Onuma Yasuaki’s 2017 treatise, International Law in a Transcivilizational World, is an essential critical contribution to the analysis of international law. Onuma’s main claim is that West-centrism or what he (in my view somewhat misleadingly; more on this later) calls Eurocentrism continues to be a fundamental structural problem in international law. In Onuma’s analysis, the concepts, institutions, and the very language of international law are historically biased in favour of Eurocentrism. International law must undergo peaceful change in order to reflect global shifts in economic and military power as well as demographic realities—but mostly just reflecting also the values, interests, and preferences of other, non-Western civilizations.
Quite symbolically, when I started to write this essay discussing Onuma’s book, the news came in that, for the first time since 1946, the UK will not have a judge in the International Court of Justics [ICJ]. The non-Western majority in the UN General Assembly [GA] favoured the Indian candidate to the UK one and was willing to confront the UN Security Council [SC] in this matter.Footnote
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This diplomatic occurrence captures quite well the Zeitgeist of Onuma’s treatise while his writing serves as prediction for developments of this kind yet to come.
Of course, the criticism of Western domination in the context of international law is in itself not new. Throughout the existence of the USSR, Soviet diplomats and scholars criticized the international law of the Western-dominated capitalist world.Footnote
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In the 1970s, Third World scholars raised the banner of New International Economic Order and criticized the global North and especially the former colonial powers in the context of international law and its West-centric norms and biases.Footnote
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Thus, Onuma is not the first international lawyer to call for the redistribution of power or for reimagining norms and institutions of international law in a less West-centric way. So what then is conceptually and theoretically noteworthy and novel about Onuma’s treatise, compared to these earlier approaches?
In my understanding, the most novel, important, and at the same time controversial aspect of Onuma’s academic work is his reintroduction of the notion of “civilization” in the analysis of international law. When European and American international lawyers talked about “civilized nations”, up until the 1920s (see Article 38 of the Statute of the Permanent Court of International Justice [PCIJ]), they essentially postulated that there was one civilization, the European/Western one, which they treated as (potentially) universal because they considered it superior to others.Footnote
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Other, non-European nations could in principle also become civilized by further Europeanizing/Westernizing. In such a way, classical international law was understood as one of the expressions of “the” (European/Western) civilization. At the same time, international law served as an instrument for European colonial powers to subjugate and dominate other parts of the world.Footnote
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However, after World War II, the concept of “civilization” became largely dormant in the context of international law. International law was proclaimed unconditionally universal when colonialism was ended. Correspondingly, the earlier Eurocentric notion of “civilized nations” became a matter of legal history, like an awkward aspect in a family’s otherwise noble story.Footnote
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The new mantra was that international law had become universal. Soviets challenged the Western capitalist concept of international law, but this was not based on civilizational rhetoric but on Marxist-Leninist political theory. Positivist international lawyers—Western and non-Western alike—continued to emphasize the centrality of sovereign states in international law. However, since the mainstream now understood international law as universal, it did not conceptually matter whether the concrete sovereign state was located in Europe, America, Asia, or Africa. International law was essentially still one and the same thing, whatever the specific region. With the breakthrough of the idea of the universality of international law came also the normative understanding that there was essentially just one human civilization, whatever cultural fractions and abusive histories there may have existed.
Western liberals in turn argued that philosophically all law, including international law, had to have human beings as its starting point and ultimate measure.Footnote
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In this cosmopolitan framework, different civilizations and cultures became potential obstacles to achieving universal human rights (criticism regarding claims of “cultural relativism”). Neither the universalized state sovereignty-centred nor the cosmopolitan human rights-centred approach to international law left much conceptual space for civilizations or cultural differences for that matter. What purpose would recognizing the diversity of civilizations have served in explaining what international law had become during the UN era? Wasn’t the whole point of the UN and post-colonialist universal international law overcoming earlier historical divisions?
Franz Kafka once wrote that a book must be an ice axe for the frozen sea within us, and perhaps this sentence should be applied to outstanding conceptual books about international law as well. Onuma’s main contribution is that he argues that “civilization” continues to be a key concept for understanding contemporary international law, and suggests that this will remain so in the future. However, it is nowadays already “civilizations” in the plural, not in the singular as in the past. Onuma demands recognition of the centrality of the fact that there is a plurality/diversity of civilizations in the contemporary world, all valuable and important also in the context of international law.
What makes Onuma’s analysis particularly interesting—but sometimes also a bit confusing—is his theoretical syncretism. When Onuma advocates the recognition of civilizational diversity in international law, he does not deny or reject existing conceptual frameworks regarding central building blocks in international law. For example, Onuma defines international law as the law of the “international community”Footnote
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—thus recognizing that such a community exists meaningfully, which some realists who see that anarchy prevails would doubt. Onuma has supportive words to say about both sovereign nation states (at least outside the West)Footnote
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and about individuals and their rights in international law,Footnote
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but also about various non-state actors.Footnote
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In the past, international lawyers-theorists have usually debated in “either/or” terms which of these actors are the central building blocks in international law, in the spirit that one cannot have it all at once. However, Onuma skilfully integrates main pre-existing philosophical-historical frameworks in international law—the ones empowering states, individuals, and non-state actors. At the same time, he brings in forcefully his own central idea, the framework of civilizational pluralism.
At the same time, it is a very important element in Onuma’s analysis that he does not want to be associated with crudely essentialist concepts of civilizations, especially the idea that, after the end of the Cold War, there is or inevitably will be a “clash of civilizations”.Footnote
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In this sense, Onuma’s functionalist understanding of civilizations is different from Samuel Huntington’s famous and politically controversial interpretation.Footnote
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For Onuma, different civilizations are constantly interacting and are, to an important extent, fluid. As individuals, we are all subject to different civilizational, cultural, historical, and religious influences; we are hybrid nowadays in the civilizational sense, or at least Onuma suggests that we are.Footnote
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Nevertheless, it remains Onuma’s core idea that international law must take the existing civilizational diversity seriously, more than it has done in its Eurocentric past and present. It is not enough to just say that we are all humans and let us simply celebrate our common humanity. Behind the universalistic rhetoric in contemporary international law, there are many structural particularities and biases, so let us critically bring them to light, Onuma suggests. In such a way, we are inevitably reminded of Carl Schmitt (paraphrasing Proudhon): whoever invokes humanity wants to cheat.Footnote
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Although Onuma does not use Schmitt’s sentence directly, he suggests that behind the repeated mantras of universality and common humanity in international law hides the rather particular European/Western political-cultural bias. This bias has simply declared the Eurocentric international law universal, while to become truly universal it should become more transcivilizational.
1. HISTORY OF INTERNATIONAL LAW: A CIVILIZATIONAL MATTER
One of the main strengths of Onuma as an international lawyer is his deep knowledge and understanding of the history of international law. For some time Onuma has advanced the argument that European international law was in reality just a powerful regional normative system, one of several. Before European colonialists arrived with their gunboats and unequal treaties, for example, East Asia had its own Sino-centric normative order and the Islamic world also had its own normative system called siyar.
To further complete the picture, I would add to Onuma’s historical-regional analysis that already during the interwar period Russian emigrant international lawyers Baron Michael Taube and Sir Paul Vinogradoff made essentially the same argument in the context of the history of international law in Eastern Europe and medieval Russia (principalities of Rus).Footnote
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These historians of international law maintained that during the Middle Ages Orthodox Eastern Europe—the lands inspired by Byzantium—had their own regional system of normative order that differed from Catholic (later also Protestant) Western Europe. If so, then the historical origins of international ordering are indeed regional and civilizational, and there have been, besides Western Europe, even more regions than East Asia and the Islamic world, both of which are the primary examples of Onuma.
According to Onuma, Europe may have been successful in terms of establishing and selling its own normative order—(European) international law—as the only game in town, but in reality other civilizations had their own historical equivalents in terms of regional normative orders. With a bit of a stretch, one could call them other regional types of international law, as Vinogradoff and Taube have already done.
The main criticism against Onuma’s—and in the same way, Taube’s and Vinogradoff’s—historical analysis is that, whatever regions and civilizations outside Western Europe had in terms of normative orders in earlier times, these systems were not as a rule called or discussed as “international law”. They were mostly religiously inspired customary systems including beliefs regarding how foreign affairs had to be conducted. But they were often not written down and were informal rather than formalized—what in the Russian language is aptly called “to live po poniatiam” (according to informal understandings of how things are done).
However, could it then still be regional international law if it wasn’t called or theorized as such? Or were these rather religious-normative regional ordering systems? These are difficult epistemological questions, and Onuma’s solution to functionally equate them with jus publicum europaeum is not the only defensible possibility. Moreover, there seem to be interesting substantive or qualitative differences about various regional orders. For example, in the early modern Europe of the Westphalian system the basic notion of state sovereignty enabled the development of the juridical concept of equality of sovereign states—a norm that is nowadays crystallized in Article 2 of the UN Charter and is still crucial, particularly for smaller and weaker states. However, East Asia, and in my understanding also medieval Muscovy, developed regional imperial visions which understood the world primarily in terms of a God-given hegemon and its vassals (China as Middle Kingdom; Orthodox Muscovy as a “third Rome” surrounded by apostates in Western Europe). Equal juridical relations were difficult in such regional systems. To the extent that other, non-(West) European regional systems of normative order emerged, they were based on different kinds of civilizational cosmology and were expressed much less in juridical language. The fact remains that they were not called “international law”, were less formalized, and also less theorized. Thus, the link with “law” is less obvious in these other regional/international ordering visions—although this of course also takes us back to the core question of what “law” is in the first place, and what are our cultural biases when defining it.
Furthermore, I have already mentioned at the beginning of this paper that, in today’s world at least, I consider Onuma’s criticism of “Eurocentrism” in international law to be somewhat misleading. I would favour the term “West-centrism” instead. European colonization of North and South America happened between the sixteenth and eighteenth centuries; Europeans settled in Australia primarily throughout the nineteenth century. The nations that emerged from this process of European settlement in many ways shared the normative ideas of the Europeans (and in a number of ways continue to do so). However, they no longer saw themselves as “Europeans” first and foremost, and for very understandable reasons. Quite often, the settlers understood themselves in terms of opposition to old Europe. In the late nineteenth to early twentieth centuries, Latin America developed its own regional norms or international law—even if by basic thinking and predominant language (Spanish) Latin Americans continued to live in a “European” tradition as well. However, the point on the Eurocentrism of international law is valid mostly as a historical matter, primarily up to World War I, and at the latest until World War II.
Europe inflicted upon itself major wounds in both World Wars—which in some respects can also be understood as a protracted European “civil” war that lasted for twenty years. After the end of World War II, Europe was divided geopolitically and was already militarily dominated by the US in the West and controlled by the USSR in the East. In the bipolar order of the Cold War, the two global power centres were Washington/New York and Moscow, the first outside Europe and the other at its Eastern periphery and having a complex love-hate relationship with the idea of Europe.Footnote
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If anything, international law since 1945 has been US-centric, not Eurocentric. In this sense, with the criticism of the “Eurocentrism” of international law the way Onuma uses this concept, Europe covers also for the US and the whole historical Western world (Canada, Australia, etc.). This may be to some extent fair, considering the history of international law, but as far as the description of today’s world is concerned, the concept is no longer accurate.
Moreover, Onuma’s idea of Europe in the history of international law seems to be extensively influenced by his encounters and studies of Western maritime powers/cultures—the US, the UK, and France.Footnote
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However, in Central and Eastern Europe, for example, the Austro-Hungarian Empire did not engage in similar colonialism overseas as the British and French Empires. Moreover, the colonialism of the continentally oriented Russian Empire was to some extent based on a different worldview than was the case with Western maritime empires often exercising looser forms of control.
Today too, it is sometimes erroneously assumed that Europe, to the extent that it matters in international law and geopolitics, is identical with Western Europe. This is a historical and geographic distortion of sorts and makes it impossible, for example, to understand quite different responses in contemporary migration and refugee crises within Europe.Footnote
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Apparently, even Soviet approaches to international law—and their persistent criticism of the West—were based not only on Marxism-Leninism but also on the fact that “Europe” has never been only the maritime capitalist West with its values and history but also (historically Orthodox) Eastern Europe which retained some of its own value system critical of the West.
My main point here is that, when we proceed from the civilizational history of international law and want to be deconstructive about the Eurocentric history of international law, we should abandon the simplifying notion of Europe as historical monolith. In fact, the Europe of the eighteenth and nineteenth centuries was a result of a merger of West European (Catholic and Protestant) and East European (Orthodox) civilizational forces. The language of international law was primarily a West European language, and Eastern Europe (in particular Russia) started to speak this language with its own accent. It means that integration within Western-created international law did not start at the end of the nineteenth century (in 1856 when the Ottoman Empire was integrated, or in 1895 when Japan was integrated) but was already under way in the early eighteenth century when the Russian Empire (former Muscovy) was integrated in jus publicum europaeum. To an extent this diversity has been preserved within the structures of international law—for example, the US and Russia may represent the historical “Eurocentrism” of international law in some ways, but in the UN Security Council they are often opposing each other.
Moreover, within jus publicum europaeum, there was a considerable amount of diversity, and especially smaller, weaker states had to struggle for their place under the sun (see e.g. the partitions of Poland in the late eighteenth century). The picture of who were the beneficiaries and who the victims of jus publicum europaeum is therefore not necessarily black and white. “Eurocentric” international law did not protect small European nations such as the Baltic States too well even as recently as 1940.
II. CIVILIZATIONAL APPROACH TODAY: A CHALLENGE TO THE (FALSE) UNIVERSALITY OF INTERNATIONAL LAW
However the history of international law may rest as it is, the main question today remains: Do we still need the civilizational approach to international law? Onuma uses civilizational diversity mostly as a tool for criticizing the over-representation of the West and under-representation of the rest of the world in the context of international law, in terms of its ideas, practices, and institutions. However, we can also take Onuma’s emphasis on the diversity of civilizations as implicit criticism of the predominant understanding in the field according to which culture and religion are somewhat irrelevant for international law since international law became universal and a common humanity was pledged as its ontological starting point.
Of course, even the emphasis on the universality of international law has still left space for cultural and regional differences—mostly by recognizing the existence of regional international law beside universal international law. At the same time, we have to keep in mind that regions in the context of international law are not only based on civilizational logic—see for example the current Australian debate on whether the country should by definition stick to its historical alliance with the US (the cultural-political West) or reorient itself to its biggest trading partner in the wider region of Asia-Pacific, China.
The predominant language of universal international law does not explain well why there has been a need for regional arrangements in international law, why regionalism is often more efficient than the global or UN level, and why, as a result, international law is in some ways different in different places. The language of one (universal) international law also indirectly favours the dichotomy of progress and backwardness—that there are advanced international legal solutions (like the European Court of Human Rights, for example) and less progressive ones (that there is no such court in Asia or a comparable protection of human rights even at the level of many nation states).
Onuma’s civilizational theory is thus, at least implicitly, a criticism of false universality in international law—when it is said to be universal but in reality isn’t, or when behind its proclaimed universality are particular (usually Western) interests and values. Onuma’s main normative claim is: leave space for civilizational diversity and do not suffocate it with Western ways of thinking and interests in international law, labelling it as universal. This can also be understood as (although somewhat hidden since not pronounced explicitly in such terms) an attack against the universality of international law, at least to the extent that the proclaimed universality is a false one in actual practice. Onuma does not explicitly frame his work as an attack against the universality of international law but de facto it is a fundamental criticism at least of the false universality of international law.
At the same time, Onuma’s suggested medicine, the civilizational theory of international law, has of course a number of major problems. The first is that no one knows for sure what “civilization” is and how many civilizations there would be currently. In this sense, the concept of civilization can be criticized as somewhat metaphysical and even unscientific. Are, for example, (sub-Saharan?) Africa or Russia “civilizations”? We do not know for sure; the matter is contested and quite divisive politically, also within the very non-Western regions and countries.
Onuma postulates that one can escape the potential divisiveness of the civilizational analysis by emphasizing the hybrid nature of today’s civilizations. However, we do not have control over how other people, for example politicians, understand and use age-old concepts that thinkers use. The history of the concept of civilizationsFootnote
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is such that, even though it does not automatically imply an inevitable and never ending “clash of civilizations” à la Huntington, it nevertheless implies the acknowledgement of fundamental cultural, religious, historical, etc. differences in the world. Historically, encounters between civilizations have not necessarily and always been nice and peaceful. While today cultural-civilizational diversity is still empirically true in many ways, highlighting it too much in the context of international law can also potentially become bad news for the idea of the universality of international law. A TV news consumer reacting, for example, to terrorist attacks may not take the nuanced, “civilized” and hybrid view of civilizations after all.
The idea of the universality of international law is a relatively young and as such also fragile idea. Experts have thought of international law as truly universal for only about the last seventy years or so. The civilizational/regionally fragmented history of international law and normative orders, so thoroughly depicted and analyzed by Onuma, is hundreds of years old. Regional-civilizational normative ordering is something that the idea of (West-centric) universal international law has only recently tried to suppress. If and when civilizational thinking makes a major comeback in international law, it is also possible that we’d go back to the primacy of regional-civilizational normative orders, at the cost of the universality of international law.
Thus, regarding the future, a very important choice will have to be made: Do we want (the ideal of) universal international law or rather regional international legal orders at least partly based on civilizational histories and thinking? With all the criticism of Western-dominated international law, regional international legal orders and their histories have their own problematic aspects that must also be discussed. China and possibly Russia may want to go back to unequal hegemon-vassal relationships in Southeast Asia and Eastern Europe, respectively—which will not be appealing for Georgia or Ukraine, Vietnam or Mongolia, for example. Treaties, state responsibility, even the understanding of fundamental principles of international law, especially human rights—all this might turn out quite fragmented regionally if we recognize that the international community is actually split up into regions at least partly based on civilizations. In the end, regional Great Powers may want to acknowledge only their own versions of international law—usually versions that do not bind their country too strongly in strategically difficult matters.
If and when universal international law will retreat, the biggest backlash will happen in the context of human rights. China is currently not even a member of the Covenant on Civil and Political Rights [CCPR], but the rise of civilizational thinking will enable it to work out a fully articulated national/regional approach to (international) human rights law. Russia has used civilizational arguments and has made attempts to promote traditional values in the UN Human Rights Council, perhaps in order to balance out its defeats in the European Court of Human Rights, which some of its elites—for example, the Russian Orthodox Church—criticize as too “Western” and individualistic in its ideology. Civilizational approaches will inevitably defend their claim that they have the right to be different in the context of human rights law, and in this sense will potentially undermine the universality of human rights law, so much cherished in particular by the West.
Abandoning the idea of the universality of international law and claiming one’s own “civilizational autonomy” within international law would entail advantages not only for the world outside the West. If countries outside the West start to claim civilizational autonomy and the right to diversity, so can countries in Europe and in the West. For example, it would make it easier for those increasingly powerful forces within the West who are suggesting abandoning refugee law as a universal human rights law (the 1967 Protocol relating to the Status of Refugees). They would suggest reallocating the primary obligation to deal with refugees to civilizational centres instead of the international community, including the West. Instead of the global North, every civilization/region would primarily have to take care of refugees and migrants generated within it—which some would say is already partly a reality on the ground.
While Onuma’s main focus is on East Asia, perhaps the most disadvantaged players in the global system are still the Islamic states if taken as a whole (as civilization). No Islamic state is a permanent member of the UN Security Council. Thus, if and when civilization becomes a major factor in political debates about international law, not only East Asian but also Islamic grievances about unequal representation and the production of ideas must be addressed. Many—at least in the West—will continue to see this line of argumentation as opening up Pandora’s box.
Thus, the civilizational approach to international law addresses a number of existing concerns about the legitimacy of international law—but also creates a few major new ones. Of course, Onuma’s main counter-argument would be that while a civilizational perspective as such is useful and necessary in international law, one always needs to avoid too essentialist interpretations, and this is an integral part of his theory. However, the world has always been prone to simplifications and easy generalizations, and this aspect remains the main concern with respect to civilizational approaches to contemporary international law.
III. CONCLUSION
In the nineteenth century, Europe advocated the international law of civilized states. International law in the twentieth century was proclaimed universal but, to the extent that Western states remained in charge, the universality of international law meant for many in the West first of all that non-Western states were bound by Western standards in international law. Thus, Onuma’s main criticism is that the proclaimed universality of international law has so far often been a false, superficial universality. This is a fundamental criticism that I wish international law experts and practitioners in the West would take much more seriously than they have so far. They could start by taking big non-Western languages seriously in the study of international law and the social world that it governs. For example, international lawyers should try to gain a knowledge of either Chinese, Arabic, or Russian as well, and not just assume that all the nuances of this world have already been expressed in English and French.
The universality of international law will inevitably have to be a compromise of sorts—it will not be legitimate if some actors only win and others only or mainly lose. International law is nowadays a universal language, and luckily no recognized actor is any more prevented from speaking up and expressing its interests in this normative language. One of the normative consequences of Onuma’s theory is that we do not necessarily have to be afraid of the regional fragmentation and differences in international law. To the contrary, it is healthy and honest to recognize that such differences exist.
Of course, there will be a point when the regional fragmentation of international law conceived as civilizational solidarity will endanger the universality of international law as such. Onuma is an optimist here in that he seems to believe that it is very much possible to combine universal and civilizational perspectives. The success of this scenario will depend on whether people will follow his functionalist, rather than essentialist/conflict-prone understanding of civilizations.
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Onuma Yasuaki’s 2017 treatise, International Law in a Transcivilizational World, is an essential critical contribution to the analysis of international law. Onuma’s main claim is that West-centrism or what he (in my view somewhat misleadingly; more on this later) calls Eurocentrism continues to be a fundamental structural problem in international law. In Onuma’s analysis, the concepts, institutions, and the very language of international law are historically biased in favour of Eurocentrism. International law must undergo peaceful change in order to reflect global shifts in economic and military power as well as demographic realities—but mostly just reflecting also the values, interests, and preferences of other, non-Western civilizations.
Quite symbolically, when I started to write this essay discussing Onuma’s book, the news came in that, for the first time since 1946, the UK will not have a judge in the International Court of Justics [ICJ]. The non-Western majority in the UN General Assembly [GA] favoured the Indian candidate to the UK one and was willing to confront the UN Security Council [SC] in this matter.Footnote 1 This diplomatic occurrence captures quite well the Zeitgeist of Onuma’s treatise while his writing serves as prediction for developments of this kind yet to come.
Of course, the criticism of Western domination in the context of international law is in itself not new. Throughout the existence of the USSR, Soviet diplomats and scholars criticized the international law of the Western-dominated capitalist world.Footnote 2 In the 1970s, Third World scholars raised the banner of New International Economic Order and criticized the global North and especially the former colonial powers in the context of international law and its West-centric norms and biases.Footnote 3 Thus, Onuma is not the first international lawyer to call for the redistribution of power or for reimagining norms and institutions of international law in a less West-centric way. So what then is conceptually and theoretically noteworthy and novel about Onuma’s treatise, compared to these earlier approaches?
In my understanding, the most novel, important, and at the same time controversial aspect of Onuma’s academic work is his reintroduction of the notion of “civilization” in the analysis of international law. When European and American international lawyers talked about “civilized nations”, up until the 1920s (see Article 38 of the Statute of the Permanent Court of International Justice [PCIJ]), they essentially postulated that there was one civilization, the European/Western one, which they treated as (potentially) universal because they considered it superior to others.Footnote 4 Other, non-European nations could in principle also become civilized by further Europeanizing/Westernizing. In such a way, classical international law was understood as one of the expressions of “the” (European/Western) civilization. At the same time, international law served as an instrument for European colonial powers to subjugate and dominate other parts of the world.Footnote 5
However, after World War II, the concept of “civilization” became largely dormant in the context of international law. International law was proclaimed unconditionally universal when colonialism was ended. Correspondingly, the earlier Eurocentric notion of “civilized nations” became a matter of legal history, like an awkward aspect in a family’s otherwise noble story.Footnote 6 The new mantra was that international law had become universal. Soviets challenged the Western capitalist concept of international law, but this was not based on civilizational rhetoric but on Marxist-Leninist political theory. Positivist international lawyers—Western and non-Western alike—continued to emphasize the centrality of sovereign states in international law. However, since the mainstream now understood international law as universal, it did not conceptually matter whether the concrete sovereign state was located in Europe, America, Asia, or Africa. International law was essentially still one and the same thing, whatever the specific region. With the breakthrough of the idea of the universality of international law came also the normative understanding that there was essentially just one human civilization, whatever cultural fractions and abusive histories there may have existed.
Western liberals in turn argued that philosophically all law, including international law, had to have human beings as its starting point and ultimate measure.Footnote 7 In this cosmopolitan framework, different civilizations and cultures became potential obstacles to achieving universal human rights (criticism regarding claims of “cultural relativism”). Neither the universalized state sovereignty-centred nor the cosmopolitan human rights-centred approach to international law left much conceptual space for civilizations or cultural differences for that matter. What purpose would recognizing the diversity of civilizations have served in explaining what international law had become during the UN era? Wasn’t the whole point of the UN and post-colonialist universal international law overcoming earlier historical divisions?
Franz Kafka once wrote that a book must be an ice axe for the frozen sea within us, and perhaps this sentence should be applied to outstanding conceptual books about international law as well. Onuma’s main contribution is that he argues that “civilization” continues to be a key concept for understanding contemporary international law, and suggests that this will remain so in the future. However, it is nowadays already “civilizations” in the plural, not in the singular as in the past. Onuma demands recognition of the centrality of the fact that there is a plurality/diversity of civilizations in the contemporary world, all valuable and important also in the context of international law.
What makes Onuma’s analysis particularly interesting—but sometimes also a bit confusing—is his theoretical syncretism. When Onuma advocates the recognition of civilizational diversity in international law, he does not deny or reject existing conceptual frameworks regarding central building blocks in international law. For example, Onuma defines international law as the law of the “international community”Footnote 8 —thus recognizing that such a community exists meaningfully, which some realists who see that anarchy prevails would doubt. Onuma has supportive words to say about both sovereign nation states (at least outside the West)Footnote 9 and about individuals and their rights in international law,Footnote 10 but also about various non-state actors.Footnote 11 In the past, international lawyers-theorists have usually debated in “either/or” terms which of these actors are the central building blocks in international law, in the spirit that one cannot have it all at once. However, Onuma skilfully integrates main pre-existing philosophical-historical frameworks in international law—the ones empowering states, individuals, and non-state actors. At the same time, he brings in forcefully his own central idea, the framework of civilizational pluralism.
At the same time, it is a very important element in Onuma’s analysis that he does not want to be associated with crudely essentialist concepts of civilizations, especially the idea that, after the end of the Cold War, there is or inevitably will be a “clash of civilizations”.Footnote 12 In this sense, Onuma’s functionalist understanding of civilizations is different from Samuel Huntington’s famous and politically controversial interpretation.Footnote 13 For Onuma, different civilizations are constantly interacting and are, to an important extent, fluid. As individuals, we are all subject to different civilizational, cultural, historical, and religious influences; we are hybrid nowadays in the civilizational sense, or at least Onuma suggests that we are.Footnote 14
Nevertheless, it remains Onuma’s core idea that international law must take the existing civilizational diversity seriously, more than it has done in its Eurocentric past and present. It is not enough to just say that we are all humans and let us simply celebrate our common humanity. Behind the universalistic rhetoric in contemporary international law, there are many structural particularities and biases, so let us critically bring them to light, Onuma suggests. In such a way, we are inevitably reminded of Carl Schmitt (paraphrasing Proudhon): whoever invokes humanity wants to cheat.Footnote 15 Although Onuma does not use Schmitt’s sentence directly, he suggests that behind the repeated mantras of universality and common humanity in international law hides the rather particular European/Western political-cultural bias. This bias has simply declared the Eurocentric international law universal, while to become truly universal it should become more transcivilizational.
1. HISTORY OF INTERNATIONAL LAW: A CIVILIZATIONAL MATTER
One of the main strengths of Onuma as an international lawyer is his deep knowledge and understanding of the history of international law. For some time Onuma has advanced the argument that European international law was in reality just a powerful regional normative system, one of several. Before European colonialists arrived with their gunboats and unequal treaties, for example, East Asia had its own Sino-centric normative order and the Islamic world also had its own normative system called siyar.
To further complete the picture, I would add to Onuma’s historical-regional analysis that already during the interwar period Russian emigrant international lawyers Baron Michael Taube and Sir Paul Vinogradoff made essentially the same argument in the context of the history of international law in Eastern Europe and medieval Russia (principalities of Rus).Footnote 16 These historians of international law maintained that during the Middle Ages Orthodox Eastern Europe—the lands inspired by Byzantium—had their own regional system of normative order that differed from Catholic (later also Protestant) Western Europe. If so, then the historical origins of international ordering are indeed regional and civilizational, and there have been, besides Western Europe, even more regions than East Asia and the Islamic world, both of which are the primary examples of Onuma.
According to Onuma, Europe may have been successful in terms of establishing and selling its own normative order—(European) international law—as the only game in town, but in reality other civilizations had their own historical equivalents in terms of regional normative orders. With a bit of a stretch, one could call them other regional types of international law, as Vinogradoff and Taube have already done.
The main criticism against Onuma’s—and in the same way, Taube’s and Vinogradoff’s—historical analysis is that, whatever regions and civilizations outside Western Europe had in terms of normative orders in earlier times, these systems were not as a rule called or discussed as “international law”. They were mostly religiously inspired customary systems including beliefs regarding how foreign affairs had to be conducted. But they were often not written down and were informal rather than formalized—what in the Russian language is aptly called “to live po poniatiam” (according to informal understandings of how things are done).
However, could it then still be regional international law if it wasn’t called or theorized as such? Or were these rather religious-normative regional ordering systems? These are difficult epistemological questions, and Onuma’s solution to functionally equate them with jus publicum europaeum is not the only defensible possibility. Moreover, there seem to be interesting substantive or qualitative differences about various regional orders. For example, in the early modern Europe of the Westphalian system the basic notion of state sovereignty enabled the development of the juridical concept of equality of sovereign states—a norm that is nowadays crystallized in Article 2 of the UN Charter and is still crucial, particularly for smaller and weaker states. However, East Asia, and in my understanding also medieval Muscovy, developed regional imperial visions which understood the world primarily in terms of a God-given hegemon and its vassals (China as Middle Kingdom; Orthodox Muscovy as a “third Rome” surrounded by apostates in Western Europe). Equal juridical relations were difficult in such regional systems. To the extent that other, non-(West) European regional systems of normative order emerged, they were based on different kinds of civilizational cosmology and were expressed much less in juridical language. The fact remains that they were not called “international law”, were less formalized, and also less theorized. Thus, the link with “law” is less obvious in these other regional/international ordering visions—although this of course also takes us back to the core question of what “law” is in the first place, and what are our cultural biases when defining it.
Furthermore, I have already mentioned at the beginning of this paper that, in today’s world at least, I consider Onuma’s criticism of “Eurocentrism” in international law to be somewhat misleading. I would favour the term “West-centrism” instead. European colonization of North and South America happened between the sixteenth and eighteenth centuries; Europeans settled in Australia primarily throughout the nineteenth century. The nations that emerged from this process of European settlement in many ways shared the normative ideas of the Europeans (and in a number of ways continue to do so). However, they no longer saw themselves as “Europeans” first and foremost, and for very understandable reasons. Quite often, the settlers understood themselves in terms of opposition to old Europe. In the late nineteenth to early twentieth centuries, Latin America developed its own regional norms or international law—even if by basic thinking and predominant language (Spanish) Latin Americans continued to live in a “European” tradition as well. However, the point on the Eurocentrism of international law is valid mostly as a historical matter, primarily up to World War I, and at the latest until World War II.
Europe inflicted upon itself major wounds in both World Wars—which in some respects can also be understood as a protracted European “civil” war that lasted for twenty years. After the end of World War II, Europe was divided geopolitically and was already militarily dominated by the US in the West and controlled by the USSR in the East. In the bipolar order of the Cold War, the two global power centres were Washington/New York and Moscow, the first outside Europe and the other at its Eastern periphery and having a complex love-hate relationship with the idea of Europe.Footnote 17 If anything, international law since 1945 has been US-centric, not Eurocentric. In this sense, with the criticism of the “Eurocentrism” of international law the way Onuma uses this concept, Europe covers also for the US and the whole historical Western world (Canada, Australia, etc.). This may be to some extent fair, considering the history of international law, but as far as the description of today’s world is concerned, the concept is no longer accurate.
Moreover, Onuma’s idea of Europe in the history of international law seems to be extensively influenced by his encounters and studies of Western maritime powers/cultures—the US, the UK, and France.Footnote 18 However, in Central and Eastern Europe, for example, the Austro-Hungarian Empire did not engage in similar colonialism overseas as the British and French Empires. Moreover, the colonialism of the continentally oriented Russian Empire was to some extent based on a different worldview than was the case with Western maritime empires often exercising looser forms of control.
Today too, it is sometimes erroneously assumed that Europe, to the extent that it matters in international law and geopolitics, is identical with Western Europe. This is a historical and geographic distortion of sorts and makes it impossible, for example, to understand quite different responses in contemporary migration and refugee crises within Europe.Footnote 19 Apparently, even Soviet approaches to international law—and their persistent criticism of the West—were based not only on Marxism-Leninism but also on the fact that “Europe” has never been only the maritime capitalist West with its values and history but also (historically Orthodox) Eastern Europe which retained some of its own value system critical of the West.
My main point here is that, when we proceed from the civilizational history of international law and want to be deconstructive about the Eurocentric history of international law, we should abandon the simplifying notion of Europe as historical monolith. In fact, the Europe of the eighteenth and nineteenth centuries was a result of a merger of West European (Catholic and Protestant) and East European (Orthodox) civilizational forces. The language of international law was primarily a West European language, and Eastern Europe (in particular Russia) started to speak this language with its own accent. It means that integration within Western-created international law did not start at the end of the nineteenth century (in 1856 when the Ottoman Empire was integrated, or in 1895 when Japan was integrated) but was already under way in the early eighteenth century when the Russian Empire (former Muscovy) was integrated in jus publicum europaeum. To an extent this diversity has been preserved within the structures of international law—for example, the US and Russia may represent the historical “Eurocentrism” of international law in some ways, but in the UN Security Council they are often opposing each other.
Moreover, within jus publicum europaeum, there was a considerable amount of diversity, and especially smaller, weaker states had to struggle for their place under the sun (see e.g. the partitions of Poland in the late eighteenth century). The picture of who were the beneficiaries and who the victims of jus publicum europaeum is therefore not necessarily black and white. “Eurocentric” international law did not protect small European nations such as the Baltic States too well even as recently as 1940.
II. CIVILIZATIONAL APPROACH TODAY: A CHALLENGE TO THE (FALSE) UNIVERSALITY OF INTERNATIONAL LAW
However the history of international law may rest as it is, the main question today remains: Do we still need the civilizational approach to international law? Onuma uses civilizational diversity mostly as a tool for criticizing the over-representation of the West and under-representation of the rest of the world in the context of international law, in terms of its ideas, practices, and institutions. However, we can also take Onuma’s emphasis on the diversity of civilizations as implicit criticism of the predominant understanding in the field according to which culture and religion are somewhat irrelevant for international law since international law became universal and a common humanity was pledged as its ontological starting point.
Of course, even the emphasis on the universality of international law has still left space for cultural and regional differences—mostly by recognizing the existence of regional international law beside universal international law. At the same time, we have to keep in mind that regions in the context of international law are not only based on civilizational logic—see for example the current Australian debate on whether the country should by definition stick to its historical alliance with the US (the cultural-political West) or reorient itself to its biggest trading partner in the wider region of Asia-Pacific, China.
The predominant language of universal international law does not explain well why there has been a need for regional arrangements in international law, why regionalism is often more efficient than the global or UN level, and why, as a result, international law is in some ways different in different places. The language of one (universal) international law also indirectly favours the dichotomy of progress and backwardness—that there are advanced international legal solutions (like the European Court of Human Rights, for example) and less progressive ones (that there is no such court in Asia or a comparable protection of human rights even at the level of many nation states).
Onuma’s civilizational theory is thus, at least implicitly, a criticism of false universality in international law—when it is said to be universal but in reality isn’t, or when behind its proclaimed universality are particular (usually Western) interests and values. Onuma’s main normative claim is: leave space for civilizational diversity and do not suffocate it with Western ways of thinking and interests in international law, labelling it as universal. This can also be understood as (although somewhat hidden since not pronounced explicitly in such terms) an attack against the universality of international law, at least to the extent that the proclaimed universality is a false one in actual practice. Onuma does not explicitly frame his work as an attack against the universality of international law but de facto it is a fundamental criticism at least of the false universality of international law.
At the same time, Onuma’s suggested medicine, the civilizational theory of international law, has of course a number of major problems. The first is that no one knows for sure what “civilization” is and how many civilizations there would be currently. In this sense, the concept of civilization can be criticized as somewhat metaphysical and even unscientific. Are, for example, (sub-Saharan?) Africa or Russia “civilizations”? We do not know for sure; the matter is contested and quite divisive politically, also within the very non-Western regions and countries.
Onuma postulates that one can escape the potential divisiveness of the civilizational analysis by emphasizing the hybrid nature of today’s civilizations. However, we do not have control over how other people, for example politicians, understand and use age-old concepts that thinkers use. The history of the concept of civilizationsFootnote 20 is such that, even though it does not automatically imply an inevitable and never ending “clash of civilizations” à la Huntington, it nevertheless implies the acknowledgement of fundamental cultural, religious, historical, etc. differences in the world. Historically, encounters between civilizations have not necessarily and always been nice and peaceful. While today cultural-civilizational diversity is still empirically true in many ways, highlighting it too much in the context of international law can also potentially become bad news for the idea of the universality of international law. A TV news consumer reacting, for example, to terrorist attacks may not take the nuanced, “civilized” and hybrid view of civilizations after all.
The idea of the universality of international law is a relatively young and as such also fragile idea. Experts have thought of international law as truly universal for only about the last seventy years or so. The civilizational/regionally fragmented history of international law and normative orders, so thoroughly depicted and analyzed by Onuma, is hundreds of years old. Regional-civilizational normative ordering is something that the idea of (West-centric) universal international law has only recently tried to suppress. If and when civilizational thinking makes a major comeback in international law, it is also possible that we’d go back to the primacy of regional-civilizational normative orders, at the cost of the universality of international law.
Thus, regarding the future, a very important choice will have to be made: Do we want (the ideal of) universal international law or rather regional international legal orders at least partly based on civilizational histories and thinking? With all the criticism of Western-dominated international law, regional international legal orders and their histories have their own problematic aspects that must also be discussed. China and possibly Russia may want to go back to unequal hegemon-vassal relationships in Southeast Asia and Eastern Europe, respectively—which will not be appealing for Georgia or Ukraine, Vietnam or Mongolia, for example. Treaties, state responsibility, even the understanding of fundamental principles of international law, especially human rights—all this might turn out quite fragmented regionally if we recognize that the international community is actually split up into regions at least partly based on civilizations. In the end, regional Great Powers may want to acknowledge only their own versions of international law—usually versions that do not bind their country too strongly in strategically difficult matters.
If and when universal international law will retreat, the biggest backlash will happen in the context of human rights. China is currently not even a member of the Covenant on Civil and Political Rights [CCPR], but the rise of civilizational thinking will enable it to work out a fully articulated national/regional approach to (international) human rights law. Russia has used civilizational arguments and has made attempts to promote traditional values in the UN Human Rights Council, perhaps in order to balance out its defeats in the European Court of Human Rights, which some of its elites—for example, the Russian Orthodox Church—criticize as too “Western” and individualistic in its ideology. Civilizational approaches will inevitably defend their claim that they have the right to be different in the context of human rights law, and in this sense will potentially undermine the universality of human rights law, so much cherished in particular by the West.
Abandoning the idea of the universality of international law and claiming one’s own “civilizational autonomy” within international law would entail advantages not only for the world outside the West. If countries outside the West start to claim civilizational autonomy and the right to diversity, so can countries in Europe and in the West. For example, it would make it easier for those increasingly powerful forces within the West who are suggesting abandoning refugee law as a universal human rights law (the 1967 Protocol relating to the Status of Refugees). They would suggest reallocating the primary obligation to deal with refugees to civilizational centres instead of the international community, including the West. Instead of the global North, every civilization/region would primarily have to take care of refugees and migrants generated within it—which some would say is already partly a reality on the ground.
While Onuma’s main focus is on East Asia, perhaps the most disadvantaged players in the global system are still the Islamic states if taken as a whole (as civilization). No Islamic state is a permanent member of the UN Security Council. Thus, if and when civilization becomes a major factor in political debates about international law, not only East Asian but also Islamic grievances about unequal representation and the production of ideas must be addressed. Many—at least in the West—will continue to see this line of argumentation as opening up Pandora’s box.
Thus, the civilizational approach to international law addresses a number of existing concerns about the legitimacy of international law—but also creates a few major new ones. Of course, Onuma’s main counter-argument would be that while a civilizational perspective as such is useful and necessary in international law, one always needs to avoid too essentialist interpretations, and this is an integral part of his theory. However, the world has always been prone to simplifications and easy generalizations, and this aspect remains the main concern with respect to civilizational approaches to contemporary international law.
III. CONCLUSION
In the nineteenth century, Europe advocated the international law of civilized states. International law in the twentieth century was proclaimed universal but, to the extent that Western states remained in charge, the universality of international law meant for many in the West first of all that non-Western states were bound by Western standards in international law. Thus, Onuma’s main criticism is that the proclaimed universality of international law has so far often been a false, superficial universality. This is a fundamental criticism that I wish international law experts and practitioners in the West would take much more seriously than they have so far. They could start by taking big non-Western languages seriously in the study of international law and the social world that it governs. For example, international lawyers should try to gain a knowledge of either Chinese, Arabic, or Russian as well, and not just assume that all the nuances of this world have already been expressed in English and French.
The universality of international law will inevitably have to be a compromise of sorts—it will not be legitimate if some actors only win and others only or mainly lose. International law is nowadays a universal language, and luckily no recognized actor is any more prevented from speaking up and expressing its interests in this normative language. One of the normative consequences of Onuma’s theory is that we do not necessarily have to be afraid of the regional fragmentation and differences in international law. To the contrary, it is healthy and honest to recognize that such differences exist.
Of course, there will be a point when the regional fragmentation of international law conceived as civilizational solidarity will endanger the universality of international law as such. Onuma is an optimist here in that he seems to believe that it is very much possible to combine universal and civilizational perspectives. The success of this scenario will depend on whether people will follow his functionalist, rather than essentialist/conflict-prone understanding of civilizations.