Yasuaki

A Transcivilizational Perspective on International Law 301
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the behaviour of monarchs or feudal lords. Therefore,

while Grotius dissociated natural law from God in
principle, yet he re-introduced Christian norms into his
legal “system” in a multi-layered manner. By making
full use of various norms including natural law, law of
god, law of nations, various types of quasi-law and
social ethics, he sought to maximize the actual regula-
tory power of his multi-layered normative structure. In
this way, he sought to restrain and regulate wars
between various independent powers in Europe of his
time 189.
In writing his masterpiece, De jure belli ac pacis,
Grotius did not seek to establish international law as is
generally assumed today. What he sought was the
restriction and regulation of wars, which included not
only interstate wars but “private wars (bellum priva-
tum)” between independent powers existing for a long
time in the decentralized medieval Europe. More pre-
cisely, it was the minimization of bloodshed that he
actually sought to accomplish. However, he sought to
accomplish this task by establishing a general theory
of law. And he published his masterpiece providing
comprehensive treatment of law regulating indepen-
dent powers including the emerging sovereign States
exactly when the European sovereign States system
was emerging 190.
This is a major reason why he was read as if he had
sought to establish the general theory of international
law as an integral part of this emerging sovereign
States system in Europe. During the subsequent period
this European sovereign States system expanded to a
applicable copyright law.
global scale. Together with this expansion, European
189
Onuma, supra footnote 171, pp. 83-84 ; Onuma,
“Conclusion”, idem, ed., A Normative Approach to War,
supra footnote 171, pp. 375-380.
190
Supra footnote 189.
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302 Onuma Yasuaki
international law became global international law. With

this globalization of European international law, later
generations — more concretely, influential Western
international lawyers — characterized him as the
“father of international law”. In this way, a number of
normative ideas, particularly those of Roman law and
natural law, came to be globalized through the repeated
reading of Grotius’s great book, De jure belli ac pacis.
Other influential European international lawyers,
particularly Emmerich de Vattel, emphasized and con-
solidated one important element of European interna-
tional law, i.e. equality among nations. This notion was
well received by people who had been once under
colonial rule of European powers and later attained
independence. The United States in the eighteenth cen-
tury, Latin American nations in the nineteenth century,
and Afro-Asian nations in the twentieth century all
embraced Eurocentric international law, whose fun-
damental principles include the independence and
equality of nations as well as the non-intervention
principle.
It cannot be denied that European international law
was violently imposed on non-Europeans in the process
of European expansion during the modern period.
However, it was also well received by non-Europeans
for various reasons, among which this principle of
equality of nations is most important. Non-European
people came to accept this characteristic feature, i.e.
the equality of nations under European international
law, when they regained independence after having
been colonized by Europeans. As described later, Euro-
pean international law came to be globalized in the

geographical sense around the end of the twentieth
century. However, European international law was
globalized in terms of its subject or agent when non-
European people regained their independence. They
accepted European international law as a system regu-

lating the relations between them and European nations

as well as relations between themselves.
The first significant step of this globalization of
European international law in terms of its subject was
the attainment of independence of the United States
and its acceptance of European international law as the
normative system regulating relations between States.
In retrospect, this had a tremendous meaning in the
character and functioning of international law on a
global scale. The United States became the twentieth-
century version of the central power, which had a huge
influence on regional normative systems or orders in
human history, such as the Chinese dynasties, the
Roman Empire, the Abbasid Dynasty and the Ottoman
Empire. The significance of the United States is all the
more decisive, because unlike these historical empires,
the United States has occupied the status of the central
power on a global scale. However, when the United
States attained independence, it was just a minor nation
which had only a limited influence in the form of ideas
such as freedom, liberty and independence. It was also
taken for granted that the United States would become
a member of the then existing Eurocentric international
society and abide by Eurocentric international law.
The second significant step was the attainment of
independence of Latin American nations in the nine-
teenth century. Like the case with the independence of
the United States, Latin American nations were already
Christianized and in many respects Europeanized in
their world images when attaining independence.
Therefore, it was felt natural that they would become
members of the Eurocentric international society and

accept Eurocentric international law. On the other
hand, because most Latin American nations were
poorer and underdeveloped in terms of economics,
they suffered from the existing Eurocentric interna-
tional law, which was favourable to major European

304 Onuma Yasuaki
powers. Governments, international lawyers and other

people in Latin American nations challenged a number
of existing norms of Eurocentric international law. But
on the whole, they followed the basic structure of
Eurocentric international law.
The third significant step was the decolonization
process after the Second World War. A huge number of
Afro-Asian nations attained or regained independence,
and the worldwide colonial system came to an end.
Although they challenged a number of existing norms
in international law, which they regarded as a tool of
Western dominance over the world, they did not seek
to re-establish their regional orders or systems which
they had maintained before being colonized by Euro-
pean powers. Rather, they sought to reorganize the
existing international law, which is West-centric, to
international law which they consider more equitable
and fair, fully taking into consideration their interests
and values. This is a process still going on in the
twenty-first century.
As the above analysis demonstrates, current interna-
tional law is an historical product of European theories
such as those of Vitoria, Grotius and Vattel, and the
substantive power, particularly the military strength, of
major European States. The actual effect of the combi-
nation of theory and military strength, however, was
not limited to modern European civilization. The com-
bination of Islamo-centric theory and the economic-
military power of the Muslim empires such as the
Abbasid and the Ottoman empires, and the combina-
tion of Sinocentrism and the economic-military power
of the Chinese dynasties such as the Tang and Qing

dynasties, had basically the same meaning and func-
tion. It was not only Europeans who colonized the
world that were discriminatory and prejudiced. People
in other regions were also discriminatory and preju-
diced.

Although vigorously expanding to other regions of

the world, European powers were far inferior to the
Ming dynasty and the Ottoman Empire in the age of
Vitoria. The “division of the world” by the bull of
Alexander VI of 1493 and by the Treaty of Tordesillas
of 1494 sounded for the contemporary Chinese nothing
other than a joke by the barbarians. It took some four
centuries for the combination of the theory of Vitoria
and the military strength of Europeans to show its
aggressive nature fully on a global scale. It took the
same amount of time for the Eurocentric image of the
world, with “international law” as its constituent, to be
actually valid all over the world. In order to fully
understand how European international law became
global international law, we must see other competing
normative systems co-existing in various regions of the
world.
3. The Sinocentric tribute system in East Asia

(1) Sinocentric tribute system
In East Asia — which today covers approximately
China, Mongolia, the Korean peninsula, Japan, Taiwan
and Vietnam — there existed a sphere of civilization
with China at its centre. Political entities in the region
differed greatly from each other in size, culture and
structure, ranging from the Qing dynasty, whose terri-
tory was larger than the whole of Europe, to the
Ryukyu Kingdom, which ruled a territory merely the
size of a local community in today’s Japan. These
entities shared common characteristic features such

as Chinese characters, Confucianism, Mahayanist
Biddhism, and legal rules and institutions originating
in China, although the degree and specific form of
these features differed from one country (or group)
to another and from one era to another. They shared

306 Onuma Yasuaki
cognitive, evaluative and normative frameworks to a

certain extent. The relationship between the political
entities which developed within these frameworks
can be summarized as follows.
China was in a far superior position to the other
political entities because of its vast territory, massive
population, huge production, sophisticated culture, and
highly developed legal rules and institutions. It thus
maintained an egocentric and universalistic world
image with a strong sense of superiority : Sinocen-
trism. Its basic philosophy was that of rule by virtue.
The emperor should embody virtue and spread it
throughout under Heaven. Not only local rulers in
China but also rulers beyond the immediate pale of
China were expected to appreciate the virtue of the
emperor, whose absolute authority should not be ques-
tioned.
Thus, there should be no relationship based on
equality between the emperor and other rulers, even if
the latter were not actually subordinate to the former.
All relations in the region had to be regulated basi-
cally by Chinese rules, customs and rituals, not by
“treaties” between the parties. Foreign rulers were
expected to send a mission to the emperor and to pay a
tribute to him in accordance with the well-established
Chinese rules and rituals. The emperor, in return, con-
ferred basically the same official ranks and titles on
those rulers as those he conferred to domestic local
rulers in China according to the established rules and
customs of official ranks and titles. He also gave them
certain gifts and permission to engage in trade activi-
ties during their stay in China. All of these procedures

were carried out by Chinese literati officials, whose
highly sophisticated culture and elegant, poetic lan-
guage were grounded in a vast knowledge of the
Chinese classical period.
Various independent human groups in the neigh-

bourhood did not always share the norms based on

such Sinocentrism. Especially for nomads in Central
Asia, who were regarded by China as northern or west-
ern barbarians, China was just one of many foreign
powers, to be obeyed by them when it was powerful,
and to be exploited by them when it was weak. When
the nomads were exceptionally strong, they succeeded
in concluding treaties with the Chinese emperor on the
basis of equality, or even characterizing their leader as
superior to the Chinese emperor. An egocentric world
image with a sense of superiority was not limited to the
Hans, the majority group of the Chinese. Such an
image was common to many human groups in the
region. They sought to have relations with China based
on equality, and to develop their relations with
non-Chinese neighbours on the premise of their own
superiority.
Yet, the Sinocentric tribute system was on the whole
profitable and useful to East Asians. The tribute to
China was actually a form of trade, and generally pro-
duced great profits for various human groups in the
region. China was also the most important centre of
knowledge, information, religion, education and other
forms of culture. For rulers in a region whose people
accepted various types of Chinese culture and politico-
legal ideas and institutions, official ranks and titles
conferred by the Chinese emperor were important
means for legitimizing their rule over the subordinate
people or their suzerainty over competing rulers.
Rulers in the neighbourhood of China generally com-
plied with the Sinocentric rules and procedures not
only vis-à-vis China, but also among themselves.

These Sinocentric rules, procedures and other institu-
tions were naturally modified and transformed accord-
ing to dominant local cultures and practices when they
were accepted and utilized. With such modifications,
these rules, procedures and other institutions were

308 Onuma Yasuaki
“public goods” or common institutions whose useful-

ness was consciously or unconsciously recognized in
East Asia 191.
(2) Diverse perceptions and understandings of

Sinocentrism held by various actors
The Sinocentric cognitive, evaluative and normative
framework of these regional relations was generally
characterized as an extension of the domestic frame-
work of China, and shared, with certain modifications,
by independent human groups in East Asia. Seen from
the Chinese perspective, the emperor was supposed to
reign over the entire cosmos. In those regions to which
his rule did not actually reach, the emperor recognized
the legitimacy of the rule of a foreign ruler by con-
ferring on him an official title and ranking, the same
kind of which he conferred on local rulers in China.
The strict distinction between the “international” and
the “domestic” did not exist.
Seen from a non-Chinese rulers’ perspective, it was
not necessarily clear whether his neighbour was an
equal independent power, a weaker and/or less civi-
lized one who ought to be subordinate to him, or a
stronger and/or more civilized one to whom he ought
to be subject. It was, however, apparent to all in the
region that China was paramount. East Asians thus
made use of this Sinocentric system as a common cog-
nitive, interpretive, normative and evaluative frame-
works. For example, Chinese was the “lingua franca”
of the region. Chinese characters and sentences of a
sophisticated style were used as a means of diplomatic

and cultural communication not only in transactions
involving China, but also in those between non-
Chinese political entities or independent groups. This
191
Onuma, supra footnote 167, pp. 11-18.

fact reflected the general adoption by East Asian

peoples of Chinese characters as an official language
in their domestic settings 192.
How and to what extent East Asian rulers accepted
the Chinese way varied according to various factors.
Generally, whether a certain ruler including the
Chinese emperor could urge other foreign rulers to pay
tribute to him depended on such factors as : (1) relative
military strength, i.e. whether he could menace or even
actually invade other rulers’ territories in case of defi-
ance of his authority by the latter ; (2) economic
advantages, i.e. whether he could offer an abundant
profit and advantages to other rulers such that they
would find it to be worthwhile to be in an inferior posi-
tion to him ; (3) cultural and religious attraction as well
as informational advantages, i.e. whether his country
could offer attractive religious teachings, highly devel-
oped culture and education, and strategically and eco-
nomically useful information ; (4) legitimacy attrac-
tion, i.e. whether he could confer titles and rankings
which were highly regarded as legitimate by rulers
among neighbours ; and, (5) the distance between the
parties in question.
As referred to earlier, the Chinese emperor was sup-
posed to embody virtue and spread it throughout under
Heaven. Therefore, “uncivilized people” were expected
to send a tributary mission to him in order to share in
his virtuous rule.
If, however, someone did not understand the “great
virtue of the emperor” and failed to send a mission to
him, what would happen ? The emperor had several
options.
192
It should be noted, however, that the term “Chinese”
at this point of history did not necessarily hold the same
meaning as it does today. Rather, it was a group of signs
embodied in Chinese characters and sentences.

310 Onuma Yasuaki
(i) He could deem it a waste of time to bother with

such an “ignorant savage”, and this savage could be
left alone. The sanction against such ignorance would
be that he remain uncivilized. It would be against the
philosophy of virtue to compel him to send a mission.
This lack of proselytizing zeal is a characteristic fea-
ture distinguishing Sinocentrism from other egocentric
and universalistic belief systems such as Christianity
and Islam. At least in the past, all of them had a
strong superiority complex, negating the values
shared by others which they regarded inconsistent with
them, but Chinese dynasties did not proselytize
Sinocentrism. They suggested paying tribute to them,
but were not so eager to propagate their belief sys-
tem to others.
(ii) Although rule by virtue was at the centre of
Sinocentric cosmology, the emperor could punish
those who manifestly defied or ignored his authority.
Thus, China could send a punitive expedition, regard-
ing the failure as a challenge to the authority of the
emperor. This “punitive action” was in fact a war
between China and the “disobedient” party. However,
China did not regard it as a war between equals but as
a sanction to be imposed by the superior, the emperor,
on the inferior party. In this sense, although the rules
and principles regulating the relationship among the
members of the tribute system were basically social
and cultural norms based mainly on Confucian cosmol-
ogy, they had some features of coercive norms as
well 193.
193
In particular, Korean and Vietnamese rulers, whose
domain was adjacent to the Chinese domain, had to con-
sider that they might be a target of military sanctions if
they openly offended or refused to obey the authority of
the Chinese emperor. This was generally not the case with
Japanese rulers.

(iii) China could content itself with a compromise

agreement with the “delinquent party”, such that the
latter would bring a gift to the emperor, which could be
construed by China as a tribute. Political entities in the
region co-existed by qualifying their own egocentric
world images. According to Sinocentrism, because the
emperor was the only one to reign under Heaven, no
non-Chinese ruler should be allowed to call himself the
emperor. However, some rulers sought to place them-
selves in a superior position in relation to other politi-
cal entities and to use the title of emperor. Disputes
over titles, one’s own and others’, as well as over the
characterization of third parties who paid tribute to
both, occurred frequently. In order to mask such dis-
putes, the parties often adopted different expressions in
their diplomatic and domestic instruments. Sometimes
this involved the falsification of diplomatic letters and
the despatch of false ambassadors.
(3) Deviations within a Sinocentric tribute system
There were naturally various types of modifications

of and deviations from the Sinocentric ideas and insti-
tutions in the long history of East Asia. When, for
example, the most powerful ruler in Japan dispatched
its mission to the Chinese Emperor Yang-ti of the Sui
dynasty in the seventh century, the official letter of the
Japanese Government began with the following sen-
tence :
“The Son of Heaven of the country where the
sun rises hereby conveys a letter to the Son of

Heaven of the country where the sun sets” (my
translation).
This sentence connoted a sense of equality, however
ridiculous it may have sounded, given the enormous
gap between Japan and China in power and in civility

312 Onuma Yasuaki
at this period. In the subsequent history, a number of

Japanese leaders sought to maintain such a posture,
although they most likely knew that it was virtually
impossible to do so.
This tendency can be observed in the later period
and in other nations as well. For example, although the
Vietnamese king of the Nguyen dynasty in the nine-
teenth century complied with the Chinese emperor’s
order not to use the title of emperor in relation to
China, he continued to use the title of emperor in rela-
tion to his domestic subordinates and to his less power-
ful neighbours.
These deviations were an inevitable consequence of
the Sinocentric relations which were maintained for a
long period of time among independent political enti-
ties in East Asia. Even if China was a superpower for
much of human history, it was impossible for China,
with its limited military and economic power, to
impose its will on all the peoples of East Asia, let alone
of the world. In this sense, the tribute system func-
tioned well only when the parties in the system toler-
ated or acquiesced in these deviations. On the other
hand, it had a number of advantages as described
above, and worked well, as long as the players did not
stick to the principle in a rigid manner.
East Asia was not the only region where a central
power used its domestic rules for regulating foreign
relations and neighbouring bodies politic generally
accepted such rules with a certain degree of devia-
tions. There were many cases in which an “agree-
ment” concluded by one of those empires and a
foreign body politic was characterized by the empire

as an application of domestic laws or as a con-
cession by the emperor, but by the other party as a
treaty based on an equal footing. Ancient Rome also
concluded agreements with other bodies politic on an
equal footing when it was not powerful enough, but

imposed its domestic rules unilaterally on its neigh-

bours when it became a powerful empire. Similar
examples can be seen in the case of the Ottoman
Empire, the Byzantine Empire and other powerful
empires 194.
As shown in these examples, it was rather usual that
independent human groups with a sense of egocentric
superiority to other groups maintained peaceful rela-
tions with them.
In such cases both parties generally compromised
with each other, often acquiescing in at least de facto
equality on for external purposes, but claiming supe-
riority over the other for internal purposes. They
resorted to various techniques, even including the
falsification of the State letter, to conceal the perception
gap between them 195.
194
Thus, one could understand, although one may not
endorse, why the United States has often applied unilater-
ally its domestic laws even outside its territory. The United
States in the post-war period has been today’s version of
the central power or empire. Thus, it is in a sense natural
for it to behave unilaterally, disregarding rules of interna-
tional law which are based on the principle of equality.
The serious problem for the United States is that, unlike
historical norms surrounding the former empires behaving
unilaterally, today’s international law is based, not on hier-
archical notions, but on the notion of equality of States.
Moreover, the United States itself values highly the notion
of equality in domestic settings. Thus, the hypocritical
character of the United States behaviour often becomes
evident, thereby inviting much criticism that hurts its legiti-
macy and authority.
195
The falsification of the State letter to conceal the
perception gap with a foreign party was, naturally, com-

mon to Europeans. See the case of Macartney mission that
falsified their report so that they may not invite harsh
anger and criticisms from their fellows, which is vividly
described in Alain Peyrefitte, L’empire immobile ou le
choc des mondes (Librairie Artheme Fayard, Paris, 1989),
pp. 288-289.

314 Onuma Yasuaki
4. The conflicts of two universalistic world images in

East Asia
(1) The limited historical applicability of the prin-
ciple of pacta sunt servanda
When people who have different world images con-
tact each other or maintain relations, each party seeks
to regulate the contact or relations by applying its own
norms. However, when the norm was different from
each other, which was generally the case between two
parties belonging to different regional civilizations or
groups with different world images, they could not
even negotiate with each other. One might be tempted
to assert that the universal rule of pacta sunt servanda
should have been valid in such cases. If this had been
the case, we may be able to argue that these parties
were regulated by the “treaties” between them even
though each party’s norms were different in their
assumptions and world images. However, the existence
of the universal and supra-historical rule of pacta sunt
servanda has been denied by the experts of legal his-
tory 196. For example, in Roman law, the basic rule on
the agreement is that agreement itself or agreement with-
out satisfying formalistic requirements (nudum pactum)
does not bind parties (nuda pactio obligationem non
parit ; sed parit exceptionem : Digesta 2.14.7.4). In
order for an agreement to have a legally binding force,
it must satisfy certain formalities or actual perform-
ance. Although there were various forms of excep-
tions, this formalistic principle (“nudum pactum” prin-
ciple) negating the legally binding force of a bare or
simple agreement was maintained throughout the his-

196
See Onuma, “Agreement” and references cited
therein, idem, ed., A Normative Approach to War, supra
footnote 171, pp. 176-177, particularly studies in Archives
de philosophie du droit, XIII (1968).

tory of Roman law. It must be emphasized that such

requirement of certain formalities and/or actual perform-
ance for a legally binding agreement was not limited
to Roman law. Germanic law and some Asian law
also had this requirement. They all denied the legally
binding force of a formless or bare agreement 197.
It is true that in human societies the notion of pacta
sunt servanda in the wider or general sense of the term
can be seen regardless of the time and region. Even in
ancient Rome, where the rigid rule requiring formali-
ties and/or actual performance for a legally binding
agreement was prevalent, this rule’s actual applica-
bility was restricted in many ways. During the course
of time, the rigid “nudum pactum” principle gradually
deteriorated and was superseded by the modern prin-
ciple of pacta sunt servanda. Grotius, the “father of
international law”, played an important role in this
process of the establishment of the modern legal prin-
ciple of pacta sunt servanda 198. The very fact, how-
ever, that the idea of pacta sunt servanda as a legal
principle came to be accepted during the modern
period demonstrates its historicity as a legal principle.
In fact, the substance of a supra-historical and uni-
versal rule of pacta sunt servanda in the general sense
of the term is so vague and equivocal that specific
legal consequences can hardly be deduced from it.
Therefore, the validity or existence of the “universal”
rule of pacta sunt servanda in the general sense of the
term does not guarantee that normative expectations of
each party will be realized through this rule in a stable
and reliable manner. If, for example, one party believes
that pacta sunt servanda means that a simple or bare

promise has a binding force, and the other party
believes that the existence of some particular form,
197
198
Ibid., pp. 179-187, 211-220.

316 Onuma Yasuaki
ritual or consideration constitutes an essential require-

ment for a binding agreement, the mere acceptance of
the principle of pacta sunt servanda in the general
sense of the term by both parties can hardly satisfy their
normative expectations. Thus, even if both parties con-
clude an agreement, the actual implementation of such an
agreement depends on various contingent factors.
In the encounters of parties who do not share com-
mon norms regulating such encounters, and in the
subsequent relations between such parties, the norms
actually applied vary greatly according to specific
cases. Among those factors determining the norm to be
applied, the most important is the relative power of the
parties. The degree of expectation or desire to establish
relations, whether economic, cultural, informational or
military, is also an important factor. Then come various
types of techniques masking or camouflaging the con-
flict between the parties. History is full of examples of
applied norms reflecting both the power relations of
the parties, different expectations of the parties, and
masking techniques of this sort.
Here I will take the case of the Macartney mission
sent by George III of Britain to Emperor Ch’ien-lung
of China in the eighteenth century. This story illus-
trates the complex aspects of such an encounter. It
vividly reveals huge gaps between the world image
each party took for granted, and efforts made by each
party to prevail over the other. It further demonstrates
compromises they finally reached, and the falsification
of records by each party to explain the event to its
respective domestic constituency.
(2) The Macartney mission and the collision of ego-

centric universalistic world images
In 1793, Emperor Ch’ien-lung of the Qing dynasty
received Lord Macartney, who led a British mission.
Britain had maintained a trade relationship with China

within the broad framework of the Chinese tribute sys-

tem 199. Britain imported a large amount of tea and
other articles, but China imported almost nothing
except opium, a shameful export from British India.
Britain wanted an expanded and more stable trade
relationship which could not be jeopardized by the
unilateral claims of China. King George III sent
Macartney for this purpose to Emperor Ch’ien-lung 200.
The Chinese authorities, regarding Britain as a
remote uncivilized country wishing to partake in
(Chinese) Civilization, demanded that Macartney abide
by the ritual of kowtow, which they regarded as a uni-
versally valid rule. Macartney considered it humiliat-
ing to follow this ritual, and refused to follow it. He
negotiated patiently with the Chinese authorities, and
finally succeeded in meeting the Emperor basically
according to the Chinese style, but without the nine
prostrations 201. Despite his partial victory in the battle
199
In the technical sense, Britain was not a tributary to
China. But British trade with China was conducted within
the broader framework of Sinocentric tribute system,
which assumed the absolute superiority of the Chinese
Emperor. Therefore, how and to what extent the British
trade could be conducted was at the mercy of the Chinese
authorities, which was frustrating to the British.
200
Macartney’s concrete mission included : (1) to open
new ports for British trade in China, (2) to obtain the cession
of a piece of territory where British merchants could reside
year round and in which British jurisdiction would be exer-
cised, and (3) to establish a permanent mission in Beijing.
However, Britain sent its mission under the pretext of
establishing a firm and lasting friendship, and did not expli-
citly request a trade relationship on the basis of equality.

201
According to Peyrefitte, who scrutinized the con-
temporary documents, Macartney succeeded in evading
nine prostrations, and genuflected one knee according to
the European way of expressing respect to the sovereign.
However, he and his mission most likely followed the
threefold repetition of bowing, which was also an essential

318 Onuma Yasuaki
of rituals and form, Macartney could not achieve his

objectives. China flatly rejected British requests for a
more stable and expanded commercial relationship on
the basis of equality. Emperor Ch’ien-lung’s letter of
3 October 1793 addressed to George III stated that :
“We, by the Great Heaven, Emperor, instruct the
King of England to take our charge.
Although your country lies in the far oceans, yet
inclining your heart towards civilization, you have
sent an envoy respectfully to present a state mes-
sage, and sailing the seas, he has come to our Court
to kowtow and to present congratulations for the
imperial birthday, and also to present local products,
thereby showing your sincerity.
We have perused the text of your state message
and the wording expresses your earnestness. From it
your sincere humility and obedience can clearly be
seen. It is admirable and we fully approve . . .
As to what you have requested in your message,
O King, namely to be allowed to send one of your
subjects to reside in the Celestial Empire to look
after your country’s trade, this does not conform to
the Celestial Empire’s ceremonial system, and defi-
nitely cannot be done . . .” 202
part of the kowtow. Macartney also likely followed the

Chinese style of the ceremony in other matters such as hand-
ing a letter of accreditation to the Emperor through a man-
darin, etc. (Peyrefitte, supra footnote 195, pp. 88-89, 102-
106, 168-170, 193-199, 203, 205-208, 212-214, 224-227).
202
Ibid., pp. 289-291. This letter was so indignant
toward the British that the translators of the mission care-

fully altered the most insolent formulations. However,
Macartney and his aides regarded that even this altered
letter was too indignant, and an offence to British pride.
They drafted an English summary which was effectively a
forgery. This summary subsequently came to be regarded
as the official text in Britain. (Ibid., pp. 288-289.)

By the time of Macartney’s mission, almost one and

a half centuries had already passed since the publica-
tion of De jure belli ac pacis (1625) and the conclusion
of the Peace of Westphalia (1648), which is often char-
acterized as the origin of international relations. Among
European nations the mutual relations based on the
principles of equality of nations had been established,
although this principle was sometimes violated by
European Great Powers in relation to minor countries.
The event took place 35 years after the publication of
Vattel’s Droit des gens (1758), a leading classic treatise
of international law, which clearly formulated the
equality of nations in international law. It took place
four years after the French Revolution (1789), which
exemplified West-centric modernity through its procla-
mation of universal human rights and secularism.
Yet, “international law” at this moment was not the
law of international society at all as one takes for
granted today. Macartney argued that China should
respect the rules of international law and diplomacy,
based on the common practice of European nations.
However, from the Chinese perspective, it was nothing
more than a joke of the “barbarians” who were igno-
rant of the long-established “universal” rules, i.e.
Sinocentric rules, which all nations under Heaven must
observe. This universalistic view was supported by the
fact that China under the Emperor Ch’ien-lung was
prosperous, and powerful, producing approximately ten
times as many manufactured goods as Britain 203.
It must be admitted that this Sinocentric universal-
ism contradicted certain realities, particularly those in
203
Whereas China produced 32.8 per cent and 33.3 per
cent of the world’s manufactured goods in 1750 and 1800,
respectively, Britain produced only 1.9 per cent and 4.3
per cent in each year (Paul Bairoch, “International Indus-
trialization Levels from 1750 to 1980”, Journal of Euro-
pean Economic History, XI (1982), p. 296).

320 Onuma Yasuaki
science and technology. The squadrons accompanying

the Macartney mission were far superior to their
Chinese counterparts. In the later period of the
Emperor Ch’ien-lung’s reign, the Qing dynasty began
to suffer its decline. We, those living in the twenty-first
century, all know that Britain beat down the Qing
dynasty some 50 years later, and succeeded in impos-
ing unequal treaties on China.
Yet it was absolutely impossible for Britain to
impose rules of “international law” on China in 1793.
On the contrary, eager to maintain trade relations with
China, Britain was compelled to continue its trade with
China within the framework of the tribute system,
which China and other East Asian nations regarded as
universal until the middle of the nineteenth century 204.
It took almost a century for China to give up its univer-
salistic view of world ordering and the policies based
on it, and to accept the Eurocentric view of world
ordering. In other regions, however, expansion of
Eurocentric world ordering proceeded much earlier.
We will examine this process in section III.
III. The Globalization of a Eurocentric Ordering

of the World in the Nineteenth Century
1. The collapse of the Islamocentric system of world
ordering
(1) Transformation of the Ottoman Empire to Turkey
Muslims and Europeans had long engaged in com-
mercial and diplomatic relations. One of the most
204
In 1816, Britain sent another mission to China, the
Amherst mission. However, the Chinese authorities under
the Emperor Chiach’ing, unlike those in 1793, demanded
that Amherst abide by the rules of kowtow in a strict manner.
Amherst, rejecting this demand, could not but return home in
vain, without having had an audience with the Emperor.

important relations between Muslims and Europeans

was those between the Ottoman Empire and the Euro-
pean nations from the fourteenth to the early twentieth
century. During the period when the Ottoman Empire
was prosperous, it generally imposed its rules of siyar
on the European nations. From the late seventeenth
century on, however, with the reversal of the power
relations between them, the norms regulating these
relations changed. The Ottoman Empire could no
longer impose the norms of the siyar. Within the
Ottoman court, there were harsh debates as to the prob-
lem of accommodating European international law and
diplomacy.
From the eighteenth century on, the Ottoman
Empire gradually abandoned the traditional system of
world ordering based on the siyar. It established diplo-
matic relations in the European style and concluded a
series of treaties with European nations under Euro-
pean international law, accepting various demands
made by the Europeans. Through this process, it grad-
ually redefined itself as a member, even an inferior
member, of the Eurocentric international system. This
was not a voluntary transformation. The Ottoman
Empire was forced to accept such an inferior position
in the Eurocentric international system.
The Ottoman Empire had been accustomed to its
superior position and held an Islamocentric universalis-
tic world image for a long period of time. Therefore,
this process of redefining itself and others in accor-
dance with the Eurocentric image of the world was an
extremely painful one. However, it gradually trans-
formed itself from an empire with an Islamocentric

world image and the siyar to a nation State of Turkey
within the framework of the Eurocentric sovereign
States system. Egypt and Iran basically followed suit.
Other Muslim communities also yielded, in various
ways and forms, to imperialistic European powers suc-

322 Onuma Yasuaki
cessively over the eighteenth to the early twentieth

century. Some became their protectorate, others
became their colonies.
For the European nations, it was basically advanta-
geous to reject the Islamocentric ordering of the world
and to expand their system of world ordering, i.e. the
sovereign States system, to the Muslim world. How-
ever, this did not mean that they were willing to treat
the declining, non-Christian Ottoman Empire as an
equal member of their system 205. Although the Otto-
man Empire repeatedly requested that European
nations abolish consular jurisdiction in the nineteenth
century 206, the European powers rejected this request
until the early twentieth century. Being in an inferior
position in terms of military and economic power, the
Ottoman Empire and other Muslim powers had no
choice but to redefine themselves either as an inferior
partner, accepting unequal treaties, or as a colony of
some European power in the modern European system
of world ordering 207.
205
The principle of equality among nations was not
always respected even among European nations. Under the
leading principle of balance of power, the rights of smaller
nations were often restricted by the Great Powers. Some
international lawyers endorsed this restriction as a matter
of law. See, e.g., Alphonse Rivier, Principes du droit des
gens (Librairie nouvelle de droit et de jurisprudence
Arthur Rousseau, Paris, 1898), pp. 67-68.
206
As mentioned earlier, the Ottoman Empire no
longer regarded the consular jurisdiction as an ex gratia
concession granted by the emperor. It now recognized it as
an infringement of its territorial sovereignty.
207
Fisch argued that what Europeans wanted was not
an international society where European nations and non-
European nations co-exist as sovereign equals. Given the
limitation of power Europeans possessed in the process of
colonization, Fisch argued, it was a kind of feudal relations
between Europeans and non-Europeans that Europeans
sought to introduce. According to him, it was decoloni-

(2) Changing characterization of the Ottoman

Empire in the Peace Treaty of Paris of 1856
In 1853, Russia fought with the declining Ottoman
Empire over the privileges granted to Russian
Orthodox Christians in the Ottoman Empire. When the
Russian army overwhelmed the Ottoman army, Britain
and France intervened, fearful that Russia would gain a
decisive victory and jeopardize the balance of power in
the region. In 1856, the belligerent parties concluded
the Peace Treaty of Paris. It contained an interesting
provision from the perspective of the globalization of
European international law. The provision, in Article 7,
reads as follows :
“Sa Majesté la Reine du Royaume Uni de la
Grande-Bretagne et d’Irelan . . . [names of the sov-
ereigns of the contracting parties], déclarent la
zation that brought about a real international society with

a worldwide international law based on European inter-
national law as it had developed during the past centuries.
He claimed that international society became a world-
wide system not due to European power, but in con-
sequence of European decline, and this only because it
contained a principle which allowed to build an interna-
tional society of sovereign equals (Jörg Fisch, “Power or
Weakness ? On the Cause of the Worldwide Expansion of
European International Law”, supra footnote 179, pp. 22,
24-25. Fisch is right in all these respects. However, at least
in the process of globalization of Eurocentric sovereign
States system accompanied by European international law
from the late fifteenth to the early twentieth century,
Europeans succeeded in imposing such inferior position
within the framework of Eurocentric sovereign States sys-

tem or even colonizing a large number of Afro-Asian terri-
tories by the superiority of power in relation to non-
Europeans. It was a long process of changing power
relations between Europeans and non-Europeans that
brought about the globalization of European international
society and international law.

324 Onuma Yasuaki
Sublime Porte admise à participer aux avantages du

droit public et du concert Européens.” 208
This provision has generally been construed as
expressing the “admission of the Ottoman Turks (or the
Turkish Empire) into the Family of Nations” 209.
According to this interpretation, the “Ottoman Turks”
had not been a subject of international law. By this
treaty provision the Ottoman Turks was admitted as a
member of the Family of Nations and became a subject
of international law.
However, contrary to this view, European nations
and the Ottoman Empire had long engaged in various
commercial activities, and maintained diplomatic and
treaty relations. Interpreting Article 7 as granting a
new membership of international legal community to
the Ottoman Turks contradicts this long-established
legal reality. How should we understand this contradic-
tion ?
During the period prior to the Paris Treaty, each side
construed Ottoman-European relations according to its
own notions of world ordering. According to the uni-
versalistic notion prevailing in Europe from the six-
teenth to the eighteenth century, not only European
but also non-European rulers and peoples were sub-
jects of the jus naturae, a universal law applicable to
all humans and human entities. This understanding of
the relationship prevailed among Europeans without
being endorsed by the Ottoman Empire.
According to the predominant view of the Ottoman
Empire, “treaties” between the Ottoman Emperor and
the European rulers or peoples were either unilateral

208
Clive Parry, comp., Consolidated Treaty Series 114
(1855-1856) (Oceana Publications, New York, 1969),
p. 414.
209
See, e.g., Lassa Oppenheim, International Law
(Longmans, Green, and Co., London etc., 1905), pp. 32-33.

acts of the emperor, or a temporary truce unilaterally

regulated by the siyar. They had nothing to do with the
jus naturae, which was just a European construct. It
might be possible to say that during this period the
relations between the Ottoman Empire and the Euro-
pean nations were regulated by the universalistic
“international” (more precisely, inter-societal or exter-
nal) law of each respective party. However, the funda-
mental notions of universality and the basis of this
inter-societal or external law were radically different
from each other.
The intent of the major European powers in drafting
the Paris Peace Treaty was not to bring about a radical
change in the international legal status of the Ottoman
Empire by admitting it to the “Family of Nations” and
recognizing it as a subject of international law. They
rather wanted to establish a framework through which
the status quo of the Ottoman Empire could be
maintained. Thus they provided for Articles 8 and
9 to secure the Ottomans’ territorial integrity from an
external (according to the main drafters of the Treaty,
this “external” meant Russian) threat. Article 7 was
stipulated as a precondition to Articles 8 and 9.
It was not intended to deal with such a critical prob-
lem as the international legal status of the Ottoman
Empire.
However, as the European psychological environ-
ment gradually changed through the nineteenth cen-
tury, European studies on international law became less
universalistic, and the interpretation of these articles
changed accordingly. While the advocates of natural
law from the sixteenth to the eighteenth century rather

naively assumed the universality of the jus naturae,
international lawyers in the nineteenth century no
longer held such an unrestricted notion of universality.
Major treatises on international law published in the
nineteenth century tended to use the phrase “European

326 Onuma Yasuaki
international law” in their titles 210. An exclusive under-

standing, based on the sense of superiority of European
civilization over other civilizations, underlay the
restricted notion of international law. With a rapid
progress in European economic and military power in
the nineteenth century, this superiority complex became
deeply rooted in Europeans’ minds. To further consoli-
date their superiority complex, the Ottoman Empire,
the Qing dynasty, the Mogul Empire and other compet-
ing powers in the non-European world declined succes-
sively. They ceased to be their rivals. Until the early
nineteenth century, some Europeans had regarded highly
at least some aspects of the Chinese civilization, for
example the egalitarian and fair recruitment system
of the bureaucracy in China. But after a series of
military victories over China in the nineteenth century,
even this minimum respect for China disappeared.
Under the exclusive and restricted view of interna-
tional law based on this superiority complex shared by
the Europeans of the time, a different interpretation of
Article 7 came to prevail. This interpretation goes as
follows : The Ottomans had not been allowed to be a
member of the international legal community because
of its inferior capacity as a State, because of its differ-
ent (= inferior !) religion and uncivilized conditions.
210
Both Klüber and Heffter, leading international law-
yers in the nineteenth century, used this phrase in their
treatises (Johann Ludwig Klüber, Droit des gens moderne
de l’Europe (J. G. Cotta, Stuttgart, 1819) ; August Wilhelm
Heffter, Das europäische Völkerrecht der Gegenwart
(E. H. Schroeder, Berlin, 1844)). Already in the late eigh-
teenth century, a few authors who were critical of the

natural law doctrine published treatises whose title carried
this phrase (e.g., Johan J. Moser, Grundsätze des jetzt
üblichen europäischen Völkerrechts (1763) ; George
Friedrich von Martens, Précis du droit des gens moderne
de l’Europe fondé sur les traités et l’usage (Chés J. C.
Dieterich, Gottingue, 1789)).

However, with efforts of the Ottoman Turks to “civi-

lize” their society, the European nations admitted it to
the international legal community in Article 7 of the
Peace Treaty of Paris of 1856. This retrospective inter-
pretation sounded so natural during the subsequent
period of the Treaty, i.e. from the late nineteenth to the
early twentieth century, that it came to be followed by
the majority of later publicists. Even today this inter-
pretation still prevails.
In this way, with the decline of the Ottoman Empire
and other Muslim powers, the modern European sys-
tem of world ordering, i.e. the sovereign States system,
with its cruel companion, the European colonial sys-
tem, came to cover the vast area of the Eurasian conti-
nent, where the Islamocentric way of world ordering
had once been prevalent. Muslim powers either barely
maintained independence such as the Ottoman Empire,
or became protectorate of the European states such as
Egypt. Many other Muslim territories such as those in
the Arabian Peninsula were colonized by the Europeans.
The Islamocentric way of world ordering ceased to
be a universalistic system competing with the Euro-
centric system by the middle of the nineteenth century.
The actual area of the applicability of European or
Euro-American international law expanded enormously
with this transformation. As far as the geographical
validity of the Eurocentric system of world ordering,
i.e. the sovereign States system (with a European hege-
monic colonial system), enlarged its sphere of validity
with this decline of Islamocentric world ordering from
the seventeenth to the nineteenth century. The Peace
Treaty of Paris of 1856 and other treaties to which

Muslim political entities were parties during this
period characterizing Muslim entities within the frame-
work of the Eurocentric international system demon-
strate such a great change in the ordering of the world
in human history.

328 Onuma Yasuaki
2. The partition of Africa and international law as the

“law of civilized nations”
(1) Increase of power held by European nations

and the accompanying self-confident sense of
“mission civilisatrice”
There existed certain normative relations between
independent political entities in certain regions of
Africa during the pre-nineteenth century period.
However, because of my limited knowledge on this
subject, a discussion here is limited to the process of
European colonization of Africa. The function of
Eurocentric international law in this process as seen
from Europeans and Africans is a major theme in this
analysis.
When the European merchants and African rulers or
merchants were engaged in trade and other activities,
including the slave trade, their arrangements were gen-
erally made on an ad hoc basis, depending on various
factors including types of dealings, power relations,
threats and frauds used by one party or both. This was
inevitable because each party had a different image and
notion of the dealings, agreements, and norms, based
on its own world image. There was no common “inter-
national law” in today’s sense of the term through
which Europeans and Africans could make arrange-
ments in a stable and reliable manner 211.
211
As to the claim that the “universal” rule pacta sunt
servanda should have been valid both to Europeans and
Africans, see section II, 4, infra. I also understand that

there were a number of contacts and dealings as well as
conflicts, compromises and arrangements between local
African rulers and Muslims wishing to penetrate the
African continent for proselytizing Islam and for commer-
cial relations. Because of my limited knowledge, however,
I leave this important subject for future studies.

Since the fifteenth century, Europeans had secured

several strongholds on the northwest coast of Africa,
but their power and influence were limited until the
late nineteenth century. Beginning in the 1870s, Euro-
pean States aggressively sought to expand their spheres
of influence and territorial possessions in Africa. The
European powers seeking the acquisition of territories
or the establishment of spheres of influence resorted to
various claims : cession of territory (or a whole or a
part of “sovereignty”, property, or the right and/or
authority to rule the inhabitants in a region) from
African local rulers by means of “treaties” ; cession of
these titles from a sultan or a similar ruler holding a
higher authority such as a kind of suzerainty over the
local rulers in the region by “treaties” ; conquest of
African nations by force ; the combination of these
titles, and so on.
In the 1880s, the tension between the European
Great Powers increased over the status of the Congo
Basin and the future of the African continent as a
whole. It became necessary for the European powers to
settle the actual and possible conflicts over which
modes of acquisition of territory they should take as
establishing legitimate — “legitimate” in the sense of
legitimacy between European powers — title to terri-
tory in Africa. In order to co-ordinate the complex
interests and resolve the conflicting claims, they con-
vened the Berlin Conference from 1884 to 1885.
Although this conference had a critical impact on the
future of Africa, no African representative was invited
by Germany, which hosted the Conference. It was a
typical imperialistic conference where the European

Great Powers determined the fate of Africans without
their representation. It was symbolic that such a criti-
cally important conference on the fate of Africans was
convened not by Africans but by Europeans, not in
Africa but in Berlin.

330 Onuma Yasuaki
The Europeans were at the height of their self-con-

fidence when they met in Berlin. Britain had destroyed
the once powerful and prosperous Mogul Empire in
India. The European powers had weakened the Otto-
man Empire, once an unbeatable foe, and beaten down
the Qing dynasty, an empire whose rules of world
ordering they had had to obey in order to maintain the
trade relations which they had desperately needed. All
these powers were no longer European rivals, let alone
superiors. Based on this self-confidence, the Berlin
Conference and its General Act exemplified a formula-
tion of the assumptions, logic and ideas which were
shared and utilized by Europeans for justifying their
domination and hegemony not only in Africa but in
other regions as well. Popular expressions such as the
“white man’s burden”, “manifest destiny”, and “la mis-
sion civilisatrice” exemplified this self-confidence and
arrogance of the Europeans and North Americans at
this period.
In his opening speech at the Conference, Prince
Bismarck stated that
“le Gouvernement Impérial a été guidé par la con-
viction que tous les Gouvernements invités parta-
gent le désir d’associer les indigènes d’Afrique à la
civilisation en ouvrant l’intérieur de ce continent au
commerce” 212.
Other leaders made similar statements. In these
speeches as well as in the General Act of the Confer-
ence, the term “civilization” basically meant the Euro-
pean civilization. Non-Europeans were regarded as
either barbarians or savages, outside the pale of civi-

lization. Since international law was the law of civi-
212
Jules Hopf, ed., Nouveau Recueil général de traités,
2e série, X, 2e livraison (Librairie de Dieterich, Gottingue,
1885), p. 201.

lized nations, non-European nations, especially African

tribes or natives, could not be subjects of international
law 213.
The Europeans had a sacred mission to educate,
cultivate, lead and rule non-Europeans so that the latter
could enjoy the fruits of this glorious civilization. Such
were the assumptions, ideas, perceptions and images
commonly held by the European leaders and major
international lawyers at this time.
Article 6 of the General Act of the Berlin Con-
ference embodied such an arrogantly self-confident
view.
It reads :
“Toutes les Puissances exerçant des droits de sou-
veraineté, ou une influence dans lesdits territoires
s’engagent à veiller à la conservation des popula-
tions indigènes et à l’amérioration de leurs condi-
tions morales et matérielles d’existence et à con-
courir à la suppression de l’esclavage et surtout de
la traite des noirs ; elles protégeront et favoriseront,
..., toutes les institutions et entreprises religeuses,
scientifiques ou charitables créées et organisées à
ces fins ou tendant à instruire les indigènes et à leur
faire comprendre et apprécier les avantages de la
civilisation.” 214
213
See the views of the leading international lawyers of
the time such as Henry Wheaton, Elements of Interna-
tional Law (Little, Brown & Co., Boston, 1836), p. 18, and
subsequent editions ; J. C. Bluntschili, Das Moderne
Völkerrecht der Civilisirten Staten als Rechtsbuch darge-
stellt (3 Auf., Verlag der C. H. Beck’schen Buchhandlung,

Nördlingen, 1878), p. 61 ; James Lorimer, The Institute of
the Law of Nations, I (Edinburgh, 1883, reprint, Scientia
Verlag Aalen, 1980), pp. 93-103 ; John Westlake, Chapters
on the Principles of International Law (University Press,
Cambridge, 1894), pp. 1-7, 129-189.
214
Hopf, supra footnote 212, p. 418.

332 Onuma Yasuaki
In the eyes of the Europeans of the time, Africans

were a kind of children who should be supervised and
led by Europeans to partake in civilization, i.e. Euro-
pean civilization. It was only natural for the Europeans
in those days to decide the fate of African people with-
out any representation of Africans. It was again only
natural that the instrument by which they decided the
future of Africans was “international law”, i.e. com-
mon law for Europeans, or European international law.
Although European or non-universal nature of interna-
tional law was emphasized by European international
lawyers and Governments at the time, the very act of
deciding the fate of Africans by such a European law
was not questioned.
(2) The significance of the Berlin Conference and

the General Act of 1885
In retrospect, the critical issue in the Berlin
Conference was the acquisition of African territory and
the establishment of protectorates by European powers.
However, for those actually participating in the Confer-
ence, a major concern was the protection of commer-
cial activities in the Congo Basin. Acquisition of terri-
tories or establishment of protectorates were important
as long as they were useful for safe and stable commer-
cial activities. The participants of the Conference still
viewed the world in terms of informal empires, not
formal empires.
The participants of the Conference worked hard to
reconcile conflicting claims by achieving a balance
among the conflicting interests of the Europeans.

Protection of the freedom of commerce and transit was
a common interest of all European powers in Africa.
As long as a colonizing power’s authority could secure
this common interest, it must be respected by other
powers. If not, such an ineffective authority must be

replaced by a more effective authority. Furthermore,

the commercial activities were characterized not only
as a common interest for Europeans, but as a tool to
bring the blessing of civilization to the “dark continent
of Africa”.
Thus, Article 35 of the General Act provides :
“Les Puissances signataires du présent Acte
reconnaissent l’obligations d’assurer, dans les terri-
toires occupés par elles, sur les côtes du Continent
Africain, l’existence d’une autorité suffisante pour
faire respecter les droits acquis et, le cas échéant, la
liberté du commerce et du transit dans les condi-
tions ou elle serait stipullée.” 215
In the General Act, the concept of civilization and
its formulation in terms of international law played a
critical role in justifying European colonization of
Africa in two ways : by balancing the conflicting inter-
ests among the European powers, and by legitimating
their “effective authority”, i.e. European colonial rule
in Africa 216. However, the significance of the Berlin
Conference and its General Act — especially that of
the principle of effective occupation provided in
Article 35 of the Act — has not unanimously been
acknowledged. In fact, most of the rules and principles
adopted in the Conference were not strictly followed in
subsequent practice.
It is apparent that the Berlin Conference did not
decide the partition of Africa per se. There were no
explicit provision on the partition of the entire African
215
Hopf, supra footnote 212, p. 419.
216
Carl Schmitt, Der Nomos der Erde im Völkerrecht
des Jus Publicum Europaeum (Greven, Cologne, 1950),
pp. 188-200, reveals this critical importance in a paradoxi-
cal — extremely Eurocentric (more precisely, Euro-
pean-continental-centric) — and strikingly conspicuous
manner.

334 Onuma Yasuaki
continent. Articles 34 and 35, provisions relating to the

acquisition of territories and the establishment of pro-
tectorates, only provided abstract procedures and vague
requirements for the new occupation of territories and
the assumption of protectorates on the coasts of the
African Continent. Application of the rules and prin-
ciples on the occupation of the territory was limited
to newly occupied areas on the coasts of Africa.
Even in the limited areas where the provisions of
the General Act were applied, they were not strictly
followed by the signatories. An important procedural
rule prescribing the obligation to notify signatory
powers of the acquisition of a territory was provided
in the Act, but subsequent State practice did not seem
to regard the notification as obligatory 217. Thus, Africa
was partitioned not necessarily in accordance with the
provisions of the General Act. In this sense, the sig-
nificance of the General Act should not be over-
evaluated.
On the other hand, the European States often
referred to the Berlin Conference and the General Act
when they negotiated agreements transferring territory
from African local rulers to themselves or co-ordinat-
ing spheres of influence among themselves. They sought
to legitimate their claims by invoking provisions of
the General Act, whose vague and general nature
contributed to often arbitrary and illogical justification.
The General Act thus played a critical role in providing
the most important framework for subsequent negotia-
tions and arrangements on the colonization of Africa
217
The Convention of St. Germain-en-Laye of 1919
did not provide for the obligation of notification. In the
arbitral award on the Palmas case, which is famous for its
reference to the principle of the effective occupation, Max
Huber, the sole arbitrator, did not regard notification as
obligatory.

and for the justification of claims made by the Euro-

pean colonial powers 218.
(3) Deceiving oneself, deceiving others : justifica-

tion of European colonization of Africa by inter-
national law
After the Berlin Conference, the colonization of
Africa rapidly developed. While territories under Euro-
pean colonial rule made up 11 per cent of Africa in
1876, they increased to 90 per cent in 1890.
Despite the principle of effective occupation estab-
lished by the Act, the European powers continued to
conclude “treaties” with African rulers for securing
their claims to the newly acquired territories and pro-
tectorates 219. These “treaties” were negotiated and con-
218
The British policy towards a ruler of southeast
Nigeria (Obobo), Jaja, is a good example. Although
Britain first recognized his right to monopolize the trade in
this region, it changed its policy after the Berlin Confer-
ence, and finally expelled Jaja. Although the desire for
material profits constituted a major motivation for the
British policy, it cannot be denied that Britain also wished
to avoid criticism from its rivals for failing to comply with
the provisions of the Berlin Act, which provided for the
principle of free trade and transit. The Act also provided a
critical justification for Britain to expel the local ruler
from his territory. There were many other cases in which
the Berlin Act was utilized for the justification of policies
taken by the European powers in the colonization of Africa.
219
A major reason for European States to resort to
treaty making with African rulers rather than regarding
African territories as terra nullius was to minimize the
cost of colonization. Had they regarded the African territo-

ries as terra nullius and sought to occupy them by force,
they would have encountered stronger resistance from the
Africans. If, however, Europeans succeeded in concluding
a treaty of protection with African rulers and gradually
weakened their power, they could obtain the same fruit
with much less resistance. See Jörg Fisch, “Africa as terra

336 Onuma Yasuaki
cluded according to European ways. Even when

African rulers insisted on their own rules in the nego-
tiation and conclusion of treaties, they could hardly
realize their claims. The political entities in sub-
Sahara Africa were too small in size, and too often in
conflicts with each other, to impose their own rules
on the Europeans.
This practice of European powers’ concluding
treaties with African rulers had a fundamental conflict
with the predominant ideas held by the Europeans at
the time : international law is a law among civilized
nations. The Europeans did not regard the African
political entities (“tribes”, to borrow their expressions)
as civilized nations. Therefore, it should have been dif-
ficult for them to legitimate the transfer of African ter-
ritories or of sovereignty — either external as in the
case of protectorate or full in the case of annexation or
cession — from African “tribes” or their “chieftains” to
the European nations by means of treaties concluded
with those rulers. If those “tribes” were not subjects of
European international law, how could they “lawfully”
“cede” or “transfer” their “territories” or “sovereignty”
to the European States by means of “treaties” ?
A few international lawyers did raise doubts about
whether such “treaties” with the “tribes” in Africa
could give rise to legitimate title in international law. A
similar doubt was raised even by policy makers as
well. For example, in 1884, an Assistant Secretary at
the British Foreign Office asked Sir Edward Hertslet,
the authority on African colonial affairs and the author
of The Map of Africa by Treaty 220, whether the consent
of the natives was necessary to the validity of the
nullius”, Stig Förster et al., eds., Bismarck, Europe, and

Africa (Oxford University Press, New York, 1988), p. 347.
220
Edward Hertslet, The Map of Africa by Treaty, I-III
(3rd ed., Her Majesty’s Office, London, 1909).

annexation of their territory. The reply of Hertslet was

ambiguous and evasive : “Such consent would not
appear to be necessary on all occasions.” 221
These doubts or questions were not fully discussed
by international lawyers of the time. Although the
Institut de droit international dealt with the theory of
the Berlin Conference on the occupation of territories
in 1888, it could not provide a theoretically coherent
explanation. Both international legal theory and State
practice in those days generally ignored this critical
issue 222. Hardly any European State seems to have criti-
cized other European States on these grounds. Despite
the prevailing notion of international law as the law of
civilized nations, they implicitly recognized the capa-
city of African rulers under international law as long as
the African rulers were parties to a treaty purporting
the cession of their territory or the establishment of a
protectorate.
Seen from today’s perspective, it is difficult to
understand why such an apparent contradiction was
overlooked. Why were eminent European international
lawyers and decision makers not bothered by an appar-
ent contradiction between the denial of subjecthood
of African entities in international law on the one hand,
and the conclusion of treaties with them on the other ?
Some criticized “positivism” in international law for
overlooking this apparent contradiction 223. Although I
221
Prosser Gifford and Wm. Roger Louis, eds., France
and Britain in Africa (Yale University Press, New Haven,
1971), p. 209, quoted by J. A. Andrews, “The Concept of
Statehood and the Acquisition of Territory in the Nineteenth

Century”, Law Quarterly Review, XCIV (1978), p. 419.
222
See Antony Anghie, Imperialism, Sovereignty and
the Making of International Law (Cambridge University
Press, New York, 2005), pp. 74-96.
223
Charles Alexandrowicz, “Doctrinal Aspects of the
Universality of the Law of Nations”, British Year Book of

338 Onuma Yasuaki
am not against this view, the problem seems to be more

fundamental than just that of positivism. It should be
related with a fundamental problem of law as an inter-
subjective construct.
The crucial problem is “How was this process per-
ceived and characterized by the Africans according to
their notions of the normative systems regulating rela-
tions between them and the European states ?” Did
they share with the Europeans a normative conscious-
ness on the transfer of their territory ? If not, how can
we talk about a transfer of territory in terms of law ? 224
These problems were not even being recognized as
“problems”. We could only assume that the compre-
hensive cognitive framework of the Europeans, who
International Law XXXVII (1961), pp. 506-515 ; idem,

“Empirical and Doctrinal Positivism in International Law”,
British Year Book of International Law, XLVII (1977),
p. 289 ; Anghie, supra footnote 222, et passim.
224
One might say that a certain doctrine of recognition
served to explain this issue as far as the European interna-
tional law was concerned : although African political com-
munities were outside the pale of the Family of Nations, it
was possible to recognize the limited capacity of treaty
making of such entities (see in this respect, James
Crawford, Creation of States in International Law (Claren-
don Press, Oxford, 1979), pp. 179-181). Or, a kind of a
theory of inchoate title, as suggested by the arbitral award
in the Palmas case of 1928 (Reports of International
Arbitral Awards, II (United Nations Sales No. 1949, V, 1),
pp. 829-71), might have provided a theoretical basis to
settle the problem : transfer of “territory” or “sovereignty”
stipulated in the agreements might become the basis of ter-
ritorial sovereignty, if followed by the establishment of the
effective occupation. However, these theories do not

address the critical problem of “How was this process per-
ceived by the Africans, the other party of the agreement,
according to their notions of the normative systems ?”
They could not ground the validity of the “treaty” to be
based on the shared normative consciousness of the both
parties.

dominated the world at this period of imperialism, or

the so-called spirit of the time, prohibited Western
intellectuals from considering such problems.
Because Europeans were gaining, not losing, the
great benefit of colonization through “treaty making”
with Africans, it might be natural that the contradiction
should have gone unnoticed. Because Africans were
powerless, being regarded as uncivilized, their voices
were, “naturally”, not heard.
Once territories in Africa became colonies of the
European powers, the very issue of the relationship
between the colonial power and the African States or
bodies politic came to be a matter of domestic jurisdic-
tion of the former 225. It now ceased to be a question of
international law. In this way, European international
law came to cover, though not apply to, the African
continent as a quiet companion of imperialistic diplo-
macy and colonialism. It tacitly justified colonization
by “treaties” and the principle of effective occupation
on the one hand, and evaded the problematization of
the essential meaning of colonization under interna-
tional law on the other 226.
3. The collapse of the Sinocentric system of world

ordering
(1) Conflicts of two universalistic systems in East
Asia
Europeans were long engaged in trade with China
and other East Asian independent human groups or
225
Crawford, supra footnote 224, p. 182.
226
One had to wait nearly a century for this problem to
be discussed openly as an issue of international law. The
Western Sahara case of 1975 (ICJ Reports 1975) provided
such an opportunity, albeit in an insufficient and rather
dogmatic manner. See also Crawford, supra footnote 224,
p. 181 ; Fisch, supra footnote 219, pp. 370-371.

340 Onuma Yasuaki
political entities basically within the Sinocentric tribute

system. As long as Europeans profited from the trade,
their frustration with being treated as tributaries did not
explode. However, when China sought to abolish the
opium trade, Britain was determined to replace the
relationship based on the tribute system with the one
regulated by European international law, which could
better serve its commercial interests including the
opium trade. In 1839, Britain dispatched expedition
forces, beat the Chinese army and navy, and imposed
on China the Treaty of Nanjing in 1842. Other Euro-
pean powers fought with China successively, won, and
compelled China to conclude similar unequal treaties
with them.
The Qing dynasty, however, sought to maintain its
traditional relationship as much as possible. China,
which had ruled the vast domain for thousands of
years, had often experienced such phenomena as local
conflicts, temporary defeat of the central Government,
and the appeasement of powerful “barbarians”. Based
on these historical experiences, the Qing dynasty basic-
ally “understood” the Treaty of Nanjing and other
similar treaties within the traditional Sinocentric
framework. It characterized the consular jurisdiction as
a case in which it allowed “barbarians” to settle their
own disputes by themselves, and the most favoured
nation treatment as a benevolent policy of the emperor
to treat all subjects as equal to themselves.
The European States, for their part, took a tough
stance in urging China to implement faithfully the rules
and principles of European international law. They
urged the Qing dynasty to abandon using the term

“barbarian” in diplomatic instruments and to recognize
the opium trade under the name of “Western medi-
cines”. They expected that China abide by not only
specific provisions of the treaties, but also unwritten
(“customary”) rules and principles of European inter-

national law when they dealt with matters relating to

the treaties.
For China, to abide by the treaties meant to abide
by their explicit provisions. Rules and principles not
explicitly stipulated in the treaties were irrelevant to
them, even if these unwritten rules and principles were
assumptions or inevitable consequences of the pro-
visions under the interpretation of the Europeans.
It was thus inevitable that the two parties clashed
repeatedly with each other. After a series of defeats
in successive wars with major European Powers,
China gradually came to be incorporated into the Euro-
centric system of international law as far as its relations
with the Western powers were concerned.
However, this change in diplomacy with the
Western nations did not mean that China was “admit-
ted” to the “Family of Nations”. Rather, it meant that
both European States and the Qing dynasty sought to
manipulate European (or Euro-American) international
law in favour of their own interests and that the former
was more successful than the latter. The Qing dynasty
established the Tsungli Yamen in 1861 to deal with
external affairs with the Western States 227. It also
ordered William Martin, a missionary residing in Bei-
jing, to translate Wheaton’s Elements of International
Law, and published the Chinese version in 1865. In
the 1870s China started to establish permanent missions
in Western nations and Japan, which they had never
dreamed of before. The Chinese emperor began to
receive heads of permanent missions, but only in
accordance with the tributary practice including the
kowtow. It was as late as 1894 that the emperor began

to receive foreign envoys within the Forbidden City in
accordance with the European way of reception.
227
See Banno Masataka, China and the West (Harvard
University Press, Cambridge, Mass., 1964).

342 Onuma Yasuaki
(2) Persistence of Sinocentrism and the significance

of the Maguan Tiaoyue (the Peace Treaty of the
Sino-Japanese War) of 1895
Even after China lost the Second Opium War in
1856, China conducted diplomacy in accordance with
European international law only with the Western
nations. With regard to Asian nations, they sought to
maintain relations in accordance with the rules and
principles of the Sinocentric tribute system. Sino-
centric psychology persisted in the Chinese Govern-
ment and intellectuals during most of the nineteenth
century. It persisted in other East Asian nations as well,
particularly conservative factions in Korea, Japan,
Vietnam, etc.
Successive dynasties in China had held the Sino-
centric view of the world for a long period of time.
Even when they were not powerful enough, they did
not change the fundamental cosmology of Sinocen-
trism. They appeased various kinds of independent
human groups or political entities whom they regarded
as barbarians, and papered over the difficulties within
the framework of Sinocentrism. Since Chinese had
many such experiences in their long history, they did
not feel it necessary to change this traditional cognitive
framework even when they lost the Opium Wars. Such
defeats were nothing new to them. All they had to do
was to appease and manipulate the “Southern bar-
barians”, i.e. Westerners, who should become more
“civilized” over the course of time.
In their understanding, it was merely an exceptional
case due to the accidental weakness of the present

dynasty that relations with Western nations had to be
conducted in accordance with European international
law. When the present dynasty recovered its inherent
power, things would become “normal”, and the rela-
tions with the Westerners should be re-regulated

through the Sinocentric tribute system. These were the

perceptions, images and ideas shared by the leadership
of the Qing dynasty. Although the Chinese and the
Europeans regarded the treaties between them as bind-
ing (pacta sunt servanda !), the assumptions and
perceptions were still extremely different from each
other.
During the nineteenth century, the Western powers
sought to have Asian nations break away from the
Sinocentric tribute system, and to relocate them in
Western spheres of influence within the Eurocentric
framework of international society. The Qing dynasty,
sticking to its Sinocentric view of the world, fell into
constant conflict with Western powers over a variety of
issues : with Russia over relations with Turkish “tribu-
tary” peoples in Central Asia ; with Britain and France
over relations with “tributary” Burma and Vietnam ;
over the issue of the implementation of the peace
treaties concluding the Second Opium War, etc.
Consequently, the Qing dynasty and the Western
powers fought a series of war over China’s neighbours
in the latter half of the nineteenth century. The Qing
dynasty lost these wars and became weaker and weaker.
The final blow to the Sinocentric East Asian system
was given by Japan. Japan had been a quasi member of
the Sinocentric system, but speedily changed itself to a
member of the emerging Eurocentric international sys-
tem. Although many conservative leaders stuck to the
traditional world image, despising Westerners as bar-
barians, some enlightened leaders and intellectuals
were determined to change this view of the world.
They thus carried out a kind of “cultural revolution” in

Japan and succeeded in having the Japanese adhere to
the new, West-centric world image.
From the 1860s Japan began to Westernize itself,
and sought to reorganize its relations with neighbours
in accordance with the European way of world order-

344 Onuma Yasuaki
ing 228. In this process, Japan had a series of conflicts

with China, which sought to maintain the Sinocentric
way of world ordering among East Asian nations. In
1894, Japan and China fought a war over Korea. Japan
won the war, and imposed a Peace Treaty on China in
1895 (Treaty of Shimonoseki). The Treaty provided for
the cession of Taiwan and the Liaodong Peninsula, the
payment of reparations, the grant of unilateral most-
favoured-nation status from China to Japan, and other
arrangements favourable to Japan. There were other
stipulations providing for the post-war relations
between Japan and China. The most important of all
provisions of the Treaty from the perspective of the
history of international law, however, was Article 1,
which provided for the international status of Korea.
It reads :
“China recognizes definitely the full and com-
plete independence and autonomy of Corea, and, in
consequence, the payment of tribute and the per-
formance of ceremonies and formalities by Corea to
China in derogation of such independence and
autonomy shall wholly cease for the future.” 229
This provision had a tremendous significance in
world history surpassing that of the peace settlement
between the two warring countries, Japan and China.
China did not only lose the war with Japan, a tradi-
228
This was the beginning of the glory and guilt of
modern Japan, characterized by rapid economic develop-
ment, imperialistic policies during the pre-1945 period,
and peaceful and prosperous policies during the post-1945

period. See Onuma Yasuaki, “Japanese International Law
in the Prewar Period”, Japanese Annual of International
Law, XXIX (1986), pp. 23-24.
229
Clive Parry, ed., Consolidated Treaty Series,
CVLXXXI (1895) (Oceana Publications, New York,
1979), p. 217 (English translation).

tional quasi member of the Sinocentric tribute system.

More importantly, China had to recognize that Korea
would definitely secede from the tribute system, a
system of long-established Sinocentric universalistic
world ordering. This fact had a critical importance in
the globalization of European international society and
in the birth of international law as the global law of
international society in the geographical sense of the
term.
(3) The collapse of the Sinocentric system of world

ordering
Korea had been China’s most faithful tributary.
Korea was willing to maintain suzerain-vassal relations
with China even after other Asian nations successively
seceded from the Sinocentric tribute system during the
late nineteenth century. However, China now had to
recognize that Korea was an independent and auto-
nomous nation. China had to abandon the long-estab-
lished custom of receiving a tribute from Korea in
accordance with the Sinocentric ceremonies and for-
malities. To China, Korea was now merely one of many
nations whose status must be defined by European
international law. The tribute system based on a univer-
salistic Sinocentrism, which had suffered a series of
blows but was nonetheless barely maintained, finally
proved to be defunct. It ceased to be a system of world
ordering competing with the Eurocentric one.
In China, during the latter half of the nineteenth
century, there gradually emerged a view suggesting
that the Western “barbarians” were superior not only in

their military power, science and technology, but also
in their spiritual civilization, which had been regarded
as the core of the traditional value system in China.
Yet, it was extremely difficult for the Chinese to fully
accept this view. The Sinocentric view of the world

346 Onuma Yasuaki
had long been the predominant principle of world

ordering in East Asia. It had been supported by eco-
nomic and military power and by the cultural influence
of China, as well as by the acceptance of East Asian
leaders and peoples.
Even after the Islamocentric view of the world
declined in the eighteenth to the nineteenth century, the
Sinocentric view remained as the competing universal-
istic view of world ordering against the Eurocentric
one. Certain substantive bases remained to support this
view. For example, China’s share of the global manu-
facturing of products was approximately ten times as
large as Britain’s in 1840, when China lost the Opium
War against Britain. The Chinese share became on a
par with that of Britain as late as in 1860, when the
latter enjoyed its peak of free trade capitalism 230.
However, by the end of the nineteenth century, such
substantive bases were completely lost 231. Just as the
“division of the world” by the bull of Alexander VI of
1493 was, in the eyes of many contemporaries of non-
European societies, an universalistic illusion of the
expanding yet still less developed Europe, the univer-
salistic view of world ordering based on the Sinocen-
230
Bairoch, supra footnote 38, p. 296. These figures
must be accepted cautiously because they are speculative
and show only limited aspects of the economic situations
in China and in Europe. It should also be noted that the
population of China was much larger than that of the
United Kingdom. In terms of per capital GDP, a British
should have enjoyed a better life than a Chinese. Yet, they
at least give us living in the later period a warning that we
have to liberate ourselves from our “common sense” of

“developed Europe versus underdeveloped China” when
we think of the past.
231
In 1900, while China’s share of global manufactur-
ing was only 6.2 per cent, Britain’s share was 18.5 per
cent, and the share of the whole of Europe was ten times
that of China (ibid.).

trism held by the Qing dynasty in the late nineteenth

century was nothing more than an illusion of a power-
less, underdeveloped China. In contrast, the once uni-
versalistic illusion of the Europeans in the late fifteenth
century now became a reality. The Eurocentric view of
the world was not only supported by the superiority of
economic and military power of the Western States. It
was also accepted by such powers as the Ottoman
Empire and the Qing dynasty, which had once held
competing universalistic views of world ordering and
substantive bases to support them. The acceptance by
China of Article 1 of the Peace Treaty of 1895 symbol-
ized the fact that Sinocentrism completely lost its rele-
vance to reality and could no longer be maintained 232.
What appeared in the following period was a pro-
jection of today’s predominant, i.e. West-centric,
notions on to the past by assuming that such a reality
had already existed during the period of the Pope
Alexander VI, or even much earlier during the period
of ancient Greece and Rome. In this projective inter-
pretation of history, what Europeans believed to be
universal in those days such as jus naturae was
assumed to be actually universal. This is the picture
that we saw in the twentieth century. And this is the
picture that is likely to persist in the twenty-first cen-
tury, if we cannot liberate ourselves from this premise.
For this is the predominant way of discourse that we
have accepted and still regard as “the history of inter-
national law”.
232
After the Sino-Japanese War and up until the
Nationalist Revolution of 1911, many political leaders and

intellectuals were engaged in heated debate as to the status
and situation of China. Most of them acknowledged that
China was not an empire with the sole emperor on earth,
but one of many nations in the world. Few dared to claim
that China should maintain the traditional Sinocentric sys-
tem of world ordering.

348 Onuma Yasuaki
We must also be aware that this global norm of

world ordering, i.e. Eurocentric international law at the
time, was an imperialistic, ruthless and discriminatory
law. A large portion of humanity was under colonial
rule, or suffered from discriminatory global regimes
imposed by Western imperial powers. In order for this
illegitimate international law to become global interna-
tional law as accepted by the majority of humanity, his-
tory had to witness the decolonization of Afro-Asian
nations with diverse civilizations in the twentieth cen-
tury. And today, in the twenty-first century, we also
have to liberate ourselves from the West-centric cogni-
tive framework. We must reconstrue and reconstruct
the history of international law, in order to further this
globalization of international law in the civilizational
sense.
IV. Toward Overcoming West-centric Cognitive

Frameworks in Our Thought
1. Globalization of international law in the civilizatio-
nal sense
(1) Revision of the West-centric international law in
the twentieth century
From the nineteenth century to the middle of the
twentieth century, a large number of Afro-Asian
nations suffered from ruthless colonial rule and from
the consequences of unequal treaties. Some Afro-Asian
intellectuals first appreciated international law as
embodying equality among nations, but many of them
were disillusioned by it 233. They saw international law
233
For example, Fukuzawa Yukichi, a great Japanese
thinker, who had a tremendous intellectual influence in
the late nineteenth-century Japan, first highly appre-
ciated the equality among nations in the Western sovereign

as justifying or acquiescing in Western dominance over

the world. The ideological function of international law
as a tool of European colonization and imperial policy
was all too evident, particularly in Africa. We can-
not deny that international law in those days was a
companion of Western imperialism and colonialism.
However, international law has never been merely a
convenient tool to justify Western dominance over the
world. A large number of Afro-Asians attaining inde-
pendence during the post-Second World War period
utilized international legal norms in their struggles for
national liberation. The equality of nations and the
self-determination of peoples were leading examples of
such norms. For nations fighting against racism and
sexism, non-discriminatory norms of international law
provided useful weapons. For smaller nations that
make up a majority in international society, West-
centric international law, which recognizes equality
of nations, proved to be more attractive and useful to
fight against powerful nations than Sino-centrism or
the siyar.
Even after attaining independence, Afro-Asian
nations did not seek to re-establish their own tradi-
tional regional systems. Rather, they accepted the basic
structure of international society including interna-
tional law, which was basically a construct of modern
States system, but came to be severely critical of it. He

wrote :
“Universal law of nations looks certainly good, but
. . . the actual relationship [among nations] lies in the
struggle for power and authority. A hundred volumes of

universal law of nations cannot beat several canons . . .
There are only two ways in international relations : to
conquer or to be conquered.” (Translation by Onuma.)
Keio Gijuku, ed., Fukuzawa Yukichi Zenshu (Complete
Works of Fukuzawa Yukichi), IV (Iwanami Shoten,
Tokyo, 1959), p. 637.

350 Onuma Yasuaki
Europeans. Symbolic in this respect is the fact that

when Afro-Asian nations recovered independence dur-
ing the post-Second World War era, they resorted to the
idea of self-determination, which is a modern Western
construct. They attained independence within “national”
boundaries that were basically defined by Western
colonial powers (the uti possidetis principle in the
wider sense of the term).
Moreover, international law itself changed its sub-
stance and character during the twentieth century.
Especially in the latter half of the twentieth century,
non-Western nations came to occupy the majority in
terms of the number of nations in international society.
Making full use of this advantageous position, non-
Western nations sought to change the substance of
international law, which was mostly advantageous to
leading Western States. Although they could not radi-
cally change it, in some areas they succeeded in revis-
ing traditional rules. Law of the sea, with the extended
territorial sea, the new concept of common heritage of
mankind, the new regime of the deep seabed, and the
wide area of Exclusive Economic Zone, exemplify
some of the examples. The non-discriminatory norm
against racial discrimination is another. Like Christia-
nity, Buddhism, Islam, democracy, human rights and
other universalizable ideas or institutions, international
law has become global, by changing itself and by
winning the gradual acceptance and recognition of
those who were not originally familiar with it.
(2) Limited change in the cognitive and evaluative

framework of international law

Although the substance of the West-centric interna-
tional law was revised to a certain extent, the West-
centric cognitive and evaluative framework of interna-
tional law — a way to see international law — did not

change much. This is also the case with studies on the

history of international law. It is regrettable that I have
to repeat an age-old cliché, but most previous studies
on the history of international law have suffered from
West-centric narrowness in their perspectives. There
were a number of attempts to overcome this West-
centric narrowness, but there remain a tremendous task
for furthering this project.
International law, jus gentium, jus naturae, jus natu-
rale, lex naturalis, law of nations, droit des gens, droit
international, and Völkerrecht are terms all born in
Europe. It is natural for European experts dealing with
any subject of international law to see it, interpret it
and construct it from a perspective which takes the
European or Eurocentric point of view for granted.
Until the late twentieth century, the study of interna-
tional law regarded the history of modern European
international law as the history of international law per
se. And from this Eurocentric perspective, it was natu-
ral to talk about the birth and development of “interna-
tional law”, not “European” international law, although
its actual validity was limited to Europe. In their eyes,
European international law existed from the very
beginning as international law without any qualifica-
tion, tacitly and unconsciously implying the universal
validity 234.
When, after the Second World War, Asian and
African nations attained independence and became
visible in international society, it was inevitable that
such Eurocentrism or West-centrism came to be criti-
cized. Beginning in the 1960s, Charles Alexandrowicz
234
This was not limited to Europeans. Most Muslims
regarded the siyar as universally valid, and most East
Asians regarded the Sinocentric tribute system as univer-
sally valid. Because they lost, they had to accept Euro-
centric universalism. Because Europeans won, they
maintained their universalistic Eurocentrism.

352 Onuma Yasuaki
and some other international lawyers carried out this

critical study of the Eurocentrism in the history of inter-
national law. According to Alexandrowicz, classical
writers such as Hugo Grotius recognized that Euro-
pean nations could conclude treaties with non-Christian
nations under the universal law of nations. International
law was created and developed under the influence of
long-established relations between European and Asian
nations. The European nations entered into the net-
works that had existed in Asia, and followed practices
which had been established among the Asian nations.
Alexandrowicz demonstrated that from the sixteenth
to the eighteenth century there existed a wide range of
treaty relations between European and Afro-Asian
nations. He thus stressed the universal nature of (Euro-
pean) international law at that period. It was only after
the period when many Asian nations lost their inde-
pendence or were reduced to dubious legal status, he
argued, that the (European) publicists began to see the
Asian States system as outside the pale of international
law. Although the study of (European) international
law espoused positivism in the nineteenth century, it
ignored these historical facts. It fell into doctrinal
positivism 235.
235
Charles Alexandrowicz, “Treaty and Diplomatic
Relations between European and South Asian Powers in
the Seventeenth and Eighteenth Centuries”, Recueil des
cours (1960), Vol. 100, pp. 207-208, 213-217, 231-235 ;
idem, An Introduction to the History of the Law of Nations
in the East Indies (16th, 17th and 18th Centuries)
(Clarendon Press, Oxford, 1967), pp. 85-86 ; idem, “The
Afro-Asian World and the Law of Nations (Historical

Aspects)”, Recueil des cours (1968), Vol. 123, pp. 134-
144, 145-148 ; idem, “Doctrinal Aspects of the Universal-
ity of the Law of Nations”, British Year Book of Interna-
tional Law, XXXVII (1961), pp. 506-515 ; idem, “Empiri-
cal and Doctrinal Positivism in International Law”, British
Year Book of International Law, XLVII (1977), p. 289.

His arguments were generally well received by con-

temporary and subsequent international lawyers. A
number of Afro-Asian international lawyers such as
R. P. Anand, T. O. Elias and Nagendra Singh stressed
the need to reappraise the history of international law,
claiming that Afro- Asian nations had played an impor-
tant role in the development of international law 236.
Although some international lawyers such as Whilhelm
Grewe criticized Alexandrowicz’s idealization of the
universalistic natural law doctrine, many of his argu-
ments were received as an important revision of the
Eurocentricity of the earlier studies. Also significant
are the studies of certain international relations
scholars of the English School such as Martin Wight,
Hedley Bull, Gerrit Gong and Adam Watson. The
Expansion of International Society, edited by Hedley
Bull and Adam Watson, published in 1984, is a leading
example. Their studies can be characterized as exem-
plifying various aspects in the process of the globaliza-
tion of European international society, and its integral
component, European international law.
Based on these earlier studies up to the 1980s, more
elaborate studies have been done. One area is postcolo-
nial studies. Such prominent figures as Martti Kosken-
niemi and Antony Anghie have demonstrated predomi-
nant features of West-centric international law and its
ideological function to justify Western imperialism and
236
Ram Prakash Anand, ed., Asian States and the
Development of Universal International Law (Vikas Publi-
cation, Dehli etc., 1972) ; Nagendra Singh, “India and
International Law”, ibid., pp. 25-43 ; Ram Prakash Anand,

Origin and Development of the Law of the Sea (Nijhoff,
The Hague etc., 1983) ; Taslim Olawale Elias, Africa and
the Development of International Law (A. W. Sijthoff,
Leiden, 1972) ; Irie Keishiro, “The Principles of Interna-
tional Law in the Light of Confucian Doctrine”, Recueil
des cours (1967), Vol. 120, pp. 1-59.

354 Onuma Yasuaki
colonialism 237. Another area is international relations

studies. Especially noteworthy is the work of Buzan
and Little, which elaborated methodological and con-
ceptual problems that should be borne in mind when
we deal with the history of international law 238. These
studies have revealed important aspects that were
ignored in earlier studies of international legal history.
Their achievement must be fully appreciated.
However, for me, someone who has been arguing
for the critical significance of the intercivilizational or
transcivilizational perspective from the 1980s, there
still seem to remain problems. Particularly for those
living in a multi-polar and multi-civilizational world of
the twenty-first century, it is critically important to be
aware of these remaining problems. Let us explore
some of the points that need to be addressed.
2. A view from a transcivilizational perspective

(1) Critical differences between today’s assump-
tions and past ones
Whenever humans organize groups or societies such
as clans, tribes, religious groups, and nations, and are
engaged in commercial or societal intercourse, or in
armed conflicts, it is necessary to have some arrange-
ments among such groups. When these groups are
engaged in economic dealings, at least an agreement
on the exchange rate is essential. Even when they are
engaged in a war, they cannot continue to fight indefi-
nitely. They need to reach a peace agreement or at least
a truce, unless one party can overwhelm the other and
make the latter surrender unconditionally. Even in this
237
Martti Koskenniemi, The Gentle Civilizer of Nations
(Cambridge University Press, Cambridge, 2001) ; Anghie,
supra footnote 222.
238
Buzan and Little, supra footnote 177.

last case, there must be an understanding between the

parties as to which action or sign should be construed
as surrender.
The need for these agreements, arrangements or
understandings is common to any time and any place,
whether it is Mesopotamian antiquity, the South Asian
medieval period, or South American modernity. There-
fore it is certainly desirable to study such universal and
supra-historical phenomena from a perspective of the
history of international law. However, we have to ask
whether such agreements or arrangements can, and
should, be characterized as international law. We may
be able to talk about the existence of inter-societal or
inter-communal law, or at least inter-societal or inter-
communal norms. But are these inter-societal norms to
be equated with international law ? One may argue that
this is simply a question of termino-logy or definition.
It certainly has such an aspect. However, there are
good definitions and bad definitions, and this problem
entails substantive and methodological problems 239.
Assumptions, frameworks, ideas, ways of thinking,
as well as substantive structures and conditions in
various regions in the past are fundamentally different
from those that we assume today. As I referred to
above (pp. 270-283), we should not simply assume that
we can understand these arrangements or agreements
by projecting today’s prevalent notions about interna-
tional law onto the past. Yet, a number of international
239
As I pointed out above (p. 276), because the sharp
distinction between law and non-legal norms is a modern
construct, we should not be obsessed with the problems

whether such inter-societal norms should be called law.
Still, I hesitate to characterize at least some of the norms
which I dealt in sections II and III as law without any
qualification. Norms regulating the Sinocentric tribute sys-
tem are a leading example on which serious questions
remain whether we should characterize them as law.

356 Onuma Yasuaki
legal studies dealing with the history of international

law do not seem to be sufficiently cautious of this
problem.
Today’s international law is perceived as a secular
comprehensive legal order existing among nation
States which are sovereign, independent and equal,
irrespective of their size, power and influence. It is a
law valid in global international society, which covers
all humanity. It is different from domestic laws, which
are valid within their respective States. Treaties exist as
agreements among States and do not cease to exist
even if the Governments or leaders that concluded
them cease to exist. Gods are not expected to be the
guarantors of these agreements. The pact sunt ser-
vanda is a legal norm in the strict sense, whose breach
entails an obligation of reparations.
As I demonstrated by citing specific examples
in sections II and III, agreements or arrangements
between political or religious entities in various regions
during the pre-modern period generally lacked these
characteristic features 240. Relations among political or
240
As referred to above (pp. 275-277), as far as the
form of the agreement is concerned, many of them were
agreements between concrete rulers, kings, emperors or
politico-religious leaders rather than between States. This
practice of “treaty” making between politico-military or
religious leaders under their own names, not under the
names of States, prevailed. The guarantors of these agree-
ments were often the gods of each party. In the case of
agreements between a powerful and authoritative empire
and its neighbours, they did not necessarily take the form
of treaties between independent States. They often took
the form of concessions, charters or privileges granted by

the emperor, or of other domestic instruments of the
empire. Although many of them were in fact agreements
between the independent parties, the parties shared the
perception of the superiority of the empire. According to
this perception, there should be no equal “treaty” in
today’s sense of the term.

politico-religious entities in the pre-modern period

were very different from those we assume between
States today. There did not necessarily exist common
cognitive and normative frameworks by which inde-
pendent human groups could understand, interpret and
arrange relations between them. Only when they
shared a world image and sufficient information on the
other parties, could they understand, assess and arrange
their relations. If the parties did not share the cognitive
and normative frameworks based on a shared world
image, it was almost impossible to assess their rela-
tions in terms of power, authority and legitimacy.
When we apply today’s notions on international law
to the past world, we must keep these differences
closely in mind and explore past relations with the
utmost caution.
(2) The necessity for appreciating inter-subjectivity

in international law
It should be emphasized in this respect that what we
today call international law or law of nations between
the sixteenth and eighteenth centuries was just one of
many normative systems existing in the various regions
of the globe. It was as late as the end of the nineteenth
century that international law as the law of global
international society in the geographical sense came
into existence. This process has been amply demon-
strated in section II. A number of earlier studies
demonstrated it as well. Some of the readers may thus
wonder why this point should be reiterated. Isn’t this
just a truism ?
Well, not necessarily so. As I referred to earlier, the
early criticism of Eurocentrism conducted by Alexan-
drowicz and others from the 1960s to 1980s involved a
strong criticism of the nineteenth century international
lawyers, who were positivistic and Eurocentric. Their

358 Onuma Yasuaki
criticism was well received. Also the sphere of the his-

tory of international law was expanded to pre-modern
and non-Western societies. These facts brought forth a
new type of universalism in the historical study of
international law. It has been asserted by some univer-
salists that the modern European origin of international
law is a myth or a construct of the nineteenth century
international lawyers. According to this view, universal
international law existed from pre-modern times, and
the idea of European international law is just an ideo-
logy constructed by the nineteenth century European
international lawyers 241.
The ideological nature of the nineteenth century
international law including Western international legal
studies with their discriminatory and suppressive func-
tions must certainly be made clear and be criticized. I
agreed with this view. However, this does not necessar-
ily mean that universal international law existed from
pre-modern times. An argument claiming that interna-
tional law existed from pre-modern days is completely
different from an ideology critique of the nineteenth
century international law. As such, it needs a solid
demonstration based on the carefully accumulated and
scrutinized historical studies and rigid logical explana-
tions.
Those arguing the universal and supra-historical
existence of international law do not seem to have
regarded questions raised above as to the critical differ-
ences between the modern period and the pre-modern
period in terms of “States”, “treaty”, cognitive and nor-
mative frameworks of understanding, interpreting and
assessing relations between independent human groups

including states, etc. as pertinent questions. Further,
241
See, e.g., Alexander Orakhelashvili, “The Idea of
European International Law”, European Journal of
International Law, XVII, No. 2 (2006).

what they were concerned with was basically how

Europeans perceived and understood the world. Not
otherwise. If Europeans called some instruments
treaties, they seem to assume, they should have been
treaties in today’s sense of the term. How these “trea-
ties” were seen, construed and understood by non-
Europeans was not, from the very beginning, a
problem to be considered, to be raised and to be
answered.
Even if the contemporary Europeans regarded some
normative relations — such as “treaty practice”
between European and Afro-Asian political entities —
as universal, common, or shared international law, it
does not mean that there existed such a thing. We need
to know how the other side, i.e. subjects of non-
European regional normative systems, perceived,
understood and explained these relations. Until these
questions are fully clarified, it is difficult to argue
that there existed “treaty practice” between the two
parties.
Lack of the sense of locality of European interna-
tional law up to the nineteenth century is not limited to
those who make a daring overarching argument of the
universal origin of international law. When people deal
with problems related to something “international” or
“universal”, they unconsciously take something asso-
ciated with Europe or the West as general, internatio-
nal, universal or representative. This equation of some-
thing “international” or “universal” with something
Western is taken for granted in almost all kinds of
discourse. Discourse on the history of international law
is not immune from such an “axiomatic” equation.

As is well known, “international law” is a neolo-
gism invented by Jeremy Bentham in the late eigh-
teenth century. Since then, it has been used, together
with such terms as the “law of nations”, “droit des
gens” and “Völkerrecht”, to designate the law valid in

360 Onuma Yasuaki
international society. In reality, it was a European or

“Euro-American” international law, valid in Europe or
in Europe and America until the late nineteenth cen-
tury. However, those who have used the term “interna-
tional law” fail to make this critical point explicit.
They generally refer to “international law” and “inter-
national society” in pre-late-nineteenth-century Europe
without the critical qualification “European” or “Euro-
American” 242.
From a perspective of global international law, such
a narrow perspective is apparently unsatisfactory. Only
when we combine the perceptions held by both sides
and seek to analyse the normative meaning and func-
tion of the European international law of the time in
question — as well as some normative systems co-
existing at the time —, can we fully understand the
whole (= global) picture of the normative universe of
the day.
This should be a task of asking whether and in what
sense it was international law, be it a treaty or a norma-
tive practice, that existed between Europeans and non-
Europeans during the pre-twentieth century period.
242
This failure was shared even by Alexandrowicz and
many other international lawyers who enthusiastically
sought to overcome Eurocentrism. They emphasized that
European international law based on natural law doctrine
from the sixteenth century to the eighteenth was more uni-
versalistic than the positivistic international law of the
nineteenth century. However, to understand how Euro-
peans saw the world is not enough for understanding the
normative situation of the world. This is also a question-
able idealization of natural law doctrine. From a perspec-

tive of ideology critique, such a universalistic law might
well rationalize the aggressive expansion of European
powers on a global scale. We should not forget that even
the universalistic theory of such a conscientious, respected
theologian as Vitoria functioned as an ideology to justify
Spanish colonization of America.

(3) Which is more universal, natural law or Sino-

centrism ?
The questions raised in subparagraph (2) make us
recognize the significance of the perspective through
which we see the world. This is the problem of
whether Europeans are in the centre of the world, as
tacitly suggested by the Prime Meridian, or in the Far
West, according to the Sinocentric view of the world.
The very fact to characterize China, Korea or Japan to
be located in the Far East, not to characterize the
United Kingdom, France or Germany in the Far West,
demonstrates the axiomatic predominance of the Euro-
centric perspective during the modern period.
There were a large number of cases in which some
“treaty” was concluded between a ruler of some Asian
nation and a ruler of a European nation in the pre-
modern time. Some universalistic thinkers or political
leaders in the European nation might have construed
the conclusion of the treaty with the Asian ruler as an
evidence of the universal validity of (European) inter-
national law and/or the inclusion of the Asian nation
within the “Family of Nations”. In fact, some Asian
rulers, especially if they were minor ones, might have
said that they would be pleased to be treated as a
member of the “Family of Nations”, in order to secure
various interests such as trade and military security.
However, even if these facts were demonstrated, we
would have to scrutinize a number of matters in order
to understand the normative meaning of the conclusion
of this “treaty” : (1) What kind of idea of world order-
ing and the normative consciousness were held by

these Asian rulers ? (2) How did they actually deal
with their relations with European nations or their
agents, and their Asian neighbours ? (3) Did they con-
strue these “treaties” as agreements between them and
European States ? Or, did they characterize these

362 Onuma Yasuaki
agreements as some domestic instruments ? (4) What

fictitious notions did they use to justify these acts, and
to whom did they seek to justify them ? (5) Did these
Asian rulers share the legal or normative consciousness
with the European counterpart and regard the binding
nature of these “treaties” in the same way as Europeans
regarded them ? Without such scrutiny, the mere fact
that some European thinkers or rulers construed these
treaty practices as an evidence of the universality of
European international law has only a limited meaning
for arguing the existence of universal international law
at the time of this “treaty practice” or universalistic
theories on international law held by Europeans.
The notion of universal natural law was a European
construct of the time. Leading figures of natural law
doctrine between the sixteenth and eighteenth centuries
generally assumed that their natural law was valid for
all human beings. However, such a Eurocentric notion
of universality was not accepted — it was only natu-
ral ! — by the great majority of the world population
in those days. For contemporary Muslims, who domi-
nated a vast portion of Eurasia, the universality of
Islam with its siyar was much more relevant and
realistic. For the people in the Ming Dynasty and the
Qing dynasty, which were economically far more
powerful than European nations, European natural law
was nothing other than an illusion of “barbarians”.
In the imperial court of successive Chinese dynas-
ties, various local princes, diplomats, agents of Euro-
pean chartered companies and other important persons
were treated as tributary missions wishing to partake in
Chinese civilization. Many of them acknowledged the

universal authority of the Chinese emperor. Yet, we
hardly think of treating such acknowledgment as evi-
dence of the universality of Sinocentrism in those days.
Sinocentrism might have been a universalistic notion,
but not actually a universal notion that is valid to the

whole cosmos or globe. Comparatively speaking, how-

ever, for the most of pre-nineteenth century human his-
tory, the universalistic claim of Sinocentrism had far
more substantial bases than the universalistic claim of
European natural law. It is only through the uncritical
projecting today’s Eurocentric notion onto the past that
we are tempted to search for universality — not the
universalistic claim — of natural law or European
international law during the premodern period.
(4) Problematiques of earlier studies

In the case of Afro-Asian international lawyers who
engaged in the historical studies of international law,
their major concern was on the Asian or African side.
Many of them argued that their regions or civilizations
had, or contributed to the development of, international
law. Most of them were interested in demonstrating
how earlier studies had ignored the existence of this
particular notion of international law in Asia or in
Africa. Their claim was basically that “We, too, had
international law.”
Underlying this claim seems to have been a tacit
assumption that international law was something good,
which should not be a monopoly of the Europeans or
the Western people. They did not necessarily scrutinize
the normative frameworks which Asians or Africans
shared, based on the various types of world images of
their diverse civilizations. They did not sufficiently
explore the form, substance and nature of their norms
which regulated pre-modern relations between political
or religious entities in their region. Despite their criti-

cal posture of Westcentric international law, they basi-
cally projected the notion of international law preva-
lent in the twentieth century on to their own past.
They also failed to see egocentric aspects of Asian
and African world images, which grounded their pre-

364 Onuma Yasuaki
existing normative systems, although they were highly

critical of such aspects of European international law.
In short, a psychological inclination to believe that
Asians and Africans were from the very beginning the
authentic subjects of international law seems to have
dominated their concern. Given the historical back-
ground of the 1960s through the 1980s, when many of
these studies were done, these problematic features are
understandable and might have been tolerated. How-
ever, we must go a step further to compare the various
regional ways of world ordering on an equal footing 243.
Today, we certainly know that European interna-
tional law from around the seventeenth to the nine-
teenth century was just one of many regional and his-
torical normative systems. We also know that various
peoples in the non-European world had their own
world images and normative systems based on these
world images. Yet, we hardly know how the leaders or
the people in these systems regarded each other. We
are ignorant of how either side sought to regulate the
relationship between the competing systems. We know
even less about how these leaders explained the rela-
tionship to their followers as well as to the third par-
ties.
What we were told by the earlier studies is basically
limited to how the members of the European interna-
tional law regarded the subjects of the non-European
regional systems and the transactions between the
Europeans and these non-Europeans. Very few studies
have given the other side of the story, and even less the
inter-perception of the two sides.
The analysis that I conducted in sections II and III

is a rudimentary attempt to rectify such a regrettable
243
See Antony Anghie, “Comment” to Onuma Yasuaki,
Journal of the History of International Law, VI, No. 1
(2004).

situation. A far more substantial and sophisticated

study based on such method should be conducted in
the future.
(5) The problem of Eurocentrism : perspective ver-
sus historical record, or both ?
In 1984, Hedley Bull and Adam Watson published a
book titled The Expansion of International Society. In
this highly significant book dealing with the history of
international society and international law, they seemed
to be aware of the problems of projecting today’s
notions on to the past and of Eurocentrism or West-
centrism. At page one of the Introduction of the book,
Bull and Watson submitted their basic thesis in that
“[the] global international society of today is in large
part the consequence of Europe’s impact on the rest of
the world over the last five centuries”. Immediately
after this proclaimed sentence, however, they qualified
their statement : “Europeans, of course, have never had
any monopoly of knowledge or experience of interna-
tional relations.” 244 They thus seem to have made
deliberate efforts to avoid uncritically projecting
today’s prevalent notions onto the past. This is exem-
plified by such a sentence as :
“Up to the point at which European trade and
consular and diplomatic missions were imposed
upon them, China and Japan in their approaches to
what we call international relations were governed
by the idea of the relations between suzerains and
vassals.” (Emphasis added.) 245
However, this cautious attitude is not consistently

followed. Contributors of the book repeatedly refer to
244
Hedley Bull and Adam Watson, “Introduction”,
idem, eds., The Expansion of International Society, p. 1.
245
Ibid., p. 118.

366 Onuma Yasuaki
the “admission” of certain nations to “international

society” during the modern period. The subjects of this
“admission” were Turkey, Japan, China and other non-
Western nations. However, the society to which these
non-Western nations were “admitted” was not global
international society as we assume today. The interna-
tional society covering the entire globe did not exist
until the late nineteenth century. It came to exist only
when competing political entities in various regions
were forced to participate in the European, which is a
regional, not a global, international society.
Fundamentally, there is a critical sentence on Euro-
centrism which I cannot overlook. I made this point
clear in my article of 2000 246. Since then, my view has
not changed. I therefore cite the same sentence here
and reiterate what I argued in 2000.
In the Introduction, Bull and Watson claimed that
“[b]ecause it was in fact Europe and not America,
Asia, or Africa that first dominated and, in so doing,
unified the world, it is not our perspective but the
historical record itself that can be called Euro-
centric” 247.
Although Bull and Watson, particularly Bull, were
great scholars whom I have admired greatly and still
do, I cannot help raising serious doubts to their argu-
ment.
What concerns me is the rather easy use of the
terms our perspective and the historical record. When
Bull and Watson say our perspective, whose perspec-
tive do they specifically assume ? Human beings as a
trans-historical entity ? Or human beings as a whole in

today’s world ? European and American publicists who
have been engaged in the historical study of interna-
246
247
Bull and Watson, supra footnote 244, p. 2.

tional law ? Contributors to their book ? Or Bull and

Watson ? In short, who represents our perspective ?
Although they sought to elucidate the expansion of
European international society to global international
society, they did not seem to have this critical sense of
the problem of representation.
Also problematic is their dissociation of the histori-
cal record from our perspective. History is composed
of countless facts. The very act of selecting historical
facts — for example, adopting some facts and ignoring
others — and describing a history based on these
selected facts already assume a certain perspective. A
claim that since Europe unified the world, we should
construct or construe the history of international law
based on the historical record centring on the historical
facts that Europeans have regarded as important or
meaningful, already assumes a certain — Eurocentric
— perspective.
It is true that we, who live in the present world, can
see the history of human species only from the per-
spective of today’s world. This world is certainly of
Europeans’ making. In this sense what Europeans have
regarded as important or meaningful, i.e. the Euro-
centric perspective, is already shared by people all over
the world. Today’s people, whoever they are, wherever
they live, whichever nationality they have, are Euro-
peans in the sense that they see, act, and live according
to the way which modern Europeans created and dis-
seminated all over the world. As long as we locate
some place according to the meridian, as long as we
think of historical events by Christian calendar, as long
as we express and exchange our views in English or

French, we are already Europeans.
However, today’s world cannot be characterized
solely as one of Europeans’ making. It is also a world
of various civilizations’ making — of civilizations
which date back much farther than modern European

368 Onuma Yasuaki
civilization. It is a world of thousands cultures’

making, of a wide variety of cultures ranging from
today’s nations, ethnic minorities, religious groups, and
aboriginal peoples to those of the past. Even if
modern European ideas of world ordering predicated
on the sovereign States system were accepted by
non-Europeans, these ideas have not eradicated all
other ideas of world ordering based on other civiliza-
tions and cultures.
In fact, today’s world is composed of more than one
billion Muslims, some 1.5 billion people whose way of
thinking is more or less influenced by Confucianism,
some 800 million Hindus and many other people
whose world image is characterized not only by Euro-
centric perspectives but also by some other perspec-
tives. It is one thing to recognize the fact that Euro-
peans dominated and unified the world. It is quite
another to see the process of this European domination
and unification solely from the perspective which
Europeans have taken for granted. Such an attitude
may well impoverish the academic undertakings, which
should take diverse perspectives into account 248.
A transcivilizational perspective is a theoretical
device to prevent us from falling into such impoverish-
ment. In sections II and III, I sought to draw a picture
of the history of international law from this transcivi-
lizational perspective. The picture I drew is very rough,
rudimentary and insufficient. Far more detailed and
elaborate studies of the regional normative systems
including those in Indian subcontinent, American con-
tinent and African continent, as well as of various cul-
tural and religious ramifications within those regional

systems are needed. Also, far more sophisticated stud-
ies of the various types of explanations, justifications
and accommodations that were utilized by the agents
248
Onuma, supra footnote 167, p. 6.

of the various egocentric and universalistic regional

normative systems are necessary.
Yet, a basic scheme of the study of the history of
international law should, I believe, follow the style and
structure that is demonstrated in this chapter, which is
based on the transcivilizational perspective. Only by
accumulating such studies in a more comprehensive
and sophisticated manner can we finally overcome the
deeply rooted West-centric nature in the studies of
international legal history. Only through such steady
efforts can we liberate ourselves from a predominant
cognitive framework inherited from the past, and make
international law more responsive to the multi-polar
and multi-civilizational global society of the twenty-
first century.

370
CHAPTER V
HUMAN RIGHTS IN A MULTI-POLAR

AND MULTI-CIVILIZATIONAL WORLD
“Even if lotus flowers open,

And Heaven is revealed before our eyes,
With its supreme light shining,
So long as there remains a single man in
this world,
Weeping from misfortune,
Or enslaved to his/her desires,
We shall not ascend to Heaven.”
(Takahashi Kazumi, a Japanese
novelist in the twentieth century.)
Introduction
Human rights is considered to be one of the most
important values of the twenty-first-century world. Not
a single day goes by without seeing, hearing or reading
some news on human rights. “Human rights” is a
sacred word. The use of the term “human rights viola-
tion” is one of the most effective means to attack or
criticize opponents, whether they are antagonistic
States in international society or political foes in
domestic society. “Human rights” seems to be capable
of trumping any competing values, virtues, religions,
cultures, political or economic interests, or other
interests and concerns.
In Africa, massacres, tortures, refugees, political
oppressions, discriminatory practices and many other

social evils are characterized and reported as serious
problems on human rights. In Europe, status of immi-
grants or minorities, relations between the freedom
and/or sanctity of religions and freedom of expres-
sions, and other serious social and political problems

are taken up and heatedly discussed as human rights

problems. In Asia, problems of suppression of various
kinds of freedoms, discriminatory social practices, eco-
nomic exploitation, gender and ethnic discrimination
and many other problems are treated as human rights
problems. In the Americas, gender and racial discrimi-
nation, relations between religious freedom and state or
federal power, and other serious socio-political prob-
lems in North America, as well as political suppression
and arbitrary power of the authoritarian regime in Latin
America are dealt with as human rights problems.
It was not so until recently. The problem of human
rights was not a major issue either in international law
or in international or domestic politics. Major text-
books of international law published up to the middle
of the twentieth century contained few pages on human
rights. Major instruments of international human
rights, such as the Universal Declaration on Human
Rights of 1948, the ICESCR and the ICCPR of 1966,
and the Vienna Declaration on Human Rights of 1993
are all products of the post-war period. Even in the
1970s, when the US President Jimmy Carter sought to
develop human rights diplomacy, many experts sneered
at his naivety. The problem of human rights was not a
major political, legal and social issue. It was something
which a few eccentric people were interested in 249.
249
When I, as a young scholar of international law,
chose the subject of the human rights of the Korean minor-
ity in Japan as a major theme of my study in the early
1970s, a number of senior professors advised me that I, as
a “promising young associate professor of Tokyo Univer-

sity, Faculty of Law”, should not choose “such a minor
subject”. They told me that there are many other important
problems which serious scholars should be engaged in.
The fact that they kindly and seriously made such advice
to me suggests how “human rights” was perceived even by
leading law professors in Japan in the early 1970s.

372 Onuma Yasuaki
The situation has radically changed in just a few

decades. No Government today would dare say they do
not respect human rights. Other actors such as multi-
national corporations, leading media institutions, local
governments, religious organizations and other NGOs
all extol human rights. The body of rules and principles
of human rights has greatly increased in international
law. Human rights is not only a subject of law, but also
energetically controversed in politics, philosophy, reli-
gions, sociology, history, anthropology, and many other
fields. Together with democracy, global environment,
market economy and rule of law, human rights seems
to embody the spirit of our time.
Yet, in actuality, this overall extolment of human
rights is more or less limited to leaders and intellectu-
als, especially those in the developed societies. A large
number of ordinary people, particularly those in the
non-Western world, still regard human rights as alien
to them. From a global perspective, there are far more
people who do not care about human rights than those
who care about it. We should not forget that those
people who have been alienated from the idea and
institution of human rights occupy the overwhelming
majority of humanity.
Human rights is a product of modern Europe. It is
seen by many people with this image of its European
origin and characteristics. In nations where the percep-
tion of past colonial rule and interventions by Western
powers under such slogans as “humanity” or “civiliza-
tion” 250 is still kept, the term “human rights” some-
250
The idea of “mission civilisatrice” was utilized to
rationalize imperialistic policies by the Western powers
from the late nineteenth to the early twentieth century. The
idea of “humanitarian intervention” was resorted to by
Western powers when they militarily intervened in Turkey,
Romania and other nations characterized as “uncivilized”
by Western nations at that time.

times sounds like another beautiful slogan by which

Western powers rationalize their interventionist poli-
cies. A huge number of nationalistic voices on the web-
site coming from massive populations of China and
other non-Western nations against “biased”, “arrogant”,
and “unfair” news and reports on human rights condi-
tions in these nations by the Western media agencies
reveals how widely the grudges and sense of humilia-
tions are shared by, and deeply rooted in, the non-
Western people.
Further, from around the late twentieth century, the
widely shared image of ever spreading and enlarging
modernity has been put into question. The crisis of
global environment, which many people conceive of
with the negative association of scientifically and tech-
nologically oriented civilization originating in modern
Europe, is one of the causes of such concerns. Towards
the end of the twentieth century, people also witnessed
the resurgence of various kinds of religions, which
seemed to have lost their critical importance during
the course of the twentieth century because of the
secularization of society. We further witnessed the
emergence of communitarianism and a virtue-oriented
philosophy as opposed to the individual-centred and
rights-oriented philosophy even in the United States,
where modernistic individual-centred rights talk were
predominant. These phenomena may be symptoms
of this questioning of West-centric, individualistic and
rationalistic modernity.
Moreover, as reiterated in early chapters, the
twenty-first-century world will likely be a multi-polar
and multi-civilizational one, with China and India as

being likely superpowers. It is true that they have pub-
licly committed themselves to the values of human
rights.
There will certainly be improvement of human rights
conditions in their societies with democratization and

374 Onuma Yasuaki
overall improvement of their socio-economic condi-

tions.
However, they have long and multi-faceted civiliza-
tional histories. Their perspectives and value conscious-
ness based on these histories differ significantly from
modernistic values held by Western people. They might
assert different interpretation of human rights when
they feel that they can assert more aggressively their
own views on universal values and interests in global
society.
These numerous factors suggest that we have to
consider the problem of human rights, which is a
product of West-centric modernity, from a perspective
not limited to prevalent, modernistic, and West-centric
civilization. We must be ready to answer the question :
How should we understand and locate the notion and
institution of human rights in our political, legal, cul-
tural, social, economic and religious context of life in
the twenty-first century ? Put differently, what is the
civilizational meaning of human rights in human his-
tory ? If human rights is critically important for the
protection of vital interests and values of humanity —
I believe it is —, how should we reconcile human
rights with diverse cultures, religions, political and/or
economic systems, social practices, as well as criti-
cisms, negative memories and grudges of peoples in
the non-Western world ? In other words, what will be,
and what should be, the relationship between human
rights and diverse civilizations and cultures that may
have regarded, and still regard, human rights alien to
them ?
Responding to these questions requires enormous

tasks. No one, even the most capable philosopher, or
political or spiritual leader, can respond to them alone.
The role of international lawyers occupies only a small
part of these formidable tasks. Yet, students of interna-
tional law have their own tasks, missions and certain

advantages. Like domestic lawyers, they can see the

problem of human rights from a perspective of law.
This perspective is highly important for human rights,
because human rights can be enforced if they are legal-
ized. Yet the perspective of law is not easily accessible
for non-lawyers because of the highly complex and
technical nature of law. Only the well-trained lawyers
can fully understand the meaning and function of
human rights in relation to law. Further, if com-
pared with domestic lawyers, international lawyers are
more accustomed to see a problem from a global
perspective. Therefore, they can provide a more
universally-oriented perspective, not limited to a
single nation.
Students of international law thus can, and should,
provide cognitive and evaluative frameworks, in order
that humanity can address the problem of human rights
with relatively more multi-faceted understandings and
fewer prejudices on diverse cultures, religions or civi-
lizations. By adopting a transcivilizational perspective
in addition to international and transnational perspec-
tives, this ability of international lawyers will be even
more enhanced. They should be able to contribute to
see and locate the problem of human rights in a fairer
and more globally legitimate manner in a multi-polar
and multi-civilizational world than other experts.
Based on these understandings, I will first briefly
discuss the question of the universality and particular-
ity or historicity of human rights. Next, I will deal with
some of the general assumptions in the predominant
discourse on human rights. I will seek to see, and ulti-
mately to legitimate, human rights from perspectives

that are somewhat different from these predominant
perspectives. In short, I will basically see and legiti-
mate human rights as one of the most important means
for protecting values and interests of humanity, rather
than regarding human rights itself a value. In other

376 Onuma Yasuaki
words, I will seek to demonstrate the significance of

human rights without sanctifying it as an inviolable
absolute value, which is often seen in human rights
experts or NGOs.
In my view, human rights is one of the most impor-
tant modernistic means for pursuing spiritual and
material well-being of humanity. As such, it has
certain problematic features because of its West-centric
modernistic historicity. In order that human rights is
recognized by a larger portion of humanity, including
non-Western people, it must be re-conceptualized,
responding to the diverse desires, views, perspectives,
and propensities of peoples with different cultures,
religions and civilizations. It has to be liberated from
excessive liberty-centrism and individual-centrism,
which have been its major features because of its modern
European origin and its West-centric development.
The ultimate objective of this chapter is to seek out
cognitive frameworks for identifying globally legiti-
mate human rights. I will first demonstrate the critical
importance of the existing international human rights
instruments, exemplified by the Vienna Declaration
of 1993, the ICESCR and the ICCPR of 1966, and
the Universal Declaration of 1948. In particular, it will
be submitted that the Vienna Declaration should be
recognized as assuming the primordial importance in a
multi-polar and multi-civilizational world. It embodies
the comprehensive or integrated notion of human rights,
which is a reformulation of human rights through inter-
national, transnational and transcivilizational negotia-
tions and dialogues which were conducted at the end of
the twentieth century. I will conclude this chapter by

arguing for the need to supplement and modify the cur-
rent international instruments of human rights from
transnational and transcivilizational perspectives, in
order to identify the most legitimate notion of globally
valid human rights.

I. The Problem of West-centrism in the “Universality”

of Human Rights
1. Problems relating to the “universality” of human

rights
(1) The range of “universality” of human rights

Human rights is generally defined as the rights that
a human has simply in virtue of being human 251. But
as a historical matter, humans were often required to
meet certain qualifications in order to possess human
rights 252.
Some rights such as the right to vote were limited to
men, and not available to women. It was only after
1945 that the term “human rights” became predomi-
nant instead of “rights of man”. In French, “droits de
l’homme” rather than “droits humains” is still used
today. The property-less class and the so-called “people
251
There is no common definition of human rights in
major international instruments on human rights such as
the Universal Declaration of 1948, the ICESCR and the
ICCPR of 1966 and the Vienna Declaration of 1993.
Further, both a number of Governments and experts in
Socialist countries and developing countries have been
resisting to the universalistic definition of human rights.
See, e.g., Adamantia Pollis, “Liberal, Socialist, and Third
World Perspectives of Human Rights”, Peter Schwab and
Adamantia Pollis, eds., Toward a Human Rights Frame-
work (Praeger, New York, 1982), pp. 1-26. However, if we
construe from the major international instruments on
human rights as well as prevalent theories on human
rights, this kind of universalistic definition has gradually
been adopted not only in Western and/or developed coun-

tries but on a global scale.
252
See Harrow von Senger, “From the Limited to the
Universal Concept of Human Rights : Two Periods of
Human Rights”, Woflgang Schmale, ed., Human Rights
and Cultural Diversity (Keip Publishing, Golbach, 1993),
pp. 52-79.

378 Onuma Yasuaki
of colour” 253 were also excluded from enjoying certain

human rights.
The century and a half following the two most
famous human rights declarations — the American
Declaration of Independence of 1776 and the French
Déclaration des droits de l’homme et du citoyen of
1789 — witnessed the colonization of various regions
by Western powers. People under colonial rule were
generally denied the human rights proclaimed in these
declarations. The Versailles Conference of 1919 rejec-
ted the Japanese proposal for including a racial equal-
ity clause in the Covenant of the League of Nations.
Racism was influential and rampant in Europe, North
America, South Africa, Australia and other places.
In those days, the universality of human rights was
claimed by Asians and Africans, who were alienated
from enjoying human rights. They claimed that if
human rights were universal, the so-called coloured
people, non-Christians and Asians or Africans should
be entitled to human rights. Western powers generally
denied the universality of human rights by invoking
differences in religion, culture or custom. Today, anti-
universalist arguments based on cultural or religious
differences are made mainly by political leaders in
Asia and Africa. In contrast, the Western nations now
assert the universality of human rights. A radical rever-
sal has occurred in the position on both sides 254.
253
Both “coloured people” and “people of colour”
reveal the West-centric or Caucasian-centric nature. West-
erners or Caucasians are naturally people of colour,
because colourless people are unthinkable. When the

Japanese people first saw the US navy officers and
soldiers, they recognized them as “red” people rather
than “white”.
254
Onuma Yasuaki, “Toward an Intercivilizational
Approach to Human Rights”, Asian Yearbook of Interna-
tional Law, XII (1997), pp. 33-34.

Similar irony can be seen in the attitude of States

toward the mechanism for the protection of human
rights. Today, the United States asserts the noble cause
of human rights and seeks to realize human rights even
by interfering in the jurisdiction of other nations. The
US Government actively takes up human rights viola-
tions in various countries in various forums including
the United Nations. However, it was reluctant, even
hostile, to strengthening an effective mechanism for
human rights in the United Nations. Before the Carter
administration started the “human rights diplomacy”,
the US Government was scarcely interested in the
international protection of human rights.
It was the Governments of smaller nations such as
Panama and Cuba as well as Western NGOs that were
eager to strengthen the mechanism for the protection
and promotion of human rights. They contributed to
the improvement of the Dumbarton Oaks Proposals,
which contained only a poor provision on human
rights. It was also mainly developing and socialist
countries that brought about the ECOSOC resolutions
1235 and 1503 in the early 1970s, enabling the UN
Commission on Human Rights to deal with specific
cases of human rights violations. However, it was in
fact for attacking “apartheid” South Africa, Israel and
Pinochet’s Chile that the developing and socialist
countries sought to strengthen the human rights
mechanism. They became hostile to it when it took
up their own human rights violations 255.
255
See Jan Herman Burgers, “The Road to San Fran-
cisco”, Human Rights Quarterly, XIV (1992), pp. 475-477 ;

Nishizaki Fumiko, “Sekai jinken sengen to Amerika gaiko’
(“The Universal Declaration on Human Rights and the US
Diplomacy”), Aruga Toru, ed., Amerika gaiko to jinken
(US Foreign Policy and Human Rights) (The Japan
Institute of International Affairs, Tokyo, 1992), pp. 37-65,
esp. 41-42, 47-48, 54 ; Philip Alston, “The Commission on

380 Onuma Yasuaki
These examples reveal a highly ideological nature

of human rights. “Human rights” is an attractive term
that few can deny. People abuse it in order to attack
their opponents by labelling them as violators of
human rights. One can see a number of double stan-
dard examples in the use of “human rights” by Govern-
ments, media institutions, and even NGOs or experts.
However, human rights is defined as “human” rights,
not “bourgeois”, “white”, “male” or “Christian” rights.
It can recoil on those who abuse it for political pur-
poses. One can demand of States which once asserted
human rights as a way of attacking others that they
themselves should abide by them. The strength of the
idea of human rights lies in its universalizing power.
(2) Problematic features of the theory of the univer-

sal origin of human rights
One of the problems related to the question on the
“universality” and “inherent” nature of human rights is
the origin of human rights. People have often asked
whether human rights were of solely European origin,
or existed in other regions as well. Some in developing
countries have claimed that their own civilization, reli-
gion or culture had human rights from old days 256. One
may call this a theory of universal origin of human
Human Rights”, idem, ed., The United Nations and Human

Rights (Oxford University Press, Oxford, 1992), pp. 141-
144, 145-181.
256
See, e.g., Mahomed K. Nawaz, “The Concept of
Human Rights in Islamic Law”, Howard Law Journal, XI
(1965), pp. 325-332 ; Tyagi Yogesh, “Third World Res-

ponse to Human Rights”, Indian Journal of International
Law, XXI (1981), pp. 119-140 ; Yougindra Khushalani,
“Human Rights in Asia and Africa”, Frederick E. Snyder
and Surakiart Sathirathai, eds., Third World Attitude
toward International Law (Martinus Nijhoff, Dordrecht
etc., 1987), pp. 321-334.

rights. This view is often shared by those in developed

countries as well, and has been rather influential. Why
is this theory persistent and prevalent ?
First, in developing countries, the term “human
rights” has invited suspicions and antipathies from
traditional leaders. It is still alien to a majority of the
population. It is understandable for human rights advo-
cates to argue : “Look, human rights are not alien. They
existed in our religion (culture, customs, civilization,
etc.).” To propagate the idea of human rights in non-
Western societies, it is useful to resort to the theory of
universal origin. From a practical perspective, we can
say that this theory contributes to the universalization
of the idea and institution of human rights.
Second, most non-Western intellectuals are critical
of the West-centric notion that anything good origi-
nates in the West. Human rights are often seen by such
non-Western intellectuals in the following way :
“If a good such as human rights existed in
Europe, it should also have existed in ‘our’ culture,
religion or civilization. It is the arrogance of the
West to argue that the idea of human rights was
born in the West and the institution of human rights
developed solely in the West. We must overcome
such Eurocentric or Westcentric assertion.” 257
We could find this type of argument made by a sub-
stantial number of non-Western intellectuals or critics
of West-centrism in the West. Similar arguments can be
seen in the question of democracy, international law,
rule of law and the like.
Third, there is a vaguely guilty conscience on the

part of many intellectuals in developed countries. They
are concerned with the huge gaps between the affluent
North and the poor South, with their nations’ past colo-
257
See, e.g., Tyagi, supra footnote 256, p. 119.

382 Onuma Yasuaki
nial rule, their resource consumptive life style and so

on. They are also sensitive to the criticism of Euro-
centrism or West-centrism. For them, nodding to the
assertion that human rights existed in Islam, Hinduism
etc. is much easier than refuting it. The latter may be
construed as an arrogant assertion of the monopoly
of something valuable by the West, many Western
intellectuals are afraid.
There are thus good reasons for holding the theory
of universal origin. Yet, it is difficult to support it.
Even in Europe the idea and institution of human rights
did not exist in pre-modern days. What existed were
specific rights or privileges held by members of spe-
cific groups such as peers and the clergy. The rights
and privileges in the Magna Carta are good examples.
They may be characterized as a kind of precursor of
human rights. But they were not human rights per se.
Rights characterized as those of individuals abstracted
from membership of a specific group were born only
after corps intermédiaires were dissolved in the for-
mation of sovereign States and the establishment of
capitalist economies. This occurred in modern Europe,
not elsewhere, not before.
Every civilization had its own mechanisms to pur-
sue the spiritual and material well-being of humanity.
But in the pre-modern time, these mechanisms were
not characterized as human rights. None of these
mechanisms were human rights per se. They were,
to borrow the charming terminology of Raimundo
Pannikar, the existential functional equivalent of human
rights 258. The problem on the universality of human
258
Raimundo Pannikar, “Is the Notion of Human
Rights a Western Concept ?”, Diogenes, CXX (1982),
pp. 77-78. This article is one of the most important works
dealing with the problem of universality and historicity of
human rights.

rights must be considered in accordance with the way

of thinking suggested by Pannikar.
In a multi-polar and multi-civilizational world of the
twenty-first century, it is crucial to liberate human
rights from the Eurocentric or West-centric narrowness
of the perspectives. Given the fact that serious viola-
tions of human rights occur everywhere and every day,
it is highly important to ground human rights not only
in religions, cultures and civilizations that gave birth to
human rights. It is critical to ground human rights in
the religions, cultures and civilizations which have
been alien to human rights. Legitimation of human
rights by the teachings of Islam, search for a logic
which can reconcile human rights with a predominant
interpretation of Buddhism, and seeking to locate
human rights in a proper place of Hinduism are all
desperately needed. They must be carried out at full
length. Yet, these tasks must be done not by looking for
human rights per se in these religions in their original
form. The liberation of human rights from Euro-
centrism or Westcentrism must be conducted inde-
pendently from the assertion of the universal origin
of human rights.
2. The need for re-conceptualization of human rights

in the process of its universalization
(1) The liberation from West-centrism
Human rights was born in modern Europe and
developed in the West. Human rights have been
claimed, studied and realized in Western societies for

more than three centuries. Non-Western societies were
very late in dealing with human rights. Still today, the
degree of the penetration of the idea of human rights is
much lower in non-Western societies than in Western
societies. These facts cannot be denied.

384 Onuma Yasuaki
Moreover, not only human rights but most contem-

porary matters are framed, defined and influenced by
Western intellectuals and media institutions. Today,
people on earth think about all aspects of life in an
epistemological and discursive space basically shaped
by the intellectuals in the United States and West
Europe. A large number of ideas and institutions origi-
nating in Europe are shared or used by peoples all over
the world : the Christian calendar, the meridian, the
metric system, the English language, the sovereign
States system, the capitalist economy and others. This,
however, does not mean that they are inherently uni-
versal. They rather became globally shared as a result
of worldwide colonial rule and hegemony by European
powers up to the middle of the twentieth century, and
the economic, military, cultural and informational
hegemony of the United States during the postwar
period. These were fully demonstrated in Chapter II,
section II, 2.
Human rights is one of those Western ideas and
institutions which was born in Europe and came to be
universalized. With the deepening globalization of eco-
nomics and information technologies, calls to unify
standards of human rights echo throughout the world.
Yet, the majority of these “international” or “global”
standards or “international” norms are those which are
advocated, created and utilized by the North Atlantic
nations. They are not inherently “international”, “uni-
versal” or “global”, but originate either in the United
States or in the West European nations. Yet, people
tend to think and act as if they were inherently interna-
tional, universal or global, because of the West-centric

construct of the world in general.
It is thus inevitable that all aspects of human rights
— discourses, theories, practice and association of
human rights, etc. — have been characterized by
modern Western features. When, for example, people

discuss human rights in terms of universality versus

relativity or particularity, people usually talk about
an “Asian way”, “Islam”, and the like as examples
of particularity. They seldom refer to the “European
way” or “Christianity” as an example of particularity.
It has been assumed that what is universal is some-
thing Western, while particularity refers to something
non-Western 259.
Not only the Western powers, including their idea-
tional power, have been responsible for this situation.
Non-Western intellectuals and leaders have also been
responsible for this tacit equation of what is Western
with what is universal 260. Despite their criticism of the
West’s preoccupations and biases, they themselves
unconsciously share West-centric ways of thinking,
partly because of their educational backgrounds, their
Westernized way of life and their unconscious reliance
on the West-centric way of thinking. For example, non-
Western leaders or intellectuals have often criticized
the human rights diplomacy by the Western Govern-
ments, or assertions made by Western media and NGOs,
as aggressive Western universalism, and defended their
own claims on cultures or religions under the name of
relativity or particularity.
This kind of argument assumes and even reinforces
the equation of what is Western with what is universal,
albeit tacitly and unconsciously. As long as one relies
259
260
Non-Western political leaders have also been
responsible for discrediting their own claims. When they
criticize Western human rights discourse or diplomacy,

their purpose is often warding off external criticism of
human rights conditions in their own countries. Constant
resort to the principle of non-intervention or domestic
jurisdiction reveals this motivation. Such politically moti-
vated criticism reinforces, rather than diminishes, the
strength of the Western claims.

386 Onuma Yasuaki
on this assumption characterizing their culture as

something particular, there is little room left to think
that something non-Western, whether it be Asian,
African, Islamic or Confucian, can be universally valid.
The very act of construing and constructing something
Western as universal, and characterizing something
Asian or non-Western as particular reveals that those
who construe and construct the world are already
enslaved in their conceiving of the world. They uncon-
sciously deny the long history and largeness of the
number of people who share Asian or non-Western
civilizations, which suggests a quasi-universality of
these civilizations, being caught by the prevalent image
of Western universality.
(2) The awareness of the distinction between the

universal, universalism and universalization
This way of thinking is of course strange, given the
simple fact that an overwhelming majority of humanity
are non-Western. When we talk about universal reli-
gions, we usually refer to religions that are believed by
a huge number of people all over the world. Natu-
rally, the universalistic nature of the teaching is impor-
tant. However, it is not enough. However universalistic
teaching (or theory) may be, a religion (or theory) is
not called “universal”, if it is not believed or supported
by a huge number of people. Christianity, Islam and
Buddhism are leading examples. Although these reli-
gions were all born in some particular place at some
particular time, they have become quasi-universal by
adapting themselves to local cultures, while trying to

maintain their “essential” characteristic features : the
element that is regarded as “essential” varies according
to religions, times, and regions.
In the case of Buddhism, for example, one can see
huge differences between the original Buddhism that

emerged in India and the universalized Buddhism that

spread to China, Korea and Japan. If Buddha and his
disciples saw Buddhism in today’s Japan, Korea and
China, they may be shocked to see how radically dif-
ferent they are from their teachings. On the other hand,
in Southeast Asia and in Sri Lanka, Buddhism retains
relatively well the basic features of the original teach-
ings. Buddhism overcame various kinds of conflict in
its universalization by constantly adapting itself to
incredibly diverse and various local societies with
diverse cultures, local religions, customs and political
regimes. The same is true with other universal reli-
gions. There have always been conflicts and struggles
between those universal religions and local cultures or
religions in the process of their universalization.
Human rights has not yet enjoyed such a long his-
tory of universalization. It is therefore natural that
there remain a number of people, especially those who
have not been familiar to modern Western civilization
until recently, who are alien or even hostile to some
norms of human rights. For them, these human rights
norms are not universal, but Western. Or even the basic
concept of human rights itself may appear to be odd
with their basic assumptions of the world or the
cosmos. This is also the case with democracy, rule
of law and other ideas which are today claimed to be
universal by predominant opinion leaders and leading
politicians in the Western world.
For human rights to be accepted by people all over
the world and become truly universal, it must over-
come its peculiarities stemming from its historicity.
Like universal religions spreading all over the world,

human rights must be re-conceptualized, responding to
diverse cultures, religions and civilizations, which do
not necessarily share characteristic features of modern
European civilization. Re-conceptualization and uni-
versalization of human rights first require questioning

388 Onuma Yasuaki
the “self-evident” or “taken for granted” assumptions

on human rights which have been shared and main-
tained in its West-centric development.
II. Questioning the Self-evident on Human Rights

1. Is human rights a value ? — Human rights as the
most effective means to protect the values and
interests of individuals against sovereign States
and the capitalist economy
(1) Human rights, a counterpart of modern sov-
ereign statehood
As referred to at the beginning of this chapter,
“human rights” is generally considered to be one of the
most important values today. But is it truly so ? In my
view, the most important and universal value is the
material and spiritual well-being of humanity. Human
rights is a specific — legalistic, individualistic and
modernistic — formulation of a universal pursuit for
this well-being. It is, in this sense, a means, rather than
a value, for realization of this purposive value, i.e.
well-being of humanity.
The mechanism of human rights is a counterpart of
modern sovereign statehood. In medieval Europe, vari-
ous types of corps intermédiaires functioned both as a
protector and a violator of specific rights, privileges
and interests of people, who belonged to various types
of human groups or entities. These intermediate enti-
ties included households, villages, guilds, manors and
other feudal communities, and Christian churches.
When a right, privilege or interest of a member of

these entities was violated by a member of some other
entities, the members of the former entities were
expected to vindicate the right of the victim who was
their member. Private wars or blood revenges were
means of this vindication of the rights of the members.

However, these intermediate entities were dissolved

by the power of the newly born Leviathan — sovereign
States — and capitalist economy during the course of
nation building and modernization in Europe. The idea
and institution of human rights was born in order to
protect the vital rights and interests of humanity, who
now had to face the threat of the sovereign States and
capitalist economy as naked individuals. The West
European nations, the United States, Japan, and many
other “developed countries” have generally undergone
this process since the seventeenth, eighteenth, or nine-
teenth century to the twentieth century. During the
course of this nation building and development of
modern capitalist economy, the mechanism of human
rights has gradually been established in these societies.
This is why today’s “developed countries”, which used
to be engaged in serious human rights violations such
as persecution of Jewish people, racial and gender
discrimination, child labour etc., now enjoy a high
standard of human rights conditions.
For most of humanity, however, the process of
nation building and the development of capitalist
economy started only in the twentieth century. Many
Afro-Asian nations started the creation of a sovereign
State only after the decolonization process of the late
twentieth century. Most non-Western countries are still
working hard to consolidate a sovereign nation State,
trying to overcome various kinds of pre-modern struc-
tures which are left within national boundaries. Tribal-
ism, long-lasting patron-cliental relations in village
communities and conflicts between ethnic groups are
still conspicuous in these non-Western countries. Yet,

this process of nation building has undermined pre-
modern structures including traditional restraints on the
power of a ruler.
Like pre-modern European societies, non-European
societies had mechanisms which were supposed to pro-

390 Onuma Yasuaki
tect the vital interests of the members of the society.

They existed in various forms such as checking of the
ruler’s power by the assembly of village members or
the advice of wise old men. However, during the
process of nation building, institutionalization of sover-
eign States and the development of the capitalist econ-
omy, many of these traditional mechanisms protecting
individual members of the society were dissolved or
destroyed. Yet, new types of mechanisms including
human rights which can protect vital interests of mem-
bers of the society have not sufficiently been estab-
lished. Consequently, political leaders of the newly
created sovereign States in the non-Western societies
now monopolize the means of violence with few
restraints.
(2) Reasons why States must accept human rights

To accept the system of a sovereign State, a product
of modernity, and to reject that of human rights, a
counter-product, is an arbitrary selection of modernity.
This should not be allowed. If a nation adopts sover-
eign statehood, it must also accept human rights. Most
developed countries have learned this fundamental idea
of modernity, after experiencing revolutions, world
wars, Holocaust and many other tragedies involving
millions of human victims. Some developing countries
have been learning this lesson. Others still need time to
learn.
Nor can a nation reject human rights merely by
resorting to the argument that they are incompatible
with its traditional cultures, religions or civilizations.

Religions, cultures and civilizations change over time.
A number of teachings, interpretations and practices of
Christianity were once incompatible with various kinds
of human rights norms. Yet, during the course of
modernity, they have changed themselves and adapted

to newly born human rights norms 261. The same can

be, should be, has actually been, and will be done, in
Buddhism, Islam, Hinduism and many other religions.
Like Christianity, they must adapt themselves to funda-
mental norms of human rights 262.
Moreover, human rights now provided in major
international instruments are not purely Western
products. The ICESCR and the ICCPR of 1966, and
the Vienna Declaration of 1993 are leading examples.
They were produced through elaborate processes
whereby voices from various non-Western nations
were introduced. Nations cannot reject norms to which
they have agreed. As long as non-Western nations have
ratified these treaties, as long as they voted for the
adoption of the Vienna Declaration, they must abide by
them. Moreover, a number of norms in these interna-
tional instruments enjoy the status of general interna-
tional law. As such, they bind even those nations that
have not ratified or agreed to them explicitly.
It is also well established that reservations to a
treaty must accord with the purposes and objectives
of the treaty. Reservations substantially denying the
domestic implementation of the human rights treaties
are not allowed in international law. It is true that a
number of States still maintain reservations which are
incompatible with the purposes and objectives of
human rights treaties that they have ratified. Yet,
accumulated and continued criticisms, proposals and
pressures from concerned national Governments,
international organizations, media institutions, NGOs,
261
262
As will be discussed in section III, 3, this process is
not simply the one which existing religions and cultures
adapt themselves to human rights norms. The latter must,
and actually will, adapt themselves to these religions and
cultures in order to universalize it. It should be, and will
be, the process of mutual transformation.

392 Onuma Yasuaki
experts and citizens can bring about gradual changes in

the long run. Although such expectations were
often betrayed in the past, but if seen from a longer
perspective, the record on human rights in history
demonstrates this gradual yet steady development.
One of the most important changes in the theory and
practice of international law which occurred in the late
twentieth century was that the principle of non-inter-
vention could no longer be a shield for States to evade
criticisms from outside. Over the course of the latter
half of the twentieth century, nations and international
organizations changed the problem of human rights
from a domestic question to a matter of international
concern 263. At first, from the 1950s to the 1960s,
developing countries and Socialist countries were
eager to overrule the defence of domestic jurisdic-
tion over the issues of apartheid, the occupation of
Palestine by Israel and the Pinochet’s suppressive
rule in Chile. Later, from the 1970s, the Western
nations became more aggressive in taking up human
rights violations and criticizing the defence based
on domestic jurisdiction 264.
263
Already in 1923, the PCIJ stated in its advisory
opinion on the Tunis-Morocco Nationality Decree case that
the question of whether a certain matter is or is not solely
within the jurisdiction of a State is an essentially relative
question. It depends upon the development of international
relations. Décrets de nationalité promulgués en Tunisie et
au Maroc, 7 février 1923, Cour permanente de justice
internationale, Recueil des avis consultatif (série B), No. 4
(1923), p. 24.
264
Louis Henkin, “Human Rights and Domestic Juris-
diction”, Thomas Buergenthal, ed., Human. Rights, Inter-
national Law and the Helsinki Final Accord (Allanheld,
Montclair, etc., 1977), pp. 26-28 ; Antonio Cassese, “The
General Assembly : Historical Perspective 1945-1989”,
Philip Alston, ed., The United Nations and Human Rights :
A Critical Appraisal (Clarendon Press, Oxford, 1992), pp. 28-

The Vienna Declaration of 1993 finally provided

that “the promotion and protection of all human rights
is a legitimate concern of the international commu-
nity” 265. This formulation is of paramount importance
because it finally solved the long disputed question
whether the problem of human rights falls within the
domestic jurisdiction of a State or should be character-
ized as a matter of international concern. This provi-
sion reflects the global consensus reached at the end of
the twentieth century, overcoming various kinds of
conflicts arising from political, economic, social, reli-
gious and cultural diversities of the world.
In the modern world, the sovereign States and mar-
ket economy have generally been considered useful
institutions for realizing spiritual and material well-
being of humanity, overcoming various pre-modern
restraints imposed on humanity. On the other hand,
they can, and often actually do, violate vital values and
interests of humanity. Since the time when humanity
created the sovereign States and the capitalist econ-
omy, they have tried various mechanisms to control the
formidable power of these two systems : Socialism ;
Marxism ; Marx-Leninism ; Maoism ; anarchism ; reli-
gious communes ; etc. In most cases, they have failed.
Human experience has shown that no theory or
institution rivals the effectiveness of human rights in
29, 32-34, 43-44 ; Tom Farer, “A Paradigm of Legiti-

mate Intervention”, Lori Fisler Damrosch, ed., Enforcing
Restraint : Collective Intervention in Internal Conflicts
(Council on Foreign Relations Press, New York, 1993),
pp. 316-347 ; Bruno Simma, “From Bilateralism to Com-
munity Interest in International Law”, Recueil des cours

(1994), Vol. 250, pp. 272-274 ; Tom Farer, “Intervention in
Unnatural Humanitarian Emergencies : Lessons of the
First Phase,” Human Rights Quarterly, XVIII (1996),
pp. 1-22.
265
Vienna Declaration and Programme of Action,
25 June 1993, para. 4 (A/CONF.157/23).

394 Onuma Yasuaki
protecting the naked individual from the power of the

sovereign State and the capitalist economy. Compared
with other ideas and institutions, including those as
shown above, human rights has an undeniable record
of effectively restraining the power of the State not just
in Europe where it was born, but also in regions with
different civilizational backgrounds. Therefore, the
fundamental reason why human rights should be uni-
versally adopted and respected is, in my view, rather
simple : “because we have not yet found a better
alternative” 266. Human rights is thus a means — an
extremely important means — of a more universal
pursuit for realizing the spiritual and material well-
being of humanity.
(3) Historicity or civilizational specificity of human

rights
Because human rights is a specifically formulated
means, given at a particular time of history, for realiz-
ing the well-being of humanity, its usefulness and
flaws must be constantly scrutinized. Its role must be
supplemented, and substituted, if and whenever, neces-
sary. There are other ways to realize the material and
spiritual well-being of humanity. They include the
stimulation of material desires and human efforts
through market mechanisms ; the threat of sanctions
based on criminal law ; the threat of liability under
civil laws ; the cultivation of morality and a shared
consciousness of social norms in school education ; the
socialization and cultivation of empathy and ethics at
home and in the neighbourhood ; etc. Religions play a
266
Onuma Yasuaki, “In Quest of Intercivilizational
Human Rights : Universal vs. Relative Human Rights
Viewed from an Asian Perspective”, Daniel Warner, ed.,
Human Rights and Humanitarian Law (Kluwer Law Inter-
national, The Hague, 1997), p. 67.

tremendously important role for the pursuit of spiritual

well-being of humanity. So do great poems, novels,
music, paintings, mangas, architecture, movies, sports
and other human products and activities which can
move and impress people.
The mechanism of human rights is just one of these
various means or institutions. It was originally born not
as a positive mechanism to achieve some values or
interests. Rather, it was originally formulated as a
negative idea and institutions to protect values and
interests of humanity from the violence of the modern
sovereign State (negative rights, or civil rights). It
gradually transformed itself to include an idea and insti-
tutions to positively realize values and interests of
humanity such as good health, good education, etc.
(positive rights, or socio-economic and cultural rights).
It has been claimed that human rights now includes
third-generation rights such as the right to develop-
ment, right to self-determination, etc. Yet, human rights
retains its historically specific characteristic features.
Seen from a comparative civilizational perspective,
the formulation of human rights is premised on, among
other things, two major factors which are distinctively
modern Western. The first factor is the notion of rights
of independent and aggressive individuals who are sus-
picious of the authority of a State. Although major
political theories in history both in the East and in the
West made serious efforts to establish a theory that can
secure a good ruler, modern Western theory goes the
opposite way. This may be justified by human history
which demonstrates that an expectation for an ideal
ruler was often betrayed and that such a theory as

expecting and securing the good ruler functioned as an
ideology to justify bad rulers. Yet, one may raise a
question whether the suspicion of the State authority is
the only way to secure a good governance. In any case,
suspicion, rather than trust, on the ruler is a distinctly

396 Onuma Yasuaki
modern Western characteristic feature that underlies

human rights.
The second factor underlying the human rights is
the adversarial, individualistic and legalistic system for
realizing and defending the values and interests of a
human. This factor too is a rather unique feature in
political theories. One can find legalistic features not
only in European civilization but also in Islamic civi-
lization. Yet, the formulation of the pursuit for spiritual
and material well-being in terms of adversarial, indi-
vidualistic and legalistic mechanisms is uniquely
modern Western. It may be natural for people who have
been accustomed to different ways of life in other civi-
lizations to feel uncomfortable to such an adversarial,
individualistic and legalistic formulation. In order for
human rights to be accepted universally, it may be
necessary to modify such characteristic features.
Human rights are certainly tremendously important,
but these factors may produce a confrontational social
culture as well. They may be one of the causes hamper-
ing a harmonious relationship among members of
society. Not all pursuits of well-being can appropriately
be realized by legalistic mechanisms. The formulation
in terms of individual rights may not necessarily be the
best means to realize some values or virtues in human
societies. Some values such as affection for others can
be better attained through religion or family education.
If such a pursuit were characterized as a human right,
which can be enforced by law, most people would
resist it. Such characterization of pursuing or realizing
affection as a human right would bring into doubt the
normative character of such a “right”. This would

weaken the normative nature of human rights in general.
Inflation of human rights can raise another problem.
That is the absolutism or fetishism of human rights,
which can be seen in some legalistic and moralistic
members of societies. The more a pursuit of well-being

is characterized as a human right, the more tend we to

rely on an adversarial and legalistic mechanism for
realizing our well-being. This would lead to a fetishism
of human rights and an absolutism of rights in gen-
eral 267, devaluing other means that pursues the well-
being of humanity. As long as we characterize the pur-
suit of well-being in terms of human rights, we would
unconsciously tend to think and behave within the
framework of West-centric, legalistic, individualistic,
modernistic civilization. This may hamper the rich pos-
sibilities of finding an alternative or supplementary
mechanism for pursuing diverse values and virtues,
which is desperately needed to break the deadlock of
our contemporary materially and technologically ori-
ented civilization.
In the predominant discourse, it has been taken for
granted to assume human rights as an absolute good,
which no one is allowed to doubt of its goodness and
righteousness. Human rights has always been regarded
as something good, desirable and valuable, for which
any one must work for. But even human rights has
various flaws. We must minimize such flaws. We must
liberate ourselves from predomi-nant ways of think-
ing which are narrowly defined by modernistic West-
centric frameworks, in order for human rights to fulfil
the important missions which are expected in the
multi-polar and multi-civilizational world of the twenty-
first century in the most appropriate manner.
267
Onuma, supra footnote 254, p. 65. See also Alasdair
MacIntyre, After Virtue : A Study in Moral Theory (Uni-
versity of Notre Dame Press, Notre Dame, Indiana, 1981) ;

Michael J. Sandel, Liberalism and the Limits of Justice
(Cambridge University Press, New York, 1982) ; Robert
N. Bellah et al., Habits of the Heart : Individualism and
Commitment in American Life (University of California
Press, Berkeley, 1985) ; Mary Glendon, Rights Talk (Free
Press, New York, 1991).

398 Onuma Yasuaki
2. Liberation from liberty-centrism
(1) The prevalence of liberty-centrism in the twen-

tieth century
One of the serious flaws in human rights discourse,
due to its Western provenance, is the implicit equation
of civil and political rights with human rights in
general. Most human rights discourse in the twentieth
century was founded on this equation. Economic, social
and cultural rights were referred to only in passing, or
as a supplement. When major media institutions report
news on human rights violations, most of those
allegedly violated rights have been civil or political
rights. Problems of famine, hunger, malnutrition and
serious diseases in developing countries have widely
been reported, but they have rarely been characterized
as problems of human rights.
The spread and institutionalization of human rights
went together with the secularization and liberalization
of Western society. In this process, freedom from the
arbitrary power of the State was regarded as most
important. According to the classical theory formulated
against these historical backgrounds, civil and political
rights, which are freedoms “from” the State, require
States merely to refrain from the arbitrary use of
power. However, economic, social and cultural rights,
which are characterized as positive rights, require
States to take positive measures. Thus, while one can
call the former legal rights, it is difficult to characterize
the latter as rights sensu stricto.
This classical theory which categorically differenti-

ates civil and political rights from socio-economic and
cultural rights was long predominant in Europe and in
other regions as well. Moreover, the United States has
been obsessed with the idea of “free and independent”
individual and “liberty”. The terms “freedom”, “liberty”

and “civil liberty” have been more prevalent than the

term “human rights”. For many people in the United
States, socio-economic rights have been something
associated with socialist ideology, depending on the
power of the State. The United States, with a few
exceptions in the expert circle, was not just reluctant to
accept socio-economic rights as human rights. It was
rather hostile to the very concept of socio-economic
rights.
The United States reluctantly ratified the ICCPR as
late as in 1992 (most developed countries had notified
it by the end of 1970s), but has not yet ratified the
ICESCR. In the near future it is still unlikely for the
United States to do so. Given that 160 nations (as of
25 May 2009) including all developed countries have
already ratified the ICESCR 268, it is extremely difficult
to believe the failure of the United States, the leading
nation in the twentieth century, to ratify it. It is all the
more difficult to believe it, given the fact that the
United States has been preaching the high cause of
human rights on a global scale since the 1970s. How-
ever, it is an undeniable reality, which few ordinary
people, or even a number of experts on human rights,
have been aware of.
As described above, a number of factors have con-
tributed to the prominence of liberty-centrism or civil-
and-political-rights-centrism on a global scale. Most
importantly, the United States, which has been
obsessed with the idea of civil liberty, has exerted the
paramount influence in the global discursive space
including that on human rights. Had the United States
been less hostile to socio-economic rights, the global

situation on human rights in the twentieth century
268
http ://treaties.un.org/Pages/ViewDetails.aspx ?src=
TREATY&mtdsg_no=IV-3&chapter=4&lang=en. (last visit :
16 May 2009).

400 Onuma Yasuaki
would have been different. However, the United States,

not only the Government but also opinion leaders
except for a few number of human rights experts, stub-
bornly insisted on the exclusive importance of civil
liberty, ignoring that of socio-economic and cultural
rights. It was thus natural that liberty-centrism,
emphasizing exclusively the significance of civil
and political rights, was a characteristic feature in the
twentieth-century world.
(2) Rectifying excessive liberty-centrism : develop-

ment from the twentieth century
On the other hand, the emergence of ex-colonies in
international society, and the postwar development in
the theory and practice of human rights have been
bringing about a small but steady change. They are not
as powerful as overcoming the prevalent liberty-
centrism. Yet, one could witness the gradual shift from
the predominance of exclusive liberty-centrism to a
more comprehensive notion of human rights, empha-
sizing the interdependence and integrity of civil and
political rights, and socio-economic and cultural rights,
on a global scale. The adoption of the comprehensive
notion of human rights emphasizing the equal impor-
tance of civil and political rights, and socio-economic
and cultural rights by the Vienna Declaration of 1993
was symbolic in this respect. This gradual change was
brought forth by the following factors.
First, constitutional theories and practices in the
twentieth century have demonstrated the increasing
importance of economic, social and cultural rights. In

order to respond to the criticism that human rights are
just fictitious for those without sufficient means of liv-
ing, most developed countries have taken positive
measures such as social welfare policies and progres-
sive income taxes. The normative nature of the socio-


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A Transcivilizational Perspective on International Law 301

the behaviour of monarchs or feudal lords. Therefore,

global scale. Together with this expansion, European

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international law became global international law. With

pean international law came to be globalized in the

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lating the relations between them and European nations

members of the Eurocentric international society and

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powers. Governments, international lawyers and other

of the Chinese dynasties such as the Tang and Qing

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Although vigorously expanding to other regions of

3. The Sinocentric tribute system in East Asia

entities shared common characteristic features such

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cognitive, evaluative and normative frameworks to a

ties during their stay in China. All of these procedures

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bourhood did not always share the norms based on

only vis-à-vis China, but also among themselves.

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“public goods” or common institutions whose useful-

(2) Diverse perceptions and understandings of

sophisticated style were used as a means of diplomatic

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fact reflected the general adoption by East Asian

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(i) He could deem it a waste of time to bother with

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(iii) China could content itself with a compromise

(3) Deviations within a Sinocentric tribute system

There were naturally various types of modifications

sun rises hereby conveys a letter to the Son of

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at this period. In the subsequent history, a number of

foreign body politic was characterized by the empire

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imposed its domestic rules unilaterally on its neigh-

perception gap with a foreign party was, naturally, com-

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4. The conflicts of two universalistic world images in

simple agreement was maintained throughout the his-

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tory of Roman law. It must be emphasized that such

that pacta sunt servanda means that a simple or bare

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ritual or consideration constitutes an essential require-

(2) The Macartney mission and the collision of ego-

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within the broad framework of the Chinese tribute sys-

citly request a trade relationship on the basis of equality.

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of rituals and form, Macartney could not achieve his

part of the kowtow. Macartney also likely followed the

toward the British that the translators of the mission care-

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By the time of Macartney’s mission, almost one and

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science and technology. The squadrons accompanying

III. The Globalization of a Eurocentric Ordering

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important relations between Muslims and Europeans