‘‘westphalian’’ meets ‘‘eastphalian’’ sovereignty: china in a ......2011/03/02 ·...

Asian Journal of International Law, 3 (2013), pp. 237–269

doi:10.1017/S2044251313000179

r Asian Journal of International Law, 2013

First published online 7 June 2013

‘‘Westphalian’’ Meets ‘‘Eastphalian’’Sovereignty: China in a Globalized World

Andrew COLEMAN*Monash University, [email protected]

Jackson Nyamuya MAOGOTO**University of Manchester, United [email protected]

AbstractIt is the purpose of this paper to examine what challenges globalization poses to China,and ‘‘Eastphalian’’ sovereignty. Some commentators have suggested that globalization’sadvance will transform the globe into something more closely resembling the West.Accordingly, it could be said that it is inevitable that globalization’s influences will bringWestern perceptions of liberalism and democracy to China. The paper will briefly sketchthe broad outlines of sovereignty and globalization to enable working definitions of‘‘Westphalian’’ and ‘‘Eastphalian’’ sovereignty. The authors then discuss and assess theengagement of European powers with China as a means of contextualizing Eastphaliansovereignty’s essence as ideology and worldview. This discussion sets the background forthe following analysis of China’s and Eastphalian sovereignty’s reaction to the notion ofa global community.

Much has been written about globalization and its effect upon the international

community.1 In particular, many predictions have been made about its challenge to

the sovereignty of states and their ability to remain autonomous.2 In a previous paper

almost a decade ago, the authors examined the impact of globalization on states and

whether globalization posed an insurmountable challenge to states and the exercise

of their political authority—sovereignty,3 eroding the state’s ‘‘internal sovereignty’’

* Senior Lecturer, Department of Business Law and Taxation, Monash University.

** Senior Lecturer, School of Law, University of Manchester.

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

2. MEN Honghua, ‘‘East Asian Order Formation and Sino-Japanese Relations’’ (2010) 15 Indiana Journalof Global Legal Studies 47 at 5526.

3. Andrew COLEMAN and Jackson MAOGOTO, ‘‘After the Party, is there a Cure for the Hangover? TheChallenges of the Global Economy to Westphalian Sovereignty’’ (2003) 30 Legal Issues of EconomicIntegration 35.

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due to the emergence of global governance standards and regulatory regimes all of

which are governed by a network of multilateral institutions.4

That paper focused primarily on Western states and Westphalian sovereignty.

It is the purpose of this paper to examine what challenges globalization poses to

Asian states, primarily China, and ‘‘Eastphalian’’ sovereignty.5 Some commentators

have suggested that globalization’s advance is akin to an unstoppable juggernaut,

bringing increased Westernization6 and strengthening the rule of law.7 Accordingly,

it could be said that it is inevitable that globalization’s influences will eventually

overwhelm China, despite its attempts to protect itself 8 and its defiance to any

perceived interference in its internal affairs.9 However, China’s ‘‘peaceful rise’’, and

the power shift to Asia generally, have prompted commentators to question such an

assumption.

Part I of the paper will briefly revisit sovereignty and globalization. It will sketch the

broad outlines of the concepts and then adopt working definitions. Part II engages with

the development of sovereignty. Of particular focus is the epochal historical phases

that shaped ‘‘Westphalian’’ sovereignty and the engagement of European powers with

China. Part III continues the theme of ‘‘Eastphalian’’ sovereignty, assessing its essence

as ideology and worldview. In Part IV we will examine the role of international law, in

particular how Eastphalian sovereignty reacts to the notion of a global community that

is subject to ‘‘the rule of law’’ and its concomitant meta-narrative democratization.

This section seeks to bring together the different strands of the article in a general

reflection on the role and perception of China. It seeks to be a modest overview in the

light of the complexity of the article’s themes.

4. K. JAYASURIYA, ‘‘Globalization, Law and the Transformation of Sovereignty: The Emergence of GlobalRegulatory Governance’’ (1999) 6 Indiana Journal of Global Legal Studies 425 at 44829.

5. The term ‘‘Eastphalian’’ sovereignty has been used by scholars to describe China’s view as a politicalauthority, in the same manner as ‘‘Westphalian’’ has been used to describe Western Europe’ssovereignty. See KIM Sung Won, David FIDLER, and Sumit GANGULY, ‘‘Eastphalia Rising? AsianInfluence and the Fate of Human Security’’ (2009) 26 World Policy Journal 53; David FIDLER andSumit GANGULY, ‘‘India and Eastphalia’’ (2010) 17 Indiana Journal of Global Legal Studies 147;Tom GINSBURG, ‘‘Eastphalia as the Perfection of Westphalia’’ (2010) 17 Indiana Journal of GlobalLegal Studies 27; LO Chang Fa, ‘‘Values to be Added to an ‘Eastphalian Order’ by the Emerging China’’(2010) 17 Indiana Journal of Global Legal Studies 13; David FIDLER, ‘‘Introduction: EastphaliaEmerging? Asia, International Law, and Global Governance’’ (2010) 17 Indiana Journal of Global LegalStudies 1.

6. ‘‘Like the challenge of modernization a century ago, the globalization challenge has been transformingsocieties in the developing world into something more closely resembling those of the West.’’ PrasertCHITTIWATANAPONG, ‘‘Challenges of and Responses to Globalization: the Case of South-East Asia’’in Yoshinobu YAMAMOTO, ed., Globalism, Regionalism and Nationalism: Asia in Search of its Role inthe Twenty-First Century (Oxford: Blackwell Pubishers, 1999) at 70293.

7. Larry DIAMOND, ‘‘Foreword’’ in ZHAO Suisheng, ed., China and Democracy: Reconsidering theProspects for a Democratic China (New York: Routledge, 2000) at xii.

8. For example through its ‘‘Great Firewall’’ erected in 2003. Vince BEISER, ‘‘Digital Weapons HelpDissidents Punch Holes in China’s Great Firewall’’ Wired (November 2010), online: ,http://www.wired.com/magazine/2010/11/ff_firewallfighters/.; Stefan HALPER, The Beijing Consensus(New York: Basic Books, 2010) at 13214; and David M. LAMPTON, ‘‘What if China Fails? We’dBetter Hope It Doesn’t!’’ (2010) The Wilson Quarterly at 65.

9. This was seen in the recent award of the Nobel Peace Prize to Liu Xiaobo, a Chinese dissident anddemocracy advocate who was unable to receive his award due to his continued imprisonment in China.See T.P., ‘‘Explain in Vain’’, The Economist (10 December 2010), online: ,http://www.economist.com/blogs/banyan/2010/12/china_and_nobel_ceremony..

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i. sovereignty and globalization: a working scribble

A. Globalization

The concept of globalization is difficult to describe, partly because the term is loosely

used and is applied to many different processes.10 In its simplest and most popular form,

use of the terminology involves global restructuring characterized by ‘‘widespread

economic liberalization and tremendous surges in international trade and investment’’.11

However, it would be simplistic to consider it as a purely economic phenomenon.

It is a process that, in its march forward, integrates economics, politics, culture,

and ideology.12 Thus, globalization involves a ‘‘coalescence of varied transnational

processes and domestic structures, allowing the economy, politics, culture, and

ideology of one country to penetrate another’’.13 In short: ‘‘Globalization is a

complex process of societal transformation.’’14 It refers ‘‘both to the compression of

the world and the intensification of consciousness of the world as a whole’’.15

Globalization brings with it systems of governance and regulation that sit above

states. This emerging polycentric legal order is concerned with implementing standards

and regulatory principles that suggest global or universal governance.16 There is another

perception that globalization universalizes cultures and polities along the lines of

Western liberalism.17 This thesis is based on the modernization argument—that there is

a strong correlation between development, increased wealth, and increased political

liberalization; that democracy is more functional than authoritarianism in a modern

industrialized state.18 Globalization creates a ‘‘porous’’ world where barriers are

dissolving and which opens the possibility of some kind of global consciousness, a

uniform global culture based upon advanced capitalism. Accordingly, globalization is

irreconcilable with socialism or the Marxist-Leninist tradition and the underlying tenets

of the Chinese government’s revolutionary ideals.19

10. See Peter STALKER, Without Frontiers: the Impact of Globalization on International Migration(Boulder, CO: Lynne Rienner Publishers, 2000) at 2; Chittiwatanapong, supra note 6 at 71.

11. Jeffrey L. DUNOFF, ‘‘Does Globalization Advance Human Rights?’’ (1999) 25 Brooklyn Journal ofInternational Law 125 at 136. Most commentators define globalization in economic terms. See e.g.Richard N. ROSECRANCE, Etal SOLINGEN, and Arthur A. STEIN, ‘‘Globalization and its Effects:Introduction and Overview’’ in Richard N. ROSECRANCE and Arthur STEIN, eds., No More States?Globalization, National Self-Determination, and Terrorism (Lanham, MD: Rowman & LittlefieldPublishers, 2006) at 8 (Stating: ‘‘In our definition, globalization is the growing mobility of factors ofproduction—capital, labour, information, and goods—between countries’’).

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

13. Ibid.

14. Chittiwatanapong, supra note 6 at 71.

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

16. Coleman and Maogoto, supra note 3 at 45.

17. Halper, supra note 8 at 43, 134.

18. Francis FUKUYAMA, ‘‘Confucianism and Democracy’’ (1995) 6 Journal of Democracy 20 at 2122;Talcott PARSONS, ‘‘Evolutionary Universals in Society’’ (1964) 29 American Sociological Review 339

at 339257; Larry DIAMOND, ‘‘Economic Development and Democracy Reconsidered’’ (1992)15 American Behavioural Scientists 450.

19. ‘‘Globalization has developed out of the inherent need and imperative need of capitalist enterprises toexpand.’’ Nick KNIGHT, Imagining Globalization in China: Debates on Ideology, Politics and Culture(Cheltenham: Edward Elgar Publishing, 2008) at 16.

‘‘ w e s t p h a l i a n ’’ m e e t s ‘‘ e as t p h a l i a n ’’ s ov e r e i g n t y 239



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There are several preliminary points to consider when discussing the potential

effect of globalization. First, whilst much debate took place in China about

globalization,20 Chinese leaders and the Chinese Communist Party (CCP) theorists

embraced globalization.21 China, whilst welcoming globalization, has sought to control

and regulate its socioeconomic and political effects domestically, and thus counter the

‘‘negative’’ effects through the twin vehicles of nationalism and sovereignty.22

Second, it should also be remembered that there are many ‘‘sources’’ of

globalization, other than the US and Western Europe. Perhaps then, globalization

may have originally been driven by American capitalism and its core values of the

free market,23 but there are many sources of globalization, including China.24

Globalization is not ‘‘one-way traffic from the West’’.25 Globalization has actually

enabled non-Western sources of capital, specifically Chinese, to become available to a

broader range of markets, including those in the West. China can offer the

developing world all the benefits of global capital, with none of the ‘‘political’’

baggage—concerns or conditions regarding the protection of human rights, increased

political liberalization, and changes in how the governments of the developing world

govern. More importantly, China provides an example to these developing states,

that globalization can be managed.

Finally, these comments about the inevitability of globalization’s triumph over

Asia and Asian values are predicated on a false assumption: that Western libera-

lism has a universal appeal.26 As summarized by former Singaporean leader Lee

Kuan Yew:

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

And further:

As an East Asian looking at America, I find attractive and unattractive features y But asa total system, I find parts of it totally unacceptable: guns, drugs, violent crime,vagrancy, unbecoming behaviour in public—in sum the breakdown of civil society.

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

21. Knight, supra note 19 at 89291.

22. Ibid., 19 at 144, 149250, 188, 200.

23. Halper, supra note 8 at 27230.

24. See Chittiwatanapong, supra note 6 at 7024; TANG Jun and Edwin GENTLZER, ‘‘Globalization,Networks and Translation: A Chinese Perspective’’ (2008) 16 Perspectives 169; Halper, supra note 8 at2228; and Chris ALDEN, China in Africa (London: Zed Books, 2007) at 128230.

25. Raising the question of what influences of globalization originating from Asia will affect the West? Willthere be a rejection of rampant individualism, and a movement caused by the global financial crisis orenvironmental concerns towards communal consciousness and values? As Fukuyama noted in hisarticle, many Americans responded positively to the caning of an American national in Singapore(Fukuyama, supra note 18 at 31).


27. As cited in Halper, supra note 8 at 133.




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The expansion of the right of the individual to behave or misbehave as he pleaseshas come at the expense of orderly society. In the East the main object is to have awell-ordered society so that everybody can have maximum enjoyment of his freedoms.This freedom can only exist in an ordered state and not in a natural state of contentionand anarchy.28

The rise in crime, the breakdown of the family unit, the loss of civility, and racial

tensions, combined with the spectacular growth of the Asian economies in the later

part of the twentieth century, have resulted in an ideological shift—the US is no

longer the exemplar, and there is a problem with liberal democracy per se.29

Thus it is difficult to accept that China or any Asian state will simply become a

carbon copy of the West, adopting Western lifestyles of individualism and liberal

free-market democracy. In fact the reverse is true.30 More importantly, China has a

genuine ability to influence the world’s consciousness in the developing world, and

especially in Africa.31

B. Sovereignty

Sovereignty is also a difficult term to define.32 It is an intangible concept that has been

traded amongst rulers, but it is more than mere property: sovereignty is the basis of

our international legal and political system.33 Sovereignty also has a ‘‘split persona’’:

internal and external. The internal dimension of sovereignty refers to the application

of political authority within the geographical borders of a polity, and the external

dimension refers to the application of political authority by a polity beyond its

borders.34 Finally, sovereignty is a very fluid concept,35 thus making the defining of

28. David KELLY, ‘‘Freedom—A Eurasian Mosaic’’ in David KELLY and Anthony REID, eds., AsianFreedoms (Cambridge: Cambridge University Press, 1998) at 5; see also Fukuyama’s discussion of theformer Singaporean president’s thoughts as being symbolic of Asian perceptions (Fukuyama, supra note18 at 2426).

29. Fukuyama, supra note 18 at 23, 29, 31.


31. Alden, supra note 24 at 128230. For many in Africa the face of globalization is distinctly Chinese.

32. Despite numerous attempts, sovereignty has never been adequately defined. See Panu MINKKINEN,Sovereignty, Knowledge and Law (Hoboken, NJ: Routledge, 2009) at 6; R.B.J. WALKER, StateSovereignty, Global Civilisation, and the Rearticulation of Political Space (1988) World Order StudiesProgram Occasional Paper No.18, Centre of International Studies, Princeton University at 8;J.G. STARKE, Introduction to International Law, 9th ed (London: Butterworths, 1984) at 96;J.H.W. VERZIJL, International Law in Historical Perspective, Vols. 1 and 2 (Leyden: A.W. Sijthoff-Leyden, 1968) at 256; and James CRAWFORD, The International Law Commission’s Articles on StateResponsibility: Introduction, Text, and Commentaries (Cambridge: Cambridge University Press,2002).

33. L.A. KHAN, The Extinction of Nation-States: A World Without Borders (The Hague/London/Boston:Kluwer Law International, 1995) at 43; M. HEIBERG, ed., ‘‘Introduction’’ in M. HEIBERG, ed.,Subduing Sovereignty: Sovereignty and the Right to Intervene (London: Pinter Publishers, 1994) at 12;Jayasuriya, supra note 4; Lo, supra note 5 at 17.

34. Philpott describes this contradiction as rendering the Westphalian state as ‘‘Janus-faced’’: DanielPHILPOTT, ‘‘Religious Freedoms and the Undoing of the Westphalian State’’ (2004) 25 MichiganJournal of International law 981 at 983.

35. Michael J. KELLY, ‘‘Pulling at the Threads of Westphalia: ‘Involuntary Sovereignty Waiver’—Revolutionary International Legal Theory or Return to Rule by the Great Powers?’’ (2005) 10 UCLAInternational Law and Foreign Affairs 361 at 368; Jens BARTELSON, A Genealogy of Sovereignty(Cambridge: Cambridge University Press, 1995).




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sovereignty even more difficult. Despite all of this, most commentators agree

that sovereignty basically means the source of final overriding authority within a

community of humans.36 For example, Bodin, one of the West’s architects of sover-

eignty, stated:

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

Inherently important within this concept is the link between political authority and a

defined geographical territory:38 ‘‘Fundamental to the edifice of current international

order is the doctrine which endows state governments with absolute jurisdiction over

a specified piece of real estate and exclusive authority over the individuals who reside

upon it.’’39 Thus, sovereignty as a concept of monopolized political authority and

power40 translates into a ‘‘bundle’’ of various legal principles,41 namely: (1) equality

in law; (2) non-aggression and respect for an entity’s territorial integrity; and (3) a

right to non-interference in a polity’s internal/domestic affairs.42

Whilst the authors accept such definitions for the purposes of this article’s analysis, it

is the degree of absoluteness in these definitions that raises difficult questions in the

modern international community. Furthermore, as previously noted, sovereignty is a

very fluid concept, changing over time as the context in which it operates changes.

Commentators argue, therefore, that sovereignty has reacted to forces of globalization

which often seek to overlay a state’s authority with a supranational system of regulation,

thus creating a polycentric legal order and minimizing the ‘‘absoluteness’’ of a state’s

sovereignty.43 One example cited is the Basel Committee and its creation of capital

adequacy standards. However, commentators forget that regulatory systems, such as

those suggested by the Basel Committee, are adopted by state governments enacting

relevant legislation. There may be sound reasons to adopt them, but there is an element

of ‘‘free will’’.44

36. For example, Blackstone in his commentaries said the authority of the sovereign must be a ‘‘supreme,irresistible, absolute, uncontrolled authority in which the jure imperii or rights of sovereignty reside’’;as cited in C. Brewin ‘‘Sovereignty’’ in J. MAYALL, ed., The Community of States: A Study inInternational Political Theory (Sydney: Allen and Unwin, 1982) at 40; Francis H. HINSLEY,Sovereignty, 2nd ed (Cambridge: Cambridge University Press, 1986) at 1217.

37. Jean Bodin, as noted in J.H. FRANKLIN, ed., On Sovereignty: Four Chapters from the Six Books ofthe Commonwealth (Cambridge: Cambridge University Press, 1992) at 114.

38. Jayasuriya, supra note 4 at 431.

39. Heiberg, supra note 33 at 12.

40. Lo, supra note 5 at 17.

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

42. These sovereign rights are so fundamental that they have been codified into the UN Charter as follows:(1) equality in art. 2(1); (2) territorial integrity in art. 2(4); and (3) non-interference in art. 2(7). Theright to self-defence, is included in art. 51 of the UN Charter; Lo, supra note 5 at 18.

43. Jayasuriya, supra note 4 at 42527.

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




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Commentators often use the expression ‘‘Westphalian sovereignty’’ when

discussing national sovereignty, thus revealing how significant a role the Peace of

Westphalia (1648) plays in the Western concept of political authority and

international relations. The treaties that created the Peace of Westphalia were

signed at the end of the Thirty Years War in the area known as Westphalia, currently

the modern-day provincial state of North Rhine-Westphalia, Germany.45 Westphalia

is a long way from the Forbidden Palace in Beijing. Why should Westphalian

sovereignty, the Western concept of sovereignty, apply to an entity that had existed

some 3,000 years before the Peace of Westphalia, and thousands of miles away?

The argument in favour of applying Westphalian sovereignty to Asia, and in

particular China, is simple: the state is the dominant form of political entity and its

ascendency, despite many challenges, is unquestionable.46 Many commentators believe

that the state, and therefore national sovereignty, was created in Western Europe in the

aftermath of the Peace of Westphalia47 and was then transplanted to (or rather imposed

on) the rest of the globe through the successful era of imperialism and colonialism as

European states created their empires in Asia and Africa.48 The imperial powers sought

to impose not only structures of economic production and systems of government but

also cultural changes in language and education. In addition, European colonialism was

linked to the processes of global capitalist development.49 This capitalist model of

development enabled colonies to undergo successful economic transformation despite

variations in culture and politics.50 This fostered the idea that the ‘‘Western Model’’

would ultimately become the standard model for any polity. The process of creating

a state-centric international community was then consolidated by the era of

decolonization, when peoples seeking independence from the European empires

formed states rather than other forms of political organization.51 In conclusion, China

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

46. Robert J. DELAHUNTY and John WOO, ‘‘Statehood and the Third Geneva Convention’’ (2006) 46

Virginia Journal of International Law 131 at 131–3; M. NEWMAN, Democracy, Sovereignty and theEuropean Union (London: Hurst & Co. / New York: St. Martins Press, 1996) at 9; Kenichi OHMAEThe End of the Nation States: The Rise of Regional Economies (London: Harper Collins, 1996);J. NEWHOUSE, ‘‘Europe’s Rising Regionalism’’ (1997) Foreign Affairs at 69; Andrew LEVINE, TheEnd of the State (London: Verso, 1987).

47. Hendrik SPRUYT, The Sovereign State and its Competitors (Princeton, NJ: Princeton University Press,1994) at 153281; Martin VAN CREVALD, The Rise and Decline of the State (Cambridge: CambridgeUniversity Press, 1999); D. NINIC, The Problem of Sovereignty in the Charter and Practice of theUnited Nations (The Hague: Martinus Nijhoff, 1970) at 2; M. FOWLER and J. BUNCK, Law, Power,and the Sovereign State (University Park, PA: Penn State University Press, 1995) at 65.

48. It could be expressed in this way: Asia (along with Africa) was first ‘‘globalized’’ by Europe in itshegemonic quests some four centuries ago. Ali A. MAZURI and Michael TIDY, Nationalism and NewStates in Africa (London: Heinemann, 1984) at 373; Khan, supra note 33 at 15; Christopher W.MORRIS, An Essay on the Modern State (Cambridge: Cambridge University Press, 1998) at 59;Hinsley, supra note 36 at 2; Marc FERRO, Colonization: A Global History (New York: Routledge,1997) at 6–7.

49. Ferro, supra note 48 at 6–7.

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

51. Daniel Philpott describes the decolonization process as the ‘‘global expansion of Westphalia’’: DanielPHILPOTT, Revolutions in Sovereignty (Princeton, NJ: Princeton University Press, 2001) at 151,154267; Mazuri and Tidy, supra note 48; Morris, supra note 48 at 54, 59.




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as a state asserts the same sovereignty as other states, which is Westphalian sovereignty.

There is no doubting the existence of states in Asia, or that China itself fits the accepted

definition of a state found in Article 1 of the Montevideo Convention of 1933 on the

Rights and Duties of States.52 Should China’s perception and understanding of political

authority be judged from the Western perspective of Westphalia?53 Chinese perceptions

of sovereignty are contained in their Five Principles of Peaceful Co-existence.54 These

are: (1) mutual respect for territorial integrity and sovereignty; (2) mutual non-

aggression; (3) mutual non-interference in internal affairs; (4) equality and mutual

benefit; and (5) peaceful co-existence. These principles were first set forth by Chinese

Premier Zhou Enlai at the start of the negotiations that took place in Beijing from

December 1953 to April 1954 between representatives of the Chinese and Indian

governments on relations between the two countries.55 These principles remain

important to China, as demonstrated by China’s vigorous celebrations of their fiftieth

anniversary at the Great Hall of the People in Beijing in 2004 and then Chinese Premier

Wen Jiabao’s vow to continue to practise and advocate for them.56 Their import is in the

fact that, though anchored in Westphalian conceptions, they sought to elaborate a

practice and world that was non-Eurocentric and encompassed the international

community and all its variegations. Their unpacking was aptly captured by the words

of Qian Qichen, then China’s Foreign Minister, in 1991 at the 46th Session of the

UN General Assembly:

The old order founded on the unequal relations [among states] will not do. A newinternational order should be established on the basis of mutual respect for sovereigntyand territorial integrity, mutual non-aggression, non-interference in each other’s internalaffairs, equality and mutual benefit, and peaceful coexistence. Nations, big or small,strong or weak, rich or poor, should have the right to choose their own social systemsand ways to development, which fits into the circumstances of their own countries.

52. The Montevideo Convention on the Rights and Duties of States, 26 December 1993, 135 LNTS 19

(entered into force 26 December 1934). The Montevideo Convention was adopted by a total of sixteenstates (the US and fifteen Latin American states) at a meeting of the 7th International Convention ofAmerican States held in Montevideo, Uruguay. As noted by Harris, although only accepted by sixteenstates, the Montevideo criteria are widely accepted by the international community as ‘‘reflecting ingeneral terms, the requirements of statehood at customary international law’’: David HARRIS, Casesand Materials in International Law, 5th ed (London: Sweet and Maxwell, 1998) at 102; and Crawford,supra note 32 at 45.

53. Jacques also makes this point when he states that China is not a traditional (Western) state. He arguesthat China is a ‘‘civilization-state’’: Jacques, supra note 50 at 417. See Zhang WEIWEI, The ChinaWave: Rise of a Civilization State (Hackensack, NJ: World Century Publishing, 2012).

54. The Five Principles of Peaceful Co-Existence were formally adopted at the Asian and African Conferenceat Bandung, Indonesia on 24 April 1955, and inserted as part of the Preamble of the Agreement Betweenthe Government of the Republic of India and the Government of the People’s Republic of China onTrade and Intercourse Between the Tibet Region of China and India, signed at Beijing, 29 April 1954. SeeXUE Hanqin, ‘‘Meaningful Dialogue Through a Common Discourse: Law and Values in a Multi-PolarWorld’’ (2011) 1 Asian Journal of International Law 13 at 14. China developed these Principles todescribe their attitude towards international relations. See the discussion below.

55. Consulate-General of the People’s Republic of China (Houston), ‘‘The Five Principles of PeacefulCo-existence’’ (28 June 2004), online: ,http://houston.china-consulate.org/eng/nv/t140964.htm..

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




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States should respect each other, treat each other equally, and adhere to peaceful solutionof their disputes through negotiations. Only when all states promise to implement theseprinciples will it be likely to establish genuine democracy in international relations.57

Such announcements, accompanied by China’s increasing ascendency in global

affairs, suggest that a new vision of sovereignty is being proclaimed, but when

China’s Five Principles are examined, such suggestions in the words of Chang are

‘‘misleading’’. In reality, the Five Principles are nothing new and not even Asian in

origin.58 Examining them closely, Lo argues that the Five Principles are simply

reiterating traditional ‘‘Westphalian’’ perceptions of sovereignty.59

However, it is argued here that there is indeed a difference of perception. In the

West, from its very inception sovereignty was always limited, initially by God,60 and

then through the work of theorists like Grotius, who successfully managed to

secularize sovereignty limited by the norms of international law.61 Even Bodin

acknowledged that sovereignty was limited by the ‘‘rules of God’’, natural law, and

the law of nations.62 No such limitation would seemingly apply to China

and Eastphalian sovereignty; in fact, Eastphalian sovereignty jealously guards the

right to non-interference. The degree of absoluteness is also the key difference

between Western and Eastern perceptions of sovereignty. This difference is subtle,

but important when discussing the effects of globalization on China, and how China

views the role of international law, and its place in the world. The difference lies

in the origins of how the East and West resolved the chaos of their respective

feudal eras.

ii. westphalian and eastphalian sovereignty: fruit

of different trees?

The feudal era in Europe began with the collapse of the Western Roman Empire in

approximately AD 476, when the Roman emperor, Romulus Augustulus, was deposed

by the German General Odoacer.63 Although open to contention, the feudal era

lasted until the emergence of the state as the dominant political entity after the Peace

of Westphalia in 1648. The collapse of the Western Roman Empire resulted in a

power vacuum and increased vesting of political authority in former ‘‘barbarian

tribes’’ and their leaders, who naturally claimed ‘‘sovereignty’’. Their claims were

rather dubious, since their authority was often very limited and constantly

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


59. Ibid.

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

61. Khan, supra note 33 at 68. Khan’s work was inspired by Grotius.

62. S. BEAULAC, ‘‘The Social Power of Bodin’s ‘Sovereignty’, and International Law’’ (2003) 4 MelbourneJournal of International Law 1; Rafael NIETO-NAVIA, International Peremptory Norms (Jus Cogens)and International Humanitarian Law (London/The Hague: Kluwer Law International, 2003) at 4.

63. See generally Edward GIBBON, The History of the Decline and Fall of the Roman Empire, Vol. 3

(London: Penguin Books, 1994).




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challenged,64 perpetuating a cycle of war and expansion.65 Van Crevald, in his

examination of the emergence of states, noted that the nascent and emerging states

faced challenges from the following: (1) the nobility; (2) the towns and urban centres;

(3) the Holy Roman Empire; and (4) the Catholic Church.66

Initially, the greatest threat was from the aristocracy, upon whom an emerging

sovereign was often dependent for their military forces, and often for their very

existence.67 English and French history is full of incidents where powerful nobles or

alliances between nobles deposed or promoted a sovereign at will, and rebelled when it

suited them.68 This challenge laid the foundation for the idea that subsequently

developed a consciousness or awareness, initially by an elite, but later more broadly in

the larger community of Western states, that the sovereign’s authority was not absolute,

but was limited.69 However, as the emerging sovereigns consolidated their power

internally, the Holy Roman Empire, and the Catholic Church, emerged as the major

threats. Both sought to unite the various communities in Europe under a single hierarchy

of authority,70 a form of Imperium Christiana,71 or, as one commentator describes it,

each sought to impose universal sovereignty.72 The struggle lasted centuries and involved

a series of tumultuous events, such as the Reformation and the Counter-Reformation.73

These events shook Western Europe to its core, culminating in the Thirty Years War

(1618248).

The Thirty Years War was one of Europe’s most destructive wars. Whilst it was

primarily a religious war,74 its significance far exceeded spiritual matters, since the

conflict soon morphed into a struggle for military and political supremacy in Western

Europe.75 This attempt at imposing universal sovereignty failed, and Imperium Christiana

64. M. OLIVIER, ‘‘Aspects of the Establishment of Sovereignty and their Transfer of GovernmentAuthority’’ (1988) 14 South African Yearbook of International Law 85 at 8526; Hinsley, supra note 36

at 77281.

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

66. Van Crevald, supra note 47 at 592128.

67. The emergence of the state of France is perhaps the best example of the challenges faced by a nascentcentral government from the aristocracy and their private armies: ibid., at 872104.

68. The tale of Henry VI of England and the War of the Roses is fairly illustrative: it wasn’t until Henry VIIascended the throne ‘‘did the English crown cease to be the happy hunting ground of aristocraticfactions’’; ibid., at 91.

69. Ibid., at 128.

70. Hinsley, supra note 36 at 82.

71. Porter, supra note 65 at 25; J.K. BLEIMAIER, ‘‘The Future of Sovereignty in the 21st Century’’ (1993)6 Hague Yearbook of International Law 16.

72. Universal sovereignty is a single world government, where both secular authority and religiousauthority should be united as one, the Imperium Christianum. Since all princes and rulers would be‘‘accountable’’ to the ‘‘One King’’, they were not the final and absolute authority for their individualcommunity and therefore could not be sovereign. The struggle was to decide who should be the OneKing: Church or Empire; Khan, supra note 33 at 4325; Olivier, supra note 64 at 85.

73. There is a significant historical correlation between an interest shown by polities in a system ofsovereign states and exposure to Protestantism, or to what Philpott refers to as a ‘‘Reformation Crisis’’:Philpott, supra note 51 at 110211, 14428.

74. See Leo GROSS, ‘‘The Peace of Westphalia 164821948’’ (1948) 42 American Journal of InternationalLaw 20 at 21.

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




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was defeated.76 Neither the Church, nor the Empire, was sufficiently powerful enough to

assert its authority over states, the ‘‘new’’ form of polity emerging in Western Europe.77

On the other hand, states were sufficiently powerful, and not only did they defeat the

aspirations of the Church and Empire, their victory changed the political structure of

Western Europe and arguably the very nature of political authority on a global scale.78

Gone was the hierarchical and complex relationship with the Holy Roman Empire. In its

stead was a system of independent polities that were the final ‘‘supreme’’ authority within

their territories, and considered equals regardless of their actual wealth or military power.

It was an epochal change,79 a culmination of a series of events that had been building for

centuries,80 and resulted in the series of treaties collectively known as the Peace

of Westphalia.81

States emerged from the Peace of Westphalia not only with the ability to remain

independent of the authority of the Empire and Church, but also an all-consuming

desire not to be dominated by any ‘‘foreign’’ entity.82 However, whilst states argued

that their sovereignty was ‘‘absolute’’,83 the fact remained that there existed multiple

absolute sovereigns, in a community whose members refused to accept a hierarchy: a

‘‘welter of competing sovereignties’’.84 Thus the idea of a split legal persona, that is

internal sovereignty and external sovereignty, was born as a direct result of this

inherent contradiction in Westphalian sovereignty;85 and this led to the acceptance

that a state’s external sovereignty was restricted, but its internal sovereignty was

‘‘absolute’’.

Thus the traditional view is that the Peace of Westphalia was notable because of

the ‘‘package of sovereignty’’ that commentators argue emerged: (1) state equality;

(2) non-interference in the internal affairs of a state; (3) territorial integrity, and the

inviolability of territorial borders; and (4) sovereign immunity.86 These aspects of

sovereignty—in particular points (1) to (3)—have become the cornerstones of

modern international relations and international law, ultimately enshrined in the

76. Philpott, supra note 51 at 47; Khan, supra note 33 at 4325; and Olivier, supra note 64 at 85.

77. Or to even maintain peace between competing political communities: Khan, supra note 33 at 4325;and Gross, supra note 74 at 2628.

78. Gross, supra note 74 at 21; and Philpott, supra note 51 at 138.

79. Gross, supra note 74 at 26.

80. Many commentators argue that the state system did not simply emerge as a result of the Peace ofWestphalia, but it does provide a convenient reference point; Gross, supra note 74 at 30; and Kelly,supra note 35 at 376.

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

82. Khan, supra note 33 at 2.

83. Many of the arguments used by the Emperor or the Pope to claim supremacy were in turn used by theruling regional leaders to legitimize their political authority, to claim sovereignty; Hinsley, supra note36 at 77281.

84. And accordingly warfare between the new states was the logical outcome; Treitschke, as cited in Kahn,supra note 33 at 25.

85. Philpott describes this contradiction as rendering the Westphalian state as ‘‘Janus-faced’’: Philpott,supra note 34 at 983.

86. Kelly, supra note 35 at 375.




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UN Charter.87 However, the true significance of the Peace of Westphalia is that right

from its very inception Westphalian sovereignty was limited; and not just in its

external component, but also in its ‘‘domestic’’ or internal aspect.

The Peace of Westphalia was established by a series of meetings with some 176

plenipotentiaries, 109 delegations representing various territorial polities—not just

the Church and the Empire—as well some 27 delegates that represented ‘‘interest

groups’’ (nearly half of the participants were lawyers).88 All participated as equals in

a negotiating process to resolve the chaos threatening to destroy Western Europe.

The key point is that political authority was negotiated, not imposed by a single

‘‘superior’’ authority.89 In other words, sovereignty could not be a divine right, and

more importantly it was not absolute, despite what individuals might claim.90

The idea that sovereignty was limited was reinforced in other ways: first, by

promoting religious equality between Catholics and Protestants (in the German Diet,

for example) and by protecting religious freedom;91 and second, by the separation of

Church and state.92 The first point sought to ensure that the ruled could practise a

different religion from their rulers free from persecution, and thus established the

seeds for modern international law and the protection of human rights—the 1948

Universal Declaration of Human Rights and the Articles of State Responsibility.93

Whilst there was a triumph of secularism, Christianity, like Judaism and Islam, with

its emphasis and traditions of a mortal soul, and a monotheistic god, laid an important

restriction on wielding power, because it established a power above the sovereign:

God.94 Ultimately all sovereigns would be answerable to God for their actions.95 Over

time, as that influence within Western culture as well as politics waned, God as a

limitation was replaced with the notion that states’ sovereignty was curtailed, by

necessity, by the norms (positivist and natural) of international law.96

The idea that sovereignty was limited was taken up by commentators like Hobbes,

Vattel, Spinoza, Bacon, and Grotius.97 In response to the chaos that characterized the

period, they prescribed the establishment of a strong secular state as a solution to the

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

88. Philpott, supra note 51 at 82.

89. As Philpott states: ‘‘it was victorious states and a defeated empire that negotiated the Peace ofWestphalia’’; ibid., at 47, 8223.

90. This realization was a direct consequence of secularization, of divorcing political authority from thespiritual realm; Gross, supra note 74 at 2627.

91. See the Treaty of Onsabruck as cited in Gross, supra note 74 at 22.

92. Philpott, supra note 51 at 8223.

93. F.S. DUNN, ‘‘International Legislation’’ (1927) 42 Political Science Quarterly 577; Gross, supra note74 at 26; and Crawford, supra note 32.

94. A more modern example is found in the opening preamble of the Pakistan Constitution, which containsa reference to absolute sovereignty of all things in Pakistan, and that Mohammed delegated such powerto the state of Pakistan. So who has universal sovereignty? Why God, Allah, or the Law of Nature: seeVerzijl, supra note 32 at 265.

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

96. Olivier, supra note 64 at 86.

97. Kelly, supra note 35 at 374.




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anarchy that threatened to destroy Western Europe.98 Perhaps inevitably, states’

desire to be free from domination post Westphalia led to the development of

nationalism,99 competition, and ultimately warfare between the new sovereigns, with

catastrophic consequences.100 Ginsburg summarized these views very succinctly: ‘‘It is

not too much to say that Westphalia stood for peace in theory and war in

practice.’’101 All of this meant that Western political thought evolved in isolation from

an overriding international organization, and where international relations were

concerned primarily with warfare.102 Thus the overriding goal of commentators was

peace and stability underpinned by the rule of law.103 And this is how the West now

perceives Westphalian sovereignty, as limited by international law:

The concept of sovereignty y is not in terms of its history or in terms of political sciencea concept which may properly be used to explain—let alone to justify—whatever thestate or the political society does or may choose to do. It is a principle which maintainsno more than that there must be a supreme authority within the political community ifthe community is to exist at all.104

Such a definition raises an important question: Can national sovereignty be simply

expressed as the power of the state to act according to its free will but within

the limits of international law?105 China, and its perception of political authority,

Eastphalian sovereignty, would probably answer in the negative.

Turning now to China and ‘‘Eastphalian’’ sovereignty, we first place Chinese

history into a Western timeline for some perspective. China’s history stretches back

almost 5,000 years, dating back to approximately 2701 BC.106 The Roman Empire

was founded during the Han dynasty and ended in the gap between the Han and the

Tang; the British Empire began during the Qing Empire and only outlived it by forty-

odd years.107 The first recorded Chinese polity or dynasty appears to be the Xia

dynasty (220521766 BC), followed by the Shang dynasty (176621122 BC), which

was followed by the Zhou dynasty (11222221 BC). Although the Zhou dynasty

lasted some 800 years, in its final days it ruled in name only, and while the Zhou

98. Philpott, supra note 51 at 14324. In the words of Winfield, commentators such as Grotius filledthe vacuum left by the defeat of the Church and state: P.H. Winfield, The Foundations and Future ofInternational Law (Cambridge: Cambridge University Press, 1941) at 18; and Gross, supra note74 at 26. However, it must be remembered that commentators like Hegel were later to consider thestate as ‘‘an end in itself’’, thus rejecting natural law and the international legal system; Bleimaier, supranote 71 at 21.


100. Treitschke described history as a ‘‘welter of competing sovereignties’’ and therefore inter-nation-statewarfare the logical outcome; ibid., at 25.

101. Ginsburg, supra note 5 at 30.

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

103. Olivier, supra note 64 at 86.

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

105. Verzijl supra note 32 at 265.

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

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




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dynasty did not collapse in a manner similar to the Western Roman Empire, the

Zhou dynasty’s power was so weak that, in realistic terms, its political authority was

as fragmented as much as was the Western Roman Empire’s after it collapsed.

Historians have divided the Zhou into two periods based on the location of the

capital: Western and Eastern. The Eastern Zhou dynasty is further divided into two

periods: the Spring-Autumn period, and the Warring States period. The Warring

States period in particular was very similar to feudal Europe. There were eight large

state-like polities,108 and many smaller entities, each with their own written script,

language, coinage, weights, and measures.109 The Warring States period was an

‘‘interesting time’’ indeed, and there was very little evidence of a feudal code of

morality; practicality and survival was the game of the day. During this period each

sovereign sought and often competed for the advice of strategists on how to establish

an empire.110 Ultimately, the smaller states were gobbled up by the more powerful.

The consequence was an Empire formed by Qin Shi Huang, the First Universal

Emperor, from the State of Qin in 221 BC.111

Qin Shi Huang introduced a standard written script and imposed a ‘‘universal’’

standard of weights, measures, and coinage. Even the axle-lengths of carriages were

standardized, which enabled the standardization of roads linking the Empire.112 Most

importantly, he was instrumental in developing a civil service that was so crucial in

the maintenance of the Emperor’s political authority that it lasted virtually

unchanged in its form until the Chinese Republic thousands of years later. The

civil service officials (‘‘mandarins’’) were part of a hierarchy that ended with the

Emperor himself, and administered all matters relevant to exercising authority, such

as taxation, food production, and carrying out the census. They enabled Chinese

officials, and through them the Emperor, to strictly control their people’s daily

lives.113 The bureaucracy was incredibly efficient. For example, in the late third

century BC, Qin officials, in addition to details such as a citizen’s surname, address,

and trade, had reliable and detailed records for rainfall, and the condition of a

farmer’s livestock (they rewarded those farmers whose oxen increased in size, and

punished those whose oxen decreased in size), as well as crops on a field by field

basis, throughout the entire Qin Empire.114 More importantly, the civil service broke

the power of the aristocracy, which had previously inherited government and official

108. They were: Ch’I, Ch’u, Ch’in, Wei, Han, Chao, Yen, and Yueh. However, the last two remained alooffrom much of the fighting. Samuel B. GRIFFITH (trans.), Sun Tzu, the Art of war, (London: DuncanBaird Publishers, 2005) at 3728.

109. Chey, supra note 106 at 2627.

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

111. Chey, supra note 106 at 2627; Griffith, supra note 108 at 44.

112. These ‘‘super-highways’’ enabled efficient passage of merchant caravans, as well as Imperial armedforces; Chey, supra note 106 at 2627

113. An example is found in the later Tang dynasty, where it was an offence punishable by flogging if aperson was absent from their place of registration for more than ten days without a valid reason.Likewise, the headsman of a village would be punished if they allowed a transient person to stay intheir village: W.J.F. JENNER, ‘China and Freedom’ in Kelly and Reid, supra note 28, 65293 at73, 7627.

114. Jenner, supra note 113 at 7526.




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positions, and its potential stranglehold over the Emperor’s authority.115 The civil

service was open to any citizen who passed the rigorous examinations, and each

official was appointed by the Emperor, and reported to the Emperor. Furthermore,

these officials did not have rights or freedoms, but privileges that could be withdrawn

by the Emperor.116 The Chinese civil service was effective in nullifying the aristocracy

and other challenges to its exercise of political authority, ensuring its active role in

controlling society.

Nonetheless, Imperial China was a turbulent period. There was often a cycle of a

benevolent dynasty becoming corrupt, and slowly declining until it was replaced by a

charismatic leader who then formed his own dynasty. For example, the first dynasty,

the Qin, in its last years saw many peasants rebelling against the harshness of Qin Shi

Huang. One such rebellion, led by a peasant named Liu Ban, eventually defeated the

Imperial Army and formed the Han dynasty in 206 BC.117 During the Qing dynasty

(China’s last dynasty), there were rebellions by Muslims in the west, and the Taiping

Rebellion (1851264), where an estimated twenty-five million people perished.118

There also was the constant preoccupation with nomadic invaders from the north,

who twice established dynasties that ruled China. The Mongols formed the Yuan

dynasty, and the Manchus formed the Qing dynasty—the last dynasty before the

Republic of China was declared. These events did not result in the state-like

community that had evolved in Europe. Chinese sovereigns did not, unlike their

European counterparts, seek to create multiple sovereign states.119 For the next

2,000-odd years, succeeding dynasties instead sought to restore the Empire; they

expanded its frontiers when they could, particularly the Qing, who conquered and

absorbed vast territories of the Uighur Empire in the west.120

A state-centric community and ‘‘state-consciousness’’ also failed to develop in

China because of several key differences. The efficiency of the civil service and the

defeat of the aristocracy have been discussed. What this meant for the centralized

authority in China was that its power (and even its legitimacy) was never challenged,

it never ‘‘shared’’ power.121 In the West, the monotheistic nature of the region’s

religion was reflected in the concept of Westphalian sovereignty. All princes and

rulers were accountable to God.122 In China, however, religion and religious leaders

did not challenge the Emperor or his authority. Indeed, during the fifth and eighth

115. Ibid., at 79.

116. The Chinese legal codes during the Warring States period were terrifying in their ferocity. Thousandsof offences were punishable by death, and punishments included: castration; branding; removal oflimbs, hands, feet, or noses; even kneecapping was a common punishment; see Griffith, supra note108 at 42; and Jenner supra note 113 at 7627.

117. Chey, supra note 106 at 2627.

118. Ibid., at 66 (arguably this was a nationalist Han rebellion against the Manchu ‘‘occupation’’ ofChina). See also David A. GRAFF and Robin HIGHAM, A Military History of China (Boulder, CO:Westview Press, 2002) at 135251.

119. Gascoigne, supra note 107 at ix.

120. Ibid.; Christian TYLER, Wild West China: The Taming of Xinjiang (New Brunswick, NJ: RutgersUniversity Press, 2003) at 5425; and Peter C. PERDUE, China Marches West: The Qing Conquest ofCentral Eurasia (Cambridge, MA: Harvard University Press, 2005) at 1.

121. Jacques, supra note 50 at 424.





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centuries, some Buddhist monasteries which displayed the potential to develop into

independent and powerful institutions, were crushed.123 The most dominant religions,

Buddhism and Confucianism, did not provide a means to check the exercise of political

authority. The basic premise within Buddhism, in contrast to Christianity, was the

enlightenment of individuals and a means to achieve this, but, as commentators have

noted, it did not develop the concept of individual freedom as conceptualized in

Western culture. Buddhism ‘‘[o]riginated from a set of psychological and ontological

assumptions totally unlike those of a modern Western thought. The Buddhist teaching

about the individual denied the very existence of any permanent and substantial self of

which rights to freedom of any sort could be predicated.’’124

It is important to note that ‘‘[t]he freedom that Buddhism calls for is something

different from people’s expectations; it is not freedom from all discipline or restraint,

but freedom from the limited particularistic values of kin and local community’’.125

Thus, Buddhism did not result in a consciousness that eventually limited or indeed

played any sort of role in the perception of the relations between governed and

government.126

Confucianism is a strong, spiritually inclined set of teachings, but not a religion in

the Western sense of a faith based on the belief of a deity.127 Instead, it is a moral code

based upon the teachings of Confucius and the scholars who followed him.128 Confucius

was one of the itinerant intelligentsia who wandered from state to state during the

Spring-Autumn period (7702476 BC), just prior to the Warring States period. Although

he was not successful as an advisor, he was by far one of the most influential of the

intelligentsia, if not the most famous of all of China’s philosophers129 and teachers.130

His influence can be measured by the simple fact that knowledge of Confucius’ teaching

was essentially the basis of selection for those seeking to enter the civil service, even as

late as the twentieth century, some 1,500 years later.131

Confucianism’s teachings influenced Eastphalian sovereignty dramatically. The

Confucian cosmopolitan outlook became integrated into the practical aspects of

social and political life in China and formed the most dominant political and cultural

force in shaping the traditional Chinese view of the world order.132 Confucius

supported the concept of ‘‘meritocracy’’, a policy that China adopted centuries before

123. Jenner, supra note 113 at 78.

124. Ian MABBETT, ‘‘Buddhism and Freedom’’ in Kelly and Reid, supra note 28 at 19236.

125. Ibid.

126. ‘‘It soon becomes obvious that the concepts of freedom that a modern political scientist mightarticulate may not be at home in the traditional cultures of Asia’’; ibid.

127. Confucianism, also known as Confucian culturalism, is a school of political and ethical philosophyfounded by Confucius (5512479 BC) and his disciples; see John King FAIRBANK, ‘‘A PreliminaryFramework’’ in John King FAIRBANK, ed., The Chinese World Order: Traditional China’s ForeignRelations (Cambridge, MA: Harvard University Press, 1968) at 6; see also Mark MANCALL, Chinaat the Center: 300 Years of Foreign Policy (London: Collier Macmillan Publishers, 1984) at 2223.

128. E.g. Mencius.

129. Chey, supra note 106 at 62, 9024.

130. Many of his students became advisors to state rulers: Gascoigne, supra note 107 at 3425.

131. Ibid., at 204.

132. It was reinstated in the western Han dynasty (206 BC2AD 24) as the state ideological orthodoxy;Fairbank, supra note 127 at 6; and Mancall, supra note 127 at 2223.




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the West did. Confucius’ thoughts on how to assist China emerge from chaos and

maintain order were based around a system of respect from an inferior to a superior,

extending all the way to the Emperor, the Son of Heaven.133 Confucius sought to

introduce change gradually, through education, the spread of culture, and the

provision of moral examples.134 Hence a government official sought to improve the

governance of a state through education, respecting authority, and acting in a moral

and virtuous manner.135 Thus, whilst Confucianism did not challenge the Emperor’s

authority, Confucius did not preach despotism; an Emperor’s authority, their

‘‘mandate from heaven’’, was limited only by their own sense of morality.136

Confucius and his teachings were heavily criticized by his contemporaries, as they

have been by more recent commentators, for being over-ritualistic and backward-

looking, but mainly because his teachings were conservative and endorsed

authoritarianism.137 Although such criticisms have themselves been criticized,138

the emphasis that Chinese sovereigns placed on knowledge of his teachings as the

basis of selection for government officials did contribute heavily to the intellectual,

economic, and technological stagnation of China.139 This stagnation was responsible

in part for China’s vulnerability to European imperialism after the collapse

of the Qing dynasty.140 His teachings were conservative, reinforcing the status

quo,141 and this acceptance flowed through and was evident in the manner in

which the civil service operated. Furthermore, these teachings were still being used

to select government officials as late as 1900. Even the edict that declared the

Republic referred to the ‘‘harmony of the ancient sages’’.142 His work still influences

Chinese thinking today on many levels, and ‘‘Confucianism’’ is in fact experiencing

a revival.143

133. Gascoigne, supra note 107 at 3425.

134. Ibid., at 41.

135. Ibid., at 4123.

136. Fukuyama, supra note 18 at 2427. The cycle of dynasties mentioned above provides some evidence tosupport this theory. There is also a view that ‘‘social’’ Confucianism stated that the citizen had a moralduty, risked their lives even, to criticize the ruler when they were abusing their power: RowanCALLICK, Party Time: Who Runs China and How (Collingwood, VIC: Black Inc, 2013) at 117.

137. Samuel HUNTINGTON, ‘‘Democracy’s Third Base’’ (1991) 2 Journal of Democracy 24.

138. Recently, commentators have argued that Confucian teachings are compatible with humanitarianismand modern norms of human rights law: Jenner, supra note 113 at 73; David KELLY, ‘‘The ChineseSearch for Freedom as a Universal Value’’ in Kelly and Reid, supra note 28 at 93, 9426; andFukuyama, supra note 18 at 30.

139. It could also be said that his philosophy and teachings both destroyed the Ming Empire and saved itfrom total collapse: Chey, supra note 106 at 62, 9024; Jenner, supra note 113 at 65, 6829, 72, 8426;and Suisheng ZHAO, ‘‘A Tragedy of History’’ in Zhao, supra note 7 at 3325.

140. Shaohua HU, ‘‘Confucianism and Western Democracy’’ in Zhao, supra note 7 at 55272; and Jenner,supra note 113 at 6829, 72, 8426.

141. However, Fukuyama argues that the primacy of the family was such that it could challenge theEmperor’s authority: Fukuyama, supra note 18 at 2627.


143. Chey, supra note 106 at 62, 9024; Jacques, supra note 50 at 418; and Callick, supra note 136 at110225. Perhaps the most important aspect of his legacy is its influence on Chinese perceptions ofpersonal ethics: TU Wei-Hing, ‘‘Confucian Ethics Today, the Singapore Challenge’’, SingaporeCurriculum, Management Development Institute of Singapore (1984) at 4, as cited in Fukuyama,supra note 18.




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Thus, reinforced by an immensely influential moral spiritual system, ‘‘universal

sovereignty’’ prevailed in China, and it was absolute, in both the external and

internal application of its political power. As noted by Lo: ‘‘China still believed that it

was the zenith of civilization and the centre of the political universe’’,144 and any

‘‘barbarians’’ wishing to trade with China had to ‘‘kneel down and kowtow before

him [the Emperor]’’.145 China recognized no equals in the surrounding territories,

with Korea, Thailand, Vietnam, and Tibet all acknowledging Chinese sovereignty as

vassal states during the Ming dynasty.146 Having defeated all internal challenges,

Eastphalian sovereignty was absolute domestically in a manner that many Western

sovereigns claimed, but in reality did not have. This absoluteness of political

authority was never challenged, nor ameliorated; instead it was the prize that all

claimants sought. Even after the collapse of empire with the declaration of the

Chinese Republic in 1912, the first President of the Republic, Yuan Shikai, the most

powerful general of the former Manchus, used his position to attempt to declare

himself Emperor and form a new dynasty in the traditional Chinese ‘‘manner’’.147

Arguably, the warlords that followed, such as Chiang Kai-shek, during the period

1912249, and even the war against the Communist Party were all about claiming the

‘‘Dragon Throne’’, with its perception of absolute sovereignty.148

In conclusion, both Eastern and Western perceptions of sovereignty evolved as a

response to chaos, and the desire to find order and stability in what were very violent

and uncertain environments. It is no coincidence that the work of leading

philosophers in both spheres, Grotius in the West149 and Confucius in the East,150

were primarily concerned with war and peace. It is also no coincidence that military

strategists and their published works played a prominent role in their respective

societies.151 The key difference between the two is that in the West the Empire

‘‘failed’’ and universal sovereignty collapsed with the rise of the European state.

The political fragmentation and the lack of a single hegemonic empire in Europe

enabled it to invent institutions of freedom from political authority that in later

centuries were understood as ‘‘universal values’’: democracy and human rights.152

In the East, the Empire won, and the concept of Eastphalian sovereignty was

absolute, particularly in its internal dimension. This perception is the subtle

difference that distinguishes Eastphalian sovereignty from its Western counterpart.

Whilst Westphalian sovereignty from its inception was limited in both its external


145. Ibid.

146. Gascoigne, supra note 107 at 153; Lo, supra note 5 at 14215; and Ginsburg, supra note 5 at 39241.


148. Ibid., at 205.

149. Triggs, supra note 75 at 148.

150. See Chey, supra note 106 at 62, 9024.

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

152. Francis FACCHINI, ‘‘Religion, Law and Development: Islam and Christianity’’ (2010) 29 EuropeanJournal of Law and Economics 103 at 129; and Paul KENNEDY, The Rise and Fall of the GreatPowers (London: Fontana Press, 1988).




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and internal aspects, Eastphalian sovereignty was absolute in both. This conclusion

then raises questions about how Eastphalian sovereignty conceptualizes international

law. In particular, how does China react to attempts to impose democracy and

human rights, concepts which could be conveniently labelled as not universal in

nature, but as creatures created purely by the West, China’s antithesis? In a nutshell:

What happens when Westphalian sovereignty ‘‘meets’’ or ‘‘collides’’ with Eastphalian

sovereignty? China’s initial confrontation with the West in the nineteenth century

can only be described as a cataclysmic event of epic proportions, and changed

Eastphalian sovereignty so that it became similar in scope to its Western equivalent.

iii. western imperialism or a genuine movement to

universal values?

Anghie has observed that ‘‘[i]nternational law is universal. It is a body of law which

applies to all states regardless of their specific and distinctive cultures, belief systems

and political organizations.’’153 Nonetheless, the universal characteristic did not

emerge until the end of the nineteenth century.154 Until then, international law was

really European law,155 or more accurately, the European practice of international

law. Burke’s connection of the law of nations with the geographical, historical, and

cultural region of Europe was accurate because the origins of modern international

law are from there.156 In a succinct assertion, Fidler notes:

During the course of the European century, what for Burke represented a set of rules forrelations among European nations became the set of rules regulating the interactions ofcountries around the entire world. The European century’s most distinctive markon international law was its universalization as an instrument of internationalgovernance.157

The universalization of international law was a European projection of superior power in

non-European parts of the world.158 Although Japan managed to transform itself into a

European-type regional power by the end of the nineteenth and beginning of the

twentieth centuries, Japan’s rise occurred within the parameters set by the universalization

of international law and did not constitute a fundamental challenge to the system.159

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

154. Ibid.

155. OWADA Hisashi, ‘‘Asia and International Law’’, Inaugural Address of the First President of the AsianSociety of International Law, Singapore, 7 April 2007, (2011) 1 Asian Journal of International Law3 at 4; and David P. FIDLER, ‘‘The Asian Century: Implications for International Law’’ (2005)5 Singapore Yearbook of International Law 21.

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

157. Fidler, supra note 155 at 21.

158. M. SONARAJAH, ‘‘The Asian Perspective to International Law in the Age of Globalization’’ (2001) 5

Singapore Journal of International and Comparative Law 284 at 287290; OWADA, supra note 155.

159. As noted by Owada, Japan saw the Western demand to Japan to ‘‘open up’’ and thus become exposedto the West and its commerce as an opportunity, rather than as a challenge to their sovereignty and




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This has important ramifications for China’s acceptance of Western liberalism’s

perceptions of the universal right to democracy.

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

A central feature of the nineteenth century was the distinction that was made

between civilized (European) and uncivilized (non-European) states.160 This

development was at the expense of the natural school of thought and its well-

articulated views of the unity and validity of similar standards and laws that applied

to all peoples.161 Naturalist thought flourished with Europe’s discovery of new

lands in the fifteenth to the seventeenth centuries. However, positivism gradually

displaced the naturalist notion that a single, universally applicable law governed the

society of nations.162

Positivist theory, as applied to the international community of states, is founded

on the primacy of the state, and this has important consequences for the

jurisprudence of international law:163 first, that only states, as the principal actors

of the international system, could be the subjects of international law; and second,

that states are only bound by those norms of international law that they consent to, a

premise which plagues the contentious jurisdiction of the International Court of

Justice to the present day.164 More importantly, the concept of a ‘‘gap’’ between

‘‘societies’’ provided the intellectual basis for the claim that international law was the

exclusive province of civilized societies. Thus only European states could create

international law.165 Such a conclusion had dramatic and cataclysmic repercussions

for non-European peoples, as it justified colonialism,166 military conquest, and

unequal trading treaties that were heavily weighted in favour of the European

powers.167 Put another way, positivism justified the domination and pillaging of

(mostly) non-European peoples and their wealth.168 Coercion and superior military

force were used to bind them to a ‘‘legal’’ document that essentially allowed

culture. Thus Japan, like China, began an ‘‘assiduous learning and digestion of things European, inorder to secure her place within this ‘Community of Civilized Nations’’’: Owada, supra note 155 at 8.

160. Anghie, supra note 153 at 37.

161. Ibid., at 55.

162. Ibid., at 39248, 53.

163. Ibid., at 33.

164. Ibid., at 33.

165. Essentially jurists pondered that this gap between civilized and non-civilized societies could only bebridged: ‘‘not by a universal natural law but by the explicit imposition of European international lawover the uncivilized non-Europeans’’ (emphasis added): Anghie, supra note 153 at 3325, 48, 5324.

166. Through the concept of assimilation, norms of international law as terra nullius, cessation,annexation, or conquest, non-European people and territory became subject to European sovereignty.In a manner of speaking, they became ‘‘civilized’’ as a consequence of these actions; see Anghie, supranote 153 at 67; Triggs, supra note 75 at 245; and Stephen HALL, International Law, 2nd ed(Chatswood, NSW: LexisNexis Butterworths, 2006) at 249260.

167. Such as the Treaty of Nanking (1842): Anghie, supra note 153 at 8425.

168. Ibid., at 7223. There are many texts written about the effect of colonialism so the following is just asample: Mark COOPER, Rivers of Blood, Rivers of Gold (London: Pimlico, 1998); Elazar BARKAN,The Guilt of Nations (New York: W.W. Norton and Co, 2000); and Karl E. MEYER, The Dust ofEmpires: The Race for Mastery in the Asian Heartland (New York: Century Foundation Books,2003).




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European peoples to do as they pleased.169 Ironically, from a positivist perspective,

these legal documents were also the very means by which these non-European

peoples became ‘‘civilized’’.170

Modern international law as part of Christian civilization, while beneficially

structuring the relations between states of European background, proved more

destructive than constructive in the initial confrontation between China and the West.

It was the challenge of survival in the face of national subjugation and extinction at the

hands of Western imperialism that forced the Chinese to make serious efforts to bring

international law into full play in their struggle to shake off the yoke of unequal treaty

regimes and foreign meddling. The goal was to create and maintain a strong and unified

China with a rightful place in the family of nations.

When Eastphalian sovereignty met Westphalian sovereignty in the nineteenth century,

China grasped at the Western-centric norms of international law. However, this did not

alter China’s perception of the rule of law in international relations. For Chinese leaders

and policy analysts, power remained the true decisive factor.171 China’s woes were caused

because it lacked power against the Western powers.172 Until China could once again

become powerful enough to prevent such humiliations, international law would be

China’s guardian.173 This humiliation was particularly significant for China, which had

for thousands of years considered itself to be the civilized state.174 In the space of one and

a half centuries, China was reduced from the Middle Kingdom at the centre of the

universe to a semi-colonial society. These humiliations at the hands of foreign

imperialism were followed by the Chinese civil war. Such was extent of these

tragedies that by 1938 the unthinkable became a very real possibility—that ‘‘China was

about to be dismembered, that it would cease to exist as a nation, and that the four

thousand years of its recorded history would come to a jolting end’’.175 It was with great

reluctance that China surrendered its political system in favour of the (European)

Westphalian state system.176

However, with the rise of modern China, its Confucianist cosmopolitan outlook

became integrated into the practical aspects of social and political life, forming the

most dominant political and cultural force shaping the Chinese view of the world

order.177 Concomitant with such great changes was the radical transformation of

169. For example, in addition to other humiliations, the doctrine of extra-territoriality enabledEuropean powers to exclude the application of Chinese law and apply Western laws to Europeanenclaves formed in Chinese territories; Sonarajah, supra note 158 at 284; and Triggs, supra note75 at 367.

170. Anghie, supra note 153 at 8425.

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

172. See the discussion in Part IV below.

173. Xue, supra note 54 at 14.

174. China’s long history of defeating barbarians, including the Mongols who had very nearly overrunEurope, gave China confidence that eventually it too would defeat these ‘‘barbarians’’. It would simplytake time.

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

176. Jacques, supra note 50 at 418, 42024.

177. Fairbank, supra note 127 at 6; and Mancall, supra note 127 at 2223.




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Sino-centralism, based on Confucian culturalism, into modern Chinese nationalism,

which embraced sovereign equality and independence.178

In Part IV, we will examine the renaissance of natural law within the context of

the universalist ambitions of international law in the twentieth century. Then we will

return to the issue of China’s perception of power and law, a dichotomy of some

significance, considering the peaceful rise of China.

iv. international law as a universalizing standard:

a renaissance of imperialist ambitions?

The twentieth century saw a revival of natural law, as jurists increasingly sought

to justify the tenor of international law, setting universal standards in human rights

and subsequently democratic entitlement. Of significant importance were the

conflicts in 1914218 and 1939245. If nothing else, they highlighted the inherent

liability within positivist theory—if sovereignty is absolute, how do you regulate

state behaviour?

At the conclusion of each of these wars the survivors met to create international

organizations to resolve this problem of warfare between competing absolute

sovereigns. The first was the League of Nations after World War I, and the second

was the United Nations (UN) after World War II.179 The purpose of both was to prevent

a repeat of conflicts on such a large international scale.180 This meant placing a limit on

the exercise of sovereignty, for the sake of the greater good of the international

community.181 The primary method by which the international community was to be

protected was through the confirmation of two important principles: (1) the principle of

non-intervention, and (2) the peaceful resolution of disputes.

However, somewhat controversially, and in direct conflict with the concept of

Westphalian sovereignty, the League of Nations qualified the Westphalian right to

territorial integrity and independence by permitting the League to take any appropriate

action when the peace and security of other members was threatened.182 The concept of

a qualified right of intervention was continued in the UN Charter. Article 2(7) protected

a Member State’s domestic jurisdiction from intervention, but contained the proviso that

intervention was permitted where it was necessary to maintain international peace

and security. The interpretation of Article 2(7) has not been easy, because no

178. LI Zhaojie, ‘‘Legacy of Modern Chinese History: Its Relevance to the Chinese Perspective of theContemporary International Legal Order’’ (2001) 5 Singapore Journal of International andComparative Law 314 at 315.

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

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

181. See Paul KENNEDY, The Parliament of Man (London: Penguin Books, 2006), although it may beargued that these attempts were merely the practical application of victors’ justice.

182. Art. 11 of the Covenant of the League of Nations (28 April 1919). The Covenant (art. 15) required theLeague to obtain the unanimity of its members, including the members in dispute, before any action orrecommendation could be made. The Covenant also did not allow intervention on the basis of humanrights or ‘‘social justice’’ or if the Council determined a dispute to be within a Member State’sdomestic affairs: art. 15(8).




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reference was made to what matters lie within domestic jurisdiction and who should

determine this.183 Thus began the movement towards restraining the state through the

development of universal norms. It is in this context that we examine whether

Eastphalian norms reflect current European trends towards global constitutionalism as

Asia emerges as a dominant region of the world.184

A. Developing Norms to Restrain Government

In the 1980s, the ‘‘new public management’’ model was developed by a clutch of

Western economic intellectuals as a tool for enforcing restraint on government as part

of a larger economic and political programme.185 Its demonstrated value lay in its

postulation that it improved regulatory efficiency and effectiveness, and was being

adopted in some form or other by a number of governments across the political

spectrum in the West.186 Efforts were made to emphasize performance and measurable

results, to break up ossified institutional structures, and to prioritize responsiveness.187

The new model was also a response to conceptual questions about the legitimacy of the

modern administrative state.188

Clapham writes that the increased economic and political external control beginning

in the 1980s represented a ‘‘return to familiar conditions of subordination’’.189 This

puts in perspective the initiatives from the middle of the last century towards ‘‘altruism’’

by international entities and organizations with an agenda of promoting democracy

and good governance in the Third World. However, it is of note that the initiatives of

relevant entities have been more or less Western-centric in style and form.

International organizations and donors (predominantly Western countries) offer

an increasing variety of technical support programmes, and these programmes

come with a healthy dose of political induction to restructure the powers of the

Third World states to reflect more closely Western institutions, with the basic

dynamic and selling point being that such ordering in sociopolitical and economic

organizations was a panacea to key problems spawned by dysfunctional and

unprincipled governance.

The trend accelerated with the end of the Cold War and the expansion of demo-

liberal doctrines in an atmosphere gripped with the assumed triumph of Western

183. Art. 2(7) of the UN Charter. The initial draft had stated that what was a matter of domestic concernwas to be determined by international law. However, the US and the former USSR caused thereference to international law to be removed, because neither wanted another entity such as the UN todefine what matters were within the domestic jurisdiction of a state; see G. JONES, The UnitedNations and the Domestic Jurisdiction of the States (Cardiff: University of Wales Press, 1979) at 18.


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

186. Ibid.

187. Devolving standard-setting tasks to industry is a significant move from a governance perspective, andit has attracted important comment in Europe; see e.g. J. COHEN and C. SABEL, ‘‘DirectlyDeliberative Polyarchy’’ (1997) 3 European Law Journal 313 at 327230.

188. See e.g. J. BOSTON, J. MARTIN, J. PALLOT, and P. WALSH, Public Management: The NewZealand Model (Melbourne: Oxford University Press, 1996) at 316247.

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




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state liberalism.190 This trend was postulated by Western states and international

organizations as the basis of ensuring the effectiveness of not only representative

democracy, but also mature frameworks of government and human rights.191 There

was an increase in activity promoting Western-style laws and electoral processes with

an array of entities offering an increasing variety of technical support programmes.

This entailed not only a certain degree of political induction, but most importantly

initiatives to restructure and reform the powers of the state and of the state’s social

organizations.192 The 1990s witnessed a number of developments spearheaded by the

UN as it sought to match rhetoric and the triumphalism of the West over the East

with the necessary normative and institutional framework.

While the authors are in no doubt of the need for reform, what is often lost is that

such changes, while affecting the traditional forms of relationship between states and

their own societies, do not robustly factor in consequentialism. The strengthening of

‘‘international’’ values while generating changes within states themselves omits the

relationships between state authority and the individual at the local level, as well as

at the level of social organizations. The activities of Western powers often disregard

the social effects of their proposals or demands and frequently attempt to displace

traditional organizations and institutions in the belief that they lack the ability to

adapt themselves to ‘‘new’’ or alien sociopolitical dynamics. Third World states are

forced to recognize and implement Western demo-liberal ideologies and structures,

but without dealing with the problems that hinder adaptability to the general

interests of the society in a given state:

Transformative changes in the nature of governance undertaken by the United States andthe European Union are not, therefore, likely to characterize international relations inthe twenty-first century. Instead, the twenty-first century may well tell the tale of howAsian countries individually and collectively address entrenched and emerging political,economic, technological and social problems through existing or newly createdgovernance mechanisms. How Asia governs its problems will be of urgent concern forthe world given Asia’s rise in importance in world politics. Governance in Asia hasbecome a ‘‘global public good’’.193

As noted in Part I of this article, the most important ideas that shape China’s

approach to international relations are the Five Principles of Peaceful Co-existence.194

It is also instructive that India, Asia’s other rising power, also considers these

Principles (Panchsheel as they are termed in India) important in how it approaches its

foreign policy and diplomatic relations in the twenty-first century.195 Other Asian

190. Andrew COLEMAN and Jackson MAOGOTO, ‘‘Democracy’s Global Quest: A Noble CrusadeWrapped in Dirty Reality?’’ (2005) 28 Suffolk Transnational Law Review 175 at 181.

191. Miguel DE LA MADRID HURTADO, ‘‘National Sovereignty and Globalization’’ (1997) 19 HoustonJournal of International Law 553 at 557.

192. Ibid., at 558.


194. Ministry of Foreign Affairs of the PRC, ‘‘China’s Initiation of the Five Principles of PeacefulCoexistence’’, 17 November 2000, online: ,http://www.fmprc.gov.cn/eng/ziliao/3602/3604/t18053.htm. (last accessed 2 March 2011).

195. See David P. FIDLER and Sumit GANGULY, ‘‘India and Eastphalia’’ (2010) 17 Indiana Journal ofGlobal Legal Studies 147 at 15021; and Xue, supra note 54 at 14.




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states have not only adopted the Five Principles as being indicative of a broader Asian

perspective on sovereignty and diplomatic practice, but also rely on these Principles

in their dealings with one another.196 As such, the Five Principles act as a defence

mechanism ‘‘against any temptations stronger Asian powers, especially China’’ may

have.197 The essence of the Five Principles is not so much that they demarcate a new

approach to international law and relations; rather they are elaborations of already

enshrined ideas of sovereignty. Their importance is pegged on the rise of China (and

India). Thus, Eastphalia does not enunciate a simplistic leitmotif of another world

view, but of a practice. In the incisive observation by Li Zhaojie:

Despite frequent references in and out of China to ‘‘Chinese international law’’, there isno such thing as ‘‘Chinese international law’’ any more than there is such a thing as‘‘Chinese mathematics;’’ there can only be a Chinese theory and practice of internationallaw. In other words, there is greater continuity and stability in any state’s internationallegal behaviour than its foreign policy behaviour.198

B. China’s Perception of the Rule of Law

How does China view the rule of law? First, what is meant by ‘‘the rule of law’’?

In essence:

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

China’s perception of the rule of law in an international context is coloured by its

historical experiences. In particular, the nineteenth-century humiliations, where

norms touted as ‘‘international law’’ and ‘‘universal’’ were in fact used to cement

European dominance, hegemony, and, in the words of one commentator, Asian

‘‘serfdom’’.200 As noted by Xue: ‘‘its [international law as imposed by Western powers

through colonization] basic tenets of peace, justice, and equality were grimly

tarnished by the cruelty of colonial and imperial governance imposed upon many

Asian countries.’’201

This perception was unaltered by the developments in the twentieth century, the

so-called pursuit of the science of international law, led by the US, saw an increase in

attention on issues such as human rights and democracy becoming a crusade for a

196. The Five Principles were confirmed at the Bandung Summit on Afro Asian Solidarity in 1955, animportant precursor to the non-Aligned Movement; see Ginsburg, supra note 5 at 34; and Kim et al.,supra note 5 at 58.

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

198. Zhaojie, supra note 178 at 325.

199. Brendan SWEENY, J. O’REILLY, and A. COLEMAN, Law in Commerce, 4th ed (Chatswood, NSW:LexisNexis Butterworths, 2010) at 4; and Zhaojie, supra note 178 at 325.

200. Sonarajah, supra note 158 at 287290; C.H. ALEXANDROXICZ, An Introduction to the Law ofNations in the East Indies (Oxford: Clarendon Press, 1967) at 2. As noted by Fidler, the‘‘universalization’’ of international law during the nineteenth century was dependent upon theimbalance between the European and non-European powers: Fidler, supra note 155 at 26.





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‘‘right to democracy’’.202 China sees many double standards in the West’s drive for the

universalization of human rights, and the prosecution and pursuit of what they

acknowledge as worthy ambitions, as creating an ‘‘imbalance’’.203 Xue has noted:

‘‘When the rule of law, democracy, and human rights are being advocated at the

international level, they often tend to represent essentially one type of ideology, one

form of culture, and one kind of political system.’’204

The double standards are obvious. Consider the example of humanitarian

intervention, a controversial norm that conflicts directly with the norm of non-

intervention as expressed in customary international law, and also the UN Charter.

As noted by a Western commentator:

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

Second, China’s historical experiences tend to emphasize that the greatest threat to

human rights take place during periods of instability, regime change, and threats to

the authority of the ruling polity. Thus, it is understandable that the CCP may not

prioritize matters which the West deem to be grave breaches of human rights, such as

the presumption of innocence in criminal trials or the one-child policy. These are

simple matters that can be explained through simple pragmatism in the case of

the one-child policy, and the application of Chinese analysis in the case of the

presumption of innocence.206 Eastphalian sovereignty thus remains focused on the

more ‘‘fundamental’’ questions of maintaining equality, peace and security, and equal

access to development.207 In all of this, Eastphalian sovereignty is merely seeking to

find a path through norms of international law that truly are universal, rather than

serving the interests of a few. To paraphrase Weiss, China is seeking to find the

‘‘legitimate’’ norms of international law that do not camouflage power and

hegemony,208 but truly represent all the actors on the world stage, including those

that espouse Eastphalian sovereignty.

In summary, China and Eastphalian sovereignty recognizes, and agrees with the

concept of, the rule of law. China takes its international obligations very seriously,

but merely asks a valid question: Are international norms truly universal? In this

regard, it is perhaps apt to conclude with a quote from Commissioner Lin Zexu, a

Chinese magistrate, rebuking the intervention of the British and their merchants’

202. See Coleman and Maogoto, supra note 190 at 175.

203. See Xue, supra note 54 at 17.

204. Ibid.

205. Kaplan, supra note 175.

206. Essentially, the Chinese view of this point is that both a presumption of guilt (yuzui tuiding) and apresumption of innocence (wuzui tuiding) are nothing more than one-sided legal arguments. Insteadthe Chinese perspective is to ‘‘Seek the truth from the facts’’ (shishi qiu shi): Ronald C. KEITH,‘‘Chinese Politics and the New Theory of ‘Rule of Law’’’ (1991) 125 The China Quarterly 109 at 112.


208. Sonarajah, supra note 158 at 285, 310; Edith BROWN WEISS, ‘‘International Law in a KaleidoscopicWorld’’ (2011) 1 Asian Journal of International Law 21 at 24; and Xue, supra note 54 at 17.




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desire to introduce opium on Chinese society. Lin Zexu’s opposition to a trade in a

narcotic that caused such distress to Chinese society was one of the causes that led to

the First Opium War of 1839242, and China’s exposure to ‘‘international’’ law:

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

China and the CCP are opposed to such concepts as a universal right to democracy

and humanitarian intervention, because they perceive them to lack universality,210

and see them as thinly veiled attempts to continue Western subjugation.211 There is

much merit to their position, since there is much doubt concerning the so-called right

to democracy articulated by some Western commentators.212 As Petersen notes:

‘‘Therefore, international law only sets up a framework, leaving room for different

cultural conceptions of political order and different social circumstances, for which

an autocratic rule might sometimes be more appropriate than an unstable

democracy.’’213

Thus, China’s Five Principles are state-centric, conservative, and are arguably a

reflection of nineteenth-century positivism, rather than proof of accepting the

norms of natural law.214 The question remains, however, whether it will, through an

internal revolution, come to accept the concepts of natural law, albeit one based on

Chinese experiences.

209. Commissioner LIN Zexu, Open Letter Addressed to the Sovereign of England and Published inCanton (1839) as cited in Arthur WALEY, The Opium Wars Through Chinese Eyes (Stanford, CA:Stanford University Press, 1958) at 29.

210. Many commentators, Western and Eastern, have stated that humanitarian intervention can provide a‘‘smokescreen’’ hiding a state’s ulterior motives, enabling them to use military force to promote theirself-interest, such as NATO’s intervention into Kosovo: Tania VOON, ‘‘Closing the Gap BetweenLegitimacy and Legality of Humanitarian Intervention: Lessons from East Timor and Kosovo’’ (2003)7 UCLA Journal of International Law and Foreign Affairs 31 at 51; and Andrew FIELD, ‘‘TheLegality of Humanitarian Intervention and the Use of Force in the Absence of United NationsAuthority’’ (2000) 26 Monash University Law Review 339 at 343. In particular, Shen, arguespassionately that humanitarian intervention is merely a means to forward a state’s national interestand to promote its power and influence. This is because past examples have involved a powerful stateintervening in the affairs of a ‘‘weaker’’ state: Jianming SHEN, ‘‘The Non-Intervention Principle andHumanitarian Interventions Under International Law’’ (2001) 7 International Legal Theory 1 at10216. This situation is worsened by the apparent inconsistencies of states’ actions, for example theUS intervening to protect human rights in Kosovo, but then refusing to intervene in East Timor due tothe US relationship with mineral-rich Indonesia.

211. Sonarajah, supra note 158 at 294.

212. Gregory FOX and Brad ROTH, eds., Democratic Governance and International Law (Cambridge:Cambridge University Press, 2000). The expression ‘‘democratic entitlement’’ is derived from the mainproponent of the right to a democratic government that Thomas M. Franck raised in a series ofarticles: Thomas M. FRANCK ‘‘The Emerging Right to Democratic Governance’’ (1992) 86 AmericanJournal of International Law 46. A similar version appeared in Lewis HENKIN and JohnHARGROVE, eds., Human Rights: An Agenda for the Next Century (Washington, DC: AmericanSociety of International Law, 1994) at 732102.

213. Niels PETERSEN, ‘‘International Law, Cultural Diversity, and Democratic Rule: Beyond the DivideBetween Universalism and Relativism’’ (2011) 1 Asian Journal of International Law 149 at 157.





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C. China’s Peaceful Rise: ‘‘Heping Jueqi’’

The rise of a major power can often result in drastic change in the internationalconfiguration and world order, and can even trigger a world war. An important reasonbehind this is that these major powers followed a path of aggressive war and externalexpansion. Such a path is doomed to failure. In today’s world, how could we follow sucha totally erroneous path that is injurious to all, China included? China’s only choice is tostrive to rise, more importantly, strive for a peaceful rise.215

During the 1990s, Chinese planners and party officials coined a new phrase to

describe China’s engagement with the globe: heping jueqi or ‘‘peaceful rise’’.216 In

much the same manner that they describe globalization, commentators have

described China’s rise, and ascendency, in world affairs as inevitable: ‘‘The

question is no longer if the rise of China, India and Asia will affect world politics.

The question is how.’’217 There is no doubt that China’s increasing power and wealth

provide it with massive potential to shape how other states think and act.218 China’s

rise and economic success has come at a time of the opposite for the US and the West,

reeling from the global financial crisis,219 and their loss of international moral

ascendency.220 To place the timing into context, in January 2009 China announced its

waixuan gongzuo programme,221 an ambitious global media programme that aimed

to tell the world about the advantages of China’s economic/political model. China

allocated an estimated US$6.8 billion for its implementation, at a time when US and

Western governments, faced with the threat of the global financial crisis, were

scrambling to find the funds to bail out their failing economies.222

As mentioned in Part I of this paper, globalization is not a one-way street: China is

a source of globalization. The rise of China has already altered the globalization

landscape by creating new centres of economic autonomy that offer developing states

alternative paths to economic development.223 The significance of such alternatives,

and their consequences, cannot be overestimated, since the global financial crisis has

215. ZHENG Bijian, ‘‘A new Path for China’s Peaceful Rise and the Future of Asia’’: speech delivered tothe Boao Forum for Asia, 3 November 2003.

216. The slogan was introduced by Zheng Bijian in his speech to the Boao Forum for Asia: Zheng, supranote 215; LIU Guoli, ‘‘The Dialectic Relationship Between Peaceful Development and China’s DeepReform’’ in GUO Sujian, ed., China’s ‘‘Peaceful Rise’’ in the 21st Century: Domestic and InternationalConditions (Aldershot: Ashgate, 2006) 17239 at 27; and Halper, supra note 8 at 143.

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


219. Halper, supra note 8 at 3329; see generally Leo F. GOODSTADT, Reluctant Regulators: How theWest Created and How China Survived the Global Financial Crisis (Hong Kong: Hong KongUniversity Press, 2011).

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

221. Translated as ‘‘foreign or overseas propaganda’’.


223. For example, commentators such as Steven Weber and Naazneen Barma have predicted that the nexttwenty-five greatest multinational corporations will be from so-called emerging States/markets, suchas Brazil, Mexico, Taiwan, India, China, South Africa, Chile, Argentina, and Malaysia. In additionthere are economic co-operatives such as BRIC (Brazil, Russia, India, and China, as labelled byGoldman Sachs) that actively attempt to formulate policies to conduct trade and move capital thatdeliberately excludes the US: Halper, supra note 8 at 29; and Knight, supra note 19 at 829, 16.




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shown the public vulnerability to private risk-taking, greed, and incompetence.

Globalization has enabled, and highlighted, how private actors, and the failure of

regulation by central governments, can have a domino effect on other states, which

causes great public trauma. Thus, the global financial crisis raises the spectre of what

can happen in a free-market economy, and China’s example shows what can happen

in a state-controlled one: continued growth and stability.224 The global financial crisis

may reinforce perceptions of a greater need to reel in globalization, to reaffirm

sovereignty, and a call for a stronger or greater role for government in the market in

order to maintain economic stability, i.e. to reject the US model (the Washington

Consensus) and adopt the China model—the Beijing Consensus.225 China’s example

also shows that whilst the importance of economic stability on democratization

cannot be overstated,226 it is not fundamentally necessary to create a civil society in

the image of the Western liberal model. In Halper’s words, China’s example has

provided an ‘‘exit option’’ to many emerging, autocratic states in Asia and Africa.227

As noted by Petersen, of the thirteen states whose economies have grown the most in

the period 1950290, only one was a democracy.228 China is attracting ‘‘admirers’’

who desperately need and want global capital, but are not prepared to pay the price

demanded by the West, and who wish to remain free from Western concepts of civil

society, democracy, human rights, and liberalism.229 China’s admirers extend beyond

Asia230 to encompass its trading partners in Africa, the Middle East, and Latin

America.231 States may follow China’s example in preference to that of the US. For

example, in 2003 a survey held in Latin America found that more than fifty percent

of participants would prefer a non-democratic government if it would solve

economic problems. States like Syria, Iran, and Vietnam have expressed a desire to

emulate China’s example because of the economic stability it appears to have

brought. Other states like Mongolia may publicly embrace democratic reform but

privately express their awe with the ‘‘Beijing Consensus’’.232 This model is simple:

‘‘the power of the market plus the stability of authoritarian rule.’’233 As such it is

224. Halper, supra note 8 at 131. For a detailed analysis of how China ‘‘survived’’ the global financial crisis,and why: Goodstadt, supra note 219.

225. Halper, supra note 8; and Kim, Fidler, and Ganguly, supra note 5 at 53.

226. In fact it could be argued that a certain level of economic stability and prosperity is a precondition forsuccessful democratization: Ginsburg, supra note 5 at 27; and the various works of one of the leadingauthors in this sphere, Randall PEERENBOOM, China Modernizes: Threat to the West or Model forthe Rest (New York: Oxford University Press, 2007) at 39240, 12425.


228. Petersen, supra note 213 at 157.

229. Such as conditions attached to aid and development funds, the so-called ‘‘Structural AdjustmentProgrammes’’ imposed by the West; Halper, supra note 8 at 31, 47, 58262, 72.

230. After all, China is fast becoming the most important market for every East Asian state, and is fastbecoming the ‘‘fulcrum of the East Asian economy’’. States like Japan and Taiwan have openly anddeliberately moved to establish closer ties with China: see Jacques, supra note 50 at 415.

231. Lo, supra note 5 at 15. There is a growing discourse devoted to China’s involvement in Africa. Here isa small selection: Alden, supra note 24; Robert I. ROTBERG, ed., China into Africa: Trade, Aid, andInfluence (Washington, DC: Brookings Institution Press, 2008); and Deborah BRAUTIGAM, TheDragon’s Gift: The Real Story of China in Africa (New York: Oxford University Press, 2009).


233. Ibid., at 126.




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attractive to developing states, particularly in Africa, that may have a history of

questionable ‘‘legitimacy’’ in the eyes of the West due to their lack of democracy, or

their human rights record.234

Whilst some commentators argue that China does not seek a military

confrontation and genuinely seeks peaceful co-existence with other states,235 others

have questioned China’s ‘‘peaceful rise’’, because of disputes with its neighbours

involving maritime borders and territorial claims in the South China Sea,236 and

claims that it is indulging in economic imperialism.237 With the recent announcement

of the sea trials of the Varyag, China’s first aircraft carrier, alarm bells are sounding

throughout Southeast Asia and the West.238 Some commentators write that China

may become even more assertive, increasing the risk of conflict not with just with its

Southeast Asian neighbours, but also with India and the US, which has stated it has a

national interest in the South China Sea.239 Finally, how the West maintains relations

with China in the ‘‘grand arena’’ of the international community will be influential in

determining the future democratization of China. Many Chinese scholars are

concerned that the US loss of ascendency and the continued decline of its power may

cause the US to take an increasingly bellicose posture with regard to China, perhaps

even leading to open military conflict.

If US policies towards China become more bellicose, they will promote

nationalism and reinforce the CCP’s legitimacy in the eyes of the Chinese people.

Nationalism has already been successfully used by the CCP and, under growing

pressure from the US, Chinese nationalism could be reinforced by moral

righteousness. As Xue noted: ‘‘As a developing country, China fully appreciates

what a superpower means in international relations. In Chinese philosophy, we

follow the maxim: Don’t do to others what you do not wish others to do to you.’’240

Nonetheless, some commentators, such as White, suggest that China may

introduce a hegemonic entity similar to the US in relation to protecting their

national interests in the Caribbean Basin.241 Michael Ignatieff once described the US

hegemony in these terms:

It is an empire lite, hegemony without the burden of direct administration and the risksof daily policing. It is an imperialism led by a people who remember that their countrysecured its independence by revolt against an empire, and who have often thought of

234. Ibid., at 39.

235. Donald M. LAMPTON, The Three Faces of Chinese Power: Might, Money and Minds (Berkeley, CA:University of California Press, 2008) 252274; Kaplan, supra note 175; refer to the quote from Zheng,supra note 215.

236. For example, the disputes over the Spratly Islands, where over forty-five islands are occupied bymilitary forces from Vietnam, China, Taiwan, Malaysia, and Brunei; see Austin RAMZY, ‘‘TroubledWaters’’ (2011) 178 Time 28 at 30; Kaplan, supra note 175.

237. Kaplan, supra note 175.

238. Ramzy, supra note 236 at 30.

239. Ibid.; Kaplan, supra note 175.

240. Xue, supra note 54 at 19

241. The US allowed their neighbours extensive latitude in the internal administration of their territories,to run them as they saw fit, but when it came to external matters, and international relations,Washington insisted that its views take precedence: Hugh WHITE, ‘‘Power Shift: Australia’s Futurebetween Washington and Beijing’’ (2010) 39 Quarterly Essay 1274.




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their country as the friend of anti-imperial struggles everywhere. It is an empire y

without consciousness of itself as such.242

If the US empire can be described as ‘‘Empire Lite’’, then China’s would have to be

described as ‘‘Empire-Zero’’, as noted by White:

China’s conception of itself is that of a benign, non-hegemonic power, one that does notinterfere in the domestic philosophies of other states in the way the United States—withits busybody morality—does. Because China sees itself as the Middle Kingdom, its basisof dominance is its own inherent centrality to world history, rather than any system itseeks to export.243

Fidler describes China’s potential hegemony in Asia as a ‘‘Concert of Asia’’,244 whereas

Chinese officials have often expressed the perception of international democracy. They

do not believe in a ‘‘world government’’ with one global sovereign dictating to its

‘‘citizens’’.245 This view is made clear in its Five Principles, mutual benefit, and peaceful

co-existence. The essence is that global problems or everyday affairs between members

of the international community should be handled through co-operation and

consultation. Thus, if China begins to exercise greater leadership in the global

community, it will not do so by trying to impose its own perception of universal values,

as the West did through colonialism and the pursuit of democracy.246

However, such a political construction requires ensuring all members are equal,

which they currently believe is not the case.247 Thus China has expressed the desire

of redressing the imbalance in the global economy. The Chinese leadership has

repeatedly stated their desire that China should actually take action through

international institutions such as the UN, the IMF, and the WTO, to change

the ‘‘rules of the game’’.248 This will be an application of soft power rather than

hard power.249

What are the implications for all of this for the concept of Eastphalian

sovereignty? One of the key questions is whether China’s rise would alter

their perception of sovereignty and begin a ‘‘universalist campaign’’, similar to the

West’s democracy and human rights crusade? In other words, would Eastphalian

sovereignty undergo the same metamorphosis that Westphalian sovereignty did?250

Ginsburg raises and even accepts this as a possibility. He suggests that China’s Five

Principles and the current form of Eastphalian sovereignty reflects Asia’s and China’s

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

243. White, supra note 241.



246. This may be due to a number of factors, such as the absence of a religion that has a universalisttradition; Ginsburg, supra note 5 at 40.

247. Knight, supra note 19 at 18325.

248. Ibid., at 181.

249. ‘‘For Chinese this is an evolving process. The first generation [Mao Zedong] paid more attention tomilitary power; the second generation [Deng Xiaoping] placed more emphasis on comprehensivenational strength. The third generation [Jiang Zemin], in the late 1990’s began to pay more attentionto soft power’’: an unnamed Chinese scholar in an interview with David Lampton: Lampton, supranote 235.





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focus on state-building.251 This argument is attractive, since there is no doubt that the

industrial revolution in Europe was the decisive difference between China and

Europe in the nineteenth century, one which enabled Western Europe to impose its

perception of political authority on the world. China’s rapid industrialization has

now given it an economic advantage, and thus it may adopt Europe’s international

constitutionalism, albeit with a distinct Chinese flavour. However, the authors

disagree.252 After all, China’s history is very dissimilar to the West. When considering

the question examined by this paper, it is wise to be reminded of the problems caused

by preconceptions or false assumptions created by particularistic values and

cultures.253 Speaking in 1995, former US Secretary of State Robert McNamara,

reflecting on the sociopolitical dimension of the Vietnam military campaign, noted:

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

In other words, we should not judge China’s (and Asia’s) rise through the ‘‘lens of

Europe’’.255 It is true that the China’s Emperor knew no earthly equals, and thus that

Eastphalian sovereignty was absolute in its external dimension, but even during

China’s most imperialist stage in its history,256 rather than conquer, China imposed a

system of tribute and suzerainty on its neighbours.257 The tributary system was not a

form of proto-Confederation, or early form of regional governance. It was, according

to Ginsburg, a ‘‘hub and spokes system with China at the centre’’.258 Furthermore,

the tributary system was intended to create mutual benefits and, more importantly,

was based on the concept of non-interference: China’s Five Principles has a long

historical tradition.259

One thing is clear: China and Eastphalian sovereignty being in the ascendency

would end the US democracy crusade, and limit militarist interventions by the West

into other states.260 One theme, which is consistently evident throughout Chinese

history and its perception of the role of international law and sovereignty, is that

251. Ibid., at 39.

252. Ibid., at 44.

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

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


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


258. Ibid.

259. Ibid. Jacques ponders: Will there be a return of the tributary system? Will East Asia, even Africa andAustralia become vassals of China? Jacques, supra note 50 at 418, 42024.

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




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peace and stability is achieved through upholding the principle of non-intervention.

This rule is sacrosanct in Chinese policy, and will influence how China interacts with

other states as much as how it feels other states should interact with it.

v. conclusion

China’s resistance to what it sees as Western intrusion and political-cultural

imperialism does not necessarily mean that democratization in China cannot ever

occur. What it means is that if it is to occur, it will happen on China’s terms: in other

words on the CCP’s terms. It is clear that Chinese policy-makers are led by

intellectuals who are not only adaptive, but are open-minded about examining the

benefits of proposed changes. This statement may contradict Western cliches about

the autocratic nature of Chinese governance, and the actions taken to repress what

Chinese officials perceive as threats to the polity, but such comments are examples of

‘‘Western goggles’’ and incorrect assumptions. In any event, China will plot its own

course and, buttressed by its Five Principles, will determine the future evolution of its

political and economic system. As China’s peaceful rise continues, perhaps it is the

West that needs to make an adjustment. It may be that the West can learn from

China’s concept of ‘‘one state, two systems’’ and apply it on a global level: ‘‘one

globe, different systems.’’261

261. Edmund S.K. FUNG, In Search of Chinese Democracy: Civil Opposition in Nationalist China,192921949 (Cambridge: Cambridge University Press, 2000) at 12; and Ginsburg, supra note 5 at 29.




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