International Law in A Transcivilizational World? Tensions Between International Law and Civilization

© 2023 World Scientific Publishing Company
https://doi.org/10.1142/9789811256158_0001
Chapter 1
by 157.41.195.108 on 12/20/22. Re-use and distribution is strictly not permitted, except for Open Access articles.
International Law in a Transcivilizational

World? Tensions Between International
Civilization and Governance Downloaded from www.worldscientific.com
Law and Civilization

Anthony P. Spanakos
Professor, Department of Political Science and Law,

Montclair State University, New Jersey, United States
spanakos@gmail.com
In December 2018, the Malaysian government declined to sign the

International Convention on the Elimination of All Forms of Racism
fearing a reaction from the Pan-Malaysian Islamic Party (PAS) which
believed that the convention would “threaten the nation” by undermining
its founding social compact (Sukumaran 2018). Earlier that year, the
Danish Parliament passed a bill aiming to break down “ghettos” by com-
pelling children over one year old into government-run child-care with a
deliberate effort to impart Danish values and language onto the children
of immigrants. The anxiety of proponents of Western civilization who see
immigration from countries with a different “civilization” contributed to
the victories of the Leave side of the referendum on the European Union
in the United Kingdom in 2016 and presidential candidates Donald Trump
in the United States and Jair Bolsonaro in Brazil, in 2016 and 2018,
respectively (DeMuth 2019).
Each of these contexts is distinct and complicated, and no rhetoric,
legislation, or policy implementation occurred without extensive domestic
3
4 Civilization and Governance
and international criticism. What is worth highlighting is that in each case

significant grievances were addressed in political terms about challenges
to domestic governance because of different civilizational identities on the
parts of groups whose living together (suzein — in the phrasing of
Aristotle) was facilitated, accelerated, and intensified by globalization.
Governance involves, among other things, coordinating identity and
action, and the collection, production, and distribution of goods over a

given territory. Globalization reduces transaction costs associated with
distance and has profoundly dislocating effects on polities, markets, and
communities. This should not be surprising since governance and
civilization have long been spatial concepts — they bind people, ideas,
and institutions to territory (Galli 2010). This disruption has led some
commentators to see a shift in politics from a right-left to a rural-urban or
pro-nationalist/pro-globalist axis (see Goodhart 2017). The Globalist aims
to empower international institutions and international law, while the
Nationalist or Sovereigntist emphasizes the continued role of the state as
the protector of national interests (Maier 2016: 284–285). The former
talks of building global values and citizens, while the latter sees this as a
threat to autonomy and identity, generally understood in national and civi-
lizational terms.
Civilizations aim to organize a large but still particular groups while
global institutions — such as international law — a common set of rules
for all. Onuma (2017, 2010) offers a space for contemplation on this ten-
sion as he employs the idea of distinct civilizations to build and deepen
international law. The importance of civilizations appeals to sovereigntists
(Li Ming 2019) and is troubling for globalists (Reisman and Tataki 2019).
It is worth exploring for this reason. In the end, Onuma provides no for-
mal way of establishing an hierarchy of values if and when civilizations
assume positions that are difficult to reconcile. Read carefully, he employs
civilizations as stepping stones toward legitimating a shift of governance
from national, and even regional, to global levels which undermines his
original seemingly pluralist position.
This chapter will first lay out why “civilization” is a term that has
been consciously avoided by most scholars of international relations.1 The
second section will then examine Onuma’s proposal of International Law
in a Transcivilizational World (2017) and then why Onuma’s approach
might appear attractive to scholars, particularly in China and the
This reluctance has been less present in non-Western readings of international relations.
1
International Law in a Transcivilizational World? 5
non-Western world. The next section analyzes Onuma’s discussion of

human rights and shows that his default assignment of preeminence to
human rights over pluralism leads to the erasure of civilizational differ-
ences and opens the door for a new “standard of civilization” to be
deployed.
1. Civilization in International Relations

Scholars are wary of civilization because of challenges in defining and
operationalizing it, as well as implied normative aspects. Decisions about
where one civilization ends and one begins or how to represent a civiliza-
tion when those within change over time and are diverse at any moment
are difficult. Yet the term is regularly used in political discourse and has
political salience. Scholars of international relations are especially careful
because of its association with the “Standard of Civilization” and the
“Clash of Civilizations” (Wang and Buzan 2014).
Toward the end of the 19th century and into the formation of the
League of Nations, the “Standard of Civilization” was a term used to
determine which countries could send diplomats, and how much agency
those would have, at European-led summits and conferences in which
legal norms were applied to re-territorialize the world. Non-Western
European countries2 were evaluated on the basis of their level of civiliza-
tion to see if and to what degree the countries were capable of participat-
ing in international society. Criteria for the Standard of Civilization were
deliberately vague and allowed for exceptions and opportunism.3 Most
reviews of the concept and application of the “Standard of Civilization”
consider it tainted, the product of racism and xenophobia (Gong 1984;
Zhang 2014; Koskenniemi 2004; Reisman and Tataki 2019; Onuma
2017).
Huntington’s best-selling Clash of Civilizations argued (1993, 1996)
that civilizational identity replaced Cold-War and other partitions of the
2 The system was hierarchic vis-à-vis non-European countries and European countries (see
Mälksoo 2019; Stivachtis 2007; Neuman 2011).
3 Ironically, in the 18th and 19th centuries, some of the same “less-civilized” peoples had
been seen positively earlier. Chinese civilization was seen by some in the West as superior
(Belk 15) and Western Europeans conducted diplomacy in China and the Ottoman empire
on terms that were largely consistent with local practices in those empires (Onuma 2017;
Ch. 2).
globe and would be the cause of the future’s greatest conflicts. In the
immediate aftermath of 11 September 2001, people cheered the
re-opening of the New York Stock Exchange, and President Bush urged
Americans to go back to work and threw the ceremonial opening pitch at
Yankee Stadium. Such actions were proof the American way of life, its
civilization, could not be defeated by its enemies. A similar civilizational
framing was later used by the Islamic State as it rejected contemporary

forms of political order (state sovereignty) and called for a world divided
between a caliphate (Dar al-Islam) and the space of unbelievers (Dar
al-Harb).
Huntington’s concept of civilizations was and remains subject to
regular, vigorous criticism by scholars for many reasons (Katzensetin

2012; Jackson 2010, 2012). Normatively, the book seems to normalize the
idea that relations between different peoples are dominated by conflict
rather than cooperation. Analytically, the concept of civilization, however
many caveats employed to remind readers that civilizations change,
encouraged readers to think of civilizations as recognizable, unchanging
things with little meaningful diversity within them. Yet, post-Huntington,
scholars have also found it helpful to think of civilizations, particularly as
a way of resisting Western notions. Zheng (2010) and Zheng and Huang
(2018) make a case for a Chinese civilization producing distinct political,
economic, and international relations and necessitating different scholarly
terms and concepts. Others have argued that China, and others, constitutes
a “civilizational state”, significantly distinct from the “nation-state”
Westphalian unit (see Zhang Wei-wei 2011; Jacques 2012; Li 2013, Coker
2019).
2. Onuma and the Use of Civilization to

De-Westernize International Law
Yasuaki Onuma was a Japanese scholar of international law and a human
rights activist who passed away in 2018. In 2017, his 700 plus page opus
International Law in a Transcivilizational World was published
by Cambridge University Press, and in 2019 the Asian Journal of
International Law published a symposium reviewing the work. Onuma’s
weighty tome was an extension of Hague lectures (published as A
Transcivilizational Perspective on International Law 2010). Both works
reflect a life-long curiosity about the origins of international law (Anghie
2019). His works address these big questions with the aim of identifying
what is praiseworthy in international law (against critics who overshoot)
and how to make it more acceptable to groups that were not initially deci-
sion makers in the structure which now binds them (against defenders of
the status quo). Specifically, during the 19th century, jus public europium
previously self-contained regional systems of international relations in
Asia and the Ottoman World (to cite the examples Onuma explores) aban-
doned “their own normative systems and accepted “international law” as
their law” (Onuma 2017: 30).4 This process occurred in isolation from
most of humanity, undermining the legitimacy of international law, a
potentially fatal flaw, since law requires legitimacy.
Onuma’s book challenges what he considers Western, Realist, and

Hobbesian perspective of international law in which perspective priori-
tizes law as assured through enforcement by coercive mechanisms and
institutions — particularly courts and armed bodies.5 Such approaches
tend to highlight law as an independent domain (separate from society,
politics, economics, religion, and so on) and overemphasize the written at
the expense of the unwritten and conventional. Instead, he argues that law
should be seen as developed by various bodies, enforced in many ways,
and its goal is not to ensure its validity through prosecuting transgressors
but to be “a critical reference point for the smooth management of humans
when they manage affairs common to all or the majority of society mem-
bers” (2017: 38). On his reading, “[o]bservance of international law is a
rule, not an exception. Resort to force by a state is an exception, not a rule.
It is regarded as a violation of international law, not a negation of it”. (40).
This is because international law’s primary role is to conditions the nor-
mative positions, rhetorical language, and actions taken by state and
4 This statement is inconsistent with his later insistence that international law was and is
not “accepted” as “its law” by most people (see comments later in this text). While it is
beyond the scope of this chapter to explore this in detail, it is worth noting that Onuma’s
usage of legitimacy and acceptance are problematic. At times he uses them interchange-
ably and at others he considers them distinct. There is a great difference between finding
any form of governance system legitimate (a positive affirmation) and accepting such a
system (which could be positive, neutral, or deferential).
5 That Onuma considers these positions associated with the Realist paradigm in interna-
tional relations is a tacit recognition that there are other paradigms in (Western) interna-
tional relations which take different positions. Such positions have been and are taken by
many scholars and politicians outside of the West.
non-state actors. On his reading, international law “provides (1) a norma-

tive criterion … (2) framework for assessing the legality of the conduct
of a state…”, (3) a mechanism to settle conflicts, and (4) the basis
of international organizations. Other functions include the following:
(5) “international law functions to legitimate and justify conduct of a
state”, (6) to facilitate communication between states and non-states, and
(7) to develop a shared understanding. Through all of these international

law “contributes to the convergence of behaviors of the diverse members
of global society, thereby contributing to the overall realization of its com-
mon ideas and aspirations” (48–52).
Thinking synoptically of these functions, “… international law helps
to construct social realities, including the identity, understanding and

behavior of relevant actors in global society” (2017: 51). The quotidian
task of innumerable diplomats, world leaders, academics, people working
in corporations and non-governmental organizations and, even, interna-
tional lawyers is not to ameliorate conflicts but to constructing the very
world they aim to regulate through international law (52). International
law is, therefore, neither a pure abstraction nor explicit concrete
judgment.
If these are the functions of international law, its problem is not that
it is not followed (it is), is routinely violated (it is not), or even that it is
periodically (but in meaningful ways/places) violated (it is). The chal-
lenge for international law is that of legitimacy since it is a product and
ongoing process of something that is being constructed socially and
whose validity rests upon the acceptance of that social construction. The
challenge of legitimacy is accentuated by three contemporary changes:
(1) the revolution in information technologies; (2) the rise of the Non-
Western world; and (3) the “human-rightization” of international politics
(87, Ch. 6). Each of these implies claims against the traditional underlying
norm of international law, non-intervention. Technological changes facili-
tate the flow of information across state boundaries, political change
promoted within non-Western countries may affect interests of neighbor-
ing and Western countries, and human rights claims by individuals in one
country might pit them alongside groups outside of their country against
their country’s courts and government. Under what conditions can inter-
vention be lawful, legitimate, or moral (see Walzer 2015; Bain 2010)?
Intervention by any singular or collective agent on the basis of inter-
national law relies on the legitimacy of the actual system of global gover-
nance and the precedents that produced that system. That could be quite
damning if the system of international law is the result of European con-

quest of other international/regional systems of law. Onuma’s critique of
Euro-centrism6 is especially relevant here as it gives attention to both the
role of Europe, and later the US, in opening commercial markets only
as well as how non-Western systems acquiesced to the extension of
European “international law”.7 Yet, however much decaying Ottoman and
Qing courts gave way to outsiders (Westerners) and neighbors (such as

Korea and Japan or the emerging Greek and Yugoslavian kingdoms — see
Stivacthis 1998; Hamashita 2008) acquiesced to a concrete change in the
organization of power and process in international relations, Onuma still
sees such acquiescence as one of diminished agency. While local actors
were not powerless, many favored changes, and Onuma himself thinks the
Westphalian conception of a system of formally equal sovereign states a
“revolutionary” improvement over the hierarchical system of unequal
relations (92), he still believes that a legitimacy gap was produced as all
subjects did not freely participate in the production of the norms and laws
that bound them. The absence of broad participation among equals in the
origins of international law present a constraint upon the ultimate legiti-
macy of international law.
Nearly two centuries after the Opium and 130 years after the Berlin
Conference, with generations separating contemporary scholarship from
the “Standard of Civilization” norm, Onuma insists on the continued
dominance of Western publishing houses, journals, think tanks, and
European language (2017: x, Ch.1). International law continues to reflect
an extension of domestic law of liberal Western democracies (38) and
more vexing for Onuma is that the reliance on a Euro-centric system does
not accurately reflect 21st century distributions of power leading to “seri-
ous doubt as to the global legitimacy of the prevalent concepts or frame-
works of international law…” (2017: 53). On this argument to tilt more
His “Eurocentrism” may be better understood as “West-centrism” (Mälksoo 2019).

6
His account is somewhat limited because he begins in the mid-to late-19th century with
7
the definitive decline of the Ottoman and Qing Empires as capable of exercising autonomy
in their relations with European countries. He largely neglects the processes in Latin
America (Schmitt 2006; Niemeyer 2017) and Africa (Couveinhes Matsumoto 2019), as
well as in Eurasia (Mälksoo 2019; see Neumann 2011) all of which began earlier. The
latter is critical as his emphasis on the Opium Wars and the Berlin Conference does not
give enough attention to the results of the Crimean War which weakened Britain’s primary
challenge in Central Asia and facilitated the ascendance of naval supremacy.
toward, say China, Brazil, Russia, and India, for example, would improve
legitimacy because those states have more power than previously.8
Legitimacy is the “enforcement mechanism” of the state [and] is sup-
ported by the normative consciousness of members of society as a whole”
and “a globally shared perception of international law as legitimate and
indispensable for the management of global affairs that guarantees the
validity and effectiveness of international law” (54). Legitimacy therefore

is the most efficacious enforcement mechanism and it relies on “shared
perception” rather than power. His inquiry into the origins and expansion
of international law (and international society, Bull and Watson 1985;
Watson 1992; Zhang 2014) argues that however universal norms and
procedures aimed to be, they emerged primarily from the historical expe-
riences, religious, political, and legal thought, and commercial and finan-
cial interests of the Western world. As such, “international law is still
today in the process of being accepted as the law of global international
society in the civilizational sense” (57). Briefly put, international law
requires the “overcoming” of “alienation” of “non-Western people” and
“[o]nly when these non-Western people perceive international law as their
law can international law as the law of global community function suffi-
ciently as law” (Onuma 2017: 57). Crucially, non-Western people both are
a single category (as distinct from Western people) and a set of different
categories (civilizations). But it is not on the basis of non-Western people
or even states that Onuma chooses to justify his proposal, but civiliza-
tions. While he is very clear that he does not mean civilization in an
essentialist (better dispositional — see Jackson 2012) sense (as is associ-
ated with Huntington 1991), he is very loose with his definition of
“civilization”.
Onuma uses “civilizations “and “regional systems” relatively inter-
changeably which he explains thus: “[w]hatever term one may adopt to
characterize these groups of entities — (spheres of) civilization, (regional)
international systems, world or world orders- they are no more than multi-
layered relations of political, economic, social and cultural activities …”
(60). Clearly, “regional system”, “civilization”, and “world order(s)” are
not synonyms.9 A generous reading of Onuma might give him the space
There is an inconsistency since Onuma insists that power does not produce legitimacy.
8
A politician will not insult a politician from another because of the latter’s lack of a
9
regional system or world order. School children do not study the achievements of regional
systems or world orders.
to be ambiguous because civilizations see their own and that of others

along different terms and Onuma’s method is not that of a precise legal
scholar seeking parsimonious terms but of a syncretist who sees law pro-
duced by many actors and on many levels.
Nevertheless Onuma’s concept of civilization, while under-defined,
assumes a common sense reading on the part of readers: the reader, he
assumes, will basically agree that there was an Ottoman Civilization, a

Chinese one (more or less, the same categories that Huntington borrows
from Toynbee, Spengler, and others). Onuma is less concerned with what
a civilization is than its value and organization. On an ethical level, all
civilizations should be treated fairly and equally and the disproportion-
ately limited impact of non-Western civilizations on international law is

an enormous problem. But, in differentiating civilizations according to
order, Onuma finds something “revolutionary” and normatively good in
Western civilization. Whereas Chinese and Ottoman civilizations also
thought themselves universal, those civilizations had “universalistic belief
systems, not universal systems” (Onuma 2017: 63). Prior to the 19th cen-
tury, the same could be said of the West, according to Onuma. But by the
end of the 19th century, the West alone had a universal system (through
the defeat of China in the Opium Wars, decline of Ottoman power, among
other events). This achievement by the West was not revolutionary but the
basis of the organization of international relations on the principle of
“equal sovereign states” was (92).
Although the idea, jurisprudence, politics, and economics of equal
sovereign states emerged in modern Western civilization, Onuma gives
little attention to, say, the religious roots of sovereign equality, industrial
revolution, and other historically meaningful elements which produced
what is called Western civilization (nor does he give much attention to
tensions and counter-tendencies within it, see Couveinhes Matsumoto
2019). What is fundamental, for Onuma, is that, unlike other systems that
were hierarchical, Western civilization espoused a legal concept of equal
sovereign states and laid the ground work for a universalizable, meaning-
ful, and valuable international law.
Mälksoo, who considered Onuma a “mentor”, wrote that it was the
civilizational part of his work that was most novel (2019), writing,
Onuma uses civilizational diversity mostly as a tool for criticizing the

over-representation of the West and under-representation of the rest of
the world in international law. However, we can also take Onuma’s
emphasis on the diversity of civilizations as an implicit criticism of the

predominant understanding in the field according to which culture and
religion are somewhat irrelevant since international law become univer-
sal and a common humanity was pledged as its ontological starting
point.10
The latter point is particularly important as studies of law have tended, as

Onuma notes, to prioritize legal rulings and distance them from the socio-
political contexts which produced them. More attention to such aspects
can help Western and non-Western parties better understand each other.
As Chimni, who cites Onuma approvingly, writes the non-Western posi-
tion on the rights of refugees is often understood in societal rather than

legal terms. “What a multi-civilizational dialogue can do in this context is
to encourage a conversation on the ideal and optimal mix of legal and
societal values and practices that would help safeguard the interests and
rights of refugees” (Chimni 2011: 41).
But raising the concept of “civilization” can be very challenging for
international law as distinct civilizations might prioritize regional values
over those embedded in international law. In many circumstances a ten-
sion between the universal and civilizational (regional/ particular) will
emerge and if the civilizational wins, “…universal international law will
retreat, [and] the biggest backlash will happen in the context of human
rights” (Mälksoo 2019: 163). This would introduce something important
as there is a difference in the legitimacy of a claim against an allegedly
international norm made by a civilization as opposed to a state. What wor-
ries Mälksoo (and others) is that the use of civilization legitimates not
simply legal and normative defection and withdrawal but existential, first-
principle-based resistance.
For Reisman and Tataki, the choice of civilization is “retro … and not
very democratic!” (2019: 182) since it was an imperialist term that has
still not been eradicated from international law”.11 Onuma attempts to
invert this traditional association of civilization with a civilized–uncivilized
dichotomy with a “cognitive and evaluative framework based on the
Mälksoo 2019: 161.

10
The frequently cited Article 38 (I)(a) of the Statute of International Court of Justice notes
11
that the Court “shall apply … the general principles of law recognized by civilized
nations”. The full version can be found at http://www.kentlaw.edu/faculty/bbrown/classes/
HumanRightsSP10/CourseDocs/1ICJ%20Art_38.pdf.
recognition of the plurality of civilizations and cultures that have existed”

(19). This would not only put different civilizations on more equal footing
but, he believes, do something similar with non-states, women, minorities,
indigenous groups and others.
3. China and Civilizations as Constraints

Chimni (2011), citing Onuma (2010), defends the utility of the careful use
of civilizations in international law and puts forth the idea of “Sanskrit
Cosmopolitanism”, a set of principles associated with values, ideas, and
practices in South Asia, as a positive model. Zhao Tingyang similarly
reviews the concept of Tiānxìa (天下) and argues that elements thereof
could and should be guiding principles for a world order that is norma-
tively superior to that of the Westphalian order (see 2019; Zhang Feng
2015).12 Others have promoted Confucian alternatives to the “Western”
order (see Li 2019; Xu 2018). Much of the production of such discussions
in and on China responds to two conditions: first, the development of
ideational capabilities in China and the desire to use such to make sense
of a changing world in which China increasingly occupies a central posi-
tion; and second, a long-term effort to defend non-intervention through a
defense of sovereignty.13 The ideational and political-strategic are clearly
connected.
In a 2014 speech on United Nations Day, Chinese Foreign Minister
Wang Yi expressed that “[n]ational and international judicial institutions
should avoid overstepping their authority in interpreting and applying
12 The Treaty of Westphalia in 1648, ending the 30 Years War, is traditionally considered
the beginning of formal recognition of the international legal rights of states as sovereigns
over the peoples within their territory. Its importance as a starting point has led to the use
of “Westphalian” to describe the system of international relations based on the core prin-
ciple of the sovereignty held equally by all states. Of course, non-states did not have or
had limited claim to such rights (see Vitoria) and this explains how the recognition of
sovereign equality could coincide with European imperialism (Pitts 2010). In 2010, the
Indiana Journal of Global Legal Studies held a symposium which asked international legal
scholars to examine a possible “Eastphalian” system, again, as an alternative to the con-
temporary system that emerged out of Europeum Jus Publicum (Fidler 2010).
13 The reader should note, of course, that there is considerable diversity within positions
offered by Chinese scholars and the authors included here are representative of important
positions but are by no means exhaustive of all positions within Chinese scholarship.
international law” (in Ku 2014). Though he did not name names, the ten-
dency for a country to use international law and/or its domestic law to
intervene in the affairs of another is clearly something associated with the
particular way in which sovereignty has been understood in the West in
the Cold War and, especially, post-Cold War eras. Cohen considers
the notion of sovereignty expressed by Minister Wang “outdated” and she
argues sovereignty involves multiple jurisdictions below and above the

state level. Koskenniemi (2010a, 2010b), one of the most cited authorities
on legal authority, bluntly considers sovereignty to be neither a fact nor to
have any essential meaning as a concept. Rather he insists that it is protean
and driven by the political aspirations expressed by those who want to
embed it with particular characteristics.14 And, it should be noted, these

are scholars who recognize the importance of sovereignty, however criti-
cal they may be of the notion.15
This is a far cry from the assumption of the Five Principles of Peaceful
Coexistence that sovereign autonomy within a territory is the basis of
peaceful relations with neighbors and the foundation of a harmonious
world. While contemporary Western scholarship uses historical accounts
to problematize a single version of a concept (Koskenniemi 2010a) and
highlight the plural (and at times contradictory) meanings the concept has
had over time, many Chinese approaches look to history to identify a
concept as having consistent, concrete, and empirical meaning.16 To this
end, Li Ming is very clear. “Sovereignty is by no means an abstract word.
It is a reflection of history. It represents independence, dignity, equality,
and self-determination for the new government” (Li 2019: 168). He, like
many Chinese scholars, policymakers, and Sinologists, cite the “Century
of Humiliation” as being fundamental in terms of the importance associ-
ated by the Chinese people with sovereignty. Similarly, he also associates
14 In other words, a political group does not occupy a body that actually has a monopoly of
legitimate coercion over a territory (a la Max Weber) but it wishes to have such a monop-
oly and it claims sovereignty to reduce counter-claims and to shield its pursuit from such
from moral arguments.
15 There are many in Western international relations and law who see sovereignty as some-
thing to be overcome, the shield for conduct of human rights violations, or a mechanism
for distributing economic rents to well-connected oligarchs.
16 This approach is more Schmittian (Schmitt 2006) and might partially explain the recep-
tion of Schmitt’s oeuvre in contemporary China (Zheng 2012; Sapio 2015).

sovereignty with non-interference and pluralism, civilizational character-

istics (see also Zhang 2011; Jacques 2012).
There is a tendency in Western scholarship and policies to assume
progress toward a telos and this is particularly true of Liberal and institu-
tional approaches to international relations (Wight 1991). In an essay that
argues for strengthening state sovereignty (though an “updated” form
thereof), Cohen argues for making international law and institutions more
powerful (2004). In order to do so, she recommends: (1) separating
“autonomy and exclusivity” from sovereignty; (2) moving away from a
“absolutistic and decisionist concept of sovereignty”; (3) sovereignty as a
relation based on decisions to “consider” other states as equals; (4) “fos-
tering the internal democratization of all states, large and small”; (5) the
rise of powers which can balance against the US; and (6) making interna-
tional law more formal (Cohen 2004: 19–22). On this view, strengthening
state sovereignty and democratizing international relations involves pro-
moting democratization within states.
Something similar happens with Onuma’s raising the issue of civiliza-
tions as a way of generating a transnational dialogue. At first blush, it
appears to support civilizational particularlisms which may be why Li
Ming refers to Onuma’s book at “a legitimate and feasible approach to
international law” (2019: 165). Yet like the Cohen argument about sover-
eignty, transcivilizational dialogue seems to gain legitimacy because
it recognizes civilizations as participating actors but the outcome of a
transcivilizational process appears less pluralist and tolerant of civiliza-
tional difference.
4. Human Rights and Inhumane Civilizational

Practices
There is little as widely accepted as the idea of human rights being
something that should be protected and little as controversial as how
that should be done. Appropriately, Onuma identifies the “human-
rightization” of international politics as one of the most important and
challenging elements of international law (407). He is clear that human
rights should neither be “absolute” nor “deified” and that human rights are
impacted by power (421, 406, 407). He argues that the Vienna Declaration
of 1993 is particularly important as it capped off a very significant
development of human rights norms and law since the 1970s, represents
a consensual common ground, and was the result of transcivilizational
dialogue. His account assumes a progressive position (Couveinhes
Matsumoto 2019) which is at odds with the importance he initially
assigned to diverse civilizations. Moreover, he takes clear ethical posi-
tions which assume that some civilizations will have to change, though he
gives no guiding principles to help understand why and how they should
(Anghie 2019: 154). As such if there is a tension between civilizations and
international law, there is no explicit mechanism other than dialogue for
overcoming an impasse. Onuma’s presentation, however, gives clues as to
his position.
In explaining the transcivilizational perspective on human rights he

notes: “it is true that any of these criticized ‘religions’ or ‘cultures’ are
often inhumane social practices which have been maintained under the
name of sacred religion or national culture. Still what matters is the reality
that even legitimate criticisms are perceived by not a few people in non-
Western societies as attacks coming from the outside” (418). The second
sentence highlights the role of how non-Western people perceive interna-
tional norms as illegitimate while the first makes a very clear ethical
condemnation of civilizational positions that involve “inhumane” prac-
tices. He does not elaborate what these practices are but this quote
proceeds his discussion of resistance to the UN Committee on the
Elimination of Discrimination against Women by some governments in
majority-Muslim countries. He associates these reservations with “conser-
vative interpretations of Islam or Sharia” and attempts to demonstrate his
absence of bias by insisting on the sensitivity needed for dealing with such
matters. After all, he notes Christianity and the West also had human
rights problems in their past (and present), such as white supremacy and
anti-Semitism. But, while “Christianity … has been compelled to change
over more than three centuries, … [Islam] has been required to change in
just several decades” (419). In other words, scholars, politicians, the NGO
community, and international lawyers should be patient with civilizations
that “lag behind” and continue “inhumane social practices”, though these
practices should be on their way to extinction. Onuma’s position, sud-
denly, shifts and civilizations become stepping stones toward global con-
sensus-forming, regardless of how the new consensus might reduce the
future autonomy of civilizations (and the states that comprise them).
The use of civilizations as a mechanism to preserve sovereignty and
regional values is specifically put to test in Onuma’s explanation of
human rights. “What is critically significant in protecting human rights is

rectifying serious violations of human rights rather than respecting the
formalistic idea of equality of nations” (375). Many of the same non-
Western civilizations that his account aimed to legitimize insist on respect
of sovereignty and hardly consider their claims formalistic.17 Indeed, Li
Ming’s support for Onuma’s book assumes a shared support of respect for
civilizational identity vis-à-vis pressure from an international community

with Western biases (2019).
The development of human rights is told one that is progressive,
advanced through discourse and international institutions, and building on
Western concepts of human rights (363) with a gradual inclusion of more
voices. On his reading, the Vienna Declaration is important because

171 countries signed it, civil society actors were present and expressed
voice, and a previous “deep impasse” was overcome18 (384). What made
the Vienna Declaration such a success was that states committed
themselves to protecting all human rights (not either civil and political or
social and economic),19 the universal character of human rights trumped
particularities, and “promotion and protection of all human rights is
[encoded as] … ‘a legitimate concern of the international community’”
(386), and the right to development and protection for women and girls
was reaffirmed (385–387). Onuma highlights the legitimacy the Vienna
Declaration gained is because it involved state and non-state actors and
because so many countries were involved in developing a common posi-
tion (388). But he writes that “[t]he Declaration does not say that while
universality must be borne in mind, states must protect human rights
according to their particularities. The Vienna Declaration apparently went
in the direction of transcivilizational universality, not that of the so-called
‘clash of civilizations’” (386).
17 Claims to defend sovereignty are, obviously, not unique to non-Western civilization as

can be seen in the rhetoric and policies of conservative populist politicians and parties in
the developed Western world.
18 This is a reference to the challenge to “universal” human rights by a number of regional-
based and/or relativist accounts, most prominently the “Asia Values” position advanced by
former Singaporean Prime Minister Lee Kuan Yew, among others.
19 This was a long-term point of contention during the Cold War with Western, developed
countries favoring the former and Communist countries the latter, with other non-Western
countries endorsing some mixture.
That is, a collection of actors from different states engaged in a dia-

logue and agreed on principles and these principles were to be understood
as universal, unencumbered by particular conditions or future events and
interpretations. Putting aside the recurring expectation and legal exception
that developing countries may move more slowly in defending “all”
human rights, in this process civilizations ceded their claim to particular
understandings of human rights. This is a strange position since he

observes that human rights (positions on women, racial discrimination,
minorities) are accepted by a larger group of countries than in the past but
remain controversial and resisted particularly in certain civilizations. Such
resistance often is rooted in positions that may be considered civilizational
and recourse to resistance relies on traditional norms of sovereignty

(which would be fundamentally challenged by the international commu-
nity’s promotion and protection of all human rights as envisioned in the
Vienna Declaration). Onuma does not explain which differences can be
tolerated, should be celebrated, and which principles will guide transcivi-
lizational dialogue. In an absence of a clearly stated hierarchy of values,
how does one decide what is “inhumane”, how long countries and civili-
zations have to “catch up”, what GDP per capita is the threshold for
expectations of a new “standard of civilization”, and when international
promotion of human rights should overcome national or civilizational
resistance?
5. Peremptory Puzzles

Onuma’s account refers to the Vienna Declaration and others as instances
of juscogens and, in defense of international law as law, he refers to cases
where international law has successfully claimed supremacy and/or juris-
diction over matters that were considered national by certain parties
(defendants, governments). Juscogens are peremptory non-derogable
norms that are accepted by the international community as a whole and do
not require consent of individual member states. They have an obligatory
aspect that neither requires voluntary accession nor permits voluntary
withdrawal. They are mandatory because the international system is inop-
erable without them (they are necessary coordinating mechanisms —
Kolb 2015) and because peremptory norms are “hierarchically superior”
to other norms (Orakhelashvili 2006). The most obvious peremptory
norms are non-intervention, anti-piracy, anti-slavery, and human rights.
But there is neither a complete list, a consistent rule of how a norm gains
such a status, nor how to address a case in which competing norms have
peremptory status (Orakhelashvili 2006; Kolb 2015). This is a particular
challenge for Onuma.
Nowhere in Onuma’s 732 brilliant and thought-provoking book does
he give definitions to civilization, human rights, or law with particular
content. Rather he defines them as the outcomes of political contingencies

and discussions, socio-political constructions which should be considered
a priori unknowable. International law is worked out by various actors
over time: there is no natural or God-given law or order to be discovered
or enacted, which effectively removes religious legacy in international
law and sociologizes it. Schmidt, sympathetic to this position, argues that
“international lawyers [such as Onuma] see the inclusion of juscogens in
the VCLT [Art. 53] as the ‘primary impulse’ for the structural change of
the international legal system from a horizontal to a vertical system of
law” (2016: 266). Verticalization of law (essentially moving more deci-
sion-making to super-national jurisdictions) empowers and deepens inter-
national law.20 More authority and power transferred to supranational
institutions and international law raises the stakes for international law. As
Onuma consistently notes, legitimacy requires that international law be
truly, globally representative and perceived as legitimate.
But how does Onuma judge between competing peremptory norms?
He begins from pluralism by insisting that there are different civilizations
and international law must be open to plural voices and not imperialism,
but his comments on human rights, and the progress of international law,
facilitate intervention on behalf of human rights without clear justification
of when and why. There are temporary exceptions for the less developed
countries but none on the basis of religion or culture. The elevation of
human rights and verticalization of law is especially troubling as the con-
tent of post-1993 human rights are far more substantial and controversial
than was the case in the Universal Declaration of Human Rights (Glendon
2002; Malcolm 2017). Both critics (Rhodes 2018) and supporters (Moyne
2017; Onuma 2017) note how very significant these changes have been
(Posner 2014).
However, one receives the development of human rights law, its
implementation in domestic contexts and its presence in foreign policy
20 Such a desire for verticalization of law is evident in Grover (2019).

activities, it rests upon an international system which would not be pos-

sible without pluralism, a system which created a deliberately restricted
basis for intervention into domestic politics. While not always respected
fully, an argument can be made that pluralism is more fundamental to the
existence and maintenance of the international system than human rights
(particularly as outlined in their expansive form in the Vienna Declaration)
and, therefore, is far more clearly juscogens. As such, it could be accorded

normative legal superiority in general vis-à-vis human rights. Pluralism
does not, of course, justify genocide and nor is it a shield for any sort of
behavior by a state or non-state actor operating within a state. Nor does
the legal superiority of a norm of pluralism in international society mean
that pluralism is of a higher moral level. But in the area of actionable

legislation and meaningful discussion among equal states and multiple
other types of actors, the default position should lean toward pluralism
ceteris paribus for “operative” purposes, if for no other reason (Kolb
2015).
If the Vienna Convention claims that all human rights are of equal
import, the enforcement of all such rights are the responsibility of all sig-
natories of the convention, and if the idea that human rights protections
are juscogens are taken seriously, the international system becomes
(returns to) a Hobbesian state of perpetual potential war. Few claims of
human rights violations are likely to lead to military intervention but the
use of human rights to justify diplomatic isolation, economic sanctions,
targeted military strikes, and, even, interventions has increased consider-
ably in the post-Cold War era (and especially as intra-state wars are
increasingly replacing inter-state wars as the primary source of battlefield
deaths). The trend, therefore, is for human rights to replace territorial
expansion, seizure of resources, and ideological or religious mandates for
intervention. Given this trend and the normative rules which are juscogens
according to the Vienna Convention, the potential of human rights-based
intervention is, in principle, ubiquitous (Which country does not fall short
on one of the rights enumerated in the Vienna Convention?). Clearly, few
countries or coalitions of countries may be capable or interested in such
interventions, but it has become very easy and commonplace to “human
rightize” grievances with other countries (Posner 2014) and to use it as a
critical part of a 21st century “Just War theory” (Schmitt 2004). Ironically,
the use of human rights-based interventions resembles very closely the
“standard of civilization” justification employed to intervene and
dominate poor countries. The very thing that Onuma sought to overcome
through his path to more legitimacy for international law winds up provid-
ing a similar sort of justification.
It is worth returning to Robert Jackson’s Global Covenant: Human
Conduct in a World of States (2000), which argues that international law
cannot take culture or civilizations into account. It is global and must be
so. Jackson is as concerned as Onuma about human rights and equally

believes that international law is a product of the prudential practice of
statesmen, diplomats, citizens, and others. But whereas Onuma begins
from trans-civilizational dialogue, Jackson insists that “a normative dia-
logue of world politics is possible to the extent that it is divorced from the
values of particular civilizations — such as that of the West or that of East

Asia or that of the Muslim world” (2000, 1). In other words, the interna-
tional system must be as civilizationally neutral as possible.
Jackson’s rejection of the use of civilization in understanding interna-
tional law and his decision to reserve it outside of such discussions are due
to his great respect for the autonomy of people to live and coalesce into
social groupings that are not paternalistically determined by others who
are outside the group (and perhaps disproportionately empowered vis-à-
vis that group). His studies of post-colonial African countries and semi-
sovereign states, no doubt, as well as his interest in classical liberalism led
to his emphasis on pluralism as being the fundamental, pre-political value
of international society. It is pluralism that gives normative gravitas to
sovereignty and only under conditions where pluralism is respected rela-
tively consistently can international society and law be built. Pluralism is
therefore temporally and normatively prior to and hierarchically superior
to other principles that share classification as juscogens (see Schmidt
2016). Pluralism involves the voluntary and deliberate decision to: hold
back (restrain the authority of institutions); reserve items (say civiliza-
tional issues) from a policy agenda; and resist efforts to verticalize law
(and identity).
The value of pluralism as a means of allowing civilizations to retain
characteristics and discourage them (or the states and actors within them)
from entering into conflict is especially important at this moment during
which globalization has brought very substantial challenges to tradi-
tional governance institutions and mechanisms, specifically through de
facto and de jure challenges to the association of the full bundle of sov-
ereign rights and obligations with the state. Is Denmark’s parliament
authorized to make laws regarding what it requires of new citizens and

are its courts (in their judgments) and the Danish people (in their future
electoral preferences) able to modify, validate, or correct such decisions?
Or is this truly the province of the European Union or the European
Court of Human Rights (Malcolm 2017)? Can Saudi Arabia, Turkey,
Sudan or, any state launch an intervention on behalf of the people in
Denmark whose rights it claims are abrogated under the new legislation?
The language of the Vienna Convention would suggest so. While the
presence and treatment of “natives” and “foreigners” were critical in the
campaign for the British vote on remaining/leaving the European Union,
one of the most critical issues at stake was that of the constitutional inno-
vations in Britain that transformed parliamentary sovereignty and, there-

fore, governance in England (Malcolm 2017; Caldwell 2019). These are,
perhaps, no less civilizational than questions of who is and is not a native
though they are equally challenged by globalizations re-spatialization of
governance.
One need not support nationalist or populist politicians and policies to
realize how the expansion of human rights, the growth of juscogens
norms, and efforts to verticalize international law led to spirited defenses
of a robust, traditional form of sovereignty which is defended by civiliza-
tional claims. Onuma’s effort to engage in transcivilizational dialogue
certainly begins as a nod to the importance of civilization. The goal of a
dialogue is to get acceptance for transcivilizational norms which might
result in reducing the value of particular civilizations. His critics, cited
earlier, see in his choice of civilization something that resists international
law. This is surprising since, in the end, it appears he is a greater critic of
civilizations than they imagine. Ironically, Jackson’s (2000) dismissal of
civilization and culture, preserves greater space for pluralism and respect
for distinct civilization.
References
Anghie, A. 2012. Imperialism, Sovereignty and the Making of International Law.
New York: Cambridge University Press. 2019, “Editorial Preface”, Asian
Journal of International Law, 9, 153–154.
Bain, W. 2010. Responsibility and Obligation in the “Responsibility to Protect”.
Review of International Studies, 36(2010), 25–46.
Belk, R. 2016. China’s Global Trade History: A Western Perspective. Journal of

China Marketing, 6(1), 1–22.
Bull, H. and Watson A. ed. 1985. The Expansion of International Society.
New York: Oxford University Press.
Caldwell, C. 2019. Why Hasn’t Brexit Happened?: The British Constitution in
Crisis. Claremont Review of Books. https://claremontreviewofbooks.com/
why-hasnt-brexit-happened-yet/, accessed on 31 December 2019.
Chimni, B. S. 2011. Asian Civilizations and International Law: Some Reflections.

Asian Journal of International Law, 1(1), 39–42.
Cohen, J. L. 2004. Whose Sovereignty? Empire Versus International Law. Ethics
& International Affairs, 18(3), 1–24.
Coker, Christopher, 2019. The Rise of Civilizational State. Malden: Polity.
Couveinhes Matsumoto, F. 2019. The End of the History of Liberalism and Last
“Transcivilizational” Man? Onuma’s Attempt to Define a ‘New’ International
Law. Asian Journal of International Law, 9(1), 185–193.
DeMuth, C. 2019. Trumpism, Nationalism, and Conservatism. Claremont Review
of Books, 20 February 2019. https://www.claremont.org/crb/article/
trumpism-nationalism-and-conservatism/, accessed on 25 July 2019.
Fidler, D. 2010. Introduction: Eastphalia Emerging?: Asia, International Law,
and Global Governance. Indiana Journal of Global Legal Studies, 17(1),
1–12.
Galli, C. 2010. Political Spaces and Global War. Minneapolis: University of
Minnesota Press. Translated by Elisabeth Fay.
Gallie, W. B. 1956. Essentially Contested Concepts. Proceedings of the
Aristotelian Society, 56, 167–198.
Glendon, M. A. 2002. A World Made New: Eleanor Roosevelt and the Universal
Declaration of Human Rights. New York: Random House.
Goodhart, D. 2017. The Road to Somewhere: The Populist Revolt and the Future
of Politics. London: Hurst.
Gong, G. W. 1984. The Standard of Civilization in International Society. Oxford:
Claredon Press.
Grover, S. ed. 2019. Peremptory International Legal Norms and the Democratic
Rule of Law. New York: Routledge.
Hamashita, T. 2008. China, East Asia and the Global Economy: Regional and
Historical Perspectives. New York: Routledge. Edited by Mark Selden and
Linda Grove.
Huntington, S. P. 1993. The Clash of Civilizations? Foreign Affairs, 72(3),
22–49.
Huntington, S. P. 1996. The Clash of Civilizations and the Remaking of World
Order, New York: Simon & Schuster.
Jackson, P. T. 2010. The Conduct of Inquiry in International Relations. New

York: Routledge.
Jackson, P. T. 2012. “How to think about civilization”. Peter J. Katzenstein (ed.)
Civilizations in World Politics: Plural and Pluralist Perspectives. New York:
Routledge, pp. 176–200.
Jackson, R. 2000. The Global Covenant: Human Conduct in a World of States.
Oxford: Oxford University Press.
Jacques, M. 2012. When China Rules the World: the End of the Western World
and the Birth of a New Global Order. New York: Penguin Books.
Katzenstein, P. J. 2012. A world of plural and pluralist civilizations: Multiple
actors, traditions, and practices, Peter J. Katzenstein (ed.) Civilizations in
World Politics: Plural and Pluralist Perspectives. New York: Routledge,
pp. 1–40.
Kolb, R. 2015. Peremptory International Law — Jus Cogens. Portland: Hart
Publishing.
Koskenniemi, M. 2004. The Gentle Civilizer of Nations: The Rise and Fall of
International Law 1870–1960. New York: Cambridge University Press.
Koskenniemi, M. 2010a. Conclusion: Vocabularies of Sovereignty — Powers of
a Paradox, Hent Kalmo and Quentin Skinner (eds). Sovereignty in Fragments:
The Past, Present and Future of a Contested Concepts, New York: Cambridge
University Press, pp. 222–242.
Koskenniemi, M. 2010b. What Use for Sovereignty Today? Asian Journal of
International Law, 1, 61–70.
Ku, J. 2014. What Does China Mean When It Celebrates the “International Rule
of Law”? Opinio Juris 29 October 2014, accessed on 25 July 2019. http://
opiniojuris.org/2014/10/29/china-mean-celebrates-international-rule-law/.
Li, C. 2019. A New Humanism with Cultural Roots for the Anthropocene — A
Confucian Perspective, Lijun Yang and Shan Wei (ed). New Humanism and
Global Governance. Hackensack: World Scientific, pp. 19–32.
Li, E. 2013. Eric X. Li: A Tale of Two Political Systems. https://chinadigitaltimes.
net/2013/07/eric-x-li-a-tale-of-two-political-systems/. accessed on 25 July
2019.
Li Ming. 2019. The Transcivilizational Perspective: A Legitimate and Feasible
Approach to International Law. Asian Journal of International Law, 9(1),
165–169.
Maier, C. S. 2016. Once Within Borders: Territories of Power, Wealth, and
Belonging Since 1500. Cambridge: Harvard University Press.
Malcolm, N. 2017. Human Rights and Political Wrongs: A New Approach to
Human Rights Law. London: Policy Exchange. https://policyexchange.org.
uk/wp-content/uploads/2017/12/Human-Rights-and-Political-Wrongs.pdf,
accessed on 31 December 2019.
Mälksoo, L. 2019. Civilizational Diversity as Challenge to the (False)

Universality of International Law. Asian Journal of International Law, 9,
155–164. 2019b. ONUMA Yasuaki (1946–2018). 30 May 2019. Journal of
the History of International Law/ Revue d’Histoire du Droit International.
21(1), 1–5.
Moyne, S. 2017. Human Rights and the Uses of History: Expanded Second
Edition. New York: Verso.
Neumann, I. B. 2011. Entry into International Society Reconceptualised: The

Case of Russia. Review of International Studies, 37(2), 463–484.
Onuma, Y. 2010. A Transcivilizational Perspective on International Law, Hague:
Hague Academy of International Law.
Onuma, Y. 2017. International Law in a Transcivilizational World. New York:
Cambridge University Press.

Orakhelashvili, A. 2006. Peremptory Norms in International Law. New York:
Oxford University Press.
Pitts, J. 2010. Political Theory and Empire. Annual Review of Political Science,
13, 211–235.
Posner, E. 2014. The Twilight of Human Rights Law, New York: Oxford
University Press.
Reisman, W. M. and Takaki, T. B. 2019. How Shall We Fashion International
Laegal Goals and Criteria for Appraisal in a World of Many Civilizations and
Cultures? Review of Onuma Yasuaki’s International Law in a Transcivilizational
World. Asian Journal of International Law, 9, 177–184.
Rhodes, A. 2018. The Debasement of Human Rights: How Politics Sabotage the
Ideal of Freedom. New York: Encounter Books.
Sapio, F. 2015. Carl Schmitt in China, TheChinaStory, 7 October 2015. Accessed on
25 July 2019. https://www.thechinastory.org/2015/10/carl-schmitt-in-china/.
Schmidt, V. 2007. Conceptualising Europe as a “Region-State,” Anthony Petros
Spanakos and Francisco Panizza (eds.), Conceptualising Comparative
Politics. New York: Routledge, pp. 17–45.
Schmidt, D. R. 2016. Peremptory Law, Global Order, and the Normative
Boundaries of a Pluralistic World. International Theory, 8(2), 262–296.
Schmitt, C. 2004. Legality and Legitimacy, Durham: Duke University Press,
2004, Translated and Edited by Jeffrey Seitzer, with an Introduction by John
McCormick, P. 2005. Political Theology: Four Chapters on the Concept of
Sovereignty. Chicago: The University of Chicago Press. Translated by
George Schwab and Forward by Tracy B. Strong.
Schmitt, C. 2006. The Nomos of the Earth in the International Law of Jus
Publicum Europeum. New York: Telos Press. Translation and Introduction
by G. L. Ulmen.
Schmitt, C. 2007. The Concept of the Political: New Brunswick: Rutgers

University Press. Translation, introduction, and notes by George Schwab,
with comments on Schmitt’s essay by Leo Strauss.
Stivachtis, Y. A. 1998. The Enlargement of International Society: Culture versus
Anarchy and Greece’s Entry Into International Society. London: Palgrave
MacMillan.
Stivachtis, Y. A. 2007. International Order in Globalizating World, New York:
Routledge. 2017. “International Society” versus “World Society”: Europe

and the Greek War of Independence. International Politics, 55(1), 1–17.
Sukumaran, T. 2018. Mahathis’ U-turn on UN race treaty: For Malaysia, a
necessary — If backwards-step? South China Morning Post, 2 December
2018. https://www.scmp.com/week-asia/politics/article/2175870/mahathirs-
u-turn-un-race-treaty-malaysia-necessary-if-backwards, accessed on 25 July

2019.
Wang, J. and Buzan, J. 2014. The English and Chinese Schools of International
Relations: Comparisons and Lessons. The Chinese Journal of International
Politics, 7(1), 1–46.
Watson, A. 1992. The Evolution of International Society. London: Routledge.
Walzer, M. 2015. Just and Unjust Wars: A Moral Argument with Historical
Illustrations, 5th edition. New York: Basic Books.
Wight, M. 1991. International Theory: The Three Traditions. London: Leicester
University Press.
United Nations Human Rights Office of the High Commissioner. International
Convention on the Convention of All Forms of Racial Discrimination.
https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx, accessed on
25 July 2019.
Xu, J. 2018. Rethinking China’s Rise: A Liberal Critique. New York: Columbia
University Press. Translated by David Ownby.
Zhang, Feng. 2015. Chinese Hegemony: Grand Strategy and International
Institutions in Asian History. Stanford: Stanford University Press.
Zhang, W.-W. 2011. The China Wave: Rise of a Civilizational State. Hackensack:
World Century Publishing.
Zhang, X. 2011. China in the Conception of International Society: The English
School’s Engagements with China. Review of International Studies, 37,
763–786.
Zhang, Y. 2014. The Standard of “Civilization” Redux: Towards
the Expansion of International Society 3.0? Millennium — Journal of
International Studies, 42, 674–696.
Zhao, T. 2019. Redefining A Philosophy for World Governance. New York:
Palgrave MacMillan. Translated By Tao Liqing.
Zheng, Q. 2012. Carl Schmitt in China. Telos, 160, Fall, 7–31.

Zheng, Y. 2010. The Chinese Communist Party as Organizational Emperor. New
York: Routledge.
Zheng, Y. and Huang Y. 2018. Market in State: The Political Economy of
Domination in China. New York: Cambridge University Press.

International Law in A Transcivilizational World? Tensions Between International Law and Civilization

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

International Law in A Transcivilizational World? Tensions Between International Law and Civilization

Uploaded by

Copyright:

Available Formats

© 2023 World Scientific Publishing Company

International Law in a Transcivilizational

Law and Civilization

Professor, Department of Political Science and Law,

In December 2018, the Malaysian government declined to sign the

and international criticism. What is worth highlighting is that in each case

action, and the collection, production, and distribution of goods over a

non-Western world. The next section analyzes Onuma’s discussion of

1. Civilization in International Relations

framing was later used by the Islamic State as it rejected contemporary

regular, vigorous criticism by scholars for many reasons (Katzensetin

2. Onuma and the Use of Civilization to

Onuma’s book challenges what he considers Western, Realist, and

non-state actors. On his reading, international law “provides (1) a norma-

(7) to develop a shared understanding. Through all of these international

to construct social realities, including the identity, understanding and

damning if the system of international law is the result of European con-

Qing courts gave way to outsiders (Westerners) and neighbors (such as

His “Eurocentrism” may be better understood as “West-centrism” (Mälksoo 2019).

validity and effectiveness of international law” (54). Legitimacy therefore

to be ambiguous because civilizations see their own and that of others

assumes, will basically agree that there was an Ottoman Civilization, a

ately limited impact of non-Western civilizations on international law is

Onuma uses civilizational diversity mostly as a tool for criticizing the

emphasis on the diversity of civilizations as an implicit criticism of the

The latter point is particularly important as studies of law have tended, as

tion on the rights of refugees is often understood in societal rather than

Mälksoo 2019: 161.

recognition of the plurality of civilizations and cultures that have existed”

3. China and Civilizations as Constraints

argues sovereignty involves multiple jurisdictions below and above the

embed it with particular characteristics.14 And, it should be noted, these

tion of Schmitt’s oeuvre in contemporary China (Zheng 2012; Sapio 2015).

sovereignty with non-interference and pluralism, civilizational character-

4. Human Rights and Inhumane Civilizational

In explaining the transcivilizational perspective on human rights he

human rights. “What is critically significant in protecting human rights is

civilizational identity vis-à-vis pressure from an international community

voices. On his reading, the Vienna Declaration is important because

17 Claims to defend sovereignty are, obviously, not unique to non-Western civilization as

That is, a collection of actors from different states engaged in a dia-

understandings of human rights. This is a strange position since he

and recourse to resistance relies on traditional norms of sovereignty

5. Peremptory Puzzles

content. Rather he defines them as the outcomes of political contingencies

20 Such a desire for verticalization of law is evident in Grover (2019).

activities, it rests upon an international system which would not be pos-

and, therefore, is far more clearly juscogens. As such, it could be accorded

that pluralism is of a higher moral level. But in the area of actionable

so. Jackson is as concerned as Onuma about human rights and equally

values of particular civilizations — such as that of the West or that of East

authorized to make laws regarding what it requires of new citizens and

vations in Britain that transformed parliamentary sovereignty and, there-

Belk, R. 2016. China’s Global Trade History: A Western Perspective. Journal of

Chimni, B. S. 2011. Asian Civilizations and International Law: Some Reflections.

Jackson, P. T. 2010. The Conduct of Inquiry in International Relations. New

Mälksoo, L. 2019. Civilizational Diversity as Challenge to the (False)

Neumann, I. B. 2011. Entry into International Society Reconceptualised: The

Cambridge University Press.

Schmitt, C. 2007. The Concept of the Political: New Brunswick: Rutgers

Routledge. 2017. “International Society” versus “World Society”: Europe

u-turn-un-race-treaty-malaysia-necessary-if-backwards, accessed on 25 July

Zheng, Q. 2012. Carl Schmitt in China. Telos, 160, Fall, 7–31.

2. Onuma and the Use of Civilization to

4. Human Rights and Inhumane Civilizational