five Principles could be seen as a defensive tactic used to present the establishment of unintended precedent that could then be used against its government to justify outside intervention in conflict-ridden areas like Kashmir.Footnote ⁹⁵ China has probably even stronger concerns regarding Tibet and Xinjiang. Many signs now suggest that China’s strict adherence to non-interference has given way to interest-driven pragmatism, e.g. the cautious use of humanitarian intervention as a tool to advance its geopolitical goals. Careful study will have to be conducted as to whether China and India will still adhere to the Five Principles, or become imperialists (and interventionists) like the old European powers or America, or go with an entirely new approach which ideally balances sovereignty with justice in international society, as their power and interests grow. The romantic and realist visions are useful guides for analysis, but states seldom disclose their exact intentions for such analysis.

A related question is the two countries’ approach to international dispute resolution. China’s rejection of both the jurisdiction and final award of the South China Sea Arbitral Tribunal has caused wide concern in the international community, where it was depicted as a belligerent and hawkish emerging superpower who disregarded international law and legalized dispute resolution with its newfound power. India does not seem to be so radical but is still not in favour of formal, legalized, third-party-driven means of dispute settlement. It is certainly easy to understand this position from a realist perspective that China is simply following in the footsteps of previous imperial powers in the principle that “the strong do what they have the power to do and the weak accept what they have to accept”.Footnote ⁹⁶ However, one has to be very cautious when facing such an oversimplistic depiction of China as an outlier of the international legal system because (1) China’s out-of-tribunal arguments were largely based on the discourse of international law, (2) both the jurisdiction and the final decision of the tribunal are not unquestionable from the perspective of international law, and (3) China actively participated in the more formal and legalized dispute settlement system of the WTO in which it lost most cases but still complied with all the decisions. Sensible study on both the rhetoric and state practice of China and India should be done to categorically examine their approaches to international dispute resolution and, more importantly, explore the underlying reasons of such approaches from legal, political, historical, and cultural perspectives.

In particular, meticulous research is required on China’s effort to establish a comprehensive framework on dispute resolution for its Belt and Road Initiative, for which China has moved to establish a range of international commercial courts, arbitral tribunals, and other mechanisms to deal with disputes arising out of the BRI project.Footnote ⁹⁷ As the BRI is posted as a China-sponsored platform for continental-wide economic co-operation in the areas of policy, trade, investment, finance, and sociocultural exchanges, the problem arises as to whether implementing the BRI would require China to impose standards of investment and trade on smaller states, thereby installing its own preferred model of governance. This would entail an interventionist policy which may restrict the sovereignty of other states. As it will have to abide by these rules itself, China will have to accept greater scrutiny of its own economy by foreign tribunals and courts. This is happening in the area of investment treaties, where China is increasingly becoming a respondent before arbitral tribunals.

The fourth question is about the roles played by China and India in the regional order of Asia Pacific, as well as the use of international law in establishing a rule-based security system in Asia, given the increasingly intensified conflicts in East and South Asia. Thus, one of the most imperative issues in Asia is the construction of a regional security order, or regional security architecture. We have now two competing visions. One is being promoted by the US in the name of the “Principled Security Network” for Asia with three features: (1) advancing shared values such as democratic autonomy, the peaceful resolution of disputes, and freedom of navigation and disputes; (2) co-sharing of the security burden by the US and its Asian allies and potential allies; and (3) a rule-based order with a web of bilateral and regional agreements in security co-operation to bind the US and its Asian allies, and which have the force of international law.Footnote ⁹⁸

In contrast, China put forward an alternative vision labelled the “Asian Security Concept”. According to the speeches of senior Chinese officials and China’s most recent White Paper on Asia-Pacific Security Co-operation, this Asian Security Concept has five organizing principles: (1) a new security concept featuring common, comprehensive, co-operative, and sustainable security, which advocates consultation and dialogue, openness, inclusiveness, and win-win co-operation; (2) adherence to regional and international norms; (3) partnership, not alliance; (4) not a unified security framework in the region, but the further co-ordination and upgrading of the extant institutions; and (5) the promotion of common development and prosperity.Footnote ⁹⁹

Comparing the two outlooks in the light of the role of international law, one can characterize the American approach as “power plus rules”, and the Chinese approach as “power plus relational building”. The common feature is that both countries based their proposals on their national powers. The difference is that the US emphasizes rules and values, which is often a framework of rules designed by the US and imposed on Asian countries, while China’s approach puts more weight on relational building, partnership, and common development, and less weight on rules, although the Chinese approach does not exclude the use of international law. It is, however, far too simple to characterize one (the American) vision as one based on rules and norms while the other (the Chinese) vision as one based on power and coercion.

India’s approach to Chinese efforts at creating an Asian Security System may not be to yield to Chinese dominance. India regards Southeast Asia as an area subject to its soft power. Its historical influence through culture and imitation is evident throughout the region. Its announcement of a freedom of navigation policy in the South China Sea is an example of such a clash in the making.

Timely research has to be done to tell which outlook on regional security ordering is more acceptable to Asian countries. Suffice it to say that, in the long run, an Asian security framework must have Asian characteristics, but it also must be based on the rule of law, which has become a universal value in our international society today.

The fifth question is related to China and India in the international economic order and the international legal framework for global and regional economic relations (i.e. international economic law). The two countries’ initial encounters with the Western-dominated international economic system both featured Western invasion and colonization, unequal treaties, and unilateral Most Favoured Nation [MFN] treatment.Footnote ¹⁰⁰ They were both integrated into the so-called “liberal international economic order” in the past century and have been regarded as economies which have profited from the open and rule-based international economic system. India played a leadership role in promoting development in the international order while casting a hardline posture towards multilateral liberalization in the Uruguay Round of trade negotiations. India’s trade policy tends to favour protectionism, which is a result of both domestic election politics and a national policy to protect infant industries at home. China, on the other hand, has pursued a classical neoliberal approach to gradually open itself to international trade and investment since the late 1970s. During this period, China has grown to be the world’s second largest economy (and will become the largest in a few years) by riding, in part, on the free trade rules of the international economic system. However, both countries are depressingly underrepresented in the current international economic order under the auspices of the Bretton Woods institutions, including the IMF, the GATT/WTO, and the World Bank.

With the rise of China and India to the status of global economic powers, two transformative changes might follow. The first is related to India’s accelerated economic opening and liberalization. India practised socialism-inspired economic policy until it started its liberalization programme in 1991, which was also India’s turning point—towards active participation—with the liberal international economic order. As India is becoming increasingly open to global economic co-operation, and less inclined to shelter domestic industries with protectionism, it may ease its traditionally strong position on trade and development. Will this lead to the fall or at least the undermining of the development agenda in the international economic system and the international economic law that sustains it?

A second transformative change, which is to a large extent a challenge, is the rise of China-led international economic institutions. As noted, there are two of them at this stage: the Asian Infrastructure Investment Bank and the New Development Bank. Both are at the infant stage, but have been touted as a rival to the existing Bretton Woods institutions. In addition, China’s BRI is poised to generate more international economic institutions. Serious studies are required to examine how those China-led institutions may shape the international economic order in terms of agenda-setting, norm-creation, and rule-making.

Finally, the sixth broad question addresses the bilateral disputes between China and India. The international relations scholar Joseph S. Nye Jr. maintains that world politics has entered a stage where “(1) states are not the only significant actors …; (2) force is not the only significant instrument—economic manipulation and the use of international institutions are the dominant instrument; (3) security is not the dominant goal—welfare is the dominant goal”.Footnote ¹⁰¹ In the China-India case, neither the romantic vision nor the realist vision can offer realistic solutions for tackling the issues between the two countries. However, both visions suggest some truth about these complex and still evolving bilateral relations. We argue that most, if not all, issues in China-India relations could be resolved in the framework of international law.

Following the conventional wisdom, one may argue that there are three factors in China-India relations which will determine that the two Asian giants resolve their disputes not only through peaceful means, but also legitimately within the framework of international law. The factors are economic interdependence, the costs of military conflicts, and the acceptance of international law.

First, the growing economic interdependence between the two countries is making the benefits of co-operation too difficult to give up. Interdependence creates joint benefits. The larger the joint benefits, the more tempting it is for the countries involved to employ co-operation rather than confrontation. For China and India, their bilateral trade was US$2.9bn in 2000, which rose to US$84.44bn in 2017, an almost thirty times increase. China is India’s largest trading partner, as well as one of the largest sources of foreign direct investment for India.Footnote ¹⁰²

The second factor is the cost of conflicts, especially in the case of military confrontations. Both countries possess nuclear weapons, together with a strong standing army. The limited war in 1962 caused the death of thousands of soldiers, and a modern war today would definitely give rise to many more casualties. More importantly, both countries are now focusing their resources on economic development, for which they have to try their best to avoid violent conflicts. As The Economist commented about China and India:

The third factor is that both China and India have accepted, although with some reservations, the legitimate role of international law in their foreign relations. As China’s late distinguished international law scholar Wang Tieya observed; “It is now beyond doubt that the PRC has not only recognized the existence of international law, but also adopted and applied the principles and rules of international law in its conduct of foreign relations.”Footnote ¹⁰⁴ For India, it inherited, in principle, a respect for international law from its colonial master on its Independence in 1947. Article 51 of the Constitution of India, adopted in 1950, provides that: “The State shall endeavour to (a) promote international peace and security; (b) maintain just and honourable relations between nations, and (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another.”

Are the three aforesaid factors sufficient for managing the major sources of tension between the two Asian giants? It has to be admitted that, after the 1962 war, China and India have been trapped in relations of hostility and a protracted contest for status and influence in Asia. Many in these two nations view each other as a major geopolitical enemy, and the two have stepped on the verge of war on numerous occasions in the past decade, the most recent being the Doklam/Donglang standoff which almost evolved into a military conflict between Chinese and India soldiers.Footnote ¹⁰⁵ At the same time, it was reported that, economically, India was by far the largest beneficiary and top borrower of the China-led AIIB, as loans made to projects in India made up about twenty-eight percent of the bank’s total lending.Footnote ¹⁰⁶ This demonstrates that the relations between the two do not have to be conflictual, and both have benefited from co-operation.