(The Pocket Books of the Hague Academy of International Law _ les Livres de Poche de l'Académie de Droit International de la Haye Ser.) Yasuaki Onuma - A Transcivilizational Perspective on Internation

© Hague academy of InternatIonal law, 2010
all rights reserved
ISBn 978-90-04-18689-7
full text of the lecture published in June 2010 in the Recueil des
cours, Vol. 342 (2009).
cover illustration : A manga by Yamashina Keisuke, artist, Tokyo, 2010.

Hague academy of InternatIonal law
A collection of law lectures

in pocketbook form
AIL-POCKET
2010
martInuS nIJHoff PuBlISHerS
leiden/Boston
foreword
There is nothing new in the observation that positive

international law is unsuited to the diversity in the
situations of the various States that it is intended to
govern. This was pointed out by the Soviets in the wake
of the October Revolution, and it was further stressed
by third world countries at the time of decolonization
half a century ago, when they refused to consider them-
selves bound by customs that had been formed without
their participation. The law was challenged principally
on the grounds of its Euro-centrism, its Judeo-Chris-
tian foundations, and its vision of the economy. In
some ways, these challenges have now died away :
the Russians have adopted the market economy, and the
countries once referred to as the “Third World”, in
losing their unity — even if this was only skin-deep —
have more or less accepted a legal system that has been
modified with their participation, as sovereign States
and members of the United Nations who have been
associated in the rewriting of the law, either through its
codification or by other means of revising the existing
rules.
The fall of the Berlin Wall and the concurrent
enhancement of the United Nations, known as the “new
international order”, gave rise to the illusion that,
within the context of globalization (which, it was true,
had to be controlled), tensions in this respect had died
down or had even been eradicated.
However, the question is far from being exhausted,
and has doubtless merely shifted elsewhere. This is
what one feels when one reads this fine work by
Professor Onuma, and at the outset one must commend
its originality and its dynamic treatment of the central
6 Foreword
issues : what is the international law of the twenty-first

century, or what should it be ? What opportunities does
it offer or, from the opposite point of view, what are the
limits by which it is constrained in a world whose pro-
found upheavals are already perceptible in the new
hegemonies that are in preparation and in the objectives
of a different type or the previously unencountered
issues that are emerging ?
The question of whether international law is suited
to the real world thus arises more than ever, and will
arise with growing intensity during this century. The
exercise undertaken by Professor Onuma is therefore
imbued with great lucidity when he adds to the tradi-
tional international and transnational perspectives
the new dimension that is put forward in his “trans-
civilizational” view as a factor explaining current
international law and, above all, the international law
of tomorrow. The main interest of this option lies in its
broadening of the directions and scope of international
law. The aim should be to achieve a liberation from the
fundamentally contentious imprint that has charac-
terized it until now, in favour of a vision that is open to
the cultural and civilizational foundations that will
ensure its renewal.
This broadening of the norm goes hand-in-hand with
the increasing diversity of those who play a major role
in this law and with the Western world’s loss of its
quasi-monopoly, making way for a multi-polar inter-
national society marked by the arrival of emerging
powers such as, in Asia, China and India, at the same
time as a vision imposes itself that is less exclusively
centred around the State, although the State (along with
international inter-governmental organizations) is the
only player to be recognized by contemporary interna-
tional law. This mismatch between the rule of law and
what one might be tempted to call the “reality on the
ground”, which is marked by the growing involvement
Foreword 7
of non-State players, is certainly one of the indispens-

able major correctives that must be applied to inter-
national law.
Consequently, while it was impossible for the uni-
versal nature of international law to prevail during the
twentieth century for the reasons that have been men-
tioned, it seems that what is at stake in the twenty-first
century is even more complex. The author therefore
considers that, in order to reflect the world as it really
is, and its expressed needs in this new century, the very
foundations of international law must be changed and,
above all, broadened. The restriction of sources of law
to those that are listed in Article 38 of the Statute of the
International Court of Justice is a stranglehold that
must be broken so that norms of various kinds, usually
considered as falling into the category of “soft law”,
can be introduced among those sources. This is a huge
programme, and the obstacles to it are easy to imagine
and will not fail to materialize.
This reasoning, applied to international law as a
whole, may also be appropriate in the re-examination
of certain branches of international law, such as
human rights, which were originally conceived by
European minds and which, while asserting their
universality, have been marked by Euro-centrism.
According to the author, if “transcivilizational”
aspects were taken into account, this would allow the
addition, to the universality of the Western theory of
human rights, of an extra dimension derived from other
doctrines — Asian, for example — which, far from
weakening the supposed universality of human rights,
would on the contrary reinforce this universality and
allow it to be fully accomplished.
Professor Onuma’s book will breed controversy,
as is to be expected of any brilliant and courageous
work that puts into question the most well-established
foundations of international law : sovereignty, predomi-
8 Foreword
nance of the State, holders of power, utilitarian ideas

of the law, predominance of Western visions of the law,
etc. It will also give rise to controversy by its recom-
mendation that there should be a kind of porosity in the
present boundary between positive and dispositive law,
between the law as it is and as it should be, or as one
would like it to be. And it is certainly true that there is
a certain danger in changing the lines and in putting
into question the demarcation between them, with the
risk of not knowing exactly where one is, and that this
can be taken for confusion between aspirations and the
reality.
It would however be a great mistake to reduce this
publication by Professor Onuma to that single aspect.
On the contrary, when going down the intelligent and
original path that leads through these pages, the reader
must appreciate the numerous lines of thought that are
provoked by a deep reflection upon the world that is
opening up before us and upon the international law
that is to govern it. For Professor Onuma’s book is first
and foremost the work of a legal scholar — a legal
scholar who is capable of reflecting upon the law in its
cultural and social environments which, in their diver-
sity, must inter-connect themselves in the mutual
enrichment that is made possible by the “transciviliza-
tional” perspective.
yves daudet,
emeritus Professor,
university Paris I (Panthéon-Sorbonne),
Secretary-general of the Hague academy
of International law.
a transcivilizational Perspective
on International law
A Transcivilizational Perspective
on International Law
Questioning Prevalent cognitive frameworks
in the emerging multi-Polar and multi-civilizational
world of the twenty-first century
onuma yaSuaKI
13
contentS
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Introduction. . . . . . . . . . . . . . . . . . . . . . . 29
chapter I. a transcivilizational perspective : a cog-
nitive framework to understand the twenty-first-
century world . . . . . . . . . . . . . . . . . . . . 39
Introduction . . . . . . . . . . . . . . . . . . . . . 39
I. from a State-centric and west-centric inter-
national society to a multi-polar and multi-
civilizational global society . . . . . . . . . . . 45
1. International law in a State-centric and west-
centric international society of the twentieth
century . . . . . . . . . . . . . . . . . . . . 45
(1) International law and international society 45
(2) characteristic features of the twentieth-
century international society . . . . . . . 47
2. conflicts destabilizing the international order 50
(1) the conflict between the transnationali-
zation of economics and information, and
the sovereign States system. . . . . . . . 51
(2) the conflict between the global quest
for human dignity and the sense of victi-
mization shared by non-western and/or
developing nations . . . . . . . . . . . . 54
(3) emerging discrepancies between the eco-
nomic power and the intellectual/infor-
mational hegemony in global society. . . 57
II. Prevalent perspectives to understand internatio-
nal law in the twentieth century . . . . . . . . 61
1. the international perspective . . . . . . . . . 61
(1) the predominance of the international
perspective . . . . . . . . . . . . . . . . 61
(2) the persistence of State-centrism . . . . 64
2. the transnational perspective . . . . . . . . 67
(1) the emergence of the transnational per-
spective . . . . . . . . . . . . . . . . . . 67
14 Contents
(2) the significance of the transnational

perspective . . . . . . . . . . . . . . . . 71
(3) Problems of international and trans-
national perspectives . . . . . . . . . . . 73
(4) Participants of international law : various
actors with diverse perspectives involved
in the international legal process. . . . . 77
III. the transcivilizational perspective : a way to
see international law in a more nuanced and
comprehensive manner . . . . . . . . . . . . . 80
1. the significance of civilizational factors and
perspectives in the sovereign States system 80
(1) what is the transcivilizational perspec-
tive ? . . . . . . . . . . . . . . . . . . . 80
(2) civilizational factors and perspectives
as preserved and utilized within the sov-
ereign States system . . . . . . . . . . . 84
(3) tacit recognition of the significance of
civilizational factors and perspectives. . 88
2. realities requiring the adoption of the trans-
civilizational perspective in the twenty-first
century . . . . . . . . . . . . . . . . . . . . 91
(1) Significance and decline of the non-
intervention principle . . . . . . . . . . 91
(2) a clash of civilizations ? . . . . . . . . 94
(3) the need to minimize conflicts between
egocentric, unilateral universalisms . . . 98
(4) the functional notion of the transcivili-
zational perspective . . . . . . . . . . . 100
(5) changing the perspective : a crucial task
for international lawyers . . . . . . . . . 105
chapter II. Power and legitimacy in international law 109
Introduction . . . . . . . . . . . . . . . . . . . . . 109
I. law and power in global society . . . . . . . . 114
1. International law versus the power of States
— a prevalent image on law and power in
international society . . . . . . . . . . . . . 114
(1) complex and multidimensional relations
between law, legitimacy and power . . . 114
(2) cases in which international law is actually
discoursed and used in a visible manner 119
Contents 15
(3) the most frequently asked question :

“can international law control the power
of States ?” . . . . . . . . . . . . . . . . 122
(4) failure and irrelevance of international
law ?. . . . . . . . . . . . . . . . . . . . 125
2. might makes right ? . . . . . . . . . . . . . 128
(1) Power in the creation of international
law : a case of bilateral treaties. . . . . . 128
(2) Various types of power involved in the
creation of multilateral treaties . . . . . . 132
(3) the primacy of western power in the
creation of so-called “customary” inter-
national law . . . . . . . . . . . . . . . . 134
(4) the power and legitimacy of the united
nations . . . . . . . . . . . . . . . . . . 139
3. Power that sustains and realizes law . . . . . 144
(1) “Horizontal sanctions” of international
law ?. . . . . . . . . . . . . . . . . . . . 144
(2) can international law be enforced as an
adjudicative norm ? . . . . . . . . . . . . 147
(3) collective security, unilateralism and the
balance of power in international law . . 151
II. International law as power . . . . . . . . . . . 156
1. International law as seen from the perspec-
tive of ideational power . . . . . . . . . . . 156
(1) the power of ideas and the power to
disseminate the ideas . . . . . . . . . . . 156
(2) the prevalent perception of “irrele-
vance” of international law . . . . . . . 160
(3) unreality of the so-called “realists” view
regarding international law as irrelevant . 163
(4) Societal functions of international law. . 170
2. the constructive function of international law 174
(1) the power of international law to con-
strue and construct social realities . . . 174
(2) the power to make ideas of internatio-
nal law become known, disseminated
and shared . . . . . . . . . . . . . . . . 177
III. In quest of legitimate perspectives in the glo-
bal discursive space . . . . . . . . . . . . . . 179
1. Problems of west-centrism in international
law . . . . . . . . . . . . . . . . . . . . . . 179
16 Contents
(1) critiques of west-centrism and their

problems . . . . . . . . . . . . . . . . 179
(2) the need for “intercivilizational” or
“transcivilizational” perspectives . . . . 184
(3) the need for changing the perspective
in responding to the multi-polarization
of the globe . . . . . . . . . . . . . . . 187
(4) Symptoms for change in the study of
international law ? . . . . . . . . . . . . 189
2. the power of legitimate international law . 194
(1) the power of shared normative conscious-
ness in upholding the law . . . . . . . . . 194
(2) Significance and problems of interna-
tional and transnational perspectives . . 197
(3) the transcivilizational perspective : a
way to fill the legitimacy deficit in
international law . . . . . . . . . . . . . 200
chapter III. towards a proper understanding of
general international law, customary international
law, and the judiciary in global society . . . . . . . 203
Introduction . . . . . . . . . . . . . . . . . . . . . 203
I. concept of general international law in the twen-
tieth century . . . . . . . . . . . . . . . . . . . 206
1. equation of general international law with the
so-called “customary” international law . . . 206
(1) Problems in resorting to article 38 of the
IcJ Statute for identifying the “sources”
of international law . . . . . . . . . . . . 206
(2) attitude of the IcJ . . . . . . . . . . . . 213
(3) “absurdity” in relying on article 38 of
the IcJ Statute for identifying norms of
international law . . . . . . . . . . . . . 217
(4) factors responsible for the over-evalua-
tion of article 38 of the IcJ Statute . . . 220
2. liberation of the concept of general inter-
national law from the mystical theory of
“customary” international law. . . . . . . . . 225
(1) the legitimacy deficit of the so-called
“customary” international law . . . . . . 225
(2) the widening gap between the reality
and the traditional “customary” inter-
national law . . . . . . . . . . . . . . . 228
Contents 17
(3) multinational treaties as a cognitive basis

of general international law . . . . . . . . 231
(4) relative nature of the “universal” vali-
dity of general international law . . . . . 234
(5) unga resolutions as a cognitive basis
of international law . . . . . . . . . . . . 238
II. towards proper understandings of the judiciary
in global society . . . . . . . . . . . . . . . . . 244
1. liberation of the study of international law
from excessive judicial-centrism . . . . . . . 244
(1) enhanced significance of the judiciary in
international society ? . . . . . . . . . . 244
(2) aspects not referred to in the prevalent
discourse on the “legalization” and
“judicialization” in international society. 247
(3) necessity for differentiating the signifi-
cance of the IcJ as an agent of interna-
tional conflict resolution and the most
authoritative organ to interpret inter-
national law. . . . . . . . . . . . . . . . 249
2. International law in the real world . . . . . 252
(1) Pre-eminence of non-judicial forums
where norms of international law are
actually referred to, discoursed and used 252
(2) Higher values of multinational treaties
and unga resolutions as cognitive
bases of general international law . . . . 256
(3) the element of power in the creation of
general international law . . . . . . . . . 258
(4) towards a more comprehensive per-
spective for assessing the proper status
and functions of international law . . . . 261
chapter IV. History of international law as seen from
a transcivilizational perspective . . . . . . . . . . . 266
Introduction . . . . . . . . . . . . . . . . . . . . . 266
I. Problematiques surrounding the history of inter-
national law . . . . . . . . . . . . . . . . . . . 270
1. the problem of projecting a present notion on
to the past . . . . . . . . . . . . . . . . . . . 270
(1) treaties between States ?. . . . . . . . . 270
18 Contents
(2) Problems related to “treaties” during the

pre-modern period . . . . . . . . . . . . 272
(3) Problems on the character of the politi-
cal (or politico-religious) and regional
units and their relations . . . . . . . . . 277
(4) International law as an inter-subjective
construct . . . . . . . . . . . . . . . . . 280
2. Pre-modern worlds without a global inter-
national society . . . . . . . . . . . . . . . . 283
(1) Independent human groups sharing a
world image and their relations with
other such groups. . . . . . . . . . . . . 283
(2) a world of co-existing regional civili-
zations and a world of eurocentric
sovereign States system . . . . . . . . . 286
II. the co-existence of regional civilizations in the
pre-twentieth-century world . . . . . . . . . . . 289
1. the Islamic regional civilization and the siyar 289
(1) a world composed of dar al-Islam and
dar al-harb. . . . . . . . . . . . . . . . . 289
(2) relations with other politico-religious
groups as prescribed by the siyar. . . . . 292
2. the european world and its world images : pro-
selytizing christianity, secularization of the
society and colonization of other regions . . 294
(1) the decentralized structures and christia-
nity in the european world . . . . . . . . 294
(2) francisco de Vitoria and Spanish colo-
nization of america : a prototype of
european colonization of the world . . . 297
(3) International law in its european form . . 300
3. the Sinocentric tribute system in east asia . 305
(1) Sinocentric tribute system . . . . . . . . 305
(2) diverse perceptions and understandings
of Sinocentrism held by various actors. . 308
(3) deviations within a Sinocentric tribute
system . . . . . . . . . . . . . . . . . . . 311
4. the conflicts of two universalistic world
images in east asia . . . . . . . . . . . . . . 314
(1) the limited historical applicability of the
principle of pacta sunt servanda . . . . . 314
Contents 19
(2) the macartney mission and the collision

of egocentric universalistic world images 316
III. the globalization of a eurocentric ordering of
the world in the nineteenth century . . . . . . 320
1. the collapse of the Islamocentric system of
world ordering . . . . . . . . . . . . . . . . 320
(1) transformation of the ottoman empire
to turkey . . . . . . . . . . . . . . . . . 320
(2) changing characterization of the otto-
man empire in the Peace treaty of Paris
of 1856 . . . . . . . . . . . . . . . . . . 323
2. the partition of africa and international law
as the “law of civilized nations” . . . . . . . 328
(1) Increase of power held by european
nations and the accompanying self-
confident sense of “mission civili-
satrice” . . . . . . . . . . . . . . . . . . 328
(2) the significance of the Berlin confer-
ence and the general act of 1885 . . . 332
(3) deceiving oneself, deceiving others :
justification of european colonization of
africa by international law. . . . . . . . 335
3. the collapse of the Sinocentric system of
world ordering . . . . . . . . . . . . . . . . 339
(1) conflicts of two universalistic systems
in east asia . . . . . . . . . . . . . . . . 339
(2) Persistence of Sinocentrism and the
significance of the maguan tiaoyue (the
Peace treaty of the Sino-Japanese war)
of 1895 . . . . . . . . . . . . . . . . . . 342
(3) the collapse of the Sinocentric system
of world ordering. . . . . . . . . . . . . 345
IV. toward overcoming west-centric cognitive
frameworks in our thought . . . . . . . . . . . 348
1. globalization of international law in the
civilizational sense . . . . . . . . . . . . . 348
(1) revision of the west-centric internatio-
nal law in the twentieth century . . . . . 348
(2) limited change in the cognitive and
evaluative framework of international law 350
2. a view from a transcivilizational perspective 354
20 Contents
(1) critical differences between today’s

assumptions and past ones . . . . . . . . 354
(2) the necessity for appreciating inter-
subjectivity in international law . . . . . 357
(3) which is more universal, natural law
or Sinocentrism ? . . . . . . . . . . . . . 361
(4) Problematiques of earlier studies . . . . 363
(5) the problem of eurocentrism : perspec-
tive versus historical record, or both ? . . 365
chapter V. Human rights in a multi-polar and multi-
civilizational world . . . . . . . . . . . . . . . . . 370
Introduction . . . . . . . . . . . . . . . . . . . . . 370
I. the problem of west-centrism in the “universa-
lity” of human rights . . . . . . . . . . . . . . . 377
1. Problems relating to the “universality” of
human rights . . . . . . . . . . . . . . . . . 377
(1) the range of “universality” of human
rights . . . . . . . . . . . . . . . . . . . 377
(2) Problematic features of the theory of the
universal origin of human rights . . . . . 380
2. the need for re-conceptualization of human
rights in the process of its universalization . . 383
(1) the liberation from west-centrism . . . . 383
(2) the awareness of the distinction between
the universal, universalism and universa-
lization . . . . . . . . . . . . . . . . . . 386
II. Questioning the self-evident on human rights . 388
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 388
(1) Human rights, a counterpart of modern
sovereign statehood . . . . . . . . . . . . 388
(2) reasons why States must accept human
rights . . . . . . . . . . . . . . . . . . . 390
(3) Historicity or civilizational specificity of
human rights . . . . . . . . . . . . . . . 394
2. liberation from liberty-centrism . . . . . . . 398
(1) the prevalence of liberty-centrism in the
twentieth century . . . . . . . . . . . . . 398
Contents 21
(2) rectifying excessive liberty-centrism :

development from the twentieth cen-
tury . . . . . . . . . . . . . . . . . . . . 400
(3) the insufficient situation for integrating
socio-economic data to the assessment
of human rights conditions . . . . . . . . 405
(4) the critical importance of a comprehen-
sive and well-balanced assessment of
human rights conditions . . . . . . . . . 410
(5) ways to enhance the legitimacy of
global human rights policies . . . . . . . 413
3. the judiciary as a bastion of human rights ? 416
(1) the areas or cases in which the judi-
ciary can work as a bastion of rights . . . 416
(2) the exceptionality of the judiciary as a
bastion of human rights. . . . . . . . . . 418
(3) for a realistic approach to identify
effective mechanisms for protecting
human rights on a global scale . . . . . . 422
4. liberation from individual-centrism . . . . . 424
(1) the myth of independent and self-reliant
individual in modernity . . . . . . . . . . 424
(2) the false dichotomy between “the indivi-
dualistic west versus the collectivistic
east”. . . . . . . . . . . . . . . . . . . . 427
(3) negative consequences of individual-
centrism . . . . . . . . . . . . . . . . . . 429
III. a search for transcivilizational human rights . 432
1. the significance of the international human
rights instruments and the Vienna declaration
of 1993 . . . . . . . . . . . . . . . . . . . . 432
(1) the significance of the current inter-
national human rights instruments . . . . 432
(2) the critical importance of the Vienna
declaration . . . . . . . . . . . . . . . . 434
(3) norms in the Vienna declaration as the
most authoritative guide to the inter-
pretation and implementation of the
human rights instruments . . . . . . . . 437
2. the modification and supplementation of
international human rights norms from a
transnational perspective . . . . . . . . . . 440
22 Contents
(1) the political and ideological nature of

international human rights instruments . 440
(2) Public roles of ngos in supplementing
and rectifying international perspectives 444
3. the modification and supplementation of
international human rights norms from a
transcivilizational perspective . . . . . . . . 447
(1) the role of academia . . . . . . . . . . . 447
(2) gaps between dominant cultures and
current human rights norms . . . . . . . 450
(3) the need for reinterpretation of domi-
nant cultures and religions . . . . . . . . 455
(4) the need for re-conceptualization of all
value systems including human rights . . 458
Bibliography . . . . . . . . . . . . . . . . . . . . . . 463
about the author . . . . . . . . . . . . . . . . . . . . 476
Biographical note . . . . . . . . . . . . . . . . . . 476
Principal publications . . . . . . . . . . . . . . . . 477
23
Preface *
a transcivilizational perspective and manga ?

readers of this book may be puzzled with its title and
cover. what is “transcivilizational” ? what is the
meaning of this manga ? How are the term “transcivi-
lizational” and a picture of a manga (of a pirate carry-
ing a cat and looking at a globe) related to international
law, the central theme of deliberation in this book ?
Some of these questions may be answered some-
where in the book. But not all. this book is written not
for providing specific answers to specific questions. It
is written for inviting readers to doubt the assumptions
or premises on which they consider international law.
not only international law. the book is written to
doubt the prevalent perspective of viewing the world,
or the established way of thinking about human or
societal affairs, which has been adopted — in most
cases unconsciously — since the twentieth century.
this book is based on the lectures I gave at the
Hague academy of International law in the summer of
2007. I am honoured that my lectures were chosen by
the curatorium of the academy to be published in this
book form, in addition to the article form published in
the Recueil des cours. In completing my manuscripts, I
have naturally sought to revise the manuscripts of my
lectures for publication. I have tried not only to make
use of my earlier writings and important researches on
the subject, but also to introduce new ideas that I have
elaborated after giving the lectures.
* the order of names is given according to the proper

way respective of culture. Japanese names appear there-
fore with the family name preceding given name(s).
24 Onuma Yasuaki
on the other hand, I have tried to maintain the vivid

atmosphere of the lectures of 2007, which were atten-
ded by 310 students of international law, including pro-
fessional researchers, diplomats and graduate students,
coming from 85 countries. I was extremely happy and
honoured that the auditorium for my lectures was
always full of these audiences, who were eager to learn
the new perspectives, interpretations and understand-
ings of international law, politics, history and the world
at large. Because my lectures were on the significance
of what I call a transcivilizational perspective on interna-
tional law **, I used photographs and pictures demon-
strating various aspects of cultures, religions and civi-
lizations in human history. they include not only those
showing positive undertakings of humanity, such as
modern medical science represented by madam curie,
but also negative aspects of human behaviour, such as
the slave trade between the african and american
continents.
I also showed pictures of mangas to the audiences
of my lectures. a work of art, whether it is a poem, a
novel, a picture, a drama, or in some other form, can
send a message of the time far more vividly to the
world than a work of scholarship. a manga is one of
such works of art. the manga culture is strongly
supported not only by the Japanese, but by a massive
number of people all over the world. although people
once regarded the manga as merely something of fun
for children, lacking philosophical, ethical, aesthetic
and societal meaning, this bias has been overcome.
** the term “transcivilizational” is a neologism. I first

used the term “intercivilizational”, which is also a neolo-
gism, in 1981 when I gave a paper at the 75th anniversary
convocation of the american Society of International
law. Both terms express basically the same idea. yet, with
the lapse of time, there have been some minor changes,
based on the reflections on my own ideas.
A Transcivilizational Perspective on International Law 25
like major poems, paintings, novels, movies and other

works of art, major mangas can be deeply philosophi-
cal. they can carry significant messages and send them
to the people all over the world, transcending national
boundaries.
the manga appearing on the front cover page is one
of those leading works of art. I used the picture of this
manga in my Hague lectures of 2007. In it, a ghastly
looking man holding a cat in his arm is standing in
front of a globe. He appears to be a “führer” (in
german), or an intellectual pirate. But in truth, accord-
ing to my bold interpretation, he is the personification
of east asian civilization !
Studying a globe, he asks : “Hey professor, they
talk about the ‘near east’, ‘middle east’, and ‘far
east’, don’t they ?”
the professor, who represents knowledge as
power, which is the predominant perspective to see
the world, responds: “So what ?”
the man says : “we are in the far east ?”
“of course. It’s ridiculous to ask that”, says the
professor.
“But why ? from our perspective, europe is in
the far west, and what they call the middle east is
in the middle west !”
“well, you may be right . . .”, murmurs the pro-
fessor.
this book deals with this hesitant and bewildering
remark : “well, you may be right . . .” as referred to at
the beginning, this is a book for questioning the mean-
ing and function of common assumptions. these
assumptions are centred on the north atlantic or euro-
america, and we see the world from this “west”-
centric perspective, which people have unconsciously
adopted since the twentieth century. this manga
suggests a problematic nature of this “western” (north
26 Onuma Yasuaki
atlantic or euro-american) centricity of the prevalent

perspective. I am grateful to yamashina Keisuke, a
leading Japanese manga artist, for granting permission
to use this most charming work, suggesting the rela-
tivity of the viewpoint from which to view the world.
In addition to mr. yamashina, I owe a great debt of
gratitude to a number of people. first, I am grateful to
the members of the curatorium of the academy, who
chose me to give lectures in 2007 and further to pub-
lish this book. I am particularly grateful to Professor
yves daudet, the Secretary-general of the curatorium,
who attended most of my lectures, highly evaluated
them, and encouraged me to complete this book.
when I was requested by the curatorium to give the
lectures, I was advised by Professor Iwasawa yuji that
the audience of the Hague lectures is very demanding
and impatient. He warned me that although the audito-
rium may be full on monday, it might become vacant
by friday, if the lecture is not stimulating. It was this
warning that urged me to prepare power-point slides of
the lectures including mangas for the first time in my
life. Probably thanks to them, the auditorium was
always full. I am grateful to Professor Saito tamitomo
and mr. nagayama daigo for assisting me in the prepa-
ration of these power-point slides.
as to the substance of the book, each chapter is
naturally based on my own researches. during the period
of such researches, I have learned not only from inter-
national lawyers but also from experts in various
fields. for chapter I, I am grateful to such prominent
professors as georges abi-Saab, r. J. P. anand, antony
anghie, James crawford, mireille delmas-marty,
furuya Shuichi, andrew Hurrell, mogami toshiki,
michael reisman, Saito tamitomo, amartya Sen,
Brigitte Stern, Hidemi Suganami and charles taylor,
as well as many other colleagues, for their useful com-
ments on my notion of transcivilizational perspective.
for chapter II, I have learned not only from interna-

tional lawyers but also leading international relations
scholars, including Professors Jutta Brunnée, Barry
Buzan, richard falk, fujiwara Kiichi, louis Henkin,
Ishida atsushi, robert Keohane, Benedict Kingsbury,
Stephen Krasner, r. St. J. macdonald, nicholas onuf,
Sakamoto yoshikazu, oscar Schachter, Shirley Scott,
Bruno Simma, tanaka akihiko, taoka ryoichi,
gerardo Vildostegui and yokota yozo.
for chapter III, I learned most from Professors
Komori teruo and michael reisman for constructing
my own theory on general international law. moreover,
ideas, arguments and criticisms given by Professors
Bing cheng, rosalyn Higgins, Hirose Kazuko, oda
Shigeru, okuwaki naoya, Saito tamitomo, oscar
Schachter, Brigitte Stern, takano yuichi and Hugh
thirlway urged me to consider more deeply the prob-
lems which are dealt with in this chapter.
for chapter IV, in addition to leading international
lawyers engaged in the historical study of international
law, historians, experts on the history of ideas, and
international relations scholars, including a number of
eminent reviewers of my article “when was the law of
International Society Born ?” (Journal of the History of
International Law, II, no. 1 (2000)), provided me with
a number of useful ideas, knowledge and perspectives.
they are Professors antony anghie, r. P. anand, Jörg
fisch, Peter Haggenmacher, emmanuelle Jouannet,
li Zhaojie, nicholas onuf, Sato Shin-ichi, Suzuki
tadasu, tabata Shigejiro, watanabe Hiroshi, Xue
Hanqin and yamauchi Susumu, among others.
for chapter V, I have learned not only from aca-
demia but also from my experiences as a human rights
activist. I have further profited greatly by attending a
number of symposiums and colloquiums on human
rights composed of various kinds of scholars including
philosophers, economists, experts in international rela-
28 Onuma Yasuaki
tions, etc. Professors abe Kohki, Philip alston, abdul-

lahi an-na’im, upendra Baxi, daniel Bell, Simon
chesterman, Jack donnelly, louis Henkin, Kawazoe
rei, Benedict Kingsbury, Virginia leary, Susan marks,
r. Panikkar, michael J. Sandel, amartya Sen, Shin Hae
Bong, Bruno Simma, charles taylor, teraya Koji,
yogesh tyagi and david weissbrodt are among those
from whom I have learned.
finally, I am grateful to the team of the academy
for its editorial work. I am also most grateful to a
number of younger-generation scholars and former
students of mine for their research assistance in com-
pleting the manuscripts of this book : messrs. and
mss Kayaki megumi, mimaki Seiko, nakajima Kei,
oide yuki, tanaka Sayoko, wakasa amuro, wakita
Shunsuke and yi Ping, among others. In particular, I
cannot finish my acknowledgments without mentioning
the devotion of ms Kayaki and ms yi.
onuma yasuaki,
June 2010.
29
INTRODUCTION
“Seek not what the sages taught.

Seek what the sages sought.”
(Kukai, a Japanese Buddhist leader
in the ninth century.)
This is a research on international law based on my

lecture course at the Hague Academy of International
Law of 30 July to 3 August 2007 : a research on the
problem of how we can, and should, see international
law in the twenty-first-century world. This is also a
research on the various kinds of power, value, limits
and vice of international law. As will be fully elabo-
rated, I firmly believe in the power and value of inter-
national law. International law is important in that it
constitutes an integral part of the world : the overall
system of sovereign States and other crucial ideas and
institutions of the global human society that makes the
life of human species possible. It contributes to the
restraint of the arbitrary power of sovereign States. It
contributes to realizing common values in global soci-
ety such as international peace, human rights, protec-
tion of the global environment, etc. International law
carries out a number of other important societal func-
tions without necessarily being recognized as such on a
daily basis.
On the other hand, I am ready to admit that inter-
national law has often functioned as a handmaiden of
the powerful, justifying the existing power relations
between the powerful and the powerless nations and
peoples. Wars, colonial system, racism, sexism, etc.
were once all lawful in or were tolerated by interna-
tional law. Like any other human undertakings, interna-
30 Onuma Yasuaki
tional law can do something, but its power, value and

virtue are limited to some specific fields and functions.
It is also a source of vice and misery of humanity.
This study deals with the problem of perspectives
which we consciously or unconsciously adopt when we
see the world, conceive of various matters, ideas, insti-
tutions, interpret and assess various phenomena, prob-
lems and affairs including international law. It casts
serious doubts on the prevalent perspectives or cogni-
tive frameworks of the world, including those of inter-
national law.
It invites readers to see things about international law
from perspectives that are substantially different from
those taken by many international lawyers in the twen-
tieth century. It thus invites readers to enjoy the intel-
lectual pleasure of doubting their own “taken for
granted”. I believe that the greatest joy and significance
of scholarship is in questioning one’s own self-evident
views or ways of thinking.
Everything can be doubted. This is what René
Descartes and other great thinkers including Karl Marx
tell us. Kaiho Seiryo, a Japanese thinker in the eigh-
teenth century, went even further. According to him :
“To doubt is a virtue.”
What you take for granted at present is not so self-
evident, if you learn more. By questioning our own
cognitive frameworks by juxtaposing some other per-
spectives, we can acquire a new horizon or a new way
of viewing the world. This should be the zest of
scholarship. I want to share this zest with you.
In more concrete terms, this study seeks to demon-
strate that we need to adopt what I call a transcivilza-
tional perspective in addition to the two predominant
perspectives, the international and transnational, in
order to understand international law in the twenty-
first-century world. By understanding the raison d’être,
meaning, societal functions and malfunctions of inter-
national law, we can make international law more

responsive to emerging realities in the twenty-first-
century global society. I seek to accomplish this task
by elaborating the transcivilzational perspective, by
comparing it with other prevalent perspectives utilized
thus far to conceive of international law — interna-
tional and transnational perspectives. I will deal with
such problems on the power and legitimacy of interna-
tional law, so-called “sources” of international law, the
history of international law, and human rights, in order
to accomplish this task.
Throughout these arguments, I will seek to demon-
strate that we need to grasp international law in its
actually living form, that is, in its actual functions in
international society. These functions are not limited to
the adjudicative one, as has been tacitly assumed by
many international lawyers of the latter half of the
twentieth century. It will be submitted that by limiting
the perspective on international law to a judicially ori-
ented framework, we have failed to appreciate a num-
ber of important aspects of international law. The cog-
nitive basis of international law, which has generally
been identified with the “sources” of international law,
is one such area, where many international lawyers
failed to appreciate a comprehensive picture of interna-
tional law. The constructive function of international
law, of which many international lawyers in the twen-
tieth century were not generally conscious, is another
such area. I will seek to demonstrate these important
aspects and dimensions of international law, which
have been overlooked by those who unconsciously
adhere to the prevalent cognitive frameworks of inter-
national law.
In Chapter I, I will deal with the fundamental mean-
ing and functions of international law in international
society. I will seek to demonstrate characteristic fea-
tures of international law in the twenty-first-century
32 Onuma Yasuaki
world by comparing them with those in the twentieth-

century world. In my view, a State-centric and West-
centric international society of the twentieth-century
will become a multi-polar and multi-civilizational
global society in the twenty-first-century. With this
change, international law will change. The perspectives
from which we see, grasp, understand, appreciate and
assess international law should change as well.
I will seek to demonstrate these changes by provid-
ing a conspectus on various possible conflicts destabi-
lizing today’s international order, including discrepan-
cies between substantive power being acquired by
emerging Asian States such as China and India, and
intellectual/informational hegemony persistently held
by major Western nations. In order to understand inter-
national law in such a changing world, we need to have
a perspective from which we see international law in
addition to the perspectives that we have already had
and actually used. We have to see, interpret and assess
international law in the twenty-first-century world not
only from a State-centric international perspective and
a West-centric transnational perspective, which came
to be prevalent toward the end of the twentieth-century,
but also from what I call a transcivilizational perspec-
tive.
This transcivilizational perspective can supplement
and rectify the two prevalent perspectives in the twen-
tieth century by paying more attention to non-State-
centric, non-modernistic or non-West-centric aspects of
human ideas and activities which could have an impor-
tant bearing on international law. It could rectify the
West-centric, narrowly defined discursive space preva-
lent in today’s world, including the one on interna-
tional law. By enlarging perspectives on international
law, we should be able to enhance the global legiti-
macy of international law. Why ? Because international
law as seen, construed and constructed from the trans-
civilizational perspective should be able to respond to

desires, wishes, expectations and aspirations of a far
larger number of non-Western people, who were gener-
ally ignored, when people saw, narrated, and adminis-
tered the world in the twentieth century.
In Chapter II, I will deal with the complex relations
between law and power in international society, as well
as the problems on the power of international law
itself. International law is created by power. Yet, it con-
trols power in various ways. It also justifies power,
but by its very act of justifying the power it often quali-
fies or restrains the arbitrariness on the part of those
who use law as an ideology or as a tool of justification
of the existing power relations or particular policies
of a State. International law functions as a means of
communication between powers. It embodies common
or shared understandings of the global society, which
is composed of various types of actors whose inter-
ests and perspectives are radically different from each
other.
Further, international law as a normative idea con-
structs social realities including power in the material
sense. In order that international law can play this criti-
cal role, it must satisfy the requirements of interna-
tional, transnational and transcivilizational legitimacy
on a global scale. As suggested earlier, there will likely
be a change of constellations of power and power rela-
tions in the twenty-first century : from the West-centric
ones in the twentieth century to the multi-polar and
multi-civilizational ones. With this fundamental change
of power in the global society, the need to achieve trans-
civilizational legitimacy will become even greater.
International legal scholarship has to appreciate this
changing reality, exemplified by the emergence of
China and India, once central powers with long-lasting
civilizations, as candidates for superpowers in the
twenty-first century. International legal scholarship
34 Onuma Yasuaki
must respond to this new reality and reconstruct its

theory in accordance with it.
In Chapter III, I will take up the problem of general
international law. General international law is impor-
tant because it is supposed to bind all members of
global society, where the interests and perspectives of
various actors are glaringly diverse. Because of this
critical importance, its legitimacy must be globally
recognized. Otherwise, it cannot fulfil its expected
function of obligating all members in the global society.
However, if general international law is equated with
the so-called “customary international law”, as was
generally the case in the twentieth century, achieving
such global legitimacy becomes difficult. It has been
fully demonstrated that most of the so-called “custom-
ary” norms of international law were not based on cus-
toms of the majority of nations, but the product of a
few powerful Western States. Norms of general inter-
national law which were created in such a manner lack
global legitimacy in a multi-polar and multi-civiliza-
tional world of the twenty-first century.
We must therefore re-conceptualize general interna-
tional law so that it can satisfy the fundamental
requirements of global legitimacy. In order to carry out
this task, we must further liberate ourselves from the
deeply rooted notion that the “sources” of international
law can be, and should be, found in Article 38 of the
ICJ Statute. We must liberate ourselves from excessive
judicial-centrism in international law. We must under-
stand the function of international law primarily as pre-
scribing the behaviour of States as norms of conduct,
rather than providing applicable law to the judiciary in
international society. We must be aware of the fact that
international law performs various non-adjudicative yet
important societal functions.
If we can reconfirm that the primary raison d’être
and function of law is prescriptive, rather than adju-
dicative, then we can identify cognitive bases of inter-

national law prescribing the State behaviour not only in
the “sources” of international law which are believed
to be expressed in Article 38 of the ICJ Statute. The
cognitive bases of international law can be found also
in multilateral treaties, the UNGA resolutions, the
UNSC resolutions, etc. The multinational treaties and
UNGA resolutions have much higher values than the
so-called customary international law as cognitive
bases of general international law. They can satisfy the
requirements of representative legitimacy, transparency
and other procedural legitimacy, which are required for
norms with universal validity. The traditional norms of
so-called customary international law cannot.
In Chapter IV, I will seek to rewrite the history of
international law from a transcivilizational perspective.
Thus far, the history of international law has been nar-
rated in an excessively West-centric manner. In many
cases it starts either in the sixteenth- or seventeenth-
century Europe, medieval Europe or classical Greek
period. It was narrated as the development of European
international law to global international law. Even the
criticism of this West-centrism has been done basically
within this predominant cognitive framework, often
shared by the critics themselves. I will try to view the
history of international law as the process of inter-per-
ceptions between the agents of the globalizing Euro-
pean ordering of the world, i.e., the modern European
sovereign States system, and the agents of competing
orderings of the world such as those of the Sinocentric
tribute system in East Asia and the Islamocentric sys-
tem in other parts of Asia.
This process was generally narrated as the “expan-
sion of the European international legal system” into a
global international legal system. This is certainly an
important aspect of the historical development. How-
ever, law should be, and is actually, valid and effective
36 Onuma Yasuaki
only through general recognition by the addressee

of law. Without such a general recognition by the
addressee, law cannot be effective. It may be doubted
whether we can even talk about the validity of law if
there is no such general recognition of law by its
addressee. The recognition of globalizing European
international law by non-Europeans thus constitutes an
essential condition for the global validity and efficacy
of international law. I will therefore seek to show per-
ceptions of the normative and factual situation on the
globalizing European international law which were
held not only by Europeans but also by non-Europeans
in this historical process. By exploring these inter-sub-
jective dimensions of the process, we can better under-
stand the meaning, significance and problematic
features of the globalization of European international
law.
In Chapter V, I will discuss the problem of human
rights from a transcivilizational perspective in addition
to international and transnational perspectives. By
taking the transcivilizational perspective, we can recog-
nize some of the problematic features of debates con-
cerning the universality of human rights. For example,
I will argue that the so-called “Asian values” or “Asian
human rights” doctrines tacitly assume the universal
nature of the West-centric construct of human rights,
by juxtaposing the “universality” of West-centric
human rights theories and the “particularity” of Asian
human rights. In this way, I will argue that these
“Asian human rights” doctrines reinforce, rather than
weaken, the predominant view, which equates what is
universal with what is Western.
Human rights was originally constructed and elabo-
rated by modern Europeans. For human rights to be
accepted by a larger portion of humanity, including
non-Western people who did not participate in its cre-
ation as well as its elaboration until recently, it must be
re-conceptualized and made responsive to the diverse

perspectives of peoples with different cultures, reli-
gions and civilizations. In this sense, the re-conceptuali-
zation of human rights from a liberty-centric notion to
a comprehensive notion including socio-economic and
cultural rights as well as the right to development, as
exemplified in the Vienna Declaration and Programme
of Action of 1993, must be highly appreciated. On the
other hand, in order to modify the State-centric nature
of the existing international human rights instruments,
such as the Vienna Declaration, the ICESCR and
ICCPR of 1966, and the Universal Declaration of
Human Rights of 1948, critical assessment of these
international (= interstate) human rights instruments
from transnational and transcivilizational perspectives
is greatly needed. We will seek to overcome both
theoretically and practically futile debates over the uni-
versality of human rights through such multi-layered
perspectives.
Through re-examining the problems of power and
legitimacy, general international law, history and
human rights, I will seek to provide the most appropri-
ate cognitive, interpretive and evaluative frameworks
of international law. From these perspectives, interna-
tional lawyers, other experts, policy makers, opinion
leaders, activists and ordinary citizens should be able
to see, appreciate and evaluate international law in the
twenty-first-century world, being liberated from preva-
lent frameworks of the twentieth century, which I
believe too narrow to appreciate various aspects,
dimensions and functions of international law : West-
centrism and judiciary-centrism, in particular.
Readers may find my argument in this study too
bold. But only through a bold examination of the nor-
mative and actual state of affairs including the preva-
lent style of the study of international law in the twen-
tieth century, and an examination of such a bold
38 Onuma Yasuaki
examination itself, can we revitalize the study of inter-

national law, which was not as vivid and attractive as it
should have been. Such a revitalization of the study of
international law will, in turn, contribute to the revitali-
zation of the actual functions of international law. This
is what I expect, and what I believe in.
39
CHAPTER I
A TRANSCIVILIZATIONAL PERSPECTIVE :
A COGNITIVE FRAMEWORK TO UNDERSTAND
THE TWENTY-FIRST-CENTURY WORLD
“Is it not a pleasure to learn and review

constantly and repeatedly ?
Is it not a delight to have learned
friends coming from afar ?
Is he not a man of virtue, being not
offended even if others ignore him ?”
(Confucius.)
Introduction
Humans, in order to live in safety and to promote
their material and spiritual well-being, accommodate
conflicting claims and interests, manage human rela-
tions, and run societies. In order to manage societies,
humans usually need, and actually use, law. They have
utilized various kinds of law in order to realize values
and interests in various types of societies, including
State societies. International society is a society where
humans are engaged in mutual and common affairs
mainly through the institution of sovereign States.
Based on their experiences in earlier societies, human-
ity created law in international society, and has man-
aged affairs in international society through the institu-
tion of law. International law is the law of international
society 1.
1
In addition to public international law, private inter-
national law, domestic laws, laws of international organi-
zations, EU law, and other kinds of law have been func-
40 Onuma Yasuaki
Because humans have used law so long to manage

human affairs in societies, they are generally not aware
of relying on and using law, even when they actually
rely on or use law. When law functions well and man-
ages human affairs, people are not aware of law. In
most cases they unconsciously see and construe affairs
and phenomena through some conceptual frameworks
based on and/or associated with law. They carry out
their tasks by using legal instruments and settle dis-
putes by legal means either consciously or uncon-
sciously. If they find some law not useful to construe
actual phenomena, to carry out their tasks and settle
disputes and conflicts, they seek to change law either
consciously or unconsciously.
If international law is the law of international soci-
ety, it should change itself according to the change in
human desires, expectations, emotion, and pursuit for
interests and values in international society. Since the
late twentieth century, not only States but also various
types of non-State actors have been playing an impor-
tant role in international society. It is often said that
international society composed of States is changing to
a global society or community of humankind, where
the significance of such non-State actors will be even
greater.
Transnationalism, represented by such arguments
as those emphasizing the “global market economy”,
“decline (or retreat) of States”, “global civil society”
and the like, has been fashionable for the last few
decades. Seen from a longer perspective, this argu-
ment may be correct.
tioning in international society as well. However, (public)

international law co-ordinates and controls these various
laws, and provides a certain degree of harmony to these
laws. Thus in international society, it is (public) interna-
tional law that is most conspicuous and important among
all laws.
But in many cases, this kind of argument does not

sufficiently appreciate the following facts. First, for
most of the developing countries, at least the first half
of the twenty-first century will be an era of nation
building and statism just like the twentieth century was
the era of nation building and statism for most of the
developed countries. It should also be kept in mind that
people of such developing countries occupy the over-
whelming majority of humanity. Second, as was dra-
matically demonstrated by the global financial crisis in
2008 and afterwards, even the most powerful private
enterprises desperately ask for help provided by the
State for their survival in the real crisis. It is the State,
not non-State actors, that rescues such powerful enter-
prises. Third and most importantly, humans do not die
for the sake of private enterprises or NGOs. Humans
do not allow that non-State actors, however powerful
and legitimate looking they might be, impose the death
penalty or life imprisonment. People regard it as self-
evident, whether this may be right or wrong, that a
matter of life and death must be dealt with by States.
Whether one likes it or not, States still occupy the cen-
tral place of legitimacy.
Thus, the change from a State-centric international
society to a global community with radically reduced
significance of States will probably take far more time
than is expected by those who have advocated the
decline or retreat of States, or the high cause of global
market economy or global civil society. The fundamen-
tally State-centric character of the international or
global society will likely persist in the twenty-first cen-
tury. The sovereign States system, whose fundamental
principle is the mutual recognition of the supremacy of
territorial sovereignty of States in managing human
affairs, will remain as the most important organiza-
tional and managing principle of the entire humanity in
the world.
42 Onuma Yasuaki
International society characterized as such a society

of States is a society where the distribution of power is
extremely asymmetrical. The principle of equality of
States has often been violated in history. Yet, even the
most powerful State cannot be a global empire literally
dominating all other States. This being the case, great
powers need law and other ideational instruments to
legitimize their predominance. It would be profitable
for these powers on the one hand to articulate their
hegemony, and on the other to camouflage it, by such a
refined instrument as law 2. Law lowers the political
cost of rule or domination because it can secure a more
voluntary submission to the rule, by providing the
ruled an image of the rule’s legitimacy.
Moreover, law can ultimately be enforced by the
power of the State. Every ruler in human society and
history has used law as a tool of their rule and hege-
mony. In international society, hegemonic powers have
used international law in such a way. International law
has reflected the values and interests of powerful
nations, which have virtually administered interna-
tional society as hegemonic powers. It also reflects the
values and interests that powerful non-State actors such
as leading multinational corporations or influential
NGOs seek to realize. International lawyers have been
busy in explaining how this substantial hierarchical
nature among States can be compatible with the prin-
ciple of equality of States.
Rule with law, on the other hand, is more favourable
to the ruled than rule with naked power. Some of the
current norms of international law have been built on
the supremacy of the majority of smaller nations over
the substantive power of stronger States. The latter,
2
There are other ideational instruments that can play
this justificatory role. Religions, morality, and popular cul-
tures such as music, sports, and movies are such examples.
however reluctantly, generally seek to comply with

those norms. Why ? Because they know well that the
image of law-abiding behaviour is important in interna-
tional and domestic politics. Policies that flout the law
generally encounter resistance and criticism, both
domestically and internationally. They are accordingly
more costly than policies respecting the law. In this
way, international law cannot be characterized as
merely a handmaiden of hegemonic powers. It is more
than that 3.
Without international law, we would inhabit a world
in which each nation seeks to manipulate and annihi-
late every other. It would be a world of struggle by all
against all, resulting in the perishing of all. To avoid
such dire consequences, humanity needs, and actually
uses, international law. International law facilitates the
co-existence of States, i.e. political entities with effec-
tive means of violence. The so-called “international
law of co-existence” expresses this aspect of it. Further,
without international law, we could not continue our
daily life in this highly industrialized and techno-
logically administered international society. Together
with global institutions such as diplomacy, a global
media checking the power of States, trade, financial
institutions and the like, international law is an impor-
tant means of our daily life. The so-called “interna-
3
For the argument concerning the complexities of law
and power in global society, see Chapter II. See also
Onuma Yasuaki, “International Law and Power in a Multi-
polar and Multi-civilizational World of the 21st Century”,
Richard Falk, Ramesh Thakur and Vesselin Popovski, eds.,
Legality and Legitimacy in International Order (Oxford
University Press, New York, forthcoming) and Onuma
Yasuaki, “International Law in and with International
Politics : The Functions of International Law in Interna-
tional Society”, European Journal of International Law,
XIV (2003), pp. 105-139.
44 Onuma Yasuaki
tional law of co-operation” expresses this second

aspect 4.
Law is a useful, even an essential, means of gover-
nance and administration. An international society
without international law would be a world where the
daily life of humanity as we know it would be impos-
sible. This is because activities through which people’s
daily lives are conducted, such as global trade, trans-
portation, finance and the dissemination of informa-
tion, are all managed and realized in accordance with
international law. These activities are conducted on an
everyday basis as the realization or implementation of
international law and domestic law of nations. Interna-
tional law is an essential means of managing the life of
humanity.
What will be the shape of the twenty-first-century
world, one of whose important components is interna-
tional law ? The nineteenth century could be character-
ized as an era of Europe. The twentieth century could
be characterized as an American era. With the resur-
gence of China, India and other Asian nations, the
twenty-first-century world can be a multi-polar and
multi-civilizational world, if not a world of Asia. With
a change of the agents of various types of power with
different perceptions and perspectives of the world and
of history, law changes as well. But how will the law
4
Naturally, law itself is not an absolute value. There
are a number of values and virtues in human society which
are more important than the value of legality or rule of
law. Legality or rule of law are important means of secur-
ing or realizing material and spiritual values and virtues in
human societies. This is the case with global society as
well. “Fiat jus, et pereat mundus” cannot be the maxim of
a global society. Avoiding a nuclear war between the
United States and the USSR (Russia), thus preventing the
death of millions of people, for example, has been, and
still is, far more important than observing numerous posi-
tive rules of international law.
change ? And how should it change ? How should we

see the change and how should we act in order to bring
about desirable change ? 5
I. From a State-centric and West-centric

International Society to a Multi-polar
and Multi-civilizational Global Society
1. International law in a State-centric and West-cen-
tric international society of the twentieth century
(1) International law and international society
How can we appreciate the raison d’être, signifi-
cance, roles and functions, limitations, deficits, and
vices of international law in an international or global
society ? To answer this question, we have to examine
these problems in relation to political, economic, social
and cultural realities, as perceived by people all over
the world. Identification and characterization of
today’s international law requires comparative studies
of international law and other laws in terms of their
actual functions and perceptions in respective society.
They also require understandings of social realities
underlying international law and perceptions held by
people to maintain and to use international law. It is
only through comparison with other laws and law-
related realities as perceived by people as a whole that
we can identify the characteristic features of interna-
tional law.
One such comparative study looks at today’s inter-
national law in the light of domestic law. Many inter-
national lawyers perform this comparison, explicitly or
implicitly, consciously or unconsciously. Although
5
These issues have been illustrated in references cited
supra footnote 3.
46 Onuma Yasuaki
such a comparison is certainly needed and useful, it

runs the risk of importing into the study of interna-
tional law a domestic model analogy in an unconscious
and uncritical manner. This risk is all the higher when
such a domestic model is — again unconsciously —
borrowed from a particular State law, especially that of
some leading State. Analyses and arguments on law,
which may be valid in a particular State, whether this
be the United States, the United Kingdom or France,
can be totally off the point in international society,
whose realities differ radically from those in leading
Western societies. We have witnessed a large number
of cases in which an international lawyer referred to
“domestic law”, unconsciously assuming a domestic
law of his or her own country, or a domestic law of
some leading Western State. Because the overwhelm-
ing majority of “domestic law” in international society
is that of non-Western, developing countries, it is
almost inevitable such a reference to “domestic law” is
often off the point. A seemingly general theory which
unconsciously and implicitly assumes the domestic
analogy of some major State must definitely be
avoided.
Another kind of comparative study invites people to
see today’s international law within its contemporary
society, i.e. the global international society in the
twenty-first century, and to compare international law
with its existential functional equivalent within their
contemporary societies. This is the method I take. I
will seek to submit detailed analyses of the history of
international law from a longer perspective of history
based on this method in Chapter IV.
Before providing such detailed historical analyses,
however, a minimal analysis of the character and struc-
tures of the twentieth-century international society is
needed. This necessity is based on the following facts.
The twentieth-century international society is a society
where most of today’s international legal norms were

actually functioning. Predominant perspectives, or
cognitive, interpretative and evaluative frameworks,
through which we see international law in the twenty-
first century were consciously or unconsciously cre-
ated, shared, and maintained in such an international
society of the twentieth century. We have inherited
international law and a number of things related to
international law from the twentieth-century world. We
also have to analyse various forces that bring changes
to this international society and influence international
law in the twenty-first-century global society. Thus, a
conspectus of the basic characteristics of the twentieth-
century international society and the possible future
changes of this society is in order.
(2) Characteristic features of the twentieth-century

international society
International society in the twentieth century was,
first of all, a society featured by “Western” powers.
Before the Second World War, it was mainly the major
West European nations such as the United Kingdom,
Germany and France as well as the United States that
constructed, reconstructed and maintained the world
order. Almost all rules, institutions and systems were
created, interpreted, managed and implemented by
these leading Western powers and some other Euro-
pean nations. Although Japan was one of the Great
Powers and China maintained its independence, their
role and influence was extremely limited. Japan was a
“silent partner”, China a “sleeping lion”. Other non-
Western nations were mostly under colonial rule of
European States. Even if they were independent, they
could hardly exert influence on the creation and man-
agement of the international legal order.
The latter half of the twentieth century could be
48 Onuma Yasuaki
characterized as the “era of America” 6. Major West

European nations basically followed US leadership,
while wielding considerable “soft power” through
shrewd diplomacy, and cultural and academic influ-
ence. Particularly after the end of the Cold War in
1989, the overall US-centrism in global society became
conspicuous. Universal advocacy for a “market econ-
omy”, “democracy”, “human rights”, “civil society”
and the “rule of law” represented this tendency. In the
twentieth century, the demarcation line between
“developed” and “under-developed” (or “developing”,
a euphemism for “under-developed”) societies was
drawn, with a few exceptions, between the Western
nations and non-Western nations.
Second, international society in the twentieth cen-
tury was structured as State-centric. The sovereign
States system, born and developed in modern Europe,
was firmly established on a global scale in the twen-
tieth century. Not only the Europeans but humanity
as a whole including people in the former colonies
embraced the State-centric structures and the State-
centric perception of the world. A great number of
people in the colonies made every effort to organize
their societies as independent sovereign States. For
humanity, whether they were Africans, Americans,
Asians, Europeans or Oceanians, it was useful or even
6
When we refer to “America”, we usually mean the
United States, the major power in North America. This
terminology itself reflects the fact that it was the United
States that virtually dominated the American continent. On
a global scale, West European nations maintained a certain
power and influence, and the Soviet Union was character-
ized as another superpower till the 1980s. China was one
of the permanent members of the UN Security Council.
India was a leader of the Third World nations. Japan was
the second largest economic power. Yet, the power and
influence of the United States in the latter half of the twen-
tieth century was overwhelming.
inevitable to adopt the State-centric structures to protect

their values and interest.
People all over the world were supposed to be mem-
bers of independent nation States, and to be ruled and
controlled by them. The independent, sovereign, nation
State was a common, global institution which was
adopted and taken for granted by the humanity as a
whole. An individual human being was supposed to be
a member of this international society basically
through a membership of the nation State. The prin-
ciple of non-intervention among sovereign States, which
had been advocated as a basic principle of international
law yet often violated in the past, was firmly estab-
lished during the post-war period, at least in normative
terms. To see, interpret and judge transboundary or
global phenomena as occurring between nations —
from a perspective which we may call the “interna-
tional perspective” — came to be taken for granted.
This characteristic feature will be discussed in detail in
paragraph II, 1.
Third, international society in the twentieth century
was structured as capitalistic and technologically inno-
vative. A large portion of humanity, who had been
“liberated” from rigorous, spiritually oriented religious
teachings and feelings, became motivated to pursue a
wealthier, more convenient and more materially ori-
ented life. The efforts expended in this pursuit brought
economic prosperity and miraculous advancements in
science and technology to a large number of people.
This was a major cause of the collapse of the Soviet
bloc and of the sharp decline of Marxism toward the
end of the twentieth century.
This aspect, although symbiotic with the sovereign
States system — because the capitalist economy and
technologically oriented activities require law and
order, which can be provided only by sovereign States,
for their functioning —, often contradicts the regula-
50 Onuma Yasuaki
tion by States. Therefore, with the incessant increase of

the capitalistic economic and technologically oriented
activities, the sovereign States system was gradually
eroded. International society has been moving to a
world or global society where major actors are not only
States but also non-State actors such as multinational
corporations, media institutions and NGOs. Emergence
and strengthening of the transnational perspective in
addition to the prevalent international perspective in
the late twentieth century demonstrates this shift in
perspective.
Further, international society in the twentieth cen-
tury was male-centric and present-generation-centric. It
did not pay sufficient attention to feminist or inter-
generational perspectives. These are serious problems
which international legal studies must address. How-
ever, I do not possess sufficient knowledge and ability
to deal with these important subjects. Therefore, I just
point out these features here, and concentrate on the
three major features of international society in the
twentieth century as listed above. These two important
problems related to gender and inter-generational per-
spectives could, and should, be addressed by others
who have better skills and instruments for elucidating
and evaluating them.
2. Conflicts destabilizing the international order 7

From around the end of the twentieth century,
the widely shared image of an ever spreading and
enlarging West-centric modernity has been put into
7
For a detailed study, see Onuma Yasuaki, Jinken,
kokka, bunmei (Human Rights, States and Civilizations)
(Chikuma Shobo, Tokyo, 1998), pp. 13-36, 332-337, 345-
347. See also Onuma Yasuaki, “Towards an Intercivili-
zational Approach to Human Rights”, Asian Yearbook of
International Law, VII (2001), pp. 22-31.
question in various fields. The predominant features

of twentieth-century international society came to be
questioned in various ways. They came to be shaken,
conflicted with each other, and gradually undermined.
In the twenty-first century, we will continue to see
these destabilizing forces shaping and featuring the
global order that was established and maintained in the
twentieth century.
First, a conflict emerged from the increased tension
between two predominant features of the twentieth-
century international society : the globally expanding
and penetrating capitalist economy and informational
activities on the one hand, and the sovereign States
system on the other. A second conflict emerged from
the tension between the proactive and often interven-
tionist policies and advocacy of “universal” values by
the Government and “civil society” in Western nations,
and the persistent sense of victimization and humilia-
tion widely shared by people in the non-Western world,
based on their historical memory of the Great Powers’
interventionist policies. A third conflict arose from the
discrepancy between the increasing economic power of
Asian nations, particularly that of China and India, and
the persistent intellectual and informational hegemony
of Western nations, and of the United States in par-
ticular.
(1) The conflict between the transnationalization of

economics and information, and the sovereign
States system
Post-war economic activities were generated and
supported by incessant technological innovation, the
globally predominant capitalist economy, and a peace
among developed countries lasting more than a half
century. Together with these economic activities, infor-
mational activities also expanded on a global scale.
52 Onuma Yasuaki
The mass media of developed countries constantly

send global news to their citizens in a sensational man-
ner. This news, sent via television and internet to the
living-rooms of ordinary citizens in developed soci-
eties, exposes huge differences in the economic situa-
tions, political regimes, religions and social customs
between developed and developing (most of which are
non-Western) countries. Many of them are often shock-
ing to ordinary citizens in the developed societies.
Genocide, inhumane treatment of females and children,
and apparent discriminatory social practices are all
vividly depicted on TV screens and websites. This
invites anger against the offenders, many of whom are
government officials, military officers and soldiers,
and the socially powerful and privileged people, and
sympathy with the victims.
However, today’s international society is based on
the sovereign States system, one of whose fundamental
principles is the equality and the independence of
States. The principle of non-intervention, though some-
times challenged and violated, particularly by powerful
States, constitutes a fundamental principle of current
international law. The Declaration on Principles of
International Law concerning Friendly Relations and
Co-operation among States in Accordance with the
Charter of the United Nations of 1970, which is gener-
ally considered to embody norms of general interna-
tional law, expresses far-reaching obligations of non-
intervention.
It provides that
“[n]o State or group of States has the right to inter-

vene, directly or indirectly, for any reason whatever,
in the internal and external affairs of any other
State. Consequently, armed intervention and all
other forms of interference or attempted threats
against the personality of the State or against its
political, economic and cultural elements are in vio-

lation of international law.” 8
Although a number of experts argued that the sover-
eign States system was becoming obsolete from the per-
spective of the global economy and information, they
were too hasty in talking about “decline”, “waning”
or “retreat” of States. This was vividly demon-
strated by the global financial crisis of 2008, in which
a number of monstrous private enterprises sought res-
cue from States. The sovereign States system will most
likely survive in the twenty-first century. This is evi-
dent especially in the field of security. Moreover, many
developing countries still comprise various linguistic,
religious or ethnic groups struggling with each other.
For them, there will be more at stake than the mere
survival of the system. As the twentieth century was an
era of nation-building and statism for many of today’s
developed countries, the twenty-first century will be an
era of nation-building and statism for most of the
developing or non-Western countries, overcoming
domestic conflicts and consolidating the State mecha-
nism.
Thus, the twenty-first-century world will most
likely witness sharply conflicting developments. On
the one hand, the sovereign States system may be grad-
ually eroded by the constantly expanding and penetrat-
ing capitalist economy, and by transboundary informa-
tional activities on a global scale. Although this global
economy and the global spread of information are
8
A/ RES/2625 (XXV), GAOR, 25th Sess., Suppl. No. 28,
UN doc. A/8028 (1970). There are other resolutions of the
United Nations and other international organizations or
conferences to the similar effect. See, e.g., A/RES/2131
(XX), GAOR, 20th Sess., Suppl. No. 14, UN doc. A/6014
(1965) ; A/RES/36/103, GAOR, 36th Sess., Suppl. No. 51,
UN doc. A/36/51 (1981).
54 Onuma Yasuaki
managed mainly by corporations and by government

regulators in developed countries, developing countries
will be affected as well. On the other hand, the sover-
eign States system will be adhered to and actually con-
solidated by many developing, non-Western countries.
This conflict will pose a serious problem to humanity
in the twenty-first century. It may become even more
serious by being combined with the second conflict as
shown below.
(2) The conflict between the global quest for human

dignity and the sense of victimization shared by
non-Western and/or developing nations
In developed societies, where people generally
enjoy a high standard of living, the quest for economic
well-being is no longer as high a priority as it used to
be. Instead, a quest for human rights (understood
mainly as civil and political rights), and a demand for
environmental protection attract people more. The
view that serious human rights violations should not be
tolerated, even if committed in foreign countries, is
advanced more and more vocally in developed soci-
eties than it used to be. NGOs, activists and media
institutions demand that their Government intervene in
“delinquent States” and redress these wrongs. This
phenomenon is seen typically in the United States, but
in some other developed West European nations as
well. It is likely that this trend will continue to spread.
However, most nations targeted for criticism for
serious violations of human rights were once under
colonial rule or semi-colonial rule. They have also seri-
ously suffered from various forms of intervention by
imperialistic Western powers and Japan, which are
today’s developed countries. Because of this humiliat-
ing past, they tend to be excessively sensitive to criti-
cism from the developed countries. Many people in the
non-Western world tend to interpret any ideas and

advocacy coming from, and actions taken by, Western
nations, with the association of the past colonial rule
and interventions by the Western powers. To them, the
term “human rights” often sounds like a little more
than another beautiful slogan by which these Western
powers rationalize their interventionist policies 9.
Some, not only in the Western but also in the
Eastern world, argue that such a claim is a convenient
excuse of the leaders of authoritarian regimes to evade
criticism of their oppressive policies. This is certainly
true, at least in part. Even in such countries suppress-
ing the voices of citizens who demand respect for free-
dom, one can hear dissenting voices criticizing the for-
mal view of the ruling party or the Government. The
role of media institutions and NGOs to find out such
dissenting voices and to encourage them is extremely
important.
However, we should not regard the voices criticiz-
ing the “interventions by the outsiders” or “arrogance
of the West” merely as an attempt of the repressive
9
To take just a few example, the idea of “mission
civilisatrice” was utilized to rationalize imperialistic poli-
cies by the Western powers, and the idea of “humanitarian
intervention” was cited frequently by them when they mili-
tarily intervened in Turkey, Romania and other “uncivi-
lized” nations. See Josef L. Kunz, “Zum Begriff der ‘nation
civilisée’ im modernen Völkerrecht”, Zeitschrift für öffent-
liches Recht, VII (1927-1928) ; Tabata Sigeziro, Jinken to
kokusaiho (Human Rights and International Law) (Nihon
Hyoron Shinsha, Tokyo, 1952) ; Georg Schwarzenberger,
“The Standard of Civilisation in International Law”,
Current Legal Problems, VIII (1955), pp. 212-234 ; Gerrit
W. Gong, The Standard of “Civilization” in International
Society (Clarendon Press, Oxford, 1984) ; Martti Kosken-
niemi, The Gentle Civilizer of Nations (Cambridge Univer-
sity Press, Cambridge, 2001) ; Antony Anghie, Imperia-
lism, Sovereignty and the Making of International Law
(Cambridge University Press, New York, 2005).
56 Onuma Yasuaki
regime to evade criticism from outside. Resistance to

the criticism raised by the Governments, NGOs and
media institutions in developed countries is not limited
to the ruling elite of the non-Western nations. Such
rancour, such grudges against colonial rule, interven-
tion, economic exploitation, racial discrimination, and
religious or cultural prejudices by the once imperial,
now developed, Western nations are widely shared by a
large number of people in non-Western societies. In
some non-Western countries the ruling élites rather
seek to suppress such angry voices of the mass in order
to maintain a friendly relationship with developed
countries. Yet, they often find it difficult to do so,
because the anger of the mass is too huge to control.
Again, it must be recognized that, in many societies
in which such people live, there has been a control of
information by the State. Such rancour and grudges are
at least partly a consequence of such information con-
trol. With the increase of the freedom of information
and expression in the future, these people will gradu-
ally refrain from shouting emotional criticism of the
“arrogant” and “interventionist” West. Still, such criti-
cism of arrogance of the West, associated with the
memory of the past, will remain for some time. This is
only natural and legitimate, given the actual humilia-
tion they suffered from Western and Japanese imperial-
istic policies in the past. In such situations, criticisms
of human rights violations of the non-Western coun-
tries coming from Western societies are likely to be
perceived as arrogant interventions or pressures from
the outside world. Hence, even a legitimate criticism
often cannot fulfil its proper task to improve human
rights conditions or other flawed practices in those
countries 10.
10
When the Chinese authorities suppressed some
groups of Tibetans claiming autonomy or self-determina-
(3) Emerging discrepancies between the economic

power and the intellectual/informational hege-
mony in global society
The problem described above is closely related to
the third problem, i.e. emerging discrepancies between
the increasing substantive (economic and military)
power of Asian nations, particularly China and India,
and the persistent intellectual and informational
hegemony of Western nations, especially the United
States.
In the twentieth century the United States had a
tremendous influence upon the ways of thinking and
behaviour of people around the world. It spread its
ideas and ideals by various means : English as the “lin-
gua franca” of the world ; influential internet and other
media institutions such as Google, CNN and the New
York Times ; powerful popular cultures represented by
Hollywood movies and popular music ; and many
other informational, educational and cultural institu-
tions. Although the power of the United States will cer-
tainly decrease in relative terms in the twenty-first cen-
tury, its psychology to pursue and proselytize values
and ideals which they believe to be universal will not
tion just before the Olympic Games held in Beijing in

2008, the Western media and Governments severely criti-
cized this suppression. Yet, a large scale of resentment and
anger by a massive number of Chinese people appeared on
the websites, severely criticizing the “arrogance” and
“prejudices” of the Western media, civil society and
Governments. Some Western private enterprises engaged
in commercial activities in China were attacked by some
angry Chinese citizens. Thus even a legitimate criticism of
suppression of human rights of Tibetans by the Chinese
authorities could not play its proper role because of this
strong sense of humiliation and victimization held by the
Chinese people. We see similar phenomena in Africa and
other parts of non-Western world as well.
58 Onuma Yasuaki
likely change fundamentally. Further, with the “democ-

ratization” and “marketization” in developing coun-
tries, the “Americanization” of the society will likely
prevail. The United States’ “soft power” 11, which
defines, orients and influences people’s way of think-
ing, may become even stronger on a global scale.
West European nations succeeded in establishing
societies which can generally be characterized as more
humane, more respectful of law and less violent than
the United States. The West European States’ protec-
tion of human rights, their rigid and progressive envi-
ronmental policies, and their participation in the ICC
exemplify these desirable features of their societies.
The claims of West European leaders appeal to people
beyond Europe’s borders, because they embody an
idealistic pursuit of human well-being. West European
leaders and intellectuals became more confident of
their ideals and accomplishments, and even came to be
critical of the United States toward the end of the
twentieth century 12. The West European nations are
becoming more and more normatively oriented, based
on their universalistic ideals, thus sometimes being
perceived by others as preachy, interventionist and
hypocritical.
On the other hand, Asian nations have been making
11
As to this influence, see, e.g., Edward Saïd, Orien-
talism (Vintage Books, New York, 1979) ; John Tomlin-
son, Cultural Imperialism (Johns Hopkins University
Press, Baltimore, 1991) ; Joseph S. Nye, Jr., Bound to
Lead (Basic Books, New York, 1990) ; idem, Soft Power
(Public Affairs, New York, 2004).
12
In their eyes, even the United States appears to be an
uncivilized nation, which often resorts to violence in the
international arena, suffers domestically from a high rate
of violent crimes, and maintains a savage system of capital
punishment. They hold similar sceptical eyes toward
Japan, which is engaged in whaling and maintaining the
death penalty.
and will continue to make impressive economic strides.

Japan has already been the second largest economic
power for decades. China and India have been reveal-
ing their potential power as candidates to be super-
powers rivalling the United States and the European
Union in the twenty-first century. A number of other
Asian nations such as South Korea and many Southeast
Asian nations have been making steady economic
progress. Some of them may catch up with major
European nations in economic terms over the twenty-
first century.
Thus, the map of the twenty-first century will most
likely be very different from that of the twentieth cen-
tury in terms of the constellation of power on a global
scale. As already argued by many experts, the world
we will live in the twenty-first century will most likely
be multi-polar rather than uni-polar or bi-polar.
Major agents of this multi-polar system, the United
States, the West European nations, China and India,
and maybe some others such as Russia, Japan and
Brazil, have cultural, religious and civilizational
perspectives which differ significantly from each other.
We thus seem to be facing a time when we need to
consider problems from a perspective associated with
diverse types of civilizations, not limited to modern,
West-centric civilization. The twenty-first-century
world will not only be multi-polar, but multi-civiliza-
tional as well 13.
International law in the twentieth century was con-
ditioned by, and carried out various functions in, an
13
The theme of the Second Biennial Conference of the
Asian Society of International Law held on 1 and 2 August
2009 in Tokyo was “International Law in a Multi-polar
and Multi-civilizational World : Asian Perspectives, Chal-
lenges and Contributions”. This title symbolizes the status
and characteristic feature of international law in the
twenty-first-century world.
60 Onuma Yasuaki
international society which was West-centric, State-

centric, and capitalistic and technologically innovative.
When characteristic features of this international
society change because of the aforementioned factors,
international law and its functions will also most likely
change accordingly. If so, in what way and in what
areas will it change ? From what perspective should we
see the change ? And how should we act in order to
bring about desirable changes ? In order to address,
understand, assess, and answer these questions, we
need to appreciate complex aspects and dimensions of
international law in relation to the actualities of global
society. What, then, kind of cognitive, interpretative
and evaluative frameworks should we adopt for identi-
fying and evaluating international law surrounded by
such complex problems ?
The perspective which I call “transcivilizational”
can help to respond to these epistemological, norma-
tive and practical problems by expanding our concerns,
questioning our self-evident or axiomatic assumptions,
and enlarging our perspectives in a multi-layered man-
ner. It is a perspective from which we see, recognize,
interpret, assess, and seek to propose solutions to,
ideas, activities, affairs and problems that transcend
national boundaries, by developing a cognitive and
evaluative framework based on the deliberate
recognition of a plurality of civilizations that have
long existed in human history 14. It is a perspective
that people have already adopted unconsciously when
they see “international” affairs. What is necessary for
us is to clarify this perspective and reconstruct it as a
useful tool to appreciate complex aspects and dimen-
sions associated with international law in the multi-
polar and multi-civilizational twenty-first-century
world.
14
For a detailed study, see references supra footnote 7.
II. Prevalent Perspectives to Understand

International Law in the Twentieth Century
1. The international perspective
(1) The predominance of the international perspec-
tive
We are usually unaware of the cognitive frame-
works through which we see the world. We generally
recognize, identify and evaluate various matters, phe-
nomena or ideas by adopting some prevalent, i.e. tac-
itly and unconsciously shared, perspectives in a society
where we live. In dealing with international law and
other transboundary or global matters or problems,
whether they are ideas, activities or incidents, we gen-
erally conceive of them in terms of relations between
nation States. We say that Japan invaded China in
1931, or the United States invaded Iraq in 2003. We
say that China hosted the Olympic Games in 2008.
We take this State(or nation)-centric perspective for
granted, and do not question our attitude of seeing the
world from this perspective. This is what I call the
“international” perspective 15.
The term “international” is used not only to refer to
ideas or phenomena associated with nation States or
national Governments. It also refers to a wider range of
problems transcending national boundaries, including
arts, sports, literature, movies, music and the like.
When a scientist receives the Nobel Prize, journalists
15
See further Onuma Yasuaki, “A Transcivilizational
Perspective on Global Legal Order in the Twenty-first
Century : A Way to Overcome Westcentric and Judiciary-
centric Deficits in International Legal Thoughts”, Ronald
St. John Macdonald and Douglas M. Johnston, eds.,
Towards World Constitutionalism : Issues in the Legal
Ordering of the World Community (Martinus Nijhoff
Publishers, Leiden, 2005), pp. 155 et seq.
62 Onuma Yasuaki
are eager to know to which nation he or she belongs.

Even though they were advised by the Nobel Prize
Committee that the Nobel Prize has nothing to do with
nationality of the scientist, they still want to identify
the nationality of the Nobel Prize winner. In the
Olympic Games people are excited in counting that
China wins some 50 gold medals, the United States
wins some 30 or 40 gold medals, etc. The very fact that
these popular matters with a non-State nature such as
the Nobel Prize, various kinds of sports, movies or
music are conceived of with the association of such
subject’s nationality suggests how prevalent is this
cognitive framework in today’s world.
This international perspective is a new perspective.
In pre-modern days, humans all over the world gener-
ally saw what we call today “international” phenomena
or ideas through some inter-religious or inter-commu-
nal perspectives. During the pre-modern time, for
Europeans, the world was basically composed of
Christians and pagans. For Muslims, humans were
either believers, i.e. Muslims, or unbelievers, i.e. non-
Muslims. In both cases, basically inter-religious, not
international or inter-State, perspectives prevailed 16.
16
Even for the “fathers” of international law, the idea
of international society composed of sovereign nation
States was not clearly envisaged. For example, Grotius did
not see problems arising from conflicting interests
between independent entities as problems between States.
He used various terms such as potestas publica, maxime
summa, summa potestas, magistratus, populus in addition
to civitas, to express subjects of law and interests, and to
explain phenomena and problems which people today
would usually classify as “international” questions. See
Hugo Grotius, De jure belli ac pacis libri tres, Vol. I,
Chap. 1, 1, Vol. I, Chaps. 4-5, Vol. II, Chaps. 25-26. See
Onuma Yasuaki, “War”, idem, ed., A Normative Approach
to War (Clarendon Press, Oxford, 1993), pp. 98-121 ;
idem, “Conclusion”, ibid., pp. 334-338.
For East Asians, the pre-modern world was com-

posed of the civilized and the barbarians. According to
this view, only Chinese were civilized people and
China was the Middle Kingdom. Others, who were not
Chinese, were supposed to be barbarians. It should be
noted, however, that these notions of civilization and
the Middle Kingdom were also understood in func-
tional terms rather than ethnic terms. According to this
interpretation, even the non-Chinese in the ethnic sense
could be civilized people if they learn and master the
virtue, the essential requirement for being civilized.
Thus even the non-Chinese (Hans) in the ethnic sense
such as a Manchurian or a Mongol could be and actu-
ally became the Emperor in Chinese history. Thus, the
Sinocentric view of the world was shared not only by
Chinese but also by people in East Asia in general. In
all these cases, no clear perception of the world as
composed of nation States existed. Hence there existed
no notion of the “international” as it is conceived of
today. Similar perspectives centring on relations
between States or political entities did exist even
during the pre-modern period, but these States or
political entities were not sovereign nation States
as we assume of today. These historical differences of
prevalent perspectives will be fully discussed in
Chapter IV.
The international perspective to see the world as
one composed of sovereign nation States was estab-
lished in modern Europe. Together with the seculariza-
tion of society and nation building in Europe, Euro-
peans came to see the world as composed of nation
States, rather than as Christians and non-Christians,
and with other religious categories. Together with the
development of the capitalist economy and technologi-
cal innovations, the horizons and perspectives of
humans expanded. Accordingly, narrower but more
intimate perspectives, such as those of inter-communal
64 Onuma Yasuaki
perspectives centring on village communities or cities,

gradually decreased in importance.
From around the sixteenth to the early twentieth
century, Europeans established the sovereign States
system as the way of ordering the world. They simulta-
neously expanded this system with its accompanying
system of colonial rule to other regions of the world.
As European powers established hegemony on a global
scale, the idea of the world as composed of sovereign
nation States, i.e. the international perspective, came to
be shared by people all over the world. This is the
world that humanity inherited and maintained in the
twentieth century.
(2) The persistence of State-centrism

The idea of “international” has often been equated
with “interstate” or “intergovernmental”. Up to the
twentieth century, this was only natural. People per-
ceived the world from an international perspective
because the power of nation States overwhelmed that
of other entities or agents such as churches, temples,
cities and feudal lords, and because this power has
been represented by national Governments. Interna-
tional agreements have basically been interstate agree-
ments made by national Governments. International
organizations have basically been intergovernmental
organizations. The United Nations was established by
States, that is, by national Governments, and has been
run by States, again by national Governments. The
twentieth century was the era of nation States par
excellence.
The formalistic and procedural legitimacy of inter-
national law has been based on the shared understand-
ing that international law is made by States and imple-
mented by States. During the modern period, States
have been considered to be the most important public
entity and most legitimate actors. Because States have

been considered to be legitimate organs for conducting
the affairs of human life in general, their products and
their management, including international law, have
been perceived as legitimate. Also only States have had
actual power to create and realize international law and
to effectively manage affairs transcending national
boundaries during the modern period. These percep-
tions and realities supported the prevalent State-centric
understanding on the question of the legitimacy of
international law.
The international perspective has most typically
been adopted by those who plan, decide and carry out
public policies of national Governments. It has also
been adopted by non-governmental experts and ordi-
nary citizens. Whenever they consider problems tran-
scending national boundaries, they have unconsciously
been inclined to take this State-centric, international
perspective.
It is symbolic that Oppenheim’s treatise of interna-
tional law, which established international legal theory
based on the definition of international law as law
among nations in the most sophisticated manner, was
prevalent through the twentieth century. Some inter-
national lawyers were critical of such State-centric
construction of international law, and sought to estab-
lish a theory of international law regarding the world
as composed of individuals rather than nation States 17.
However, this theory did not attract most international
lawyers.
17
Georges Scelle, Précis de droit des gens, I (Recueil
Sirey, Paris, 1932), pp. 14 et passim ; idem, Précis de droit
des gens, II (Recueil Sirey, Paris, 1934), pp. 10 et passim ;
idem, “Le phénomène juridique du dédoublement fonc-
tionnel”, Walter Schätzel and Hans-Jürgen Schlochauer,
eds., Rechtsfragen der Internationalen Organisation
(Vittorio Klostermann, Frankfurt am Main, 1956), p. 333.
66 Onuma Yasuaki
From the end of the twentieth century, multinational

enterprises and NGOs began to play an important role
in addressing transboundary or global issues. As will
be shown below, this tendency has been growing
stronger, and will even be more so in the future.
However, these non-State entities cannot be considered
to have the legitimacy when life or death issues are
involved. Few would die for the cause of multi-
national enterprises or NGOs. None would accept
the death penalty or even imprisonment sentenced by
them. It is only the nation States that have this legiti-
macy when the critical question of life and death is
involved.
Moreover, for most of the developing countries that
are home to some 80 per cent of the world’s popula-
tion, the task of nation-building began only after the
Second World War.
If we see miserable situations of failed States in
Africa, and malfunctioning of State mechanisms in a
substantial number of developing countries, we can
see that a crucial task for many developing countries
in the foreseeable future is to establish and institu-
tionalize State mechanisms which can function in a
legitimate and effective manner. For the overwhelming
majority of humanity, the twenty-first century will be
the period of nation-building and consolidating State
mechanisms. For them, the twenty-first century will
be the era of nation States. Transnational and trans-
civilizational perspectives can supplement and rectify
the international perspective, but they cannot replace it.
The international perspective will continue to be the
most important perspective from which human beings
see, recognize, interpret, assess, and seek to propose
solutions to, problems beyond the reach of a single
nation State 18.
18
Onuma, supra footnote 15, p. 157.
2. The transnational perspective

(1) The emergence of the transnational perspective
Even in modern times when the power of a nation
State was pre-eminent, human activities were not
always related to, or associated with, States. Especially
in the latter half of the twentieth century, the scale of
non-State activities transcending national boundaries
became enormous. Major agents of these activities are
primarily multinational enterprises and secondarily
global NGOs. Transboundary economic, financial, infor-
mational, social and cultural activities conducted mainly
by these non-State actors became too huge to be con-
trolled by States. It became difficult to grasp their
critical aspects from the international perspective alone,
because this perspective tends to pay attention mainly
to phenomena associated with national Governments 19.
By adopting the international perspective, we tend
to pay attention to the ideas and phenomena which are
produced, referred to, appear or occur in relation to, or
in association with, the ideas, activities and phenomena
between nation States (or, more concretely, between
national Governments). Ideas, claims, aspirations,
expectations, frustrations and resentments, as well as
activities associated with ordinary citizens, private cor-
porations and other groups, are unconsciously excluded
from our sight. Even when we deal with these problems
from an international perspective, such as the case in
which we deal with “international sports” or “internatio-
nal music”, we unconsciously tend to see these things
in association with some “national” features under-
stood in a monolithic and substantive manner. This
way of seeing things has contributed to a simplified
and one-sided State-centric understanding of the world.
19
68 Onuma Yasuaki
However, toward the end of the twentieth century,

the activities of various types of non-State actors came
to be more and more conspicuous. The legitimacy of
States, especially that of undemocratic States or States
with serious violations of human rights, came to be
questioned. The formalistic and procedural legitimacy
of international law as understood in a State-centric
manner came to be contested. Thus, the significance of
a perspective which pays attention to these non-State
actors, and their ideas and activities came to be vocally
claimed. A number of intellectuals, especially those in
developed countries, argued for the significance of
transnational economic and informational activities, a
global civil society, the decline or retreat of States, and
the like.
The role of NGOs as a public advocacy agency
influencing various phases of creation and realization
of international law came to be highly evaluated by
influential Western experts and media institutions. The
term “civil society” became fashionable and was often
utilized as trumping governmental or inter-governmen-
tal initiatives, decisions, policies and their implementa-
tion. Ordinary citizens in developed countries came to
share these views and to accept criticism of State-
centrism. Even if some legal norm is enacted by inter-
governmental negotiations, its legitimacy came to be
questioned and contested if some of the Governments
involved lacked legitimacy in terms of democracy,
human rights, good governance, and the like. The way
to see and understand the world from these “trans-
national” perspectives has come to be more and more
fashionable and widely accepted on a global scale.
As referred to earlier, the term “international” has
been used not only to refer to phenomena associated
with nation States or national Governments, but to
refer to a wider range of matters transcending national
boundaries, including arts, sports, literature, movies
and the like. Yet, as long as the term “international” is

adopted, there remains a tendency to unconsciously
think of something associated with States, nations per-
ceived as a monolithic entity, or national Governments.
This one sided way of seeing things must be avoided.
This seems to be a major reason why a “transnational”
perspective addressing ideas and activities not neces-
sarily associated with States, a nation as a whole, or
national Governments, came to be adopted in an influ-
ential manner toward the end of the twentieth century.
Transnationalism is both a cause and a consequence of
increasing criticism of State-centrism.
The transnational perspective has established itself
as an important perspective since around the 1950s.
Philip Jessup published a book titled A Modern Law of
Nations, which contained basic ideas on the transna-
tional perspective as early as in 1948 20. He published
his most famous work, Transnational Law in 1956 21.
Although the transnational perspective was first
adopted by an international lawyer, it has been more
consciously and explicitly adopted, and emphasized,
by experts of international relations.
Not only those who use the term “transnational”
such as “transnational law” or “transnational legal
process”, but also those who emphasize the signifi-
cance of (1) transnational flow of capital and informa-
tion, (2) interdependence of nations, (3) the role of
NGOs and international institutions in various trans-
boundary areas 22, (4) global governance, (5) global
20
Philip C. Jessup, A Modern Law of Nations ; An
Introduction (Macmillan, New York, 1948).
21
Philip C. Jessup, Transnational Law (Yale University
Press, New Haven, 1956).
22
Since the late twentieth century, the term “interna-
tional organization” has sometimes been used as including
non-governmental organizations, reflecting the increasing
importance of NGOs.
70 Onuma Yasuaki
civil society, and (6) epistemological community or the

role of likely minded experts in global arena, have rep-
resented and applied the transnational perspective in
their own ways. Through these theories and advoca-
cies, the transnational perspective came to be well
accepted in various forms by ordinary citizens in
developed societies by the end of the twentieth cen-
tury. By the power of globally influential Western
media and the efforts of those advocating the high cause
and value of transnationalism in developing coun-
tries, it has been penetrating the developing societies as
well.
Because so many different advocates have claimed
and utilized the transnational perspective in a diverse
manner, it is difficult to define it in an unequivocal
manner. Generally speaking, it has been understood as
implying the following factors : (1) attention is paid to
ideas advocated or shared by, and activities conducted
by or associated with, non-State or non-governmental
actors, especially those private enterprises and/or
NGOs that are engaged in transboundary activities ;
(2) it is generally assumed that these non-State actors
are motivated or characterized by modernistic features
such as those pursuing capitalist profits or modern-
istic and/or secular values of civil society (even when
ideas and/or activities of religious groups or organi-
zations are considered or discussed, modernistic ten-
dency for co-existence and co-operation between differ-
ent religions, rather than proselytizing a particular
religious teaching, prevails) ; (3) it is also generally
assumed that when this perspective is adopted as a nor-
mative framework, the values to be pursued are mod-
ernistic or post-modernistic ones such as democracy,
human rights, market economy and global environ-
ment 23.
23
(2) The significance of the transnational perspec-

tive
The transnational perspective is a useful tool, or a
way of seeing, to supplement and modify the interna-
tional perspective, which tends to be excessively State-
centric and to invite people unconsciously to see the
world within the framework of existing sovereign
nation States as understood in a monolithic manner.
Interpreting international legal affairs in association
with existing nation States came to be qualified in var-
ious respects. For example, those who pay attention to
transnational activities of enterprises have demon-
strated that agreements and standards between enter-
prises or industrial associations have been creating
effective legal or normative regulatory systems. Private
enterprises, which did not have the means to pursue
responsibility of States under international law when
their rights were violated, are today entitled to claim
reparations or compensations directly under interna-
tional law in the ICSID mechanism and other arbitra-
tion tribunals. Multinational enterprises, NGOs and the
United Nations have worked together in such a way as
to regulate the behaviour of enterprises by means of
the Global Compact in the fields of human rights, envi-
ronment, labour conditions, etc.
The significance of NGOs has also tremendously
been enhanced. NGOs have been heavily involved in
the creation of various kinds of international law.
Especially in the fields of human rights and environ-
ment, it is unthinkable today to draft major interna-
tional instruments without consultations with NGOs.
Even in the field of international security, NGOs were
heavily involved in the creation of the Landmine Ban
Treaty of 1997, the Cluster Bomb Ban Treaty of 2008
and other arrangements on arms control and humanitar-
ian law. In the application of international law and
72 Onuma Yasuaki
other normative instruments too, the role of the NGO

is significant. All monitoring bodies of human rights
instruments and in the United Nations have been
heavily dependent upon the information, knowledge
and advice of NGOs when they carry out their man-
dates. NGOs in the fields of economic co-operation and
development, as well as environment, have also played
important roles contributing to the proper functioning
of the treaty system in each field 24.
One of the critical points which the transnational
perspective has brought to our understanding of inter-
national law is to see the world of international law by
not assuming the monolithic State or nation. According
to the international perspective, international law
tended to be perceived within the framework of law
between nations or States. “Subjects” of international law
were States or nations conceived of as abstract, formal
and monolithic entities. International law was supposed
to be made by such States or nations, applied by such
States or nations, sanctioned by such States or nations.
By adopting transnational perspectives, our ability
to appreciate complex realities of today’s world has
certainly been enhanced. We can now see various aspects
on international law that have been overlooked by the
State-centric international perspective. The behaviour
of concrete Governments, not monolithically assumed
nations or States, together with the behaviour of vari-
ous non-governmental entities such as enterprises and
NGOs, are now studied and analysed. The notion of
participants in international law, not necessarily sub-
jects of international law, has become important 25.
24
25
As to the significance of the notion of “participants”,
see Rosalyn Higgins, Problems and Process : Interna-
tional Law and How We Use It (Clarendon Press, Oxford,
1994), pp. 39 et seq.
International law today is not seen only as a horizontal

normative system between States. It is a system com-
posed of States and various non-State actors.
In fact, the “horizontal” interstate measures such as
countermeasures or reprisals can be effective only
when the subject of such measures is more powerful or
at least equal in terms of power to the delinquent party.
Smaller nations can hardly resort to countermeasures
even if their right is violated by other nations, espe-
cially powerful nations. And it is these smaller nations
that occupy the overwhelming majority of nations in
international society. The “horizontal” interstate meas-
ures such as countermeasures are not as effective as are
generally taught in the textbooks of international law,
which is generally written on the assumption of inter-
state relations.
Sanctions provided in the form of criticisms by
domestic and international NGOs and media institu-
tions, arbitral awards given by the arbitral tribunals
composed of experts, and transboundary litigations
suing the Government of the delinquent State can
sometimes be more effective than interstate sanctions.
Such forms of non-State-centric, non-horizontal sanc-
tions have actually been sought and applied. The
transnational perspective has revealed these neglected
aspects of international law. In this way, the signifi-
cance of the transnational perspective has been widely
recognized since the late twentieth century, when the
problems associated with the global market economy,
human rights and the global environment came to be
perceived as major global issues.
(3) Problems of international and transnational

perspectives
By adopting the international perspective, we tend
to pay attention to the ideas and phenomena which are
74 Onuma Yasuaki
produced, referred to, appear or occur in relation to, or

in association with, the ideas, activities and phenomena
between States, or more concretely, between national
Governments. We thus tend to exclude, in most cases
unconsciously, two things from our vision. First, ideas,
activities and phenomena associated with ordinary citi-
zens, private corporations and other non-State or non-
governmental groups tend to be excluded. Second,
when taking interstate perspectives, we are inclined to
pay attention to more conspicuous interstate relations,
that is, those involving major Western States such as
the United States, the United Kingdom and France,
represented by their Governments 26. Ideas, activities
and phenomena associated with Governments and
peoples in smaller nations, most of which are non-
Western, are kept unaware of.
By adopting the transnational perspective, we can
overcome the first problem, but not the second one.
Seeing the world from the transnational perspective,
we pay attention to the ideas and phenomena which are
produced by, or occur in relation to or in association
with, powerful, conspicuous, vocal non-State actors.
These non-State actors are basically powerful multi-
national enterprises and leading NGOs, exerting a
great influence on the creation and realization of inter-
national law, diplomacy of national Governments and
behaviours of international organizations. They are
Microsoft, CNN, Amnesty International, Greenpeace
and the like. What is an implication of these facts ? It
implies that even if we adopt the transnational perspec-
26
Almost all media institutions over the globe tend to
report interstate problems between the United States and
other countries which have some problem or relations with
the United States. People seldom pay attention to the over-
whelming number of smaller countries, whose population,
if combined, far exceeds that of the United States.
tive, we cannot fully address, recognize and respond to

the aspirations, expectations, frustrations and resent-
ments held by the people in the non-Western world.
This means that voices of those who comprise more
than 80 per cent of the human species can scarcely be
heard 27.
Here lies a difficult problem of legitimate represen-
tation of humanity. How should we assess non-State
actors in terms of legitimate representative of human-
ity, especially a large number of those which are
excluded from the cognitive and discursive space fea-
tured by the international perspective ? In other words,
can we characterize the non-State actors as representa-
tives that can supplement the global legitimacy which
may be lacking if we adopt only the international per-
spective ? It is difficult to do so in their formal capa-
city. Yet, it may be possible to characterize the non-
State actors as substantially representing the voice of
those excluded people in their actual functions.
A scrutiny of the realities on the non-State actors
demonstrates us that it is difficult to expect, first,
multinational corporations to play such a representative
role. They are agents of the world capitalist economy.
By bringing in capital and producing a large amount of
employment and by bringing out overall economic
development on a global scale, they may contribute to
enhancing the material well-being of humanity as a
whole. However, these enterprises are fundamentally
motivated by the pursuit of maximization of economic
profit. Their activities may contribute to economic
development in the developing countries and to
improve economic situations of the massive popula-
tions in the non-Western world. Yet, their activities
may also be characterized as economic exploitation
from the people living in developing countries. It is
27
76 Onuma Yasuaki
difficult to argue that the multinational corporations

represent voices of these populations 28.
In the case of NGOs, the situation is more compli-
cated. Viewed from the perspective of representative
legitimacy of the global democracy, some of the NGOs
seek to work for the people in the South in the spirit of
solidarity. In certain cases, NGOs advocate and act as
if they represented the voices of people in the develop-
ing countries, who are generally excluded from the
global discursive space. In the areas of economic
development, global finance and environment, this ten-
dency is particularly strong. In functional terms, some
of them may be able to claim representative legitimacy
of the global society, by representing certain voices of
the large number of people in the developing countries.
We can see a similar picture in the field of interna-
tional law on armed conflict, as is demonstrated by the
cases of the creation of the Landmine Ban Treaty of
1997 and the Cluster Bomb Ban Treaty of 2008.
However, there is no effective means to guarantee
the representative role of the NGOs as a public institu-
tion. Moreover, it cannot be denied that basic assump-
tions, ways of thinking and cultural propensities of
these powerful NGOs are evidently West-centric 29.
They may work for the people in the South or in the
non-Western world, but this does not mean that they
represent the people in the South or in the non-Western
world. Generally speaking, NGOs in the non-Western
world are far less influential. To make matters worse,
some of the non-Western NGOs are even more West-
centric than their Western counterparts because of their
28
29
As to the problematic features of West-centrism in
the major human rights NGOs, see Onuma, “Towards an
Intercivilzational Approach to Human Rights”, supra foot-
note 7, pp. 38-46.
members’ educational backgrounds in the West, their

inferiority complex vis-à-vis Western society, and their
elitist status in their own societies 30.
We can certainly supplement and modify our State-
centric way of thinking and patterns of behaviour by
adopting the transnational perspective. Yet, it is diffi-
cult for us to rectify our deeply rooted West-centric
perspective by it. On the contrary, because major
agents of transnational activities are Western cor-
porations, NGOs and media institutions, we often
unconsciously see transboundary and global affairs
from a West-centric perspective even more strongly by
emphasizing the importance of transnational perspec-
tive.
However good-willed many of the NGOs may be,
however important their functions may have been in
rectifying the State-centric global policies, this nega-
tive aspect of transnationalism should not be over-
looked. If influential NGOs truly want to be public
agents that can legitimately represent the voices of the
non-Western peoples that are not heard in major global
discursive processes, they have to deliberately adopt
transcivilizational perspectives as shown above.
(4) Participants of international law : various

actors with diverse perspectives involved in the
international legal process
We can see a similar situation in the “epistemol-
ogical community” of experts. It has played an impor-
tant role in addressing the problems of common
concern of the global community. The epistemological
community has proposed actions to be globally taken in
order to overcome serious consequences arising from
these problems. The problems on the deterioration of
30
78 Onuma Yasuaki
the global environment and the proposals made by

experts for resolving these critical problems are leading
examples.
These experts who share common concern have been
playing a tremendously important role in educating
decision makers and ordinary citizens. Thanks to their
activities, national Governments, local communities,
private enterprises and ordinary citizens can now cor-
rectly understand the problems and take proper actions
for the common interest of humanity.
However, not all “epistemological community” of
experts has been playing such a positive role. Almost
all advanced researches, studies and higher educations
have been led and influenced by major universities and
research institutions in Western societies. The study
and education of international law is one such area.
Even though these Western experts are good-willed
and engage in researches oriented to global community
interests, their knowledge and assumptions are over-
whelmingly West-centric. In consequence, their actual
researches and conclusions tend to assume modernistic,
West-centric features, ignoring non-modernistic, more
pluralistic civilizational perspectives, held by a larger
portion of humanity. Unless they can overcome these
problems and engage in their studies and advocacy in a
more transcivilizational manner, it is difficult to char-
acterize them as representing the majority of humanity
in their cognizance and interpretation of the ideas,
phenomena, problems and events in the twenty-first-
century world.
Thus, merely modifying and supplementing the
international perspective with the transnational per-
spective is not sufficient. Although the State-centric
nature of the international perspective may be rectified
by the transnational perspective, modernistic and West-
centric nature of the international perspective cannot
be rectified by the transnational perspective, at least in
its present form. Values or virtues beyond those within

the range of modernity such as those expressed in the
teaching of long-lasting religions, as well as values or
virtues of beauty, truth or modesty were long advo-
cated by pre-modern thinkers, and adhered to by pre-
modern people at large. Yet, they are not generally con-
sidered or advocated by those who see the world from
a transnational perspective. Nor did they pay sufficient
attention to belief systems held by indigenous peoples
or ethnic minorities, again often associated with pre-
modern values and virtues.
Fundamentally, people adhering to the transnational
perspective talk about the values, but they seldom talk
about the virtues. Aggressiveness is hailed in today’s
global society, but modesty is not. These facts are
telling. In the discursive space prevalent in the twen-
tieth century, it would have sounded odd if one
talks about the virtue of modesty, although this is an
extremely important virtue in human society. We need
a perspective from which we can grasp problems that
cannot be addressed either by the international or
the transnational perspective, or a combination of the
two together 31.
Here, we should recognize that actors or agents that
are engaged or involved in today’s international legal
process — participants in the wider sense of the term
— are not limited to national Governments, private
enterprises, NGOs and communities of experts, as they
are generally assumed to be. They comprise various
entities or groups such as indigenous peoples, ethnic
minorities, churches, temples, Islamic communities,
agents of the transboundary global or regional net-
works of Christians, Buddhists, or Muslims and other
entities or groups with diverse ideas and experiences,
based on various types of links. Why are there such
31
Onuma, supra footnote 15, pp. 160-161.
80 Onuma Yasuaki
various kinds of human groups or associations with

diverse characteristic features playing important roles
in today’s world ? It is because values and virtues
humans or groups of humans pursue are not limited to
national interests, capitalistic economic interests or
modernistic civil interests.
Humans are motivated to act in order to realize their
material and spiritual well-being in these various forms
of values and virtues. They are associated or connected
with each other for such purposes by a variety of bonds
such as economic, religious, cultural, linguistic, and/or
other pre-modernistic social features. They sense, think
and behave according to these diverse types of shared
frameworks of values and virtues. Some of the ideas
and activities of these frameworks are not always
appreciated by State-centric international perspectives,
or modernistic and West-centric transnational perspec-
tives. In order to appreciate these diverse ideas and
activities associated with international law, we need
some other perspectives.
III. The Transcivilizational Perspective :

A Way to See International Law in a More Nuanced
and Comprehensive Manner
1. The significance of civilizational factors and per-

spectives in the sovereign States system
(1) What is the transcivilizational perspective ?

In order to rectify problematic features of the inter-
national and transnational perspectives and to appreci-
ate complex features of international law in the multi-
polar and multi-civilizational world, we need a third
perspective. From this perspective we should be able to
see international law, including those ideas and phe-
nomena which are neglected in, or excluded from, the
global discursive space of the twentieth century. By

adopting this third perspective, we can modify and
supplement the two predominant perspectives — inter-
national and transnational — in international law. We
should be able to appreciate complex aspects and
dimensions on international law in a more nuanced and
comprehensive manner.
The transcivilizational perspective is basically a
way of seeing things including matters on international
law in a different manner from that of prevalent inter-
national and transnational perspectives, which are
often unconsciously taken by all of us, living in the
modernistic, West-centric and State-centric world. It is
not an alternative theory or methodology in the rigid
sense of the term. Nor does it mean some civiliza-
tional-centrism. Rather, it merely seeks to see the
world from a viewpoint which has in fact been adopted
in an unconscious manner, yet mostly ignored or
underestimated during the West-centric, State-centric
modern period.
A transcivilizational perspective is a perspective
from which we see, sense, recognize, interpret, assess,
and seek to propose solutions to ideas, activities, phe-
nomena and problems transcending national bound-
aries, by developing a cognitive and evaluative frame-
work based on the recognition of plurality of civili-
zations and cultures that have long existed in human
history 32. When I first argued for the need of an “inter-
32
See generally Onuma, Jinken, kokka, bunmei, supra
footnote 7, pp. 13-36, 332-337, 345-347. See also Onuma,
“Towards an Intercivilizational Approach to Human
Rights”, supra footnote 7, pp. 22-31, and idem, supra foot-
note 15, pp. 161-163. My argument in this book, however,
is slightly different from those expressed in the earlier
writings, reflecting the development of my own ideas in
recent years. I am grateful to R. J. P. Anand, Antony
Anghie, James Crawford, Mireille Delmas-Marty, Furuya
82 Onuma Yasuaki
civilizational” perspective in 1981 33, the significance

of seeing problems on international law in terms of
civilizations and cultures was hardly recognized. The
State-centric international perspective was taken for
granted. The significance of the transnational perspec-
tive began to be recognized vaguely by a small number
of experts, but few paid attention to my paper arguing
for the need of an intercivilizational perspective in
1981. Since then, however, the need for seeing the
world by paying attention to religious, cultural and
civilizational diversity of the globe has been greatly
enhanced. The number of experts who understand the
significance of the intercivilizational perspective has
much increased.
On the other hand, I have received various kinds of
criticism, which are often based on the misunderstand-
ing of my argument. In particular, criticisms associated
with the famous (or notorious) claim of a “clash of
civilizations” by Samuel P. Huntington have been per-
sistent. Since 2001, I have been arguing for a “trans-
civilizational” rather than an “intercivilizational”
perspective, for responding to these criticisms and mini-
mizing misunderstandings. Here I seek to summarize
my argument on the transcivilizational perspective
based on my most recent reflection on my own
approach for the last three decades.
I use the term “transcivilizational” because this
notion can comprise predominant ways of thinking and
Shuichi, Andrew Hurrell, Mogami Toshiki, Michael Reisman,

Saito Tamitomo, Amartya Sen, Brigitte Stern, Hidemi
Suganami, Charles Taylor, Christian Tomuschat and many
other colleagues for their useful comments on my notion
of transcivilizational perspective.
33
See my remarks in “Promoting Training and
Awareness — The Tasks of Education in International
Law”, Proceedings of the American Society of Interna-
tional Law, LXXV (1981), pp. 163-167.
patterns of behaviour which comprise plural nations.

The term “civilization” adopted in the transciviliza-
tional perspective assumes that there are diverse cul-
tures both within a civilization and transcending civi-
lizations. The transcivilizational perspective does not
mean at all that we should consider exclusively or even
mainly in terms of “great” civilizations, negating the
raison d’être of “minor” cultures. It always assumes
and appreciates intracivilizational diversity in terms of
cultures, political systems, historical experiences, etc. 34
It also presupposes that some cultures transcend not
only national boundaries but civilizational boundaries
as well. There is no monolithic civilization existing as
a substantive entity. Any substantiation of the notion of
civilization, as is typically seen in Samuel Hunting-
ton’s argument on the “clash of civilizations”, grossly
distorts the realities of living and historic civilizations
and cultures.
The term “transcivilizational” sounds new. How-
ever, transboundary phenomena have actually long
been seen and interpreted from various “inter” or
“trans” civilizational perspectives, not necessarily
deliberately, but in most cases unconsciously. There
has been a serious problem, however, in this uncon-
scious way of seeing transboundary phenomena within
a civilizational framework. When people saw trans-
boundary affairs through such inter-or-transciviliza-
tional perspectives, they tended to regard civilizations
as a monolithic and substantive entity. This way of
thinking tends to invite people to conceive of intercivi-
lizational matters or relations in a mutually exclusive
and conflicting manner. For example, world history
34
See also Abdullahi Ahmed An-Na’im, ed., Human
Rights in Crosscultural Perspectives : A Quest for Consen-
sus (University of Pennsylvania Press, Philadelphia,
1992).
84 Onuma Yasuaki
tends to be described as conflicts of competing civi-

lizations, understood as monolithic entities.
The first important task for us today is, therefore, to
make explicit this actual, unconscious adoption of the
inter-or-trans-civilizational perspectives even during
the modern period, when State-centric perspectives have
been predominant. Then, we have to liberate these inter-
or-trans-civilizational perspectives from an exclusive and
substantive notion of civilization. We must reconcep-
tualize the notion of civilization as a functional notion.
When we see and evaluate problems on international
law, we must seek to make explicit religious, cultural
and/or civilizational assumptions of ourselves and other
actors. We then have to see and evaluate the problems
on international law by taking these religious, cultural
and civilizational factors into consideration, not regard-
ing these factors as unchangeable, monolithic and sub-
stantive entities but as changeable, functional variants.
(2) Civilizational factors and perspectives as
preserved and utilized within the sovereign
States system
As described earlier, the international or State-cen-
tric perspective became predominant when the modern
European States system became global. The sovereign
States system and international law that came to be
globally valid were heavily characterized by a Euro-
centric perspective of civilization. From the late nine-
teenth to the early twentieth century, international law
was often defined as the law among civilized nations.
Here, the term “civilization” meant no other than
European civilization. Other great civilizations were
simply not regarded as civilizations 35.
35
See Kunz, supra footnote 9, S. 89 ; Schwarzen-
berger, supra footnote 9, p. 220 ; Gong, supra footnote 9,
pp. 45-53, 76-81 et passim.
This Eurocentric civilization was a modernistic,

secular civilization based on modern sciences and
technologies. In this way, a Eurocentric perspective of
civilization was tacitly adopted in the definition
and treatment of international law from the late nine-
teenth to the early twentieth century. The most famous
use of the term “civilization” in international law is in
Article 38 of the Statute of the ICJ. It provides that
“the general principles of law recognized by civilized
nations” is one of the norms that the ICJ shall apply.
When this provision was first adopted in 1919,
the term “civilized” implied European civilization,
reflecting the self-confidence of the aggressive and
arrogant Europeans at that time 36.
The predominance of the international or State-cen-
tric perspective based on the Eurocentric perspective
on civilizations, however, does not mean the end of the
cognizance or understanding of the world from diverse
civilizational perspectives. Long-lasting civilizations
including various non-Western civilizations survived
under the Eurocentric modern sovereign States system.
Numerous cultures within these civilizations or
transcending these civilizations also survived. Ways
of seeing or grasping transboundary matters from
inter-or-trans-civilizational perspectives survived, in
most cases unconsciously, as well.
This state of affairs was only natural. Diverse civi-
lizations, some of which had survived for more than
four millennia, could not be lost in a few centuries of
West-centric modernity. Although European powers
established colonial rule on a global scale, they were
not powerful enough to impose on the huge population
of non-Europeans the European way of life in terms of
religions, cultures, social customs and languages.
Particularly in Asia and Africa, they did not possess
36
See Chapter IV, section III, 2.
86 Onuma Yasuaki
effective means to change the ways of thinking and

patterns of behaviour of the massive populations living
there. What they achieved was generally limited to a
reorganization of the political and administrative struc-
ture to rule colonies 37. Global capitalist economy did
have a tremendous impact on the life of ordinary
people in the vast region of the non-European world,
by destroying their traditional economic and social
structures.
However, the basic framework of seeing the world or
the fundamental psychology of these ordinary people in
the non-Western world did not change in such a radical
and rapid manner 38.
Moreover, one of the basic principles of the modern
sovereign States system, which has been a basic prin-
ciple of ordering the world, is the principle of non-
intervention. Each nation is sovereign. Each nation
can decide its own rules, economic system, culture
and religion within its territory. In international law this
37
The situation was substantially different in South
and Central America, where active propagation of Chris-
tianity by the Europeans was energetically conducted.
Christianity penetrated the daily life of a large number of
ordinary people in the Latin American continent. There
were also a substantial number of intermarriages between
the European settlers and original inhabitants in some of
the Latin American countries. The degree of penetration of
the European culture and civilization in terms of the
lifestyle of people, which is subconsciously influenced by
a religion they believe — in this case Christianity — was
generally much higher in Latin America than in Asia and
Africa.
38
This makes a contrast with the twentieth-century US
hegemony. The US hegemony has been characterized by
its mass culture, represented by Hollywood movies and
other forms of soft power resources. Therefore, the US
culture penetrated the daily lives of ordinary people in
non-US areas far more widely and deeply than the
European culture, which tends to be more elitist.
domain was later formulated as matters falling within

the domestic jurisdiction of States 39. This principle of
non-intervention has generally been respected during
the modern period.
Even when the European powers established global
hegemony, they did not require non-European nations
to adopt either Christianity, or a European political,
economic, social and cultural system. The capacity to
abide by the rules and principles of international law
established by the European States was the critical
requirement for a nation to be recognized as a “civi-
lized nation”, i.e. full membership in the Eurocentric
international society. As long as Governments of the
non-Western nations protected the rights of aliens 40
and conducted their foreign affairs in accordance with
West-centric international law and diplomacy, the
hegemonic Western States were basically content.
After seceding from the Sinocentric regional system
in the middle of the nineteenth century, Japan, a non-
Christian nation, made serious efforts to modernize —
i.e. to Westernize in those days — its society, and to be
recognized as a “civilized nation” by the Western
nations. Its main purpose was to revise the unequal
treaties it was forced to conclude when it started to
have substantial foreign relations with them in the
nineteenth century. Japan was recognized as a “civi-
lized nation” when it demonstrated that it could com-
ply with the law of war in the Sino-Japanese War in
1894-1895 and the Russo-Japanese War in 1904-1905.
Japan succeeded in revising the unequal treaty with
39
Les décrets de nationalité promulgués en Tunisie et
au Maroc, Avis consultatif du 7 février 1923, CPJI Série B,
No. 4, p. 24.
40
The main purpose of this condition is to obligate
non-Western nations to protect the life, freedom and prop-
erty of Western merchants and missionaries residing in the
non-Western nations.
88 Onuma Yasuaki
Great Britain in 1902 and other Western powers in the

early twentieth century.
Other Afro-Asian nations suffered from unequal
treaties much longer. Yet, they were not required to
accept Christianity or other European cultures, social
customs and civilizations either. Modern international
law has not been generally concerned with what kind
of religion, culture or social customs each nation has.
Modern Europeans did possess racial, religious and
cultural prejudices and biases. In fact, racism was ram-
pant from the late nineteenth to the early twentieth cen-
tury in Europe, North America and other parts of the
world. However, these prejudices and biases were basi-
cally confined within the sovereign States system.
(3) Tacit recognition of the significance of civiliza-

tional factors and perspectives
Modern Western civilization brought about various
kinds of changes not only in Europe but also in other
parts of the world. With the rapid development of
natural science, secularization proceeded all over the
world. The capitalist economy brought about radical
changes in human life, again all over the world.
However, as described in paragraph (2) above, a
variety of premodern cultures, religions and civiliza-
tions survived under the sovereign States system during
the modern period. Confucian civilization survived,
although in the weaker form of social customs, maxims
or aphorisms that guide people in an unconscious man-
ner in their daily lives. Buddhist civilization has sur-
vived, actively in some areas such as in Thailand or in
Myanmar, or in the weaker form of ceremonies,
maxims and proverbs, guiding people unconsciously,
as is the case with Japan or China. In Africa and in
Westcentral, South and South-east Asia, Islamic civi-
lization has survived in various ways.
These civilizations have naturally taken diverse

forms in different nations accommodating themselves
to different local cultures and political, economic and
social systems. This intracivilizational diversity is
inherent in any civilization and in any time. The mod-
ern, West-centric sovereign States system accepted and
maintained the civilizational diversity along with this
intracivilizational diversity under the non-intervention
principle. Because these various cultural, religious and
civilizational factors were preserved as domestic
matters of the respective sovereign State, they were not
conspicuous in international relations.
However, policy makers have been aware of their
importance in international relations. They have taken
these factors into account when they conduct foreign
policies. The Pope and the Roman Catholic Church, for
example, have been recognized as important elements
of the sovereign States system. International legal
instruments have expressed this continued importance
of the recognition of civilizational factors and perspec-
tives. Article 9 of the ICJ Statute is a leading example.
It provides that
“[a]t every election, the electors shall bear in mind
that . . . in the body as a whole the representation of
the main forms of civilization . . . should be
assured” 41.
In recent years, the policies of the United States and
the West European nations in the Gulf War of 1991,
after the 11 September events, and in and after the Iraq
War of 2003, as well as the reactions of a large number
of Muslims and Arabs against these events, demon-
strate the significance of civilizational factors, percep-
tions and perspectives. In carrying out the military
41
http ://www.icj-cij.org/documents/index.php ?p1=
4&p2=2&p3=0 (last visit : 25 May 2009).
90 Onuma Yasuaki
campaigns in these conflicts, the United States and the

West European Governments made serious efforts to
have Muslim and Arab nations on their side. A major
reason for this attitude was the concern with the per-
ceived legitimacy or the image of the campaigns they
carried out. The United States and West European
Governments wanted to avoid giving the impression
that their military actions were against Muslims or
Arabs in general 42.
In all these cases, they knew well that they needed
transcivilizational legitimacy or at least an appearance
of it in conducting military campaigns. Otherwise, they
would have had to pay a high political cost for achiev-
ing their objectives. That is why they made such seri-
ous efforts to establish a coalition that included
Muslim nations, transcending civilizational boundaries.
Yet, their military actions were often interpreted as
“Western” or “Judeo-Christian” campaigns against
Muslim nations by a large number of ordinary Muslim
citizens and Arab peoples. This perception is still
highly influential among them. These examples
demonstrate that the inter-or-transcivilizational per-
spective in the wider sense of the term have actually
been adopted, albeit tacitly and often unconsciously,
together with international and transnational perspec-
tives. There are a number of other issues of the same
sort 43.
42
Some Western political leaders and intellectuals did
perceive the wars as conflicts between civilizations. The
Bush Jr. Administration was a typical example. Yet, even
this administration paid a certain degree of attention to
perceptions on civilizational factors in carrying out the
war against Iraq in 2003. After President Bush Jr. was
severely criticized for referring to the Crusade, the admin-
istration made serious efforts to avoid giving any impres-
sion that their campaign against Iraq was interpreted as a
clash of civilizations.
43
2. Realities requiring the adoption of the trans-

civilizational perspective in the twenty-first cen-
tury
(1) Significance and decline of the non-intervention

principle
During most of the period when the sovereign States
system functioned as a fundamental way of ordering
the world, the principle of non-intervention has pro-
tected the civilizational diversity within national boun-
daries of States.
It maintained its status as a fundamental principle
of the sovereign States system till the twentieth
century, although it was sometimes violated by power-
ful States. Afro-Asian and Latin American nations
regarded this non-intervention principle as a critical
means to protect themselves from various forms of
intervention by imperialist powers, and were eager
to strengthen it. After the Second World War, when
Afro-Asian nations came to form a majority in
international society, this principle was thus further
strengthened. The principle of non-intervention
provided in the Declaration on the Principles of Inter-
national Law concerning Friendly Relations and
Co-operation among States of 1970 is a typical
example of this strengthened principle of non-inter-
vention.
The Declaration provides, as the principle concern-
ing the duty not to intervene in matters within the
domestic jurisdiction of any State, that
“No State or group of States has the right to
intervene, directly or indirectly, for any reason
whatever, in the internal or external affairs of any
other State. Consequently, armed intervention and
all other forms of interference or attempted threats
against the personality of the State or against its
92 Onuma Yasuaki
political, economic and cultural elements, are in

violation of international law.” 44
The ICJ, in its judgment in the Nicaragua case of
1986, recognized the non-intervention principle in this
Declaration as an indication of the opinio juris in cus-
tomary international law, which means general interna-
tional law 45.
Towards the end of the twentieth century, however,
the non-intervention principle gradually deteriorated.
The enormous power of the global market economy
and the global flow of information undermined the
bases of the non-intervention principle. Economic,
social, cultural and informational activities have tran-
scended national boundaries. Particularly in the fields
of foreign exchange and transboundary investment,
huge forces of the market economy have overwhelmed
national regulations of most countries. Most sovereign
States came to find it difficult to control these activities
developed on a global scale through national regula-
tions.
On the other hand, the United States, the largest bene-
ficiary of transnational private activities, has enacted
extraterritorial laws that are often in conflict with the
principle of non-intervention as understood in a rigid
manner. This has been typically seen in the field of
anti-trust law, but in other fields as well. Although
44
A/RES/2625 (XXV), supra footnote 8, p. 121, adop-
ted by consensus on 24 October 1970. There are other
international normative instruments that embody this
strengthened principle of non-intervention as well. See
A/RES/2131 (XX), supra footnote 8 ; A/RES/36/103,
supra footnote 8.
45
Military and Paramilitary Activities in and against
Nicaragua, ICJ Reports 1986, para. 191. See also ibid.,
paras. 202-203. As to the relationship between “custom-
ary” international law and general international law, see
Chapter III.
the United States faced resistance from various nations,

it has gradually transformed the system of sovereign
States to its own liking.
The ideational/intellectual power of new ideas, ener-
getically and vocally advocated by experts, NGOs and
media institutions in the Western societies, too, has
undermined the ideational/intellectual power of the
non-intervention principle as a globally legitimate idea.
Problems relating to human rights caused concern in a
large number of people in developed countries, where
media institutions and NGOs exert great influence on
the decision-making process of public affairs. These
problems, once characterized as matters within a dom-
estic jurisdiction of a State, came to be characterized as
matters of international concern under the strong pres-
sure of global public opinion, created and influenced
by Western opinion leaders and/or NGOs.
This new characterization of the relationship
between the non-intervention principle and the “uni-
versal” value of human rights was widely disseminated
by powerful Western media institutions on a global
scale. Various religions, social practices, customs or
cultures in non-Western societies, once preserved
under the non-intervention principle, now came to be
characterized as being in conflict with human rights, a
newly sanctified idea. Governments in those non-
Western societies came to be severely criticized by
Western Governments, experts, media institutions and
NGOs. States, which were once protected by the non-
intervention principle from various kinds of interven-
tions coming from outside, could no longer claim that
they can deal with these issues as they like.
Governments of major Western States, which find it
necessary to respond to mounting pressures from
global and local media, often influenced by powerful
NGOs, began to take a far harsher attitude toward
those countries whose record of human rights violation
94 Onuma Yasuaki
is conspicuous. International organizations whose man-

dates are related with the promotion or protection of
human rights have also come to take a more severe
attitude towards human rights violations. The UN
Human Rights Commission (now “graded up” to the
Human Rights Council) and its Subcommittee as
well as the monitoring bodies of major human rights
treaties came to be an arena where human rights
violations in various countries are heatedly dis-
cussed and debated. Major developed countries and
international financial institutions such as the World
Bank and the IMF came to impose conditions
relating to human rights on the recipient nations, most
of which are non-Western developing countries, when
they lend money or provide economic assistance to
them.
(2) A clash of civilizations ?

The deterioration of the non-intervention principle
proceeded gradually, but the end of the Cold War radi-
cally changed the situation. The United States and
West European States regarded it as the victory of their
system, represented by market economy, democracy,
human rights and the rule of law. Also, this “victory”
was realized in the midst of the emergence of powerful
NGOs based in the West. Triumphant voices question-
ing the legitimacy of the State or the Government in
general worked further against the principle of non-
intervention. Their claims, including furthering pro-
jects for “the global market economy”, “the universality
of human rights”, “global civil society”, and “rule of
law” are far more vocal than those of the rest of the
world because of the huge ideational power of global
media institutions in the West. The formidable power
of globalization penetrating the national boundaries
thus involved the destruction and severe criticism of
various forms of civilizations and cultures that had

been preserved, respected and practised in non-
Western societies 46.
Some of the reactions from the non-Western soci-
eties to such destruction and criticism have assumed
the character of harsh repercussions in terms of reli-
gions, cultures, and civilizations. Many conflicts
between the West-centric globalizing forces including
the aggressive human rights diplomacy of the Western
Government and harsh criticism by “civil societies” on
the one hand, and the fierce reactions coming from
non-Western nations on the other, have given the
impression of “clashes of civilizations”. “Asian
values” or “Asian human rights”, which were vocally
asserted by some Asian leaders to severely criticize
West-centric discourses and policies of human rights in
the early 1990s, are one example 47. Terrorist attacks
from various sectors of Afro-Asian nations are another
example. A number of non-Western developing coun-
tries in the UN Human Rights Council have resisted
the aggressive measures advocated by Western States
and NGOs, thereby killing many effective measures to
improve human rights situations in various countries.
There have been other forms of repercussions as well 48.
46
See supra footnote 7.
47
See Inoue Tatsuo, “Liberal Democracy and Asian
Orientalism”, Joanne R. Bauer and Daniel A. Bell, eds.,
The East Asian Challenge for Human Rights (Cambridge
University Press, Cambridge, New York, 1999), pp. 27-59.
48
One such example is the battle over and in the UN
Human Rights Council. When the United Nations “up-
graded” the Human Rights Committee to the Human
Rights Council, it reorganized the Human Rights Sub-
committee and virtually weakened the power of the Sub-
committee. This was a result of the strong claims of the
non-Western developing countries, which had been frus-
trated by the activism of the Subcommittee in taking up
human rights violations and criticizing the Governments
96 Onuma Yasuaki
In actuality, there were various causes and aspects

of these conflicts. As will be fully demonstrated, cul-
tures, religions and civilizations do matter in interna-
tional politics and international relations in general.
But they have often been used as an excuse or ideology
to justify politically or even emotionally motivated dis-
courses and activities of various Governments and
groups of peoples as well. Moreover, many people
have tended to understand these politically or emotion-
ally motivated conflicts in terms of cultural, religious
and civilizations, as understood in substantive and
monolithic terms. The prevalent understanding of the
11 September event was a typical example.
Many Western Governments and commentators
have been aware of the danger of such an understand-
ing associated with cultures, religions and civilizations.
They have therefore argued that the so-called “war
against terrorism” is not a clash of civilizations nor
should it be. However, this argument could hardly per-
suade those who dare to resort to terrorism, and a far
larger number of people who may not commit terror-
ism by themselves yet support or acquiesce to it. For
example, many of the Muslims who characterize the
attacks against Israel and the United States as jihad
believe that their Islamic civilization has already been
attacked by Western civilization, whether it is under-
stood as the Judeo-Christian civilization, modern, secu-
lar, or capitalist one. They thus justify their acts of vio-
lence as jihad, characterizing them as defensive acts or
counter-attacks against the aggressive Western civiliza-
tion, regarding the latter as the civilization of power.
Underlying this understanding is the cognitive
framework to regard a civilization as a substantive
responsible for such violations. Many of these Govern-

ments most severely criticized were those of the develop-
ing countries.
entity to which a human belongs in an exclusive man-

ner. When people argue that “our” civilization is differ-
ent from “their” civilization, they do not think that
“our” way of seeing things is not limited to “our” way
of seeing things as Christians, Muslims, or Westerners
or non-Western people. People tend to choose some
characteristic features and talk as if they belong to one
of these entities exclusively. Unless people can liberate
themselves from a substantive and exclusive notion of
civilization, perspectives from which people seek to
see transboundary or global phenomena or ideas asso-
ciated with cultures, religions or civilizations tend to
lead them to the negative conclusion of a clash of
civilizations.
We also have to take into consideration that the very
space or arena where thoughts, ideas, claims and argu-
ments are exchanged is overwhelmingly West-centric.
There is little space for the non-Western discourses.
However loudly they shout, however sophisticatedly
they argue, the voices and arguments of the non-
Western people are not heard or understood by Western
élites, who control the global decision-making process.
They have been desperate that their arguments cannot
be understood or even heard by those who control
affairs in Israel, the “Middle East” — a typically Euro-
centric term, representing the prevalence of the West-
centric cognitive framework in today’s world —, and
all over the world. If their voices are neither heard nor
understood, there is no other way but to resort to vio-
lence.
Whether one likes such reasoning or not, this is the
way these people tend to think. Unless the overwhelm-
ingly West-centric space of perception and argumenta-
tion on a global scale is changed, and those who make
arguments that are critical of West-centric discourses
can feel that their arguments are sufficiently heard and
fairly understood, it would be difficult to persuade
98 Onuma Yasuaki
those desperate peoples to refrain from resorting to

violence. These are fundamental challenges for the
legitimate global order in the twenty-first century 49.
(3) The need to minimize conflicts between ego-

centric, unilateral universalisms
Another phenomenon which requires the perspective
to see the world in terms of civilizations is the emer-
gence of the Asian powers, represented by China and
India, as candidates for superpower status in the
twenty-first century. These two powers had been an
empire or a central State (or political entity) in their
respective regions for a long period of time. They had
been accustomed to behave according to their respec-
tive egocentric universalism 50. Yet in their recent his-
tory they suffered from Western — and Japanese, in the
case of China — imperialism and colonialism. Both
peoples in China and in India seriously suffered from
military invasions, colonization or semi-colonization,
discrimination based on racism and economic exploita-
tion by colonial and imperial powers. A strong sense of
humiliation and victimization based on the memory of
this recent history characterizes the way they see
today’s world. They tend to interpret the actions and
claims of the former colonial and imperialistic powers,
most of which are today’s leading Western nations,
through the eyes with these historical memories and
experiences.
It is thus no wonder that both nations perceive
today’s West-centric system of the global society as
somewhat uncomfortable and alien. Neither Chinese
nor Hindi is an international language. Neither Confu-
49
50
As to China, for example, see Chapter IV, section II,
3.
cianism nor Dharma is a global norm. Today’s global

order does not represent their historically deeply rooted
cognizance or understanding of the world, which
underlies their ways of thinking and patterns of behav-
iour, including their foreign policies. It is likely that
this sense of unnaturalness and discomfort will
increase as their substantive power increases in the
twenty-first century. In the future, they may come to
feel even more frustrated with the West-centric con-
struct of the global society, which does not fit their
cognizance, their sense of the world in terms of cul-
tures, religions and civilizations. When they become
more powerful and find that they can assert more
aggressively their understanding of the world to others,
including the United States and West European nations,
they will likely do so.
It is true that China has lived as an independent
actor in the modern sovereign States system for more
than a century, and India for some 60 years. They have
acted, like many other nations, on calculations of their
self-interest within this system. Like Western nations,
they have thus far behaved basically in accordance
with international law, although they have sometimes
violated some particular norms of it. However, when
they understand the “self” and “others”, when they
understand the “interest” and “law”, as well as other
ideas or concepts, the way to understand them is
embedded in their cultural, religious, historical and
societal, in a word, civilizational, contexts and under-
pinnings. Even if they appear to interpret the world in
the same way as their Western counterparts do, there
remain a number of differences due to these civiliza-
tional factors. The cognitive framework through which
they recognize and interpret them can, often in an
unconscious way, be different from the internationally
predominant cognitive framework of the twentieth cen-
tury.
100 Onuma Yasuaki
The United States, on the other hand, has been

accustomed to see the world from its position as a
superpower, and in recent years, as the only super-
power, with its idealistic, self-righteous universalism.
The United States will, unless it deliberately pays far
more attention to cultural, religious and civilizational
aspects of other nations and peoples, find it difficult to
understand why these new superpowers behave in such
an aggressive and different manner. Even West Euro-
pean nations, which are less self-righteous than the
United States yet remain ignorant of non-Western civi-
lizations, will be embarrassed by these new confronta-
tional situations.
In order to minimize the serious consequences aris-
ing from these possible conflicts of the understandings
of the world held by the different superpowers, we
need to have a cognitive framework through which we
can see ways of thinking of the emerging superpowers.
We need a perspective which can pay more attention to
their deeply rooted psychological underpinnings. The
transcivilizational perspective that I have been advo-
cating can respond to such needs.
(4) The functional notion of the transcivilizational

perspective
I am not claiming any cultural or civilizational
determinism. On the contrary, the transcivilizational
perspective that I propose opposes any substantiation
or reification of civilizations or cultures. It does not
assume the monolithic entity of culture or civilization.
Humans do not belong exclusively to a particular cul-
ture or civilization. In most cases they sense, think and
behave according to plural civilizations and cultures
simultaneously. Why ? Because humans are born and
raised, and learn how to understand the world and
behave accordingly, in a particular social setting,
which is always featured by plural cultures and civi-

lizations. Any human society comprises accumulated
strata of various kinds of historical experiences. These
experiences include a number of cultures and civiliza-
tions of the past. Any society, any social setting is
hybrid in terms of culture and civilization.
For example, today’s West Europeans think, see,
feel and act according to modern European civilization,
which is basically secular. However, albeit uncon-
sciously, most of them also think, see, feel and act
according to Christian civilization or culture, which
originates in the pre-modern period. Many of the
words they use, the ways they eat, and many other pat-
terns of behaviour they adopt are marked by the teach-
ings and norms of Christianity. And these teachings
and norms of Christianity are different from nation to
nation, region to region, reflecting the historical expe-
rience of reception of Christianity. They further spend
their daily lives by adopting a lifestyle of mass produc-
tion, mass consumption and mass disposal. This way of
life, often associated with the “American way of life”,
has been adopted by most people in developed
societies. It can be characterized as the global civiliza-
tion or culture of the twentieth century. Moreover,
most European children grow up by watching Japanese
animation films on television, and unconsciously
adopt important elements of contemporary Japanese
culture.
In this way, West European people see, think, feel
and act according to plural cultures and civilizations
simultaneously. They do not exclusively “belong to”
some national culture, modern European civilization or
Christian civilization. For other people, whether they
are Australians, Cubans, Indonesians or Nigerians, the
situation is basically the same. Many people in the
developing countries may not enjoy a lifestyle of mass
production, mass consumption and mass disposal. Yet,
102 Onuma Yasuaki
many of them still enjoy Hollywood movies, Coca-

Cola, Macdonald’s, Google and other “foreign” or
“American” or “Western” cultures, interpreted and fea-
tured in their own ways. “Simultaneous belonging” to
pluralistic cultures and civilizations is thus common to
all humanity. We should therefore define the concept of
civilization and culture in functional terms that allow
humans to behave according to plural civilizations and
cultures simultaneously. This is the notion of civiliza-
tion and culture that we assume when we talk about
transcivilizational perspective.
Defining the notion of civilization as excluding the
possibility of multilayered “belonging” to plural civi-
lizations is practically inappropriate as well. People are
generally proud of cultures and civilizations which
they regard as their own. If the contemporary life of a
particular people is miserable, they tend to glorify the
mystified civilization to which they believe they
belong, disclaiming other civilizations. If we define
civilization as allowing humans to belong to only one
civilization, such an exclusive notion of civilization
will contribute to the glorification of a particular civi-
lization at the cost of other civilizations. This would
invite us to the conclusion of a “clash of civilizations”.
Appreciating transboundary phenomena in terms of
culture and civilization contributes to a multi-dimen-
sional understanding of the complex realities of the
world.
However, the substantive and mutually exclusive
notion of cultures and civilizations does not. This is a
major reason why we should adopt a functional, not a
substantive, notion of civilization in the transciviliza-
tional perspective.
Emphasizing the need to adopt the transciviliza-
tional perspectives understood in a functional manner
does not mean to argue that States choose their actions
based on exclusively or even mainly cultural or civi-
lizational considerations. Policy makers generally

choose policies including those related to international
law mainly from a perspective of “national interest”.
They may be further motivated by the perspective of
the interests of their own groups (a faction, poli-
tical party, and privileged class or group to which they
belong, etc.).
However, this does not necessarily mean they choose
policies based on some neutral, rationalistic calcula-
tions of competing interests.
In some cases, a majority of ordinary citizens may
share a strong nationalistic or hostile emotion against
some other nation and does not allow their policy mak-
ers to take a rational policy based on a clever calcula-
tion of costs and benefits. In some other cases, policy
makers themselves may have such strong feelings.
Even when the policy makers calculate their national
interest “rationally”, such rational calculation is still
influenced by their cultures, religions and other civi-
lizational factors. The very act of interpreting and con-
structing the “national interest” cannot be dissociated
from their cultural, religious and civilizational assump-
tions and understandings of the self and others, and the
world at large. Even their understanding of a “nation”
or “interest” is socially constructed based on their
images and perceptions which cannot escape from cul-
tural and civilizational understanding of the world and
history.
When, for example, China or India will behave as a
superpower or a major power in the twenty-first cen-
tury world, based on their own calculation of their
“national interest”, the very substance, procedure
and/or forms of this national interest may differ signi-
ficantly from those of exiting Western superpowers or
major powers. In some other cases, although their lead-
ers may want to behave in such a way as to gradually
and smoothly change the existing global order, which
104 Onuma Yasuaki
is West-centric, their people, obsessed with a sense of

victimization and humiliation, may not allow them to
decide for such a “rational” policy. They may demand
their leaders to challenge the existing West-centric
order more violently. The concept of rationality itself is
culturally and civilizationally bound.
On the part of existing superpower and major
powers, which will likely be declining in relative
terms, there should be frustrations in that what they took
for granted in the twentieth century will no longer be
self-evident in the twenty-first century. Not only eco-
nomic and military powers, a number of invisible
institutions such as setting agenda, ways of running
international organizations and carrying out their
mandates, languages, etc. will likely be challenged by
emerging powers with differing perceptions of the
world. When the exiting superpower and major powers
negotiate with emerging powers, conclude a treaty and
implement its provisions, this kind of cultural and civili-
zational conflicts will more likely occur.
For example, will a “superpower” China in the
twenty-first century not be frustrated by the fact that
English is almost self-evidently the “international” lan-
guage, although Chinese is the language which is used
by the largest number of humanity as a national lan-
guage ? In terms of “rationality” it may be more
rational for the humanity to adopt Chinese as “interna-
tional”, i.e. common language, of the world. Here we
may recall that “international” language is a product of
power in the international arena. English became the
international language when the United States, suc-
ceeding the United Kingdom hegemony, established
hegemony in international society. French, once the
predominant language had to hand over its status as the
“international language” to English with the relative
decline of its power in international society in the early
twentieth century.
(5) Changing the perspective : a crucial task for

international lawyers
As referred to earlier, the cultural and civilizational
differences have always existed even during the mod-
ern period when the State-centric construct of interna-
tional society has been predominant, and certain policy
makers have been aware of their importance. Yet,
under the sovereign States system, which has been pre-
dominantly West-centric — starting from the meridian
as a common institution of the world to English lan-
guage as the common international language —, these
cultural differences were mostly hidden. In other
words, non-Western nations either consciously or un-
consciously refrained from asserting their own ways,
because they knew well that it would be useless for
asserting them. This situation may well change with
the shift of power balance between existing powers and
emerging powers.
The transcivilzational perspective is a re-concep-
tualization of the already exiting perspective from
which people see transboundary or global affairs in
terms of civilizations, including cultures and religions.
It enables us to see, understand and construe the prob-
lems not merely as an issue of conflicting national
interests as interpreted in a “rationalistic” way, which
itself is defined and interpreted according to a mod-
ernistic, West-centric and State-centric manner. It also
enables us to see the problems not from a modernistic,
West-centric and transnational perspective of “global
civil society”. The transcivilizational perspective thus
enables us to be aware of a number of ideas and facts
which have been overlooked by the predominant per-
spectives in the twenty-first century.
Further, by adopting the transcivilizational perspec-
tive, we can see relations between law, cultures, reli-
gions and civilizations as well as their changes over a
106 Onuma Yasuaki
substantial period of time. We can see that they have

influenced each other, and have transformed them-
selves through this mutual influence. Accordingly, by
adopting the transcivilizational perspective, we can
elucidate the changeability and intracivilizational
diversity in terms of various types of cultures within a
larger scheme of civilizations. Appreciating trans-
boundary phenomena through such a perspective will
contribute to a multi-dimensional and multi-layered
understanding of the complex realities of the world.
In this way, by adopting the transcivilizational per-
spective as supplementing and modifying international
and transnational perspectives, we can enhance our
ability to understand complex ideas and phenomena on
international law in the twenty-first century. Although
we should avoid any kind of essentialization of cul-
tures and civilizations, still we have to take into con-
sideration cultural and civilizational factors defining
and influencing human thoughts and behaviours
including those on international law. What is needed is
a correct conceptualization and proper assessment of
these factors, not overestimating them nor negating
their actual functions. In the following chapters we will
see how we can better understand international law by
adopting these three layered perspectives : interna-
tional, transnational and transcivilizational.
International law is the law of international society.
Or, inasmuch as its participants have comprised vari-
ous non-State actors, international law today may be
characterized as the law of global society. Yet there are
a large number of people around the world who do not
feel comfortable with international law. They still
regard international law as an expression of, and a tool
of, Western dominance over the world. They also find
some of its basic tenets alien to their own cultural and
religious traditions. Muslims are a leading example.
Some of them claim that Islamic law rather than (West-
centric) international law should regulate relations of

humanity including relations between nations. Not only
Muslims but almost all the non-Western nations, whose
populations make up more than 80 per cent of the
world’s population, have, to a greater or a lesser
degree, reservations to today’s international law. They
find it difficult to see, feel and call international law as
our international law.
We, the people of the entire globe, should be able to
talk of our international law or law of global society
not only in the geographical sense, but also in the civi-
lizational sense. Otherwise, international law is not
recognized as legitimate, and cannot carry out impor-
tant functions in a diverse, multi-polar, multi-centric,
multi-cultural and multi-civilizational global society
of the twenty-first century. For international law to
become truly global without the qualification of “Euro-
centric” or “West-centric”, it must transform itself by
adapting to perspectives of humanity in a more plural-
istic, egalitarian and nuanced manner, thereby respond-
ing to the multi-polar and multi-civilizational reality of
the twenty-first-century world.
International law is nothing other than what we, the
people of the entire globe, regard as international law
and what we act according to. It is a construct of
nations, peoples, humanity of the time. If we can
change our perception and understanding of interna-
tional law in a way that is more responsive to this
world of multi-polarity and multiple civilizations, and
act based on such a perception, then international law
can become more responsive to today’s realities and to
the aspirations of a greater portion of humanity. We
must thus change our cognitive framework on interna-
tional law and thereby turn current West-centric inter-
national law into a globally more legitimate interna-
tional law. In order to realize this objective, those who
are professionally engaged with international law must
108 Onuma Yasuaki
be the first to change their predominant cognitive

frameworks on international law and to disseminate
this new perspective to ordinary citizens. This should
be one of the most valuable tasks of international
lawyers and other experts who are engaged in the study
and practice of international law.
109
CHAPTER II
POWER AND LEGITIMACY

IN INTERNATIONAL LAW
“God, give us grace to accept with

serenity the things that cannot be
changed, courage to change the things
that should be changed, and the wisdom
to distinguish the one from the other.”
(Reinhold Niebuhr, a US theologian
in the twentieth century.)
Introduction
We have seen in Chapter I that international society
is a society where humans are engaged in mutual and
common affairs mainly through the institution of sov-
ereign States. Humanity created international law as an
integral part of the sovereign States system. It has
managed transboundary and global affairs making use
of this law together with other international or transna-
tional institutions such as global market economy,
modern diplomacy, and international financial institu-
tions. Humanity has thus maintained an international
legal order for more than a century 51.
International law has been, still is, and will continue
to be, an integral component of the modern sovereign
States system. On the other hand, the role and func-
tions of international law have gradually been widen-
ing. Today, roles and functions of international law
associated with societal activities or relations which
are not necessarily conducted by States or related to
State activities are also important. Although the State-
51
For details, See Chapter IV.
110 Onuma Yasuaki
centric construct of the world will most likely continue

in the twenty-first century, international society com-
posed of States will gradually assume more character-
istic features of a global society, where the significance
of various kinds of non-State actors will be more con-
spicuous.
When we conceive of any legal order in human
society, including international or global society, we
must consider two elements. The first element is legiti-
macy 52 or justice, and the second is power. Legal
order can be neither created nor maintained without
these two elements. When conceiving of international
law in the twenty-first century, we must elucidate these
two elements of international law and their relations
with each other, and with other matters associated with
international law.
First, law should be, and usually is, associated with
legitimacy. Here legitimacy is understood in terms of
justice, fairness, equality, accountability, consistency,
52
International legal studies have always dealt with the
problem of legitimacy in various terms, various forms and
various ways. In recent years, Thomas Franck’s The Power
of Legitimacy among Nations (Oxford University Press,
New York, 1990) was one of the most influential works
dealing with this important subject. However, the defini-
tion of legitimacy adopted in this book was peculiarly nar-
row. It is difficult to use the concept of legitimacy adopted
in this book for international legal studies because it is too
different from the general terminology of legitimacy. Even
Franck himself changed his position in his following work,
Fairness in International Law and Institutions (Oxford
University Press, New York, 1995). In this and other chap-
ters, the term “legitimacy” is used according to the most
general usage of the term, i.e. the state of affairs that is
characterized and perceived as fair, righteous, justifiable,
etc., as described in the text. See also Ian Clark, Legiti-
macy in International Society (Oxford University Press,
New York, 2005) ; idem, International Legitimacy in
World Society (Oxford University Press, New York, 2007).
representation of societal members, and other norma-

tive values as recognized by societal members. Legiti-
macy has substantive, procedural and historical or
genealogical dimensions. When we refer to law, whether
it is international or domestic, or any other law, we
generally assume that law is valid and effective when it
is recognized as legitimate by the addressee of the law
as a whole.
Law has generally been considered as a prescriptive
norm seeking to regulate the conduct of its addressee,
who comprises all members of a society. Law can, and
should, be enforced against the will of the addressee. If
law is not recognized legitimate by its addressee as a
whole, it would be difficult for the law to function as
an enforceable prescriptive norm regulating the con-
duct of the societal members. Without a normative
consciousness of the society as a whole recognizing the
legitimacy of the law addressed to them, the law can
neither be effective nor even be valid in the society. We
certainly know that there are cases in which a law that
is perceived as unjust or illegitimate is enforced by
some power against the will of the addressee. But we
also know that this situation cannot last eternally. At
some point such a regime is replaced by a new ruler
and a new law. History is full of such examples.
It is generally said that the organized power of the
ruler or the State guarantees law. This is so-called
enforcement mechanism or “organized violence”
guaranteeing the effectiveness of law. However, this
“organized violence” is a group of humans who ulti-
mately behave as societal members with a human mind.
Changes of political regimes, including revolutions, are
possible and have actually occurred, because this “orga-
nized violence” is not a mindless mechanism. It is
composed of humans, who sometimes act against the
will of its patron, i.e. the ruler or the Government.
Thus, we can see that it is the normative consciousness
112 Onuma Yasuaki
of the addressee of the law as a whole that constitutes

the ultimate basis of law.
If the social order is perceived as illegitimate, unfair
or unjust by members of the society, it will be difficult
to secure compliance with the rules legitimating and
underpinning such an order. The order would have to
be maintained through constant threats of negative
sanctions against such disobedient members. This would
be too costly. If the primary raison d’être of order in a
society is to provide security to its members, then an
order maintained primarily through constant threat of
sanctions does not deserve the name of “order” 53.
On the other hand, law is a tool of power. This has
been another predominant understanding of law. This
feature of law can seriously hurt the legitimacy of law.
Further, law itself is a power inasmuch as it can be
enforced. If the order lacks support by power, such an
order would be ineffective, and, here again, does not
deserve the name of “order”. The so-called “New Inter-
national Economic Order” in 1970s is a good example.
This “order” was vehemently advocated by developing
countries and a certain number of experts, and was
adopted in the form of UNGA resolutions. But it
remained basically on paper. It lacked support from
major developed countries, especially the United States,
which possessed various kinds of effective power. With
a persistent resistance of those who possess substantive
power, the “New International Economic Order” could
not become a real order.
Law is a power also in the sense that law as an idea
53
Here I am not arguing on the “definition” of law or
order. I believe that the definition is dependent on the con-
text or objective where such “definition” of order is
referred to, and cannot be given in abstract. Here, I would
just like to point out the general relationship between what
has been generally called order and the perception of the
addressee of such order.
can and does construct the world, including power

itself. This aspect of law has not been sufficiently
recognized or discussed in the study of international
law. However, in order to elucidate the problem of law
and power, it is necessary to explore this uncultivated
area of study 54. International law, as the law of inter-
national society, prescribes the behaviour of States, is
a tool of States, and itself a constructive power. Under-
standing international law requires understanding all
these aspects of international law in a realistic and
comprehensive manner.
International law is an essential means for the co-
existence of sovereign States, the awful entities with
effective means of violence capable of killing thou-
sands of people. It is also an essential means of admin-
istration and co-operation in global society. The activi-
ties of our life are conducted on an everyday basis as
the realization of international law and national laws,
which administer trade, transportation, finance, dis-
semination of information and the like. At the same
time, as suggested above, law reflects power. The basic
structure and characteristic features of international law
reflect values and interests of powerful nations. It also
reflects values and interests that powerful non-State
actors such as multinational corporations, leading NGOs
and influential media institutions seek to realize. The per-
spectives from which we see international law them-
selves reflect these power structures in global society.
54
The argument in this chapter is based on my earlier
writing, “International Law and Power in the Multipolar
and Multi-civilizational World of the 21st Century”, to be
published in Richard Falk, Ramesh Thakur and Vesselin
Popovski, eds., Legality and Legitimacy in International
Order (Oxford University Press, New York, forthcoming).
There are, however, some differences in the argument of
this chapter from the argument provided in this book,
reflecting the development of my thought.
114 Onuma Yasuaki
Law, which contributes to grounding, organizing,

prescribing, and co-ordinating behaviour of societal
members, does not exist in a power vacuum. In this
chapter, I will elaborate on the question of the relations
between law and power, taking into consideration the
problem of legitimacy in the global society of the
twenty-first-century world. The relations between power
and legitimacy are often explained as mutually oppos-
ing. But they are far more complex than such simplistic
dualistic antipathy. In order to appreciate these complex
aspects and dimensions, we need to deal with the prob-
lem not only from international and transnational per-
spectives, which are the prevalent perspectives of the
twenty-first-century world dealing with international law,
but also from a transcivilizational perspective.
The task is enormous. What I can do is limited to
show an extremely simplified sketch of the whole pic-
ture. Still, I hope this sketch can contribute to discern-
ing some of the complex aspects and dimensions of the
problem on law, power and legitimacy in the global
society, thereby demonstrating the usefulness of the
three-layered approach to international law : interna-
tional, transnational and transcivilizational. This chapter
can thus be characterized as an application of the
theoretical framework that I proposed in Chapter I to
the specific problem of law and power in global society.
I. Law and Power in Global Society

1. International law versus the power of States — a
prevalent image on law and power in international
society
(1) Complex and multidimensional relations between
law, legitimacy and power
In today’s world, where a huge portion of humanity
lives in a highly developed scientific and technological
civilization, humanity needs similarly highly devel-

oped laws and co-ordination between such laws. Sov-
ereign States, which are major actors of international
society, sometimes violate norms of international law.
Yet, law and its proper functioning is of critical impor-
tance for managing human affairs in international soci-
ety. An international society where non-compliance
with international law is the normality would be a
world where the life of humanity would be simply
impossible.
Relations between law and power are complicated,
multidimensional, and sometimes contradictory. Law
controls power, but power violates law. Law is an
instrument of power. Power produces law, but law
grounds power. Law is an instrument of communica-
tion, mediating relations between powers. Law is a
legitimate and authoritative ideational instrument for
socially constructed and shared knowledge, under-
standings and interpretations of various powers, even
including those warring with each other. The notion of
law has thus various aspects and dimensions ; so does
the notion of power.
International law accommodates and reflects various
kinds of power relations in international society. These
relations include those between the powerful States,
between the powerful and powerless States, and
between the powerless States. They further include those
relations involving non-State actors. International law
defines complex rules and principles of the distribution
of power in terms of territorial sovereignty and per-
sonal sovereignty of States, as well as various kinds of
jurisdiction. States sometimes violate specific rules on
this distribution and relation of power. But they have
generally observed and made full use of international
law, which they themselves created and have found, on
the whole, useful. The status and function of law in
international society is defined and characterized by its
116 Onuma Yasuaki
relative relations with power. We cannot see the figure

of law by examining law alone. Nor can we understand
power by examining power alone.
Like many other laws, international law primarily
functions as prescriptive norms or norms of conduct
among international actors, mainly States 55. Interna-
55
Hugh Thirlway criticizes my view that international
law should be characterized primarily as prescriptive
norms of conduct among States. He argues that whereas
domestic law has concepts of “debt of honour” and “unjust
enrichment”, international law does not. Therefore,
according to him, there should be no conceptual difference
between prescriptive norms of conduct and adjudicative
norms or norms of adjudication (Hugh Thirlway, “Con-
cepts, Principles, Rules and Analogies”, Recueil des cours,
Vol. 294 (2002), pp. 316-318)). This argument misses the
point. Whether or not the concept of “debt of honour” or
“unjust enrichment” exists is not a fundamental question
with regard to the characterization of law, including inter-
national law. This is just a minor, technical question. That
law is a prescriptive norm is one of the most fundamental
characteristics of law which can be observed both in the
East and in the West, as in the ancient, medieval and mod-
ern times. “Thou shall not kill” or “Thou shall not steal”
which are characterized as law in most societies are typical
examples of law as prescriptive norms. Most norms of
international law, whether they are the prohibition of use
of force, non-intervention, or protection of human rights,
prescribe States to refrain from some act or enjoin one.
Norms applied by the judiciary presupposes the norms that
seek to regulate the conduct of States or some other sub-
jects of international law. Prescriptive norms of conduct
thus logically precede adjudicative norms. Because the
judiciary in international society generally lacks compul-
sory jurisdiction, there are a number of international legal
norms that cannot function as adjudicative norms. Yet,
most of these non-adjudicative norms can, and actually do,
function as international legal norms. Thirlway also raises
a question as to the legal nature of non-adjudicative
norms. However, as long as the participants of interna-
tional law share the perception that a certain norm has
characteristic features of law based on the shared percep-
tional law has generally been perceived as weak norms

of conduct, because it has often been violated in such
conspicuous cases as military invasions of smaller
nations by powerful States. In actuality, however, inter-
national law, including norms regulating daily global
communication, trade, and transportation, has been
well observed, or at least not violated in most cases.
Relations between international law and power are far
more complex and nuanced than a simple dichotomy
between observance and violation.
This is also true with legitimacy. The perception on
legitimacy shared by societal members is not limited to
a simple one of legitimate or illegitimate. Whether an
act or institution is perceived as legitimate is basically
a question of degree. A certain act can be perceived as
more legitimate than the other. Judgment on a certain
legal rule is influenced by this relative assessment on
legitimacy.
A judicial judgment rendered by a court generally
characterizes a certain act as legal or illegal. This is a
characteristic feature of a legal judgment of the judici-
ary. However, in non-adjudicative processes of law, a
certain legal norm can be judged or assessed as having
tion of law and this perception is shared and followed by

the overwhelming majority of members of international
society, then the norm in question can be characterized as
a legal norm. It is not necessary at all that this norm can be
applied by the ICJ. It is true that there are norms of law
which do not necessarily prescribe acts of its addressee
(for example, norms which H. L. A. Hart calls secondary
rules, or some institutional rules). However, the existence
of such rules does not mean at all that the primary charac-
terization of law including international law as prescrip-
tive norms of conduct should be denied. As to the funda-
mental character of international law as the prescriptive
norms of conduct and the auxiliary character of interna-
tional law as the adjudicative and some other functional
norms, see further Chapter III, section II.
118 Onuma Yasuaki
a higher degree of legality than the other, reflecting the

relative nature of legitimacy. This can be seen in the
cases where a legal rule is used as a means of settling
conflicts through negotiations between parties, or an
assessment is given by an observer on an issue where a
certain legal rule is invoked by the parties in conflict
but its interpretation differs from one to another (law
as used in an invocational manner). It can also be seen
in the cases where a person sees something in relation
to or in association with international law and seeks to
understand, interpret and evaluate it according to the
framework of international law (law as used in a refer-
ential manner) 56.
International law has been perceived primarily as
prescriptive norms addressed to States, and has func-
tioned as such. It has been observed, violated, referred
to, invoked, applied, and realized or implemented
mainly by States. The States actually appear and act
through State organs such as governments, military
forces, parliaments and courts. How then, do these
agents refer to international law and are actually
involved in international law ? International law has
also been referred to, discussed and invoked by non-
State actors such as politicians, enterprises, NGOs,
media institutions or journalists and ordinary citizens
in various forums such as national parliaments, various
media such as newspapers, TVs, journals and websites.
What are the concrete scenes where international law is
56
I owe this concept of three modes or manners of law
— application of law by the third party, invocation of law
by parties in conflict and reference of law by a single party
— to Saito Tamitomo, “Kokusaiho to kokusai kihan : ‘soft
lo’ wo meguru gakusai kenkyu no genjo to kadai”
(International Law and International Norms : A Review
and Agenda for Interdisciplinary Studies on ‘Soft Law’),
Shakai kagaku kenkyu (Journal of Social Science), LIV,
No. 4 (2003), pp. 41-80.
referred to, invoked, discussed, utilized, applied,

implemented, violated and vindicated by these partici-
pants of international law ? When, where and how does
international law become visible ?
(2) Cases in which international law is actually dis-

coursed and used in a visible manner 57
When State organs such as parliaments, govern-
ments or courts enact laws, carry out policies, or
review cases judicially, they examine their own acts in
advance and in action from various perspectives. These
examinations include the review of the legality of their
acts in terms of domestic law, including the constitu-
tionality of the act. They also include the examination
of whether their acts are in conformity with interna-
tional law. When a Japanese court reviews a certain act
of government when the Government is sued on
account of a violation of gender equality, it will cer-
tainly examine the ICCPR as an important standard of
the judgment. Likewise, when the US Government
seeks to protect US industry by temporarily prohibiting
the import of some foreign product, it will examine
relevant articles of the WTO Agreements.
State organs generally choose to act in conformity
with norms of international law. But in some cases they
choose to act contrary to international law. For
example, when a State does not have sufficient finan-
cial and/or institutional infrastructure to implement an
obligation imposed by a treaty to which it is a party,
the State has no other way but to choose an act which
57
This part is based on Onuma Yasuaki, “International
Law in and with International Politics : The Functions of
International Law in International Society”, European
Journal of International Law, XIV, No. 1 (2003), pp. 105-
139.
120 Onuma Yasuaki
is contrary to this obligation under international law.

Likewise, when a provision of the constitution of a
State requires its State organ to act contrary to a partic-
ular norm of international law, in most countries, where
the constitution is superior to international law under
the respective constitution, the State organ will choose
to act in accordance with the constitutional require-
ment, thus violating international law. Further, when a
Government considers that some vital interest of the
State requires action contrary to international law, it
will most likely choose to carry out such action.
When a State organ acts in a legally doubtful man-
ner in terms of the State’s compliance with a certain
norm of international law, the interpretation of the obli-
gation which this norm imposes on the State becomes
an object of controversy in various ways and various
forums. For example, if the Government of State B
interprets some act of State A as violating a right of B
under international law, it may protest A’s act. The
State B may take a countermeasure against the act of
State A, or require some reparation, by alleging that its
right or interest protected under international law is
violated by the act of State A. If an individual C con-
siders a certain act of the Government of State A as
violating his or her right protected by a human rights
treaty to which State A is a party, C may sue State A in
a court that has jurisdiction over the acts of State A. C
may also inform to human rights committees attached
to human rights treaties to which A is a party. The act
of the Government of State A may also become an
object of controversy for political parties, media insti-
tutions, and pressure groups or NGOs in State A. It
may further become an object of controversy for inter-
national NGOs, third party States and global media
institutions.
In these cases, the act of the Government of State A
becomes an object of scrutiny under international law
in various forums. In the first case, diplomatic negotia-

tion between State A and State B is a main forum or
arena where the act of State A is examined. Other
forums include organs of various international organi-
zations such as the UNGA or the UNSC, or interna-
tional judiciaries or dispute settlement organs such as
the ICJ and the WTO dispute settlement mechanism.
Here, the issue of international law can typically be
seen from a State-centric, i.e. international, perspec-
tive.
In the case where the right of individuals is claimed
to be violated by a State, the major forum or arena can
be a domestic court. This is particularly the case in
developed countries, where the judiciary actually func-
tions well under the constitutional guarantee of its
independence. In countries where the judiciary does
not necessarily fulfil its expected role for various rea-
sons, the major forums may be various organs in inter-
national organizations or monitoring bodies of human
rights treaties, such as the Human Rights Committee
under the ICCPR of 1966. Even with the cases in
developed countries these international or regional
monitoring bodies and international human rights
courts can be important forums also. The national par-
liament of the State and domestic and international
media can also be forums of the issue. Intergovern-
mental negotiations or the ICJ are not major forums
where the problem of human rights is examined, con-
tested and reviewed under international law, although
there have been notable exceptions.
As these examples suggest, actual scenes where
international law comes to be discussed and disputed
include various forums or processes. They are
(1) diplomatic negotiations between Governments of
States in conflict ; (2) various organs in international
organizations such as the UNSC, and international con-
ferences ; (3) international tribunals such as the ICJ,
122 Onuma Yasuaki
UNCLOS or the ICC ; (4) dispute settlement mecha-

nisms such as WTO dispute settlement mechanisms or
arbitral tribunals ; (5) adversarial processes including
domestic courts between persons who claim their
rights have been violated by the acts of a certain
Government of a State, and the Government denying
the claim ; (6) discursive forums in the national parlia-
ment and local media of the States parties concerned ;
and (7) discursive forums in regional and global media
such as CNN, the BBC, the New York Times, as well as
various media run by or covering diverse groups such
as minorities, indigenous peoples, associations of influ-
ential corporations, labour unions, and major world
religions, etc.
In all these cases, the interpretation of a specific
obligation imposed by international law becomes a
crucial issue. Various participants of these international
legal processes resort to international law and use it as
a means of assessing the legality or illegality of the act
of a State. International law functions as the norm
assessing the legality of the act of the State in question
in these processes. Through these processes, interna-
tional law either legitimizes or delegitimizes the act of
the State in question as a consequence of legal judgment
given by those various participants of the processes.
(3) The most frequently asked question : “Can inter-

national law control the power of States ?”
As is demonstrated in subparagraph (2), interna-
tional law is primarily concerned with the actual
behaviour of States as prescriptive norms of conduct of
States. International law, like many other kinds of law
which humans have created and used, and are using in
many societies, functions primarily as a prescriptive
norm, enjoining States to take or to refrain from a cer-
tain specific act. Based on this primordial function of
prescription, international law evaluates the acts of

States, and consequently legitimizes or delegitimizes
these acts. It is therefore natural that the first question
ordinary people most often ask of international law is :
“Can international law control the power of States ? If
so, in which fields, under what conditions, and to what
extent can international law control the power of
States ?” This question itself presupposes that interna-
tional law is expected to control the power of States,
functioning as norms of conduct.
There have been a number of studies dealing with
this subject 58. Some experts, especially the “realists”
in international relations have argued that States vio-
late the most fundamental rule of international law, that
is, the prohibition of the use of force in international
relations, when they deem it necessary to do so. Based
on this judgment, those “realists” have argued that
international law essentially cannot control the power
of States. Others, represented by Louis Henkin 59, argue
that this kind of argument is based on a limited number
of conspicuous cases in which international law is
manifestly violated by the naked power of the State.
However, these experts assert, such an argument is
impressionistic. According to them, States almost
always observe almost all international legal rules. How
should we judge these controversies lasting for decades,
or even for centuries ?
58
I myself dealt with this subject in Onuma, “Inter-
national Law in and with International Politics”, op. cit.
The argument I present here is basically the one which
I demonstrated in this article. There are, however, a few
arguments which are different from those I made earlier,
reflecting the subsequent development of my ideas. See
also Onuma, supra footnote 4.
59
Louis Henkin, How Nations Behave : Law and
Foreign Policy (2nd ed., Columbia University Press, New
York, 1979).
124 Onuma Yasuaki
Most acts conducted by State organs certainly

coincide with international law. In many cases they do
so unconsciously. The major task of State organs is to
manage affairs to protect, support and administer the
life of their people. The ordinary life of people all over
the world would be impossible if States did not act in
accordance with international law in such areas as
global trade, communications and transportation. Like
domestic law, international law is embedded in the
management of contemporary life of humanity. State
organs usually act in accordance with international law
in order to fulfil their duties as State organs. Law-
abiding behaviour, whether the law is domestic or inter-
national, is the rule rather than the exception for
State organs.
Moreover, if a national Government acts contrary to
international law, it will usually be reacted to nega-
tively by a number of actors. These negative reactions
are based on the evaluative function of international
law, which prescribes the behaviour of States and
therefore provides a standard for assessing the legality
(and consequently legitimacy, in most cases) of the
acts of States. The possible agents of these negative
reactions include : (1) the Government of the State
whose right or interest is violated by the alleged illegal
act of the State concerned ; (2) a large number of
States which have a general interest in the maintenance
of the legal norm which is allegedly violated by the
State concerned ; (3) international organizations whose
mandate includes maintenance and/or implementation
of the norm concerned ; (4) international courts and tri-
bunals represented by the ICJ, when they judge the act
in question as illegal under international law ; (5) the
national court of the State concerned whose mandate
includes the guarantee of the legality of the actions of
State organs ; (6) opposition groups in the governing
party and the opposition parties in the state concerned
that are ready to criticize any failure of the Govern-

ment, including the bad reputation of the alleged ille-
gality of the act taken by the Government ; (7) domes-
tic pressure groups whose interest is protected by the
norm concerned ; (8) media institutions and NGOs that
believe the norm concerned should be observed on nor-
mative and/or substantive grounds ; and the like.
Forms of these negative reactions are also diverse.
They include : (1) resort to self-defence by a State
whose right is violated by the illegal act in question ;
(2) resort to countermeasures by a State whose right is
violated by the illegal act ; (3) demand of reparations
such as compensation, apologies and the restoration of
the status quo ante by a State whose right is violated
by the illegal act ; (4) non-recognition of the conse-
quence of the act by States which judge the act in ques-
tion as illegal ; (5) condemnation by international orga-
nizations ; (6) judgment by international and domestic
courts and tribunals judging the act as illegal, null and
void, with condemnation of the illegal act ; (7) sanc-
tions imposed by competent international organizations
judging the act as illegal ; (8) so-called “sanctions” by
powerful States and/or a large number of States judg-
ing the act as illegal ; and (9) harsh criticisms from
third party States, international organizations, domestic
opposition parties, opposition groups within the gov-
erning party, international and domestic media, NGOs,
etc. These negative reactions impose a high political
cost on the Government whose act is judged illegal
under international law. The national Government
generally seeks to avoid paying such a high cost by
abiding by international law.
(4) Failure and irrelevance of international law ?

In some cases, however, national Governments act
contrary to international law. A large number of Gov-
126 Onuma Yasuaki
ernments do violate various kinds of international legal

norms of human rights on a daily basis. Even if a
Government of a State wants to comply with a certain
norm of international law, it cannot help violating it if
the State lacks sufficient infrastructures to implement
the international legal norm. The national Government
will generally violate international law if the obligation
under international law contradicts with constitutional
requirements. Moreover, it cannot be denied that most
Governments will violate international law if they con-
sider that the vital interests of their nation require them
to do so.
Yet, it is not correct to say simply that international
law cannot control the power of a State, based on the
observation that the State sometimes acts in violation
of international law. The failure of international law to
control the power of a State is not the failure of inter-
national law alone. The failure is a consequence of the
malfunctioning of the entire system of the current
global society seeking to control the behaviour of
States in an orderly manner. A critical decision, for
example, of a certain Government to resort to the use
of force to settle an international conflict, in violation
of a rule prohibiting the use of force in international
law, may be a result of the combination of a number of
factors such as : (1) a failure of diplomacy ; (2) a heavy
economic blow dealt to the people of the State con-
cerned by the merciless global market ; (3) frustrations
held by domestic constituencies in terms of economic,
financial and trade policies ; (4) a sense of humiliation
shared broadly by the population of the State con-
cerned in regard to past wars, massacres, etc. ; (5) a
negative attitude held by major powers and influential
mass media institutions toward the religion of the
majority in the nation concerned, etc.
International law, together with prudent diplomacy,
wise economic and financial policies taken by major
powers and financial international organizations, appro-

priate news reporting and criticisms by influential
media institutions, and wise behaviour with a sense of
social responsibility by multinational corporations and
NGOs, can exert some influence on the decision mak-
ing of Governments. But on its own, international law
cannot “prevent” a Government from resorting to the
use of force. When a Government does so in violation
of international law, this is certainly a failure of inter-
national law prohibiting the use of force by States. Yet,
it is a failure of the entire global system, which
includes international law, diplomacy, etc.
Moreover, national Governments, which are fully
aware of the disadvantages and negative reactions they
would have to face when they violate international law,
usually seek to avoid the bad reputation of being
characterized as a violator of international law. They try
to abide by the norm concerned as much as possible.
Or, at least, they seek to give the impression that they
acted in accordance with international law. They thus
seek to legitimize their actions by interpreting the
norm in question to their advantage. In order to legiti-
mize their act, they make various efforts to decrease or
soften the degree of illegality of the act in question as
much as possible. In this way, international law still
continues to function as a legal norm even when it
appears to be flagrantly violated.
Further, even when a State violates international law
by, for example, resorting to force, international law
still continues to function in various other ways.
Completely arbitrary use of violence disregarding any
legal constraints invites desperate resistance from an
enemy. It can cause unbearable damage to the nation.
States thus pay a certain degree of respect to the norms
of international law on armed conflict by taking these
factors into consideration. Further, a war cannot last
indefinitely. At some stage, belligerent parties must
128 Onuma Yasuaki
make peace. Or, they may want to have a truce for a

variety of reasons. These factors require them to make
use of international law, which can provide a means of
communication between belligerents (international law
as a “common language”), and practical frameworks
and instruments for a peaceful settlement. States still
have to abide by international law in order to make use
of this critical practicality and instrumentality of inter-
national law.
As the above argument demonstrates, international
law certainly controls the power of a State either
directly or indirectly, in various forms, and to various
extent. The form and the degree of such control differ
according to a number of factors, and must be analysed
on an empirical basis. International law sometimes
fails to control the power of the State, but continues to
function as legal norms carrying out various societal
functions as law. Solely arguing that international law
can or cannot control the power of States is theoreti-
cally too simplistic and practically futile. A more
qualified and nuanced deliberation must be sought in
concrete fields such as human rights, environment,
trade and security.
2. Might makes right ?

(1) Power in the creation of international law : a
case of bilateral treaties
The idea of law and power that contrasts sharply
with the idea that law controls power is the one that
law is a handmaiden of power. This is an idea charac-
terizing law as a means of serving the interests of the
powerful. “Might makes right” is a typical expression
of this idea. It reflects certain realities between law
and power in human society, and is usually held by
“realists”. But, in what sense and to what extent does
this idea reflect the reality ? Also, when, how and

where can this relation between law and power be seen
in global society ?
When asymmetrical power relations between two
nations are reflected in the provisions of bilateral
treaties between them, this can be seen as one of the
most typical examples of the idea “power makes law”.
Such examples are numerous. One of the most famous
cases is that of “unequal treaties” concluded between
Western powers and Afro-Asian nations during the
period of Western imperialism in the nineteenth and
early twentieth centuries. Provisions unilaterally grant-
ing Europeans consular jurisdiction in Afro-Asian
nations are well known.
Yet, the story is not so simple. During the pre-mod-
ern period, various kinds of personal allegiance and
jurisdiction played an important role. The concept of
supreme territorial sovereignty did not exist. An insti-
tution which played an equivalent function of the con-
sular jurisdiction existed in many regions of the world.
A kind of limited jurisdiction to settle some conflicts
was often granted by a ruler to a group of people living
in his territory but owing allegiance to a foreign ruler
and sharing different religions and/or cultures. This
practice, common to various regions, was not consid-
ered as an “unequal treaty” during the pre-modern
period. It was only after people began to accept the
modern sovereign States system with the concept of
the supremacy of territorial sovereignty that people
regarded this practice as an unequal treaty.
More recent examples of a kind of an “unequal
treaty” in international law can be seen in the bilateral
investment agreements (BITs) between developed
countries and developing countries. They have been
concluded mainly after the 1980s. The BITs which are
concluded between developed countries are generally
regarded as “equal” treaties. However, the BITs which
130 Onuma Yasuaki
are concluded between the developed countries and the

developing countries reflect the unequal power
relationship between them. Historical backgrounds
in terms of legitimacy and power should be noted
briefly.
After attaining independence from colonial rule,
developing countries severely criticized traditional
norms of international law on foreign investment. They
claimed that relations between enterprises engaged in
exploiting natural resources and the countries where
these activities are undertaken must be regulated by the
permanent sovereignty of recipient States. From the
1960s to the early 1980s, their argument, supported not
only by Governments and experts in developing coun-
tries but by some experts in developed countries, had a
certain influence in international society. They suc-
ceeded in having the UNGA adopt resolutions favour-
able to them by the power of majority in the General
Assembly. The resolution on the Permanent Sover-
eignty over Natural Resources of 1962 and the resolu-
tion on the Charter of Economic Rights and Duties of
States of 1974 were leading examples 60. They sought
to change the norms of international law regulating
transnational investment by repeatedly adopting these
resolutions and by menacing foreign investors through
expropriation of foreign assets.
After the 1980s, however, those aggressive policies
of the developing countries suffered serious setbacks.
Most of them could not respond to the merciless global
market economy. The aggressive policies represented
by the nationalization of foreign assets alienated for-
eign investors. Many developing countries suffered
60
A/RES/1803 (XVII), UN GAOR. 17th Sess., Supp.
No. 17, UN doc. A/5217 (1962) ; A/RES/3281 (XXIX),
UN GAOR, 29th Sess., Supp. No. 31, UN doc. A/9631
(1974), respectively.
from the shortage of capital for their economic devel-

opment. They needed foreign investment and were
gradually forced to change their policies. Developed
countries, for their part, wanted their capital being
invested in developing countries, but not on terms of
the recipient States. They thus aggressively “proposed”
to developing countries to conclude BITs. These BITs
include provisions which prescribe, among other
things, (1) prohibition of local requirements of the
recipient State ; (2) compensation by market price in
cases of expropriation of the foreign assets by the
recipient State ; and (3) referral to international arbitra-
tion in case of disputes between the investing enter-
prise and the recipient State. These provisions basic-
ally reflect the demands of developed countries and
their firms investing in the developing countries. The
developing countries, which desperately needed
capital, mostly accepted these provisions. The BITs
with these kinds of provisions thus prevailed since
the 1980s.
Here again, however, the story is not so simple. The
BITs are not just “unequal treaties” between the power-
ful developed countries and the powerless developing
countries. In some developing countries, Governments
have used the requirements demanded by the devel-
oped countries as a lever to reform the domestic eco-
nomic structure and psychology of traditionally State-
owned, inefficient firms. In such cases, there has been
a tacit agreement between the Governments of devel-
oped and developing countries, as well as with the
investing firms of the former. Judging the whole pic-
ture of its creation, it cannot be denied that bilateral
treaties tend to reflect directly the power relations
between contracting parties. Yet, simply characterizing
BITs as reflecting asymmetrical power relationship
between the developed and developing countries over-
looks these complex aspects of the BITs.
132 Onuma Yasuaki
(2) Various types of power involved in the creation

of multilateral treaties
In the case of multilateral treaties, the relationship
between law and power in their creation is more com-
plicated than in the case of bilateral treaties. In addi-
tion to the power of individual States, the power of
numbers — i.e. the power of the majority in the treaty-
making process — plays an important role. There are
a number of cases where smaller nations succeeded
in inserting provisions favourable to them by resorting
to this power of the majority. The principle of “com-
mon but differentiated responsibilities” in the UN
Framework Convention on Climate Change of 1992 61,
and the more specified norm that imposes a concrete
obligation to reduce greenhouse gas only on devel-
oped countries and “countries with economies in tran-
sition” in the Kyoto Protocol of 1997 62, are leading
examples.
However, even in the conclusion of multilateral
treaties, the substantive military and economic power,
and the “soft” power of the powerful States, such as
the United States and West European nations, are at
work. During treaty-making negotiations, they can
menace smaller nations by alluding to the possibility of
terminating their economic and technical aid, of taking
economic and/or financial measures disadvantageous
to them, or even of resorting to some military or para-
military measures directed against some of them.
These powerful nations also have far more equipped
delegations in terms of knowledge and information, as
61
Preamble and Article 3 of the United Nations
Framework Convention on Climate Change, UN Treaty
Series 1771 (1992), pp. 166-170.
62
Art. 3 of the Kyoto Protocol to the United Nations
Framework Convention on Climate Change, UN doc.
FCCC/CP/1997/7/Add.1, 10 December 1997.
well as the ability to disseminate their ideas globally

through various media in an effective manner.
Global enterprises, media institutions and NGOs are
overwhelmingly West-centric. They exert much influ-
ence on the process of multilateral treaty-making. It
should be recognized, however, that some NGOs and
media institutions in the developed countries can
sometimes be highly critical of the Government poli-
cies of their own States. In the field of economic devel-
opment, policies against poverty, international humani-
tarian law such as prohibition on land marines and
cluster bombs, influential Western NGOs often work
together with developing countries.
Therefore, in the case of multilateral treaties, the
complex relations between the various types of power
produce the final outcome. On the one hand, the
“power of the majority” held by a large number of
weaker nations, i.e. basically developing countries,
exert a certain influence in the treaty making process.
On the other hand, the combined “hard” power (mili-
tary and economic power) and “soft” power (intellec-
tual and informational power) held by a smaller num-
ber of the powerful nations exert critical influence.
Further, the intellectual and informational power held
by Western experts, NGOs and media institutions,
which sometimes assists the former group and other
times the latter group, have some influence. In many
cases, provisions reflecting various demands of various
parties with different types of power co-exist in one
treaty. The two International Covenants on Human
Rights (the ICESCR and the ICCPR) of 1966 and the
UNCLOS of 1982 are leading examples. In each treaty,
one can see some provisions which reflect the demands
upheld by the power of major developed nations 63 and
63
Arts. 37-44 of United Nations Convention on the
Law of the Sea, UN Treaty Series 1833 (1982), pp. 411-
134 Onuma Yasuaki
other provisions reflect the demands of smaller nations

supported by their power in the form of the majority 64.
As has been demonstrated above, the power which
produces treaties is not limited to military or economic
power, as is generally assumed to be. The power
includes the power of the majority as well as intellec-
tual/ideational power held by various participants of
the international legal process. An important element
of the latter power is legitimacy. Without legitimacy,
the ideational power cannot have a persuasive capacity.
This can be apparently demonstrated in the creation of
multilateral treaties. However, even in the creation
of bilateral treaties, there is a room for the power of
legitimacy. Because no nation is monolithic, there
always exist pros and cons in each nation for conclud-
ing a treaty. If one party has legitimate grounds in their
demand, it has a greater chance for realizing this
demand, because such a legitimate demand can secure
not only full support from its own nation but also cer-
tain support from the domestic participants of the other
party.
(3) The primacy of Western power in the creation of

so-called “customary” international law 65
The problem of unwritten international law, which
is generally called “customary international law” will
413, and a number of provisions stipulating rigid civil and

political rights in the International Covenant on Civil and
Political Rights.
64
Arts. 133-191 of the United Nations Convention on
the Law of the Sea, supra footnote 63, pp. 445-477 ; Art. 1
of the International Covenant on Economic, Social and
Cultural Rights, UN Treaty Series 993 (1966), p. 5 ; Art. 1
of the International Covenant on Civil and Political Rights,
UN Treaty Series 999 (1966), p. 173.
65
For a detailed analysis, see Chapter III.
be fully discussed in Chapter III. Here, a brief note

relating to the element of power in its creation is in
order.
The notion of “customary” international law was a
product of power in two critical senses. First, many of
these “customary” norms were characterized as inter-
national law by a small number of Western Great
Powers. The norms characterized as “customary” were
based on the limited practice and opinio juris of a
small number of the Western Great Powers. Second, it
is generally leading international lawyers of these West-
ern nations who formulated domestic laws, domestic
court decisions, diplomatic practices conducted by
these Western powers, and arbitral awards between
nations as “general” State practice and opinio juris.
The intellectual/ideational power of the Western
powers, whose major agents were their international
lawyers, including practitioners, dominated the process
of the creation of “customary” international law.
When Afro-Asian nations attained independence
and came to form a majority in international society
after the Second World War, they severely criticized
such a power-based “customary” international law.
Since then, the situation has changed to a certain
extent. The tendency to identify customary interna-
tional law qua general international law based on the
judgments of the ICJ became more prevalent. The ICJ,
on its part, became more inclined to rely on multi-
lateral treaties and resolutions of the UNGA as cogni-
tive bases for identifying a certain norm as customary
international law qua general international law.
As will be dealt with in Chapter III, identifying
general international law by resorting to multilateral
treaties and UNGA resolutions is far more legitimate
than identifying general international law through a
mystical process of traditional “customary” interna-
tional lawmaking. In the latter case, participation in the
136 Onuma Yasuaki
lawmaking process was limited to an extremely small

number of Western nations. The fact that a large num-
ber of nations are parties to a multilateral treaty or that
a resolution is adopted by consensus in the UNGA
suggests that the requirement of representative and par-
ticipatory legitimacy for global lawmaking is satisfied
as seen from the international perspective 66.
Moreover, identifying norms of international law by
relying on the provisions of multinational treaties and
the UNGA resolutions is far more transparent than the
identification of the norms of international law relying
on the traditional “customary” international law. Even
if there are some deficits of democratic representation
and multi-civilizationality in intergovernmental agree-
ment or consensus in the creation of multilateral
treaties and the UNGA resolutions, such flaws can be
rectified more easily and effectively. Thus, the flaw
66
The behaviour of Governments could generally be con-
strued as representing the will of those nations’ peoples,
provided that this assumption is not rebutted by some
factual evidences. There is certainly a problem, as being
discussed recently by international lawyers in developed
countries, of to what extent existing Governments can be
characterized as legitimately representing their people.
When we see the international norm creating process of
multilateral treaties and UNGA resolutions from transna-
tional and transcivilizational perspectives, we can under-
stand that there are certainly problematic features in terms
of the democratic representation of the States parties. As to
the requirement of legitimacy with respect to democratic
representation, some Governments do not necessarily sat-
isfy it. Therefore, it is not sufficient to argue that a treaty
is ratified by a large number of States parties or that a
UNGA resolution is adopted by consensus. It is necessary
to see whether such a treaty or resolution actually repre-
sent the voices and aspiration of people on a global scale
by deliberately adopting transnational and transciviliza-
tional perspectives to supplement and modify the interna-
tional perspective, thereby enhancing their legitimacy. See
Chapter III.
of international law creating process through multi-

national treaties and the UNGA resolutions is far
less serious, if compared with the mystical process of
“customary” international law, where one could
hardly expect such transparency and accountability in
its creation.
In this way, as far as the question of global legiti-
macy is concerned, identifying general international
law through multilateral treaties and UNGA resolutions
is far more legitimate than identifying general interna-
tional law through the traditional theory of “customary”
international law. On the other hand, norms of gen-
eral international law created in the manner described
above may not necessarily enjoy sufficient support
from major powers. In such a case, their effectiveness
may be doubted. For example, the United States is not
a party to a number of multilateral treaties embodying
the public values or interest of international society as
a whole. The UNCLOS, the Kyoto Protocol and the
ICC Statute are leading examples. Although the United
States ratified the ICCPR as late as 1992, it severely
restricted its domestic effect by attaching reservations,
understandings, and declarations to it. The United
States has been explicitly refusing to ratify the ICESCR,
one of the most important and universal human rights
treaties. The same is true with the Convention on the
Rights of the Child. Under such circumstances, the
effectiveness of some norms of these treaties may be
seriously undermined in cases where the United States
is involved in the implementation of these norms.
In the twentieth century, when the power of the
United States was paramount, this was tacitly regarded
as something that international society had to connive
at.
From the perspective of legitimacy and qualities
requisite for the leading State of international order,
however, such a double standard is certainly unaccept-
138 Onuma Yasuaki
able. If a leader of a group requires other members of

the group to abide by the rule of the group and claims
his or her immunity from the rule, such a leader does
not deserve the name of a leader. Yet, the substantive
power of the United States as well as the ideational/
informational power of the United States, including the
ideational/informational power of the United States-
based media institutions, experts and NGOs, was so
great that this problem tended to be overlooked. Or it
was not considered as a serious problem 67.
However, in the twenty-first century, when the rela-
tive power of the United States will be declining, this
problem should not be overlooked. Not only from the
perspective of legitimacy but also from the perspective
of power, such a self-righteous attitude will not be
tolerated. Although the United States will no longer be
the only superpower, it will remain as one of the super-
powers. If so, its quality as a leader of the global soci-
ety will depend much on the image of a legitimate
leader. Refusal to ratify important multilateral treaties
as listed above, which should be taken as representing
the common will, value and interest of global society,
would seriously hurt the prestige of the United States
as a reliable, legitimate and respected leader of interna-
tional society. Self-righteousness is the worst enemy of
a legitimate and stable international order. We should
expect that the power of enlightened public opinion led
by concerned experts and NGOs as well as wise poli-
tical leadership of the United States will gradually
change the attitude of the United States towards impor-
tant multilateral treaties. This would greatly contribute
to enhancing the effectiveness of international law in
general. International lawyers, whether they are in the
67
Here lies a problem of the United States-centric dis-
cursive space in global society, which will be dealt with in
section III.
United States or in other nations, are one of such

important concerned experts who should exert their
influence with their expertise.
(4) The power and legitimacy of the United Nations

The United Nations is the organization that enjoys
the highest degree of legitimacy in international soci-
ety. This is based on the fact that it is an official organi-
zation whose authority, mandate and legitimacy are
explicitly recognized by a treaty with quasi-universal
validity (the UN Charter) and practice of almost all
nations, including the major powers. It has been man-
aged on the basis of such recognition and has often
acted in the name of the international community for
more than 60 years. Not only national Governments
but also non-State actors generally recognize such UN
authority and legitimacy in global society. At least in
relative terms, the perception and image of the United
Nations as the most legitimate organization represent-
ing the common values and interests of global society
is the one that is most widely shared by, and deeply
rooted in, the peoples of the world. Here lies the power
of the United Nations 68.
The General Assembly, composed of all member
States, enjoys the highest representative legitimacy
among all organs of the United Nations. Among the
68
On the other hand, the United Nations as an entity
enjoying the status of an independent subject in interna-
tional society is severely limited in its capacity, behaviour
and influence. In dealing with the problems involving
international peace and security, the most important act of
the United Nations is that of the Security Council, which
is composed of 15 member States. In most cases, the will
of the permanent member States — the United States, the
United Kingdom, France, Russia and China — and not the
Security Council per se, is crucial.
140 Onuma Yasuaki
numerous resolutions it adopts, some have significant

political meaning. However, this organ is weak as an
independent agent acting in a powerful, speedy and
effective manner. Because the General Assembly is
composed of some 190 member States, the “power of
the majority” applies in the adoption of resolutions. Yet
for the resolutions to be effective in important political
and economic areas, the power of the majority is not
enough. It needs explicit agreement or at least acquies-
cence on the part of the major powers. Lack of such
agreement or acquiescence can result in a resolution
which may appear normatively appealing but substan-
tially ineffective. The Charter of the Rights and Duties
of the States, adopted in 1974 with strong resistance
from major Western powers (especially the United
States), is such an example.
Resolutions adopted in the Security Council include
decisions with legally binding force. Resolutions adop-
ted under Chapter VII which “decide” certain enforce-
ment measures are typical examples. The provisions of
such decisions, particularly those addressed towards
States in general or all member States of the United
Nations can be an important cognitive basis for identi-
fying norms of (general) international law. Moreover,
because the resolutions of the Security Council are
adopted with the agreement of permanent members,
they enjoy a high degree of effectiveness in their
implementation. If the power of the General Assembly
lies largely in its representative and democratic legiti-
macy, the power of the Security Council lies basically
in its effectiveness.
Because the Security Council is a powerful organ
whose behaviour has a substantial bearing on interna-
tional relations, whether it behaves in accordance with
international law is a serious concern for international
society. The Security Council is to take measures from
the perspective of whether an act of a State breaches or
threatens “international peace and security” 69. Whether

the act in question is legal or not under international
law is not a primary concern of the Security Council
when it identifies breaches or threats of the “interna-
tional peace and security” and takes concrete measures.
Further, measures taken by the Security Council to
maintain or restore international peace and security
might not be in accord with some international legal
norms. In such cases, the relation between the power of
the Security Council and the norms of international law
becomes an issue of controversy 70.
The Security Council is an organ based on the UN
Charter. The Charter is a multilateral treaty with quasi-
69
Article 39 of the UN Charter provides that
“The Security Council shall determine the existence
of any threat to the peace, breach of the peace, or act of
aggression and shall make recommendations, or decide
what measures shall be taken in accordance with
Articles 41 and 42, to maintain or restore international
peace and security.” (http://www.un.org/en/documents/
charter/chapter7.shtml (last visit : 30 May 2009).)
70
This raises the problem of whether such an act of the
Security Council should be reviewed and, if found illegal,
be rectified or annulled by other organs of the United
Nations. In more concrete terms, the question has been
raised of whether the ICJ, the main judicial organ of the
United Nations, is or should be entitled to review the
legality of the acts of the Security Council. Some interna-
tional lawyers claim that the ICJ should have the power to
review the legality of Security Council actions. However,
if the ICJ actually uses such power and judges some acts
of the Security Council as illegal, this would raise a seri-
ous problem of whether such a judgment should, and can,
be implemented. In the Lockerbie case of 1992, the ICJ,
knowing too well of the disastrous consequences had it
judged the resolution taken by the Security Council as ille-
gal under international law, evaded confronting this diffi-
cult problem. It did not dare to judge the legality of the
measures taken by the Security Council, even though its
legality was highly dubious.
142 Onuma Yasuaki
universal validity, and occupies an almost constitu-

tional status in international society. As such, one
could reasonably assume that the Security Council has
an inherent obligation to act in accordance with inter-
national law. Further, the Security Council knows well
that the legality of its acts will enhance its legitimacy
and make it easier to obtain voluntary co-operation
from member States in implementing the resolutions it
adopts. It thus generally seeks to base its resolutions on
international law in order to secure their legitimacy so
that they will be accepted and implemented as volun-
tarily as possible by the UN members.
The Security Council thus takes legally doubtful
measures only in exceptional cases. In general, it acts
in accordance with international law and in such a way
as to implement norms of international law. Further,
although the competence to interpret international law
belongs to the judiciary, i.e. international courts such
as the ICJ, cases where norms of international law are
actually judged by the judiciary are exceptional. In
most cases, interpretations of the norms of interna-
tional law are disputed by States in conflict without
involvement of international courts. When such dis-
putes are referred to some competent international
organs such as the UNSC, the UNGA, and the UN
Human Right Council, their interpretation of interna-
tional law is important, having higher legitimacy and
authority than the interpretation taken by individual
States. In particular, Security Council resolutions,
which are characterized as legally binding upon mem-
ber States, can be enforced by such interpretations.
Many international lawyers have tended to regard
the UNGA and the UNSC as “political” organs and
have not given proper status in the question of cre-
ation, identification and interpretation of international
law. They seem to have tacitly and unconsciously con-
sidered that the problem of identifying and interpreting
international law is a task of the judiciary, the ICJ, and

not the problem of the “political organs” such as the
UNSC or the UNGA. However, the cases where the
ICJ actually deals with norms of international law and
can give its interpretation are extremely limited among
countless cases of international law which occur every
day and everywhere. The cases in which conflicts
between States are reviewed in such “political” organs
are far more numerous than the cases reviewed by the
ICJ. International lawyers themselves regard these
“political” organs as representing the will of interna-
tional society when they actually deal with these prob-
lems.
For example, when they examine a particular inter-
pretation of international law taken by a particular
Government of a State, they cite not only jurisprudence
of the ICJ — if there is any such jurisprudence — but
also the resolutions adopted by the UNGA or the
UNSC, as expressing the legitimate will of the interna-
tional society, if there are such resolutions. This is
exactly what most Governments do when they deal
with a particular act of a particular State and seek to
evaluate its legality under international law. This
is particularly the case when such resolutions charac-
terize the behaviour of the State as illegal. The UNSC
is certainly important in that it can act effectively and
can enforce norms of international law in cases where
the problem of international peace and security is at
issue. But it is also important in identifying interna-
tional law and giving a clue to a legitimate interpreta-
tion when there is no such interpretation given by the
ICJ or other judiciaries and the UNGA. The UNGA is
important in embodying the legitimate will of the inter-
national society and can often provide a clue to a legiti-
mate interpretation of international law.
Naturally, being political organs, the interpretation
of international law they provide is often politically
144 Onuma Yasuaki
motivated. It cannot directly be used as a cognitive

basis of international law. However, it is not limi-
ted to the interpretation by the “political” organs that
international lawyers must carefully scrutinize the
appropriateness of the interpretation given by interna-
tional organs. Even the judgment rendered by the ICJ
must be scrutinized whether it correctly and properly
interprets norms of international law. Most interna-
tional lawyers, while highly appreciating and respect-
ing the interpretation of a norm provided by the ICJ,
take a scholarly critical attitude toward such an inter-
pretation by the ICJ when seeking to identify the most
appropriate interpretation of the norm in question.
Even more cautious attitude is naturally needed to
evaluate the resolutions adopted by the UNGA and the
UNSC as a cognitive basis of identifying international
law. Yet, we can, and should, use those “political”
organs’ resolutions as a possible basis of identifying
and interpreting international law, especially where
there is no jurisprudence of the ICJ and other interna-
tional courts through which we can most likely identify
the norms of international law. This problem will be
dealt with more in detail in Chapter III.
3. Power that sustains and realizes law 71

(1) “Horizontal sanctions” of international law ?
Law is generally perceived to be a coercive norm.
People share the perception that law can and should be
enforced by an authoritative power, which is the power
of the State, against the will of lawbreakers. This
feature, many people assume, differentiates law from
other norms such as religious or ethical ones. This
shared perception, together with another perception of
71
Onuma, supra footnote 4.
law including law as representing justice, ultimately

supports the effectiveness of law. In the case of domes-
tic law in modern societies, this perception is usually
institutionalized in the State enforcement mechanism
of law. Law is accompanied by power as its enforcer.
However, not all kinds of power can be a companion of
law. Only such power as is perceived and recognized
as legitimate by the addressee of the law can be such a
companion. If the power sustaining and realizing law is
perceived as illegitimate, the law itself is regarded as
illegitimate and resisted by the addressee.
The content of a norm of international law is real-
ized with a specific interpretation of the norm. Because
international society is a decentralized society in terms
of distribution of power, the power and competence to
interpret international law primarily rests with an indi-
vidual State. If an interpretation of a norm by a certain
national Government is disputed by some other parti-
cipants of international law, this interpretation may be
scrutinized in various forums and processes. These
forums and processes vary according to the party in
conflict.
If the party is a Government of a State, the diplo-
matic negotiation between the Governments of the
States concerned becomes a major forum where the
identification, interpretation and implementation of
international law is disputed, reviewed and settled. If
the States parties in the conflict all recognize the juris-
diction of the ICJ, the tribunal of the ICJ can become a
forum. Or a forum in international organizations such
as the UNGA or the UNSC becomes a forum. If the
disputing party is a political party, the national parlia-
ment can become a forum. If the disputing party is an
NGO, firm or individual, local media or a domestic
court often become a forum. A monitoring body
attached to a multinational treaty such as the Human
Rights Committee of the ICCPR can be another impor-
146 Onuma Yasuaki
tant forum where the interpretation of an international

legal norm is disputed.
If parties in dispute reach an agreement as to the
interpretation of the norm, there should be no problem.
Or, if one of the forums as described above can work
as providing a satisfactory settlement to the parties in
conflict, there should be no problem either. But, if the
satisfactory settlement cannot be provided, how can
international law be realized as a compulsory norm ? A
State claiming that its right is violated by another State
can, under international law, resort to countermeasures
and other reciprocal measures. Under some circum-
stances, countermeasures or reprisal taken by a State
whose right is violated under international law can cer-
tainly be effective to redress the illegal measures taken
by the State. They are particularly effective when taken
by a powerful State. However, for smaller nations,
which occupy the overwhelming majority of States,
countermeasures and reprisals are often too costly, and
cannot be taken against more powerful States. More-
over, countermeasures cannot be taken with military
force under current international law.
Use of force as characterized just war was once
regarded as an enforcement measure to vindicate the
right and interest of a nation under European interna-
tional law. This just war was not merely a theory.
European nations actually resorted to war for securing
their rights and interests under the law formulated as
natural law and the law of nations, and justified their
acts by the just war doctrine. Just war doctrine advo-
cated by Hugo Grotius was a typical example 72.
Although the just war doctrine was a natural law doc-
trine, it functioned as a tool or a means of a policy of
States and other political entities in the European real
72
Onuma Yasuaki, “War”, idem, ed., A Normative Ap-
proach to War (Clarendon Press, Oxford, 1993), pp. 57-121.
politics. However, we cannot accept the just war doc-

trine under current international law, which generally
prohibits the use of force by States.
A number of international lawyers have tended to
characterize international law as a horizontal normative
system, regarding reciprocity as a basic principle for
securing the implementation of international law. They
have thus regarded, reprisals and countermeasures as
effective “sanctions” of international law in the wider
sense of the term. Hans Kelsen was a typical example.
He made serious efforts to characterize interstate wars
either as a sanction or an illegal use of force 73. This kind
of view was more or less shared, either explicitly or
implicitly, by a large number of international lawyers.
However, these “horizontal sanctions” can generally
be effective only against a less powerful State or at
best a State with similar power. Powerful States can
certainly rely on these “horizontal” sanctions, which
actually function as vertical sanctions against smaller
nations. Yet, the latter can hardly rely on them because
they lack substantive power to realize such “horizon-
tal” sanctions. If the general theory of international law
is to be valid to smaller nations, which occupy the
overwhelming majority in international society, then
the so-called general theory of international law
characterizing the “horizontal sanctions” as measures
for securing the implementation of international law
must be questioned of its universal validity.
(2) Can international law be enforced as an adjudi-
cative norm ?
A major reason for such an approach regarding war
and reprisal as enforcement mechanisms of interna-
73
Hans Kelsen, Principles of International Law (2nd ed.,
Rinehart & Company, New York, 1952), pp. 19-27. Other
writings by Kelsen demonstrate basically the same argument.
148 Onuma Yasuaki
tional law lies in the fact that such forcible measures

were regarded as a substitute for the judiciary in the
study on international law. Hugo Grotius, who was
regarded for a long time as the “father” of international
law, explicitly characterized war as a substitute for the
judiciary 74. Other international lawyers, including
Hans Kelsen, shared more or less a similar assumption.
This is a typical example of what I call the “domestic
model approach to international law” 75. Here, the
model which is consciously or unconsciously taken is
the domestic legal system of a modern State, where the
judiciary functions as an ultimate enforcement mecha-
nism of law. In more concrete terms, the domestic legal
system of a modern Western State has tacitly been
adopted as the model in this prevalent way of thinking
in the study of international law.
According to this way of thinking, when law is
referred to as coercive norms, the reference is made on
the assumption that law can be coerced by the mono-
poly of the power (or violence) by the State and the
enforceability of the judgment of the court. If a party
disagrees with a party in conflict on the interpretation
or application of a certain legal norm, it can sue the
other party without the latter’s consent. The compul-
sory jurisdiction of the court is taken for granted. If the
party wins in court, it can forcefully realize its right
through the enforcement mechanism of the judiciary.
Even if this victorious party is a powerless person, he
74
Hugo Grotius, De jure belli ac pacis libri tres, Vol. I,
Chap. 3, 2. See also Onuma, supra footnote 72, pp. 62-
64.
75
Onuma Yasuaki, ‘’Kokusaihougaku no Kokunaishi-
kou model” (“The Domestic Model Approach in Interna-
tional Legal Studies”), Hirobe Kazuya, Tanaka Tadashi,
eds., Kokusaihou to Kokunaihou (International Law and
Domestic Law) (Keisoushobou, Tokyo, 1991), pp. 57-
82.
or she can realize the judgment by the court by relying

on this enforcement mechanism. This is what we
usually have in domestic society, especially in the
society of developed countries, where the judiciary
functions well and carries out its expected task as an
independent judiciary, supported by other powers
(executive and legislative) and respected by the nation
as a whole.
International law lacks such institutionalized enforce-
ment mechanisms. The domestic model approach,
which is often taken unconsciously by many interna-
tional lawyers, has serious limitations and problems
when considering this problem of maintenance and
enforcement of international law. The ICJ does not
have compulsory jurisdiction. A State cannot sue
another State without the latter’s consent. Moreover,
the ICJ lacks an institutionalized mechanism to enforce
its judgments. There have been a number of cases in
which the losing party did not comply with the judg-
ment of the ICJ ; the Iranian Hostage case of 1980 and
the Nicaragua case of 1986 are leading examples.
Neither Iran nor the United States obeyed the judg-
ment, but openly rejected it. Nations in international
society are not ready to accept a mechanism in which
the ICJ has compulsory jurisdiction over all matters
and the judgment of the ICJ can actually be enforced
against the will of the losing party without exceptions.
Although Hersch Lauterpacht and some other interna-
tional lawyers have argued for such a mechanism for
almost a century, it is most likely that it should take
more than another century for humanity to establish
such a mechanism in global society.
Therefore, in international law, it is difficult to
assume the enforceability of law by the judiciary
mechanism. Although international law sometimes func-
tions as adjudicative norms and is applied by interna-
tional courts and arbitral tribunals, it lacks enforceabil-
150 Onuma Yasuaki
ity through adjudication in international society 76. This

marks a sharp contrast with domestic law, especially
that of developed countries, where one can assume
such enforceability. Here, even when people seek to
settle their conflicts by non-judicial means such as
negotiations, they behave under the “shadow of the
court”. A party whose factual evidence and legal claim
is more solid can send a message to the other party to
the effect that “you had better give in to the condition
I claim in this negotiation. Otherwise, I will sue you
and you will lose the case in court. My claim will be
enforced against your will anyhow.” This explicit or
implicit menace can work effectively in developed
countries where the judiciary works well.
However, in international society, parties generally
cannot resort to such tactics due to the lack of compul-
sory jurisdiction and enforceability mechanisms of the
ICJ and other international courts. The ICJ is certainly
a major judicial organ of the United Nations. It is often
called the “World Court” among ordinary citizens in
English. It has been expected to settle conflicts
between States and to play an important role in estab-
lishing rule of law in international society. Yet, con-
flicts actually settled by the ICJ are extremely limited.
Calling the ICJ the World Court is misleading and
must be avoided.
It is true that various types of international courts
and quasi-judicial organs have been established toward
the end of the twentieth century. The ITLOS of the
UNCLOS, the ICC and the strengthened dispute settle-
ment mechanism of the WTO are leading examples.
76
When international law is applied by domestic
courts, it can be enforced through adjudication, depending
on the domestic legal system in question. However, this is
an enforceability of the domestic legal system, not of the
international legal system.
The cases settled by the judicial or quasi-judicial

organs have been increasing in the last few decades.
“Legalization” in the form of “judicialization” of inter-
national relations has been referred to by experts of
international relations, many of whom were not inter-
ested in international law for many years. However, we
cannot expect major conflicts between States, espe-
cially those involved in the national security are settled
by the ICJ and other international courts. States, or
people at large, are not ready to accept such kind of
judiciary-centric rule of law in international society.
We must locate the enforceability of international law
elsewhere than in the enforcement mechanism through
adjudication.
(3) Collective security, unilateralism and the bal-

ance of power in international law
If there is no enforcement mechanism through adju-
dication in international law, the collective security
system may be characterized as an alternative to such a
mechanism. It certainly has some features to be charac-
terized as an enforcement mechanism of international
law. In the field of restraining the use of force by
States, the UN enforcement actions under Chapter VII
generally realize the universal norm prohibiting the use
of force by States. The very existence of such a system
plays a preventive role with respect to interstate war.
The collective security system contributes to sustaining
and guaranteeing the norm on the prohibition of the
use of force.
From a strictly juridical perspective, however, there
are problems to characterize the collective security sys-
tem as the enforcement mechanism of international
law. Fundamentally, it does not cover all areas of inter-
national law. It covers only the field of international
peace and security. Even in this limited field, the col-
152 Onuma Yasuaki
lective security system has a problem to be character-

ized as an institutionalized enforcement mechanism of
international law : the collective security measures do
not necessarily respond to violations of international
law. The Security Council is expected to take coercive
measures when a State breaches or threatens “interna-
tional peace and security”. Yet, not all breaches of inter-
national law breach or threaten “international peace
and security”. There must be a number of cases where
the Security Council does not determine a certain act
of a State to be a threat to or breach of international
peace and security, although this act constitutes a vio-
lation of international law.
The UN collective security system is certainly an
important mechanism for regulating and controlling
armed conflicts and for sustaining and realizing the
international legal norm on the prohibition of the use
of force. Most acts that are determined by the Security
Council to be a threat to or breach of peace constitute
violations of international law prohibiting the use of
force by States. The UN collective security system is a
valuable global institution that is backed by its globally
perceived legitimacy and the substantive power of the
permanent members of the UNSC. It may not be the
best system to control the power of States, but it is
definitely a lesser evil system in today’s interna-
tional society. This system must be maintained,
improved and strengthened. Yet, this is not enough.
The power and mechanisms which sustain and
enforce international law must be found not only in the
collective security system. They must further be found
elsewhere.
Some regarded the power of the United States as the
alternative to globally institutionalized mechanisms to
sustain and enforce international law. A kind of self-
righteous universalistic idealism, deeply rooted in the
spirit of the people of the United States, and the para-
mount power the United States possessed in the latter

half of the twentieth century, supported such a peculiar
understanding of international law. The United States
actually enacted a number of domestic laws, which,
according to their interpretation, implement or realize
norms of international law. We can see many such
examples in the field of trade, antitrust, environ-
ment, and human rights, among others. Although a
number of international lawyers, including those in the
United States, are critical of such an often arbitrary
“implementation” of international law, norms of this
kind of international law have actually been enforced
because of formidable US power in international
society.
However, characterizing a unilateral interpretation
and realization of international law as ultimately
authoritative and legitimate would mean the negation
of the very concept of international law. International
law is a common code of conduct that all States share
in international society. Any enforcement measures
taken by a single State or a group of States can be
characterized as a realization of international law only
when such measures are endorsed by the overwhelming
majority of States. If such measures are actually
enforced without this endorsement, such “enforcement”
action or “implementation” of international law should
be characterized as the use of naked power under
the disguise of law enforcement. Self-righteousness,
not justice, is at work. A self-appointed agent of
“dédoublement fonctionnel” acting without global
endorsement cannot be characterized as a legitimate
agent of this function.
Some international lawyers argued that a balance of
power is a prerequisite for the existence or proper
functioning of international law. Lassa Oppenheim and
Alphonse Rivier, leading international lawyers of the
late nineteenth and early twentieth centuries, were such
154 Onuma Yasuaki
international lawyers 77. It is often said that in the nine-

teenth century after the Vienna Congress of 1815
Europe enjoyed a stable period under the principle of
balance of power. International law functioned within
the framework of classical diplomacy based on the bal-
ance of power. In contrast, a number of international
legal norms were grossly violated by the United States,
when the United States enjoyed the status of empire
from the end of the Cold War to the early twenty-first
century 78. This fact seems to suggest that for inter-
national law to be realized in a legitimate manner a
balance of power is needed.
However, the balance of power is not enough for
international law to be realized in a legitimate manner.
Under the balance of power between the Great Powers
in nineteenth-century Europe, the rights and interests
of smaller nations were often violated for the sake of
the common interests of these European Great Powers.
A certain kind of balance of power existed between the
United States and the Soviet Union during the Cold
War period. Yet, many members of the international
society virtually acquiesced in the violation of the
rights and interests of smaller nations by of the super-
powers within their respective sphere of influence, in
order to avoid total war between them. The Soviet
Union intervened by force and suppressed the Hunga-
rian Rising of 1956. It also intervened by force in the
77
Lassa Oppenheim, International Law, Peace, Vol. I
(Longmans, Green and Co., London, 1905), pp. 73-74, 185 ;
Alphonse Rivier, Principes du droit des gens (Librairie
nouvelle de droit et de jurisprudence Arthur Rousseau,
Paris, 1898), pp. 67-68.
78
Onuma Yasuaki, “When Was the Law of Internatio-
nal Society Born ?”, Journal of the History of International
Law, II, No. 2 (2000), p. 18, n. 38 ; Karl Zemanek, “Is the
Nature of International Law Changing ?”, Austrian Review
of International and European Law, VIII (2003), p. 3.
Prague Spring of 1968. The United States repeatedly

intervened by force in the Caribbean nations such
as Nicaragua and Panama. There are many other
examples of such violations of international law
by the superpowers during the Cold War period.
In this way, the international judiciary, various
reciprocal measures, the collective security system, or
the balance of power alone cannot secure the legitimate
realization of international law. On the other hand, our
life goes on because States generally abide by interna-
tional legal norms and realize them in almost all cases.
Violations of international law, especially those involv-
ing the use of force, are certainly conspicuous, but they
are exceptions rather than the rule. This general com-
pliance with international law by States is more than
the result of the consideration by States of the possi-
bility of sanctions or countermeasures against their
illegal behaviour taken by other States or international
organizations. As demonstrated in subparagraph (1)
above, although “horizontal sanctions” are assumed by
many international lawyers as a major mechanism to
sustain and enforce international norms, they constitute
only a part of the entire mechanism that sustains and
realizes international law.
As demonstrated earlier 79, we must explore various
forums where international law is discussed and the
factors in securing the lawful behaviour of national
Governments, which are major participants of interna-
tional legal processes. The fact that there exist a num-
ber of domestic actors — such as opposition parties,
influential media institutions, courts and NGOs, as
well as various other actors — carefully monitoring the
international legality of their Government’s behaviour,
has an important bearing on the behaviour of the
Governments. Not only the negative reactions of the
79
See section I, 1 (2), (3), supra.
156 Onuma Yasuaki
Government of the State whose right or interest is vio-

lated by the act of the State, but also negative reactions
of international organizations, third party States includ-
ing powerful States, NGOs and influential media insti-
tutions do matter in securing the compliance of a inter-
national legal norm by the State. Further, the fact that a
psychological framework unconsciously inviting law-
ful behaviour is embedded in the minds of those who
are in charge of decision-making involving interna-
tional law is of significant importance. In order to fully
understand these mechanisms working for the legiti-
mate functioning of international law, we must further
study international law from the perspective of
ideational/intellectual power.
II. International Law as Power
1. International law as seen from the perspective of

ideational power
(1) The power of ideas and the power to dissemi-

nate the ideas
The problem of ideational power was once con-
sidered in international law in a somewhat different
manner from the way in which the problem is considered
today. The problems which were taken up include
(1) the ideological power of various notions of interna-
tional law to justify the status quo or national policies
of the Great Powers ; (2) the problematic features of
the supremacy of practical or positivistic approaches in
international law ; (3) colonialism and post-colonialism
in international law ; (4) male-centrism in international
law ; and (5) Eurocentrism or West-centrism in inter-
national law. However, because positivism, male-
centrism and West-centrism were prevalent in the
latter half of the twentieth century, these problems were
not fully recognized, discussed or examined on a

global scale. They were generally regarded as “peri-
phery” questions in international law.
In the twenty-first century, one of the critical prob-
lems in global society should be the widening gaps
between the substantive power being possessed by
Asian States, especially China and India, and the preva-
lent cognitive framework through which people see
the world. If the discrepancy between the whereabouts
of the substantive power and those of the ideational
power becomes too large, this will cause serious conse-
quences because the gaps between the expectations and
actual behaviour between the major powers will seri-
ously differ in the twenty-first century. We must exam-
ine this critical problem. The previous study on power
in relation to international law concentrated on the sub-
stantive aspect of power. However, we need to study
the ideational aspect of the power of international law
and the whereabouts of this ideational power of inter-
national law as well as its function in international and
domestic societies.
Examining the problem of ideational power in inter-
national law invites us to see a number of things.
When, for example, we say that international law is
created by the power of leading Western nations, the
power referred to here is not limited to the military or
economic power (or their power being used as psycho-
logical pressure or threat). It includes the intellectual
and informational capability to set the agenda in inter-
national conferences and draft the wordings of treaties
or resolutions. It also includes the capability to dissemi-
nate such draft articles over other alternatives. It
further includes the capability to influence interna-
tional public opinion by means of leading interna-
tional lawyers and various kinds of media, including
influential law journals, TV programmes, newspapers
and internet.
158 Onuma Yasuaki
So-called opinio juris in the creation of “customary”

international law is basically a conscious or uncon-
scious social construct that was shared, formulated and
disseminated by political, legal, military and intellec-
tual leaders in the leading Western nations. It became
prevalent through a combination of various factors :
(1) the publication of books by major Western pub-
lishers such as Oxford University Press and of articles
in leading law journals such as the American Journal
of International Law ; (2) the predominant status of
English and French languages in international society ;
(3) the strength of Western higher education and
research institutions such as Harvard or Cambridge ;
(4) the widely shared high reputation of court deci-
sions in Western nations ; and (5) the predominant
power of Western media institutions in global discursive
space, etc.
Law is a normative idea. But an idea is not just a
theoretical existence. An idea constitutes power. It is
imbedded in people’s way of thinking and features it
and exerts influences on it. Through legal ideas we
construe various ideas and phenomena, and act accord-
ing to such understanding or interpretation. Law
appeals to the minds of people and invites them to act
in a certain direction. Law as a normative idea thus has
power to induce people to realize the values and inter-
ests that law prescribes either directly or indirectly.
The power of the idea of human rights in domestic and
international political arenas is a typical example. The
idea of human rights has exerted a huge influence in
decreasing the normative power of the non-interven-
tion principle in international law. It has compelled a
number of States to change their policies in the fields
related to human rights.
In order for an idea to become a power in global
society, however, it needs another kind of power. It is a
power that can disseminate the idea and help it become
widely shared and accepted. Even the best idea cannot

be a power if it lacks the linguistic, informational, edu-
cational and economic means to be globally dissemi-
nated and shared. In the twentieth century it was the
West-centric structures composed of leading Western
experts, media, educational and research institutions,
and globally predominant status of the English lan-
guage that possessed such means of dissemination and
propagation. The combination of the two types of
ideational power, one, the substantial, and the other,
instrumental, is crucial for an idea to have a globally
predominant ideational power.
If a person is a famous columnist for the New York
Times writing on international law, he or she has a
good chance to have his/her idea on international law
become widely known. It can be globally shared and
may finally be realized. If one is a distinguished pro-
fessor of international law at Harvard (or similar lead-
ing Western) University writing for the American
Journal of International Law or similar influential
Western law journal, his or her article is widely read by
international lawyers all over the world, and his or her
view can be globally disseminated and may finally be
realized. But if one is an unknown student of interna-
tional law in a small country in Africa or in Asia, his/
her idea will hardly be globally known even if it is a
better idea for humanity than the one advocated by the
columnist or the Harvard professor. It will virtually
have no chance to be realized on a global scale. In the
process of the dissemination of ideas, certain kinds of
power are at work in an implicit and unconscious man-
ner. Even the most valuable normative idea cannot
be realized if it is not disseminated in English, widely
recognized in English, and shared by people who
could influence global decision making.
When considering the problem of international law
from the viewpoint of ideational power, we have to
160 Onuma Yasuaki
consider not only the problem of power of the idea as

such, but also the problem how the idea can be shared
and realized on a global scale. We should be keen on
the power structures of media through which an idea or
view on international law is expressed, and dissemi-
nated globally. There is a huge difference whether a
certain view is expressed in an influential Western law
journal published in English or in a journal of a small
country published in the local language of this country.
Today, we can watch the television programming of
CNN and the BBC almost everywhere in the world, but
few programmes by Korean, Brazilian, Egyptian, or
other similar TV stations except in those respective
countries. The world that global decision makers, influ-
ential opinion leaders, and even ordinary citizens see
today is the world that is more or less construed and
constructed by CNN, the BBC, Google, the Wall Street
Journal and the New York Times. As demonstrated
above, this West-centric structure works in favour of a
small number of privileged experts and intellectuals in
the West, virtually denying the power of ideas held by
a large number of people in the non-Western world to
be known globally and to function as an ideational
power. Needless to say, this is an unfair, discriminatory
structure. Nor does this structure respond to emerging
realities of a multi-polar and multi-civilizational world
of the twenty-first century. It must be rectified.
(2) The prevalent perception of “irrelevance” of

international law
It has begun to be understood only recently that
ideas themselves have power, as demonstrated above.
Many people, even experts, do not sufficiently appre-
ciate this important fact. International law is generally
perceived to be merely normative ideas existing just in
theory, whereas the power of States as reality. This
prevalent juxtaposition of law as norm and power as

reality invites people to question the relevance of inter-
national law.
Many international relations experts and ordinary
citizens have tended to believe that international law is
utopian, unrealistic or irrelevant. This prevalent percep-
tion seems to originate in various factors, among which
the following are important.
(i) During the interwar period, Edward H. Carr,
often regarded as a founder of the study of interna-
tional relations, severely criticized Hersch Lauterpacht,
a leading international lawyer at the time, as utopian 80.
Lauterpacht could not rebut Carr. Since then, except
for the English School, experts on international rela-
tions or international politics have tended to ignore the
raison d’être of international law. Further, many inter-
national relations scholars — especially a great number
of those in the United States — ignore the importance
of the history of international society, which has been
characterized by legalism. This has strengthened the
tendency among international relations experts to be
ignorant of international law, which has actually played
important roles in modern European and world
history.
(ii) During the post-war period, “realism” was pre-
dominant in the United States. Such prominent figures
as Hans Morgenthau, George Kennan and Kenneth
Waltz exerted great influence on the awareness of
Americans on international affairs, including both
experts and ordinary citizens. They all emphasized the
importance of “hard” power, represented by military
power, and were critical of legalism in international
affairs. Their view has been globally shared, ironically,
80
Edward H. Carr, The Twenty Years’ Crisis 1919-1939
(Macmillian, London, 1946), pp. 193-207.
162 Onuma Yasuaki
due to the predominant ideational, rather than substan-

tive, power of the United States in international affairs
on a global scale.
(iii) As referred to earlier 81, people generally pay
attention only to conspicuous cases of the flagrant vio-
lation of significant norms of international law. The
violation of the principle of the prohibition of the use
of force in international law is a typical example. Two
superpowers in the twentieth century often violated the
norm of the prohibition of the use of force in interna-
tional law, and these cases were widely reported in a
sensational manner. Most people, even experts on
international affairs, do not know that numerous norms
of international law are at work daily, including even
during wartime. They are not aware that their life is
possible due to this constant work of international law.
Like air, which is essential for human life but
usually goes unnoticed, international law is not gener-
ally noticed. Hence the prevalent image of interna-
tional law as irrelevant.
(iv) Associated with the case in (iii), most people,
even including experts, regard international law only as
a regulatory norm whose function is to control the
power of States. They ignore the fact that international
law functions in many other ways such as justification
or legitimation of a State policy, and communication
between States, even in time of war. This problem of
the functions of international law will be demonstrated
in subparagraph (4) below 82. Because people concen-
trate on the regulatory function of international law,
once one of its norms is violated in a conspicuous
manner, they tend to consider that international law is
powerless or irrelevant in international society.
81
See section I, 1 (1), supra.
82
See also Onuma, supra footnote 57, pp. 130-138.
(3) Unreality of the so-called “realists” view regard-

ing international law as irrelevant
Critical views on international law as provided by
those international relations experts certainly appear to
be “realistic”. But is it really so ? A brief response to
these four critical points is in order. I address each of
them below.
First, it is true that Lauterpacht was severely criti-
cized by Carr, and that he could not rebut Carr 83. And
this “utopian” Lauterpacht has been vaguely under-
stood as the representative of international lawyers.
The image of international law has also been associ-
ated with the notion of law as adjudicative norms to be
applied and enforced by the judiciary. This image has
been particularly strong in countries with an Anglo-
American legal system, where the idea of law is
closely associated with the judiciary 84. As referred to
earlier 85, as long as one sees international law as adju-
dicative norms, one cannot deny that its role is
extremely limited as a means for settling serious con-
83
Lauterpacht did criticize the realist in a small piece
of his writings (Hersch Lauterpacht, “On Realism, Espe-
cially in International Relations”, Elihu Lauterpacht, ed.,
International Law Being the Collected Papers of Hersch
Lauterpacht, Vol. II (Cambridge University Press, Cam-
bridge, 1975), p. 53). But it was not a logical, coherent,
academic and professional criticism. It was rather an emo-
tional and fragmented one, which lacks persuasive power.
84
Lauterpacht is a typical example who understood law
in terms of adjudicative norms. His book The Function
of Law in International Community (Clarendon Press,
Oxford, 1933) dealt exclusively with the adjudicative
function of international law. No other function of interna-
tional law than the adjudicative function is referred to in
this book of some 500 pages, although it is titled “The
Function of Law”, not “The Adjudicative Function of Law”
or “A Function of Law” in International Community.
85
164 Onuma Yasuaki
flicts between States. The fact that the United States

and the United Kingdom have been most influential in
the field of international law and international relations
has contributed to the prevalence of the negative image
of international law as irrelevant or unrealistic in inter-
national society.
However, Lauterpacht was not representative of
international lawyers during the interwar period. His
theory of settling all disputes through the international
judiciary was severely criticized not only by Carr but
also by numerous other international lawyers as well.
Criticizing Lauterpacht’s theory which understands
international law only as adjudicative norms as un-
realistic and irrelevant does not mean that international
law or international lawyers in general are unrealistic
or irrelevant. International law fulfils its societal func-
tions not only as adjudicative norms to be applied and
enforced by the judiciary. It also carries out a number
of other functions which, though not necessarily adju-
dicative, are nevertheless socially important as demon-
strated below. Carr himself, who severely criticized
Lauterpacht, fully appreciated the raison d’être and
functions of international law in international society.
Second, it is also true that Morgenthau recognized
only a minor role and status for international law.
Waltz, a leading neo-“realist”, totally ignored interna-
tional law. Kennan’s criticism towards the moralistic
and legalistic approach in US diplomacy was certainly
persuasive and well received. However, their criticism
or denial of international law did not erase all features
of legalism both in the form of ideas underpinning the
management of international affairs and in the form of
institutions dealing with various problems in interna-
tional society. Legalism has been, and still is, predomi-
nant in European and American societies as well as in
global society. If experts of international relations in
the United States are not aware of this fact, part of the
reason lies in the fact that they have been so accus-

tomed to legalistic culture in their own society that
they cannot see it both in the US society and in inter-
national society, where they themselves have dealt with
all affairs as members of the hegemonic power in an
unconsciously legalistic manner.
The international system tends to reflect predomi-
nant ideas and institutions of the major powers in the
system 86. Today’s international system is a product of
the expansion of European nations on a global scale
during the modern period and the subsequent hege-
mony of the United States in the twentieth century.
Therefore, today’s international system is strongly
characterized and influenced by the ideas and institu-
tions of leading West European nations and the United
States. The European nations have shared and main-
tained a highly legalistic culture for a long period of
time. The United States inherited this legalistic culture
and has even strengthened it. These facts contributed to
the imprinting of legalistic features on the modern
international system.
We can see this characteristic feature of the contem-
porary international society by adopting a transciviliza-
tional perspective, which invites us to see the historical
fact that whereas some civilizations are legalistic,
others are not. By adopting the transcivilizational per-
86
In East Asia, Chinese characters and literature, ways
of negotiation, ceremonials, Confucianism (originating
from China) and other Chinese ideas and institutions were
generally adopted by political entities in the region. They
functioned as common cognitive and normative frame-
works in East Asia. In Europe, French, later followed
by English — which were the languages of the leading
powers —, became the common language of diplomacy
and economic activities. A number of ideas and institu-
tions that are characterized today as European originated
in England, France, Italy or Germany, which have been
major powers in European history.
166 Onuma Yasuaki
spective, we can understand that today’s international

society, based on the West-centric sovereign States sys-
tem, is legalistic in comparative terms 87. International
law, as an important component of this system, thus has
played, and is playing, a number of important societal
functions in international society. Criticizing the exces-
sive legalistic approach, once prevalent in US diplo-
macy, is one thing. Denying the raison d’être and the
reality of law in international society is quite another.
Even if the former is correct, the latter assertion is evi-
dently mistaken. Kennan, who criticized the legalistic
and moralistic approach in the 1950s, later wrote that
“The problems of excessive legalism and moral-
ism, as treated in the original lectures, are today, in
large part, historical ones . . . the bewilderments of
the Cold War have produced strange consequences,
and there are times in these recent years when I
have found myself wishing that there were a bit
more of morality in our concepts of what is legal,
and more attention to legality in our concepts of
what is moral, than I see around me at this time.” 88
Third, when we conceive of something and seek to
assess it and to give an overall judgment on it, we must
be cautious not to see and judge things by observing
merely conspicuous phenomena. This should apply to
the evaluation of international law in international
society. As long as States act in conformity with inter-
national law, no problem relating to international law
occurs. This is the normality of international law in
that the content of international legal norms is realized
on a daily basis. As Rosalyn Higgins emphasized,
87
For example, if compared with the modern sovereign
States system, the Sinocentric regional system in the pre-
modern East Asia was far less legalistc.
88
George F. Kennan, American Diplomacy, expanded
edition (University of Chicago Press, Chicago, 1984), p. vii.
“The role of law is to provide an operational sys-

tem for securing values that we all desire — secu-
rity, freedom, the provision of sufficient material
goods. If a legal system works well, then disputes
are in large part avoided.”
She continued :
“sometimes dispute-resolution will be needed ; or
even norms to limit the parameters of conduct when
normal friendly relations have broken down and dis-
pute resolution failed. But these last relations are
only a small part of the overall picture.” (Emphasis
added.) 89
H. L. A. Hart wrote in a more general way that
“[the] principal functions of law as a means of
social control are not to be seen in private litiga-
tion or prosecutions, which represent vital but still
ancillary provisions for the failure of the system.
It is to be seen in the diverse ways in which the law
is used to control, to guide, and to plan life out of
court.” 90
State agents generally act in accordance with both
domestic and international law when they conduct
affairs of States, and negotiate with agents of other
States. They make full use of domestic and interna-
tional law as a useful instrument for realizing the val-
ues and interests they pursue. They also use interna-
tional law for settling various problems arising from
these political and administrative processes. Inter-
national law is also constantly referred to and utilized
89
Rosalyn Higgins, Problems and Process : Interna-
tional Law and How We Use It (Oxford University Press,
New York,1995), p. 1.
90
H. L. A. Hart, The Concept of Law (Clarendon Press,
Oxford, 1961), p. 39.
168 Onuma Yasuaki
as a tool of communication by non-State actors such as

NGOs, private companies, and other participants in
global political, economic and societal processes. It is
also used as normative ideas to ground their claims and
as means to realize their interests and values 91.
The Government of any State, in dealing with actual
affairs in international relations, pay a great attention
to the distinction whether its commitment is of a legal
nature or not. We can see a number of examples in the
fields of security, disarmament, environment, human
rights, trade, etc. If international law is irrelevant as is
claimed by some experts of international relations, par-
ticularly the “realists”, it is difficult to explain why
national Governments pay such a serious attention to
the distinction of their commitment in legal terms or in
non-legal terms. So-called “realists” fail to see this cru-
cial aspect of reality in international society.
As is demonstrated by these facts, international law
is not just normative letters on paper of the treaties or
merely ideas existing in theoreticians’ or lawyers’
minds. It is a totality of normative ideas and institu-
tions which have actually been referred to, utilized,
invoked, and applied by State agents as well as non-
State actors all over the world for more than a century.
It is an essential component of the sovereign States
system, which has constituted, and still constitutes, the
most fundamental principle of the ordering of the
world. When we consider the status and role of interna-
tional law in global society, we must consider these
actual roles and functions that international law has
played and is playing in various contexts. We should
not assess the significance of international law merely
by observing conspicuous cases where specific regula-
tory norms of international law are flagrantly violated
by States.
91
Fourth, as already suggested above, the function of

international law is not limited to regulating or control-
ling the behaviour of States as norms of conduct. For
example, national Governments often utilize notions of
international law either to justify acts of their own or to
criticize or blame acts of other States with which they
have conflicts. Even those “realists” who regard inter-
national law as unrealistic and irrelevant admit that
international law functions as an ideology to justify
power. In this sense, international law is an important
tool for realizing the national interest. International
politics as word politics consists in exchanging various
kinds of arguments justifying interests of States.
International law provides one of the most important
bases of these justifications because of the deeply
rooted legalism in the modern, West-centric sovereign
States system. This aspect of international law was
amply demonstrated in section I, 2 above.
Moreover, when international law justifies the
power of a certain State, it does not play its role merely
as a tool of power. In justifying a certain act of a State,
the Government of the State must utilize international
law in such a way as to persuade those who have dif-
ferent or opposing views on international law and/or
who doubt the legality or legitimacy of the act. Further,
when justifying the act, the Government must satisfy
the requirement of consistency, substantive and proce-
dural justice, transparency, and other characteristic fea-
tures of law, because it bases its argument on law. In
this way, the argument in international law to which a
Government resorts must satisfy various requirements
of law. If the Government takes an arbitrary interpreta-
tion of a legal norm or a double standard in justifying
its act, international law as a justificatory tool will lose
its persuasive power and cannot play its role to legiti-
mize power. In this way, international law poses a cer-
tain restriction on the behaviour of a State, precisely
170 Onuma Yasuaki
because it is utilized as a tool to justify acts of the

State.
(4) Societal functions of international law
As suggested in subparagraph (3) above, interna-
tional law plays a number of societal functions in inter-
national and domestic societies. In addition to the pre-
scribing function as demonstrated in section I, 1, it also
acts as evaluative, adjudicative, organizational ground-
ing, justifying and legitimating communicative, value-
declaratory, and social constructing functions. In sec-
tion II, 2 of this chapter, I will seek to elucidate an
important yet insufficiently studied function of interna-
tional law : that of constructing social realities. Before
doing so, a brief summary of these functions of inter-
national law is in order 92.
First, international law has primarily been under-
stood as norms prescribing the conduct of States.
Based on this shared understanding, international law
actually functions as norms of conduct of States. This
function of international law was amply demonstrated
in section I, 1. This prescriptive function of States’
behaviour is the fundamental raison d’être of interna-
tional law as the law of global society.
Second, based on this fundamental function of the
prescription, international law functions as a normative
framework and standard for assessing the behaviour of
States. Various participants in the international legal
process such as national Governments, organs of inter-
national organizations, indigenous peoples, various
types of minority, religious bodies, private companies,
media institutions, etc., evaluate the behaviour of
States and other subjects of international law by the nor-
mative standard and framework of international law.
92
For a detailed study, see Onuma, supra footnote 57.
When a conflict occurs between them, it further pro-

vides a normative framework and standard for settling
the conflict. International law applied by the ICJ
and other international courts and tribunals as norms of
adjudication is a leading example of international legal
norms fulfilling this function. International law applied
by the WTO dispute settlement mechanisms is another
and more effective example for settling the conflict.
Third, humanity has created and used international
organizations to accommodate and manage a huge
amount of international and transnational affairs in
global society. The United Nations is the most well-
known example. There also exist a large number of
international organizations dealing with transboundary
communication, finance, commercial activities, trans-
portation, food, health, environment, etc. All these
international organizations are established and admin-
istered by international law. Unlike States, interna-
tional organizations cannot exist without international
law, which bases its existence.
Fourth, international law functions as an instrument
of justifying national behaviour. However, even in this
function, States have to take the normative power of
international law into consideration. For example,
policy makers could choose to resort to war without
considering the general condemnation for violation of
international law when war was not outlawed. With the
outlawry of war, this freedom of action came to be
seriously restricted. States now basically have to justify
their use of force as self-defence, the only explicitly
exceptional legal use of force.
The policy makers seek to justify use of force as
self-defence even in cases where it is difficult to do so.
Although they resort to the argument emphasizing non-
legal high causes, they do not claim that such high
causes justify their violation of international law,
because they know well that a bad reputation for vio-
172 Onuma Yasuaki
lating international law carries politically high costs.

And because the gap between the actual behaviour and
the justification of self-defence of their nations is often
apparent, they have to, more or less, pay a certain
political cost. The awareness or recognition of this fact
contributes to the self-restraint by the national Govern-
ments for resorting to force.
The functions as referred to above are relatively
easy to see. However, functions of international law
are not limited to those which can be easily identified.
International law plays a number of functions which
may not be conspicuous yet are important in societal
and political terms. Following are some of these
unconspicuous functions, which have not been suffi-
ciently identified and elucidated in the previous studies
of international law.
Fifth, when States and other actors in global society
communicate with each other, they do so by using con-
cepts and terms of international law such as States, ter-
ritory, territorial sea, self-defence, human rights, etc.
Although these concepts and terms are also concepts
and terms of domestic law and politics, the authorita-
tive common denominator transcending national boun-
daries can be given only by international law. Interna-
tional law functions as a common language between
diverse actors in global society that are radically differ-
ent from each other in their political and economic sys-
tems, cultures, religions and other perceptions or under-
standings of the self, others, interests, values, etc..
Diverse actors construct and reconstruct identities of
the self and others, and mutually recognize such con-
struction and reconstruction of identities. Such a
mutual construction and reconstruction of identities is
possible only through common languages. Interna-
tional law is one of such common languages, i.e. the
important tool of communication and identification of
diverse actors in global society. In the twenty-first cen-
tury, this function will be even more important than in

the past, because the world will become more diversi-
fied in terms of culture and civilization with the
ongoing multi-polarization of the global society 93.
Sixth, international law, based on the communicative
function and on the long-established shared perception of
the determinacy and solemnity of law, embodies and
expresses shared understandings of the constitutional
structure and legitimate aspirations of global society.
By this function, international law indicates common
positive rules of behaviour and induces convergence of
behaviours of diverse international members. Internatio-
nal law, especially the international legal norm on human
rights or use of force by States or belligerents, may not
be able to compel States, particularly major powers, to
abide by a rule of international law in a rigid way as it
prescribes. Yet, it nonetheless contributes to the overall
convergence of behaviours of diverse international mem-
bers, thereby contributing to the realization of common
ideas and aspirations of international society 94.
93
In the twenty-first century, we will most likely wit-
ness two trends conflicting with each other. On the one
hand, with its strong “soft power” resources in the wider
sense of the term, including its popular culture, the United
States will continue exerting a huge influence on cultures
of various societies, whether they are Chinese or Indian, or
any other nations. On the other hand, with the emergence
of these Asian powers, their cultures and civilizations will
have a far stronger influence on a global scale. There will
thus be a concurring uniformization and diversification of
cultures in the twenty-first-century world.
94
In fact, this is also the case with domestic law.
Criminal law cannot compel all society members to abide
by rules of criminal law in a rigid manner. A substantial
number of murders and a huge number of thefts do occur
in every country. Few drivers abide by traffic rules in a
rigid manner. Unconstitutional practice, if interpreted
rigidly, exists in every country. Yet, these facts do not
mean that such domestic laws are unrealistic or irrelevant.
174 Onuma Yasuaki
Seventh, when people identify something as a prob-

lem transcending “national boundaries”, or related to
“international” or “global” affairs, they consider things
unconsciously by taking into account concepts, notions
and frameworks of international law. International law
induces the thoughts and behaviour of people to move
in particular directions. International law helps to con-
struct and reconstruct certain social realities of the
world, including the identity, understanding, interpreta-
tion and behaviour of relevant actors in global society.
I have dealt with most of these functions except the
final one earlier and elsewhere 95. In the following, I
will elaborate this seventh function of international
law, i.e. the constructive function, which I have not
elaborated before. I will thus seek to elucidate the
remaining aspects of the relations between law, legiti-
macy and power in global society.
2. The constructive function of international law 96

(1) The power of international law to construe and
construct social realities
International law expanded its sphere of validity
from Europe to the globe with the expansion of Euro-
pean dominance, hegemony and influence over other
parts of the world 97. Throughout the twentieth century,
people all over the world regarded international law as
the law of international society which covers the entire
95
See Onuma, supra footnote 57, pp. 122-139.
96
There have been a number of studies on construc-
tivism in international relations and some in international
law. For me, the most interesting and useful study is Jutta
Brunnée and Stephen Toope, “International Law and
Constructivism”, Columbia Journal of Transnational Law,
XXXIX (2000).
97
See Chapter IV.
globe. Humanity has managed a number of affairs as to

security, trade, finance, transportation, etc., on the
shared assumption that international law is the law of
global international society. Because of these accumu-
lated facts based on this assumption, international law
has continued to define and influence the thoughts and
behaviours among people all over the world. It is still
defining and influencing us today 98.
When humans are involved in trade, human rights,
the global environment, and other international, trans-
national or transcivilizational matters, they sometimes
consciously, or often unconsciously, adopt concepts or
frameworks of international law such as territorial sov-
ereignty, jurisdiction of States, and nationality. Notions
and frameworks of international law occur to their
mind without necessarily being recognized, and define
or influence their thoughts. Through such an uncon-
scious process of influence, they induce the thoughts
and behaviour of people to move in particular direc-
tions. In this way, international law helps to construe,
construct and reconstruct, through such thoughts and
behaviour, certain social realities of the world, includ-
ing the identity, understanding, interpretation and
behaviour of relevant actors in global society.
Based on these socially interpretive and constructive
functions, international law helps people, including
those in conflict with each other, to mutually under-
stand the identity of various actors, to communicate
with each other in a common language, and to share
98
From the 1990s on, we see an increasing interest in
international law among international relations experts,
including those in the United States, where such interest
was scarce. Although this interest is thus far shared mainly
by institutionalists and constructivists, I believe that real-
ists must admit these important functions of international
law if they are ever to be realistic in their observation of
the actual world.
176 Onuma Yasuaki
common understandings in and of the global society.

Through these functions, social institutions of mutual
understanding which articulate common values of a
global society are constructed and reconstructed on a
daily basis. Together with diplomacy, the market econ-
omy, global networks of media institutions and NGOs,
and the like, international law is one of the many insti-
tutions in global society which manages a number of
matters that are necessary for nations and other interna-
tional, transnational or transcivilizational actors to co-
exist and co-operate with each other.
When these institutions are functioning well and life
goes on in a routine manner, the ideas and institutions
of international law, such as norms regulating trade
activities or those guaranteeing the sovereignty of
nations, remain unnoticed. When things go wrong,
however, the existence of international law becomes
more conspicuous. Together with other institutions
such as diplomacy, mediation, and conciliation, inter-
national law functions to settle such problems as the
use of force, massive violations of human rights, trade
wars, and the like. This is one of the reasons why inter-
national law tends to be perceived as an international
means of settling disputes rather than as ideas constru-
ing and constructing realities 99.
When these problems do occur, not only those who
are in charge of settling them but also ordinary citizens
perceive these problems as “problems”. When they do
so, they consciously or unconsciously resort to a num-
ber of concepts and frameworks of international law,
and understand these affairs through such concepts and
frameworks. Here, international law contributes not
99
The prevalence of the (Anglo-American centred)
domestic model approach in international law, which
assumes the law functioning as an adjudicative norm, is
another important reason, as has been demonstrated earlier.
only to settling conflicts by providing dispute settle-

ment mechanisms like international arbitration and
judicial settlements. Even if the problem is not actually
solved in accordance with international law, it can help
people to identify what the problem is and also to
understand how it should be solved, if ever this prob-
lem is to be solved in a normatively legitimate and
authoritative manner by States. This will help people
to consider further the nature of the problem and the
possibility, desirability and limits of its settlement
either by legal, political, administrative, economic, or
some other means. This function of international law
has hardly been recognized and studied previously, yet
must be fully elucidated in the future.
(2) The power to make ideas of international law

become known, disseminated and shared
For an idea and notion of international law to work
as constructive power, another kind of ideational power
must work as well. Today, people consciously or
unconsciously rely on and use various notions and cog-
nitive frameworks of international law such as territo-
ries, nationality, sovereignty, self-defence, etc. for con-
struing and constructing social realities. These ideas
and notions which people use today are those that were
basically constructed by major Western, male, interna-
tional lawyers such as Lassa Oppenheim. They came to
be accepted by people all over the world. Very few
non-Western or female lawyers have played a signifi-
cant role in constructing and construing major ideas,
notions, concepts and frameworks of international law.
No one can deny that it is the Western international
lawyers that have produced the most elaborate theory
of international law. And it is the Western international
lawyers that have led the practice of international law.
Although there have been some exceptions, their over-
178 Onuma Yasuaki
all primacy in the field of international legal studies

and practices is evident.
These facts raise a serious doubt as to the global
legitimacy of these predominant concepts or frame-
works of international law. They may have technical or
professional legitimacy because they are products of
highly esteemed experts such as Oppenheim. However,
even in terms of expertise, these experts have had
insufficient knowledge on legal and other aspects of
non-Western societies, cultures and civilizations, which
should have a bearing on the concepts or frameworks
of international law. In terms of representative legiti-
macy, most traditional concepts of international law —
those of so-called “customary” international law —
lack global legitimacy because they were not created
and formulated in a manner representing humanity as a
whole. More than 80 per cent of the world’s popu-
lation was not represented in the process where pre-
dominant notions and frameworks of “customary”
international law were created and formulated. This
problem will be fully discussed in Chapter III.
The problem is not limited to that of legitimacy. The
concepts or frameworks of international law that were
predominant do not correspond to or represent realities
of power constellation in the twenty-first-century
world. Although Western nations were predominant in
their economic, military, informational and cultural
power since the nineteenth century throughout the
twentieth century, it is unlikely that they can maintain
such a preponderant status in the twenty-first-century
world. The West-centric notions and frameworks of
international law no longer respond to the reality : the
reality of the multi-polar and multi-civilizational world
that is emerging in the twenty-first century.
Such a discrepancy between the actual power con-
stellation and the predominant cognitive framework is
dangerous, because the discrepancy will easily lead to
a misunderstanding of problems between major

powers 100. In order to satisfy the requirements for rep-
resentative global legitimacy and relevance to global
power constellations of the twenty-first century, we
must overcome excessive West-centrism in interna-
tional law and global society. One of the important
tasks before us is to seek to explore the attempts to
overcome this West-centrism, to evaluate them, and to
propose perspectives to rectify it, in order to minimize
such a discrepancy.
III. In Quest of Legitimate Perspectives

in the Global Discursive Space
1. Problems of West-centrism in international law
(1) Critiques of West-centrism and their problems
Various problems of West-centrism in international
law and the actual and possible consequences are dealt
with in each chapter of this book. Here, I will briefly
sketch the history of attempts to overcome West-cen-
trism in international law based on my earlier studies,
as well as my own experiences and observations based
on such experiences.
There is already a long history of voices dissenting
against West-centrism in the wider sense of the term.
From the nineteenth century, a number of Latin Ameri-
can nations’ Governments along with international
lawyers and other intellectuals have criticized Euro-
centric or North-Atlantic-centric features of interna-
tional law. National liberation movements by Afro-
Asians struggling against the West-centric international
order were active from the late nineteenth to the
middle of the twentieth century. In the early twentieth
100
See Chapter I, section II, 2.
180 Onuma Yasuaki
century, numerous political and intellectual leaders of

Japan, the only non-Western Great Power at the time,
were critical of Anglo-America-centric features of
international order. Japan sought to justify its aggres-
sive wars from 1931 to 1945 by claiming that it waged
wars of liberation of Asia from Western dominance 101.
However, these dissenting voices could not bring
about concrete changes in the international legal order.
Claims by Latin American international lawyers were
not accepted by Western powers and mainstream inter-
national lawyers of the time. Although some of their
claims were accepted as special customary interna-
tional law, they were valid only to Latin American
nations. The national liberation movements were bru-
tally suppressed by the Western powers (and Japan) up
to the middle of the twentieth century. The Japanese
proposal to insert a racial equality clause in the League
of Nations Covenant was flatly rejected at the Ver-
sailles Conference of 1919. Japan further waged wars
against the United States, the United Kingdom and
other Western powers from 1939 to 1945, making a
hypocritical claim of “liberation of Asia from the Wes-
tern dominance”. But Japan was completely defeated,
and was forced to accept the United States-centric view
of the world after 1945.
It was during the peak period of decolonization
from the 1960s to the early 1980s that the criticism of
West-centric features of international law was most
energetically raised. Actual claims and moves for
revising such features were actively developed mainly
in the UNGA and other forums. Political and intellec-
tual leaders of the newly independent nations of Asia
101
The fact that Japan colonized Taiwan and Korea,
invaded China and other Asian nations, and killed a huge
number of Chinese and other Asian people reveals the
ideological and hypocritical nature of this claim.
and Africa severely criticized existing rules and prin-

ciples of international law. They regarded many of these
rules and principles as a tool of Western colonialism
and imperialism. They sought to establish the New
International Economic Order and New International
Information Order, which, according to them, would be
fairer and more equitable international orders.
These movements brought about certain concrete
notions and institutions. The “right to development”
and the “permanent sovereignty over natural resources”
may be characterized as leading examples. However,
these movements were closely associated with the
State policies of developing countries. Heavily influ-
enced by State planned economy, they took radical
economic policies and based them on the notion of per-
manent sovereignty over natural resources. With the
malfunctioning and decline of such radical economic
policies after the mid-1980s, the movements to over-
come the West-centric construct of international law
gradually lost their power and influence. This decline
is not only due to the decline of the substantive power
of the developing countries ; their claims had theoreti-
cal problems as well.
The first problem was that the arguments made by
the Third World intellectuals were mainly concerned
with economic aspects of humanity. As far as eco-
nomic conditions are concerned, however, it has
become more and more difficult for the Third World to
act as a single group 102. More fundamentally, although
102
A small number of countries such as Singapore,
South Korea, Malaysia and Thailand underwent significant
economic development, but a far larger number of coun-
tries in Africa became even more miserable in economic
terms than they had previously been. In the multinational
treaty-making process, such as that of the UN Convention
on Climate Change and multilateral negotiations involving
economic interests of various Governments, producers,
182 Onuma Yasuaki
many problems have their causes in economic poverty

and inequality, humans are not driven solely by eco-
nomic factors. Terrorism is a good example. Terrorism
may have some causal relations to poverty or economic
inequality, but it does not originate from these alone. It
has political, social, religious, cultural and historical
dimensions. The extremist interpretation of an influen-
tial religion, coupled with political resentment asso-
ciated with ethnic tensions or conflicts, may produce
terrorism. Also the memory of past wars or massacres
of an ethnic group committed by other ethnic groups may
be a cause of terrorism. Thus, we need a comprehen-
sive perspective that pays attention not only to eco-
nomic factors and dimensions, but also to political,
social, cultural, religious and historical ones 103.
The second problem is that, although Third World
intellectuals were critical of existing international law
for being unfairly favourable to Western nations, they
tended to follow the prevalent cognitive framework of
international law. Many of these international lawyers
claimed that Asian and African nations had contributed
to the development of international law, or that interna-
tional law, democracy or human rights had also existed
in Asia or in Africa. These claims, based on the criti-
cism of the West-centric attitude of monopolizing any-
thing good as a creation of Europe or North America,
were understandable given the hidden West-centric
tendency in any discourse dealing with historical
products that are valuable for humanity. However,
from a theoretical perspective, such claims tend to ignore
and consumers, like those taking place at WTO confer-

ences, the Third World nations no longer act as a single
group. Moreover, the end of the Cold War meant the dis-
appearance of the major part of the Second World, the
Soviet bloc. It is difficult to talk about the First, Second
and Third Worlds in the twenty-first century.
103
See Onuma, supra footnote 54.
the historicity of these ideas and institutions, and are

highly questionable.
A similar problem was in their assertion that some
of the UNGA resolutions are legally binding. Many of
their arguments were made within the traditional con-
cept of law assumed as a norm of adjudication, regard-
ing Article 38 of the ICJ Statute as embodying the
“sources” of international law. They could not over-
come the positivistic and judiciary-centric construction
of international law. They could not overcome the mys-
tical theory of customary international law, which con-
tributed to the West-centric construct of international
law 104.
Thirdly, although they were critical of the self-right-
eousness, double standards, and aggressive nature of
Western nations, they kept silent about their own prob-
lems. This double standard on the part of the develop-
ing countries became more and more apparent as the
serious human rights conditions in many Asian and
African nations became evident from the 1980s
onwards. Everything wrong, everything judged nega-
tively was, more than a few political leaders and intel-
lectuals of the developing countries argued, a result of
the colonialism and imperialism of the West. Corrup-
tion, authoritarian and repressive regimes, and persist-
ing inhumane, discriminatory, and cruel social prac-
tices in the Third World were overlooked.
These problematic features still linger today. They
can be seen even in such nations as China and India,
the candidates for superpowers in the twenty-first cen-
tury. Because Western colonial rule and hegemony in
international society seriously hurt their pride, they
share a strong sense of victimization and humiliation.
Thus, they tend to emphasize only the negative aspects
104
As to the mystical nature of the predominant theory
of customary international law, see Chapter III.
184 Onuma Yasuaki
of West-centric features of the existing global society

and close their eyes to their own problems. This ten-
dency has decreased, rather than increased, the per-
suasiveness of their argument.
(2) The need for “intercivilizational” or “transcivi-

lizational” perspectives
I have been seeking to overcome West-centrism
from a perspective which is somewhat different from
those “orthodox” criticisms claimed by leading Third
World leaders or intellectuals. This is what I call the
intercivilizational, or, in more recent years, transcivi-
lizational perspective.
In 1981, I was invited to give a paper as a member
of the panel on the education of international law at the
75th annual meeting of the American Society of
International Law. When doing a research on interna-
tional law education in the United States, I was
shocked to realize the fact that the major international
law casebooks and coursebooks used in the US law
schools and universities were incredibly egocentric,
tacitly equating what is American with what is interna-
tional or universal. These casebooks and coursebooks
were composed of a huge number of US domestic laws
and jurisprudence, and incredibly few international and
foreign materials. The overwhelming majority of the
writings excerpted in these books were authored by US
lawyers 105. These did not appear to be coursebooks for
students of international law at all. Rather, they seemed
like coursebooks on US domestic law.
105
In three major texts that I dealt with, the percentage
of excerpted writings by US writers ranged from more
than 75 per cent to 98 per cent. See my remarks in
“Promoting Training and Awareness — The Tasks of Edu-
cation in International Law”, Proceedings of the American
Society of International Law, LXXV (1981), pp. 163-167.
We must admit that each country tends to have its

own preferences for selecting academic writings, laws
or jurisprudence for textbooks on international law 106.
This is understandable and to a certain extent justifi-
able because they are basically addressed to the readers
of their own countries. However, even considering this
common tendency, the coursebooks and casebooks
used in the United States were too egocentric, even
parochial. They paid excessive attention to their own
laws, jurisprudence and writings, ignoring foreign and
international ones. They simply lacked a notion that
the United States is one of many sovereign States,
which constitutes a fundamental basis for any study of
international law.
In 1981, criticism of Eurocentrism or West-centrism
was already visible in a number of disciplines such as
anthropology, history and sociology. Edward Wadie
Saïd’s Orientalism was extremely popular among US
and European intellectuals. Yet, the situation of US
international legal education was such as I described
above. These casebooks or coursebooks reflected the
prevalent psychology of the people in the United States
(including international lawyers) to equate what is
“American” with what is universal. They also reflected
the power, i.e. the ideational/intellectual power, of the
United States, which was prevalent in international
society. As long as the students understood what US
laws prescribe, what US courts apply and US lawyers
interpret or claim, they were supposed to understand
international law 107.
106
For example, Japanese textbooks include more
Japanese materials than do textbooks of other nations. The
same is basically true with textbooks published in any
country.
107
Did they reflect the intellectual and ideational
power of the time correctly ? Probably not. At least the
ideational power of French-speaking international lawyers
186 Onuma Yasuaki
It is a matter of course, however, that one cannot

understand international law only by reading materials
produced by US lawyers and institutions. International
law is, and should be, universal, to be applied to
nations and peoples all over the world. In this sense,
the attitude exemplified by the international legal edu-
cation in the United States must definitely be recti-
fied. There should be no doubt about this. On the
other hand, merely criticizing the United States-
centrism or West-centrism, and tacitly absolving cor-
rupted and authoritarian non-Western leaders of
responsibility are not enough. Such one-sided criti-
cism could not be persuasive and constructive as a
public discourse.
In order to overcome West-centrism in a more con-
structive manner, we need a theoretical tool to see
international legal phenomena from a fairer and more
coherent and comprehensive perspective. We must take
into consideration not only the political and economic,
but also social, cultural and historical dimensions. This
is why we need the “transcivilizational” perspective, in
addition to international and transnational perspectives,
when we look at international legal affairs. For any
education, research, discussion and dialogue to become
legitimate on a global scale, they must be conducted in
such a way as to listen to the voices of people all over
the world, and to understand the values, virtues, cul-
tures and religions embraced by these people.
and Soviet international lawyers was stronger than that

suggested by these US coursebooks in the 1970s and
1980s. And given the emerging power of majority and
aggressiveness of the developing countries at that time,
their ideational power was also stronger than what was
suggested by these coursebooks. The US coursebooks
played an ideological function of strengthening the status
quo in favour of the United States by tacitly ignoring the
writings of non-US international lawyers.
(3) The need for changing the perspective in res-

ponding to the multi-polarization of the globe
Since around the 1960s, criticism of Eurocentrism
or West-centrism has become common among intellec-
tuals. Like male-centrism, everybody says that this is
wrong. Yet, like male-centrism, the West-centric nature
of the world has been persistent. The United States, the
most influential nation in global discursive space, has
generally been ignorant of “others” in the outside
world and has remained self-righteous. Despite their
bitter experiences in the Vietnam War, the United
States launched the Iraq War in 2003, rejecting over-
whelming criticisms coming from all over the world.
The admirable nature of the United States as a nation,
that is, a keen interest in and concern for justice in uni-
versal terms, frequently finds expression as self-right-
eousness because it often lacks proper understandings
of cultures, religions, histories and civilizations in the
outside world. The people of the United States, includ-
ing intellectuals, have not liberated themselves from
equating what is “American (in fact ‘of the United
States’)” with what is universal 108.
West European intellectuals have generally been
more willing than US intellectuals to understand cul-
tures of others. However, many of them fundamentally
lack interest in, and are ignorant of, non-European civi-
lizations and cultures, as their US counterparts. For
them, like those in the United States, the history of
human ideas begins with Greek philosophy, moves to
108
After the Bush administration, the worst administra-
tion we can think of, the United States has the Obama
administration, which is far better in understanding the
outside world or “others”. Yet, it seems to me that it will
take decades for the majority of the people in the United
States to overcome their deeply rooted self-righteous uni-
versalism.
188 Onuma Yasuaki
European medieval theology and natural law doctrines,

then to the Enlightenment and social contract theory,
and on to Hegel, Marx and Nietzsche, to Jaspers,
Heidegger and Foucault, although individual names
may differ from one to the other. Confucianism, Islamic
theology, Buddhism, Hinduism and any other great
ideas or thoughts of the non-Western world have been
virtually non-existent for them.
To make matters worse, many of the non-Western
intellectuals themselves are caught by the West-centric
way of thinking and unconsciously adopt it. The prob-
lems referred to above found in some of the Afro-
Asian international lawyers in criticizing the West-cen-
tric international law reveal this problematic feature.
Moreover, the influence of Afro-Asian and Latin Ameri-
can nations in terms of intellectual/ideational power
itself declined toward the end of the twentieth century.
This tendency became even more conspicuous after
the end of the Cold War. A counter-ideology to
liberal/capitalist democracy has virtually disappeared.
The aggressive advocacy of democracy, market eco-
nomy, human rights and the rule of law, as defined and
understood in a West-centric manner, has demonstrated
this tendency. This is regrettable because it has con-
tributed to the uni-polarity of the world in terms of
intellectual/ideational power. The global financial cri-
sis starting in 2008 has revealed a danger of this uni-
polarity of the global ideational power.
As I referred to at the beginning of Chapter I, the
world of the twenty-first century will be a world of
multi-polarity in terms of economic power, and, to a
certain extent, military power as well. Yet, most people
are not fully aware of the civilizational implications of
what this radical change is going to bring about.
Despite the radical changes that will likely occur
rapidly in substantive power, the informational/intel-
lectual/ideational frameworks are still overwhelmingly
West-centric. Most ideationally influential people are

still caught in these West-centric cognitive, interpretive
and evaluative frameworks when they see the world,
including international law. Because people all over the
world are heavily influenced by these privileged few,
most of humanity cannot recognize the civilizational
implications of this radical change.
This can cause a dangerous situation. If the predomi-
nant perception of the world does not conform to the
actuality of the world, there will be serious misunder-
standings, miscalculations and failures in assessing
realities, including those of the power constellation.
This is why I have repeatedly emphasized the need for
and importance of a transcivilizational perspective. By
deliberately adopting it, we can better understand the
phenomena, activities and events related to this power
shift that is occurring, and cognitive, interpretive and
evaluative frameworks which underlie such pheno-
mena. Unless we can understand such underlying cogni-
tive, interpretive and evaluative frameworks, we can-
not appropriately respond to emerging new realities.
(4) Symptoms for change in the study of internatio-

nal law ?
I cannot be very optimistic of the overall situation.
History tells us that ideational/intellectual power and
influence remain even after political rule declines.
Even after the Roman Empire declined, Roman law
and the Latin language continued to be influential in
Europe for a long period of time. Chinese characters
and many Chinese cultures remained after the fall of
the Sinocentric regional system. A number of Chinese
features can still be found in today’s Korea, Vietnam,
Taiwan and Japan, although the Sinocentric East Asian
regional system collapsed more than a century ago.
Likewise, a number of West-centric cultures and ideas
190 Onuma Yasuaki
will remain predominant even after the West-centric

structures of the world will shift to the more multi-
polar ones in terms of substantive power in the twenty-
first century.
However, we might be able to see some positive
signs of gradual change both in the actual world and in
the field of international legal studies. As to the change
in the actual world, people in the United States came to
learn in the early twenty-first century that unilateralism
under US hegemony does not work. Many of them
learned that projection of military power cannot be effec-
tive in addressing the problem of terrorism without a
legitimate cause which can attract people transcend-
ing cultural and civilizational boundaries. It must be
recalled, however, that the US people should have
learned a similar lesson in the Vietnam War and yet
made a similar mistake some 30 years later. It should
take a long period of time to overcome a self-righteous
psychology, which has been so deeply rooted in the
US people.
Yet, it may be able to say that they are beginning to
understand that the United States is the primus inter
pares rather than the only emperor of the globe. The US
attitude towards international law may gradually change
according to this change of understanding of its identity.
In the field of international legal studies, two events
happened that may have a symbolic meaning. First, the
European Society of International Law was established
in 2004. At its inaugural meeting, Martti Koskenniemi
gave a paper drawing attention to the ideological func-
tions of European international lawyers in justi-
fying the imperialistic policies of the Western Great
Powers 109. Although this paper was severely criticized
109
Martii Koskenniemi, “International Law in Europe :
Between Tradition and Renewal,” European Journal of
International Law, XVI, No. 1 (2005), pp. 115-117.
by Pierre-Marie Dupuy 110, the very fact that such

a paper was presented as a keynote address at the
inaugural meeting of the European Society of Inter-
national Law is significant.
In April 2007, the Asian Society of International
Law 111 was established. Its second Biennial General
Conference held under the title “International Law in a
Multi-polar and Multi-civilizational World : Asian
Perspectives, Challenges and Contributions” in Tokyo
in 2009 attracted some 600 international lawyers as
participants from all over the world. Thus far, it is the
American Society of International Law that has been
the most active academic and professional society of
international law. It has produced a number of impor-
tant academic and practical papers, attracted interna-
tional lawyers from all over the world, and has given
opportunities to exchange views and opinions. Yet, in
order to enrich the study and overall understanding of
international law, we need a plurality of active aca-
demic societies that can compete with each other.
The very fact that both the European and the Asian
societies of international law were born at the begin-
ning of the twenty-first century may carry a symbolic
meaning : that international legal studies based on
multi-polarity and multi-civilizationality began to be
visible, responding to the emerging realities of the
multi-polar and multi-civilizational global society. To
me, speaking as one who argued already in 1981 the
110
Pierre-Marie Dupuy, “Some Reflections on Contem-
porary International Law and the Appeal to Universal
Values : A Response to Martti Koskenniemi”, European
Journal of International Law, XVI, No. 1 (2005), pp. 131-
137.
111
http ://www.AsianSIL.org (last visit : 30 May 2009).
The Japan Branch, its most active branch, has also a web-
site : http://asiansil.web.fc2.com/en/index.html (last visit :
30 May 2009).
192 Onuma Yasuaki
need for an intercivilizational perspective, it has taken

a little too long for these activities to get started.
Further, the actual ideational/intellectual power of
these two societies, particularly that of the Asian
Society, is definitely too small. It is just a newborn
baby if compared with the powerful American Society
of International Law.
As referred earlier, history tells us that the idea-
tional/intellectual power tends to remain long after the
predominant nations’ substantive power declines or
decreases 112. Even though the substantive power of the
major Western nations in relative terms in global
society may decline with the emergence of China and
India as superpowers rivalling the United States and
the European Union, the ideational/intellectual power
of the latter group will likely persist. In the field of
international law, the ideational/intellectual power of
Afro-Asian nations or any other non-Western agents
will continue to be much smaller than that of the
United States and West European nations and their
agents. The combination of the American Society of
International Law and the European Society of
International Law might well work as the combined
hegemonic ideational/intellectual power of interna-
tional legal studies.
On the other hand, both West European nations and
the United States recognize the value of cultural and
civilizational diversity. The global significance of bio-
logical and cultural diversity is firmly recognized in
international law 113. From a normative perspective,
112
See pp. 84-88, 189.
113
The United States has not officially committed itself
to these crucially important ideas in the form of the ratifi-
cation of treaties such as the Convention on Biological
Diversity of 1992 and the Convention on the Protection
and Promotion of the Diversity of Cultural Expressions of
2005. However, at least in terms of ideas, even in the
strengthening “multi-culturality” or “multi-civilization-

ality” is now recognized as one of the common public
policies of humanity. Moreover, with the increasing
economic power of Asian nations, their ideational/
intellectual infrastructures — such as universities,
libraries, research institutes, publishers and media
institutions — will be strengthened. Thus, it is likely
that their ideational/intellectual power will steadily
increase over the twenty-first century.
When I argued the need for an intercivilizational
perspective in the twentieth century, it was basically a
normative or moralistic argument. I argued that such a
perspective is needed from the viewpoint of global jus-
tice : voices of the weaker, peripheral and powerless
must be heard. The claim for the transcivilizational
perspective still retains this important feature. In the
twenty-first century, however, it is no longer a merely
moralistic argument. It is also a realistic argument
based on the changing realities of power constellation
in global society 114.
United States, a number of intellectual and political lead-

ers support the idea that the diversity of culture must be
respected and protected.
114
In 2000, I published an article on the history of
international law as seen from a transcivilizational per-
spective in the Journal of the History of International
Law. This article was well received. In 2003, the Austrian
Review of International and European Law published a
volume that contained an agora organized by Karl
Zemanek, who started his introductory article by referring
to this article. In 2004, the Journal of the History of
International Law, VI, No. 1, featured a symposium on
this article and dedicated its pages to six reviews. The
authors were Ram Prakash Anand of India, Antony Anghie
of the United States (originally from Sri Lanka), Emma-
nuelle Jouannnet of France, Jörg Fisch of Switzerland, Li
Zhaojie of China and Nicholas Onuf of the United States.
They are all leading international lawyers, historians of
international law and international relations scholar.
194 Onuma Yasuaki
In order to minimize the danger arising from the

huge gap between the actual world of the power con-
stellation and the predomi-nant perception of the
world, it is crucial to accommodate the cognitive
framework to those emerging actualities of the twenty-
first century. Those who are engaged in managing
global affairs must behave based on shrewd calculation
of the actual power constellation in the world. To
accommodate diverse perspectives on the world is a
prerequisite for the co-existence and co-prosperity of
major powers, and ultimately of humanity, in the multi-
polar and multi-civilizational world of the twenty-first
century. Without wise and clever recognition of this
reality the future of humanity would be in danger.
2. The power of legitimate international law
(1) The power of shared normative consciousness

in upholding the law
The power of international law as an idea or institu-
tion can be either strong or weak, depending on vari-
ous factors. The legitimacy of international law is one
of the most important of such factors. International law
plays a number of diverse functions, but in each case
the legitimacy constitutes a crucial factor for its proper
and effective functioning. For international law to have
normative power to be respected by nations and to be
influential upon decision makers, opinion leaders and
ordinary citizens, it must satisfy the requirements for
global legitimacy. These requirements must be satisfied
in both the substantive and procedural aspects of legiti-
macy. The substantive aspect of legitimacy includes
righteousness, fairness and representation of substan-
tive values and virtues shared by society members. The
procedural aspect includes orthodox pedigree, demo-
cratic and equitable representation of the society mem-
bers, coherency, transparency, and the due process of

law.
Whether a certain act addressed to society members
by a political authority can be accepted as legitimate
ultimately depends on the shared perception of the
addressee of the act. The so-called enforcement mech-
anism of the State including the judiciary with compul-
sory jurisdiction and binding force of the judgment as
the final guarantor of legal order assumes this norma-
tive consciousness of the societal members as a whole.
This is the case even with a nation where the Supreme
Court or Constitutional Court enjoys the power to
review the constitutionality of State acts, including
legislation. Without such a normative consciousness of
the society members to respect the ultimate authority
of the Supreme Court or the Constitutional Court, their
decisions would not be actually enforced.
Suppose that the court judges a certain act of admin-
istration as unconstitutional. The court itself does not
have any enforcement force such as the police or the
military. The judgment cannot be realized without the
accumulated and widely shared normative conscious-
ness that the judgment must be respected and obeyed
by other State organs, particularly the executive branch
that can give orders to those with enforcement force.
Only with such deeply rooted and widely shared nor-
mative consciousness of the society members under-
lying the judicial system, does an administration, which,
with its actual power of police, military forces and
financial policies, could well ignore such a judgment,
actually obey it 115.
115
Hans Kelsen, in his Pure Theory of Law (University
of California Press, Berkeley, 1967), resorts to the concept
of “Grundnorm”, which ultimately upholds the entire legal
system. H. L. A. Hart, in his The Concept of Law (Claren-
don Press, Oxford, 1994), resorts to the notion of “rule of
recognition” to ultimately uphold the legal system. Both,
196 Onuma Yasuaki
This is all the more the case with a global society,

where no institutionalized enforcement mechanism
exists. It is ultimately the globally shared normative
consciousness that international law is legitimate, and
therefore must be obeyed by States, that upholds and
helps realize the norms of international law. If the cre-
ation, invocation or application of international law is
perceived as unjust, unfair, selective, or inconsistent by
people throughout the world, its legitimacy will be
doubted and undermined. This perception of illegiti-
macy raises serious doubts as to whether this norm of
international law should be obeyed and realized. If this
perception of illegitimacy is serious, the addressee of a
legal norm may resist its implementation by means of
tacit or open criticism, sabotage, or defiance. The
authority of the legal norm will be damaged and its
effectiveness will decrease.
If, on the other hand, people regard a certain norm
of international law as highly legitimate both in terms
of substance and procedure, the political cost of a cer-
tain Government of a State violating this norm would
be high. There will be more pressure on the Govern-
ment to refrain from violating the norm. If, neverthe-
less, the Government in question dares to violate the
norm, the criticisms of this violation will be greater
and last longer. This can work against the reputation of
the Government, which has to care about next elec-
it seems to me, tacitly rely on this normative conscious-
ness on the part of the addressee, the society members as
a whole, as the ultimate substantive guarantor of the entire
legal system. In some countries, however, especially in
developing countries, where such accumulated common
normative consciousness is lacking, the judgments of
the Supreme Court are sometimes ignored or denied by the
powerful administration. In these countries, the normative
consciousness that the judgment must be respected and
obeyed by State organs is not sufficiently accumulated
and widely shared.
tions, opposition groups in the governing party, opposi-

tion parties and other relevant actors that should be
involved in the controversies on the international legal
norm in question.
As was referred to in Chapter I 116, the legitimacy of
international law has basically been based on the
shared understanding that international law is made by
States and implemented by States. Nation States have
been considered to be the legitimate agents or organs
to conduct affairs on behalf of aggregates of citizens
who belong to them. Therefore, their acts, products and
forms of management, including international law,
have generally been perceived as legitimate. Although
“State-centrism” is a pejorative term among many
experts and NGOs today, the State has been, and still
is, a major source of legitimacy of social institutions.
This assumption has been shared on a global scale.
(2) Significance and problems of international and

transnational perspectives
Toward the end of the twentieth century, however,
this assumption became problematic. The legitimacy of
States came to be questioned, especially in the predomi-
nant discourse of developed countries. The term “civil
society” or “global civil society” came to be utilized as
trumping governmental or inter-governmental initia-
tives, policies, decisions and instruments as well as
their implementation. If some Governments that are
considered as lacking legitimacy in terms of democ-
racy, human rights, good governance, etc. are involved
in the creation of some legal norm through inter-
governmental norm-creating processes, the legitimacy
of this norm can be questioned. States came to be
no longer the exclusive source of legitimacy.
116
See Chapter I, section II, 1 (2), supra.
198 Onuma Yasuaki
Many people, especially those in developed coun-

tries, began to think that in order to understand and
evaluate transboundary or global affairs, they have to
take into consideration not only interstate or intergov-
ernmental ideas, activities and institutions. They now
believe that they also have to consider ideas, activities
and institutions which originate from, and/or are
claimed, disseminated, carried out and realized by,
non-State actors. The importance of this way of think-
ing — transnational perspective — came to be empha-
sized in developed countries, and, then, international
society at large. A large number of people believe that
this transnational perspective is needed for evaluating
certain transboundary or global ideas, institutions and
behaviours as legitimate in today’s world. For them,
State-centrism, or international perspective, is some-
thing that has to be overcome.
This transnationalism came to be particularly tri-
umphant after the end of the Cold War. Today, not only
scholars, activists and journalists, but also political
leaders and even government officials believe that they
have to adopt a transnational perspective to understand,
assess and respond to the complex issues in global
society. They know well that they need to legitimize
their foreign or international policies and institutions
not only by ideas or notions centred on “national” or
“international”, but also some transnational ideas such
as “global civil society”. They may not believe in the
transnational perspective, but they know that they have
to appreciate it from the viewpoint of political cost
they have to pay in carrying out governmental policies.
By adopting the transnational perspective in addi-
tion to the international perspective, our ability to
appreciate complex realities of today’s world has cer-
tainly been enhanced. We can now conceive of interna-
tional law in a more nuanced and multi-dimensional
manner than conceiving of international law merely
from international perspectives, which are centred on

ideas and activities associated with States. We can now
adopt a more comprehensive standard of judging or
assessing norms of international law by introducing the
transnational perspective in addition to the interna-
tional perspective. Whether a State involved in the
creation or implementation of the norm in question
satisfies the democratic representation or protection
of human rights is one such example. Major subjects
of these assessments are media institutions and NGOs
with a sense of public responsibility and accountability.
Yet, as referred to in Chapter 1 117, even this qualifi-
cation or supplementation of the international perspec-
tive by the transnational perspectives is not sufficient
to see, evaluate and legitimate global or transboundary
ideas, activities and institutions in the twenty-first cen-
tury. First, the significance of nation States, and there-
fore, the State-centric international perspective, will
likely persist in the twenty-first century. It is in this
twenty-first century that most of humanity, living in
developing countries, will be engaged in nation build-
ing, and will seek to consolidate State mechanisms for
being able to act as fully independent sovereign States
in international society. This aspect of international
society has regrettably been ignored in most of the
mainstream discourses, which have been West-cen-
tric 118. Yet, the persistent significance of international
perspective must be kept in mind.
117
See Chapter I, section II, 1 (2), 2 (3), supra.
118
The global discursive space has virtually been domi-
nated by intellectuals and/or opinion leaders. These opin-
ion leaders generally live in Western societies, which car-
ried out the task of nation-building and the consolidation
of State mechanisms already by the Second World War. It
was natural for the Western intellectuals living in the latter
half of the twentieth century to consider that State-cen-
trism was something of the past, something to be over-
200 Onuma Yasuaki
Second, although we can supplement and modify

our State-centric way of thinking and patterns of
behaviour by adopting a transnational perspective, it
is difficult for us to rectify our deeply rooted West-
centric perspective. On the contrary, because Western
corporations, NGOs and media institutions are major
agents of transnational activities, we may uncon-
sciously strengthen the West-centric perspective in see-
ing the world by emphasizing the importance of the
transnational perspective. To see and evaluate prob-
lems on international law in the multi-polar and multi-
civilizational world of the twenty-first century, we con-
sciously and deliberately have to adopt a perspective
from which we can hear the voices of non-Western
peoples that were not fully heard in major global dis-
cursive processes of the twentieth century.
(3) The transcivilizational perspective : a way to fill

the legitimacy deficit in international law 119
One of the most serious deficits of international law
in the twentieth century was its inability to respond to
aspirations, expectations, frustrations and desperations
held by the overwhelming majority of humanity : non-
Western people of the world. The transcivilizational
perspective is a useful tool to rectify this deficit. In
order to carry out this critical task, international
lawyers and other experts must deliberately adopt the
transcivilizational perspective, understood in functional
terms, to modify and supplement the prevalent interna-
tional and transnational perspectives. They must par-
ticularly pay attention to non-Western cultures and
come. We must overcome this narrowly defined perspec-

tive if ever we consider international law that is valid to
all humanity, either directly or indirectly via States.
119
See Chapter I, section III.
civilizations, many of which were excluded from the

prevalent North-Atlantic-centric discursive space, while
at the same time avoiding the reification of culture,
religion or civilization.
These efforts are particularly required for Western
international lawyers. They have been indulged by the
fact that it is mainly West European nations and the
United States that have constructed today’s world. In
most cases, they still tacitly equate what is Western
with what is universal when dealing with any subject
including international law. They need to liberate
themselves from referring only to Western thinkers
such as Plato, Aristotle to Kant, Hegel to Heidegger,
when talking about major thoughts and ideas of huma-
nity. They need to learn teachings of Islam, Buddhism
and Confucianism in addition to Christian theology,
and to read Mahabharata, works by Ibn Khaldun and
Mencius, in addition to major Western thinkers. They
need to be aware of their privileged position in dealing
with any transboundary or global affairs in global
discursive space that involve international law, which
is a powerful institution in their favour, yet one that is
disadvantageous to others.
On the other hand, non-Western international law-
yers should not pamper themselves by simply criticiz-
ing West-centrism in international law. Non-Western
intellectuals can be spoiled because when dealing with
the issue of West-centrism, they find themselves situ-
ated in a morally advantageous position. It is easy to
criticize colonialism or neo-colonialism and attribute
all evils to them. Yet, as an academic as well as the one
who seeks to contribute to constructing a more equi-
table and fair global legal order, non-Western citizens
must not indulge in such one-sided undertaking.
Moreover, a number of non-Western intellectuals are
often as West-centric as their Western counterparts. It
is not only Western intellectuals who refer only to
202 Onuma Yasuaki
Western thinkers when dealing with thoughts and ideas

of humanity in general. Non-Western intellectuals
including international lawyers share this problematic
feature. They must liberate themselves from such
enslavement of the soul.
Only by accumulating such deliberate and conscious
efforts to change our own perspectives, whose West-
centric features are unconsciously and deeply rooted
in the mind of contemporary people including non-
Western intellectuals, can we gradually change the per-
spectives of the people at large. Only by making such
deliberate efforts can we contribute to a less violent,
less destructive and less biased construct of the world.
In dealing with any subject of international law, this
awareness of transcivilizationality and self-reflection
based on this awareness are a prerequisite for an aca-
demic and professional undertaking of international
law.
203
CHAPTER III
TOWARDS A PROPER UNDERSTANDING

OF GENERAL INTERNATIONAL LAW,
CUSTOMARY INTERNATIONAL LAW,
AND THE JUDICIARY IN GLOBAL SOCIETY
“At the entrance to learning, however,

as at the entrance to Hell, the demand
must be posted :
‘Qui si convien lasciare ogni sospetto ;
Ogni viltà convien che qui sia morta.’
[Here must be left behind all hesitation ;
Here must perish all cowardice.]
Dante, Divine Comedy”
(Karl Marx.)
Introduction
When conceiving of the problem of international
law in the twenty-first century, it is highly important to
consider the status and function of general (or univer-
sal) international law valid to all members in interna-
tional society 120. Serious debates and controversies on
120
One may argue that we should conceptually distin-
guish between universal international law, characterizing it
as international law valid to all members in international
society, and general international law, characterizing it as
international law valid to most members in international
society. However, it is impossible to demonstrate the uni-
versal validity of law in an unequivocal manner. Even if
one defines universal international law as international law
that is valid to all subjects (or States) of international law,
one may be immediately asked who those subjects or
States are. Is Taiwan a subject of international law ? To
204 Onuma Yasuaki
the universality of human rights demonstrate the cru-

cial importance of the problem of universal or general
validity of international legal norms. Many important
notions in international law, such as jus cogens, obliga-
tions erga omnes and hierarchy of norms in interna-
tional law, presuppose the idea of international law
with universal validity.
How and to what extent norms of general interna-
tional law can assert universal validity, transcending
national, regional, cultural, religious and civilizational
boundaries ? How can they be realized in international
society where power, interests and value judgments of
its members are so diverse ? What are the bases of the
universal validity of a norm of international law ? How
can we identify norms with universal validity ? These
problems constitute crucial issues in the deliberation of
international law in the twenty-first century.
In the twentieth century, international law with a
universal validity was generally considered in terms of
customary international law. It was generally argued
that general international law exists (only) in the form
of customary international law. However, characteriza-
tion of general international law as customary interna-
tional law has a number of problems. Most seriously,
because many norms of “customary” international law
were products of a small number of powerful Western
some, it is, but to many others, it is not. The answer may

be different according to the area and/or context of inter-
national law as well. Whether a norm is universal or gen-
eral cannot be answered in a categorical way. It is a matter
of degree. We may be able to talk about the universaliza-
tion or universalyzing process of a norm, but we cannot
identify the universality itself in an unequivocal manner.
Arguments on the universal validity of the human rights
norms typically demonstrate that “universality” depends
on the degree of persuasiveness of the argument dealing
with a specific norm in question.
States, they lack global representative legitimacy. This

is a serious flaw for legal norms with a universal valid-
ity which should transcend national, cultural, religious
and civilizational boundaries. A new concept of general
international law with international, transnational and
transcivilizational legitimacy, which should respond to
emerging realities of the twenty-first century, must be
sought.
In actuality, many international lawyers have uti-
lized multinational treaties, UNGA resolutions and
other relevant instruments as cognitive bases through
which they identify norms of international law includ-
ing those with a universal validity. However, when
they considered the problem of cognitive bases (or so-
called “sources”) of international law, they almost
automatically resort to Article 38 of the ICJ Statute.
This almost axiomatic reliance on Article 38 of the ICJ
Statute for identifying the “sources” of international
law prevented a proper understanding of the cognitive
bases of international law. Although international law
exists and functions primarily as prescriptive norms of
conduct, as many other kinds of law do, prevalent stud-
ies of international law in the twentieth century tended
to consider international law almost exclusively in
terms of adjudicative norms as far as the “sources” of
international law was concerned. Underlying this atti-
tude is an excessive judicial-centrism in international
legal studies, which was further supported by what I
call a (West-centric) domestic model approach in inter-
national legal thoughts in the twentieth century.
In this chapter we seek to elucidate problematic fea-
tures of the traditional theory of customary interna-
tional law. We then seek to make explicit a proper way
to identify norms of international law with a universal
validity reflecting the prevalent normative ideas and
responding to realities of the twenty-first century. By
carrying out this task, we should be able to clarify the
206
proper role and status of the judiciary and international

law as adjudicative norms in global society.
I. Concept of General International Law

in the Twentieth Century 121
1. Equation of general international law with the so-

called “customary” international law
(1) Problems in resorting to Article 38 of the ICJ
Statute for identifying the “sources” of interna-
tional law
In the twentieth century, international law with a
universal validity was considered mostly in terms of
customary international law. The ICJ generally resorted
to the notion of customary international law when it
found necessary to refer to international law that obli-
gates all States in international society 122. A number of
121
The argument in this chapter is based on my two
earlier writings. The first is “The ICJ : An Emperor With-
out Clothes ?”, Nisuke Ando, et al., eds., Liber Amicorum
Judge Shigeru Oda (Kluwer Law International, The
Hague, 2002), and the second is “A Transcivilizational
Perspective on Global Legal Order in the Twenty-First
Century : A Way to Overcome Westcentric and Judiciary-
centric Deficits in International Legal Thoughts”, Ronald
St. John Macdonald and Douglas M. Johnston, eds.,
Towards World Constitutionalism (Martinus Nijhoff
Publishers, Leiden, 2005). Because of the development of
my ideas, there are a number of revisions of, and addi-
tional points to, my earlier arguments.
122
There have been numerous ICJ judgments of cases
demonstrating this tendency. See, e.g., Nottebohm case,
Judgment of 6 April 1955, ICJ Reports 1955, pp. 22-23 ;
North Sea Continental Shelf case, Judgment of 20 Feb-
ruary 1969, ICJ Reports 1969, pp. 37-39 ; United States
Diplomatic and Consular Staff in Tehran case, Judgment
of 24 May 1980, ICJ Reports 1980, p. 31 ; Military and
Paramilitary Activities in and against Nicaragua case,
leading international lawyers resorted to the same

method. Most international lawyers in the twentieth
century relied on Article 38 of the ICJ Statute when
they identified the cognitive basis of international law,
and argued that general international law exists (only)
in the form of customary international law 123. This
approach is still prevalent, or almost axiomatic, in the
study of international law.
A major reasoning for such an attitude was as fol-
lows. Article 38 of the ICJ Statute provides for the
“sources” of international law. This being the case, it
was argued, any norms of international law must be
located in one of the categories of this article. It pro-
vides treaties, custom and general principles of law
recognized by civilized nations as major sources of
international law. Because there is no treaty binding all
States in international society, either rules of “custom-
ary” law or those of “general principles of law” must
be applied when it is required to apply norms with a
universal validity. Because the latter has many dis-
advantages, customary international law must be
chosen as international law with a universal validity.
However, these assumptions and reasonings are
Judgment of 27 June 1986, ICJ Reports 1986, pp. 102-106 ;

Maritime Delimitation in the Area between Greenland
and Jan Mayen case, Judgment of 14 June 1993, ICJ
Reports 1993, pp. 59-63 ; Gabčíkovo-Nagymaros Project
case, Judgment of 25 September 1997, ICJ Reports 1997,
pp. 40-41 ; Kasikili/Sedudu Island case, Judgment of
13 December 1999, ICJ Reports 1999, p. 1059 ; etc.
123
Hans Kelsen, Principles of International Law (2nd
ed., Rinehart, New York, 1952), p. 304. ; Robert Jennings
and Arthur Watts, eds., Oppenheim’s International Law, I
(9th ed., Longman, Harlow, 1992), p. 4 ; Prosper Weil, “Le
droit international en quête de son identité”, Recuil des
cours, Vol. 237 (1992), pp. 186-201 ; Ian Brownlie, The
Rule of Law in International Affairs (M. Nijhoff Pub-
lishers, The Hague, 1998), p. 18.
208 Onuma Yasuaki
highly questionable, and must be scrutinized in many

respects.
First, even as to norms to be applied by the ICJ,
Article 38 may not exhaustively enumerate such bind-
ing norms. It may provide applicable norms only as
examples 124. It is possible to argue that Article 38 does
not prohibit the ICJ from applying norms other than
those enumerated (a)-(d) in paragraph 1, interpreting
them as an exemplary enumeration, not as an exhaus-
tive enumeration. As discussed later, the ICJ has some-
times referred to general norms of international law
without explicitly characterizing them as customary
law. This fact may suggest that the ICJ has not strictly
interpreted Article 38 as the exhaustive enumeration of
the applicable rules. If this is the case, even from the
viewpoint of adjudicative norms, there may be norms
to be applied by the ICJ other than those explicitly
stipulated in Article 38 of the ICJ Statute. This problem
will be further discussed later.
Second, it is theoretically questionable to assume
that all binding norms of international law are enumer-
ated in this provision. Article 38 basically stipulates
norms to be applied by the ICJ. They are adjudicative
norms (or norms of adjudication) 125. However, when
rules and principles of international law are actually
referred to, discussed and used by diverse participants
124
See Gennady Mikhaïlovich Danilenko, Law-Making
in the International Community (Martinus Nijhoff
Publishers, Dordrecht, 1993), pp. 30-43.
125
Already in 1958, Gerald Fitzmaurice argued that
“Strictly, therefore, Article 38 is simply a sort of standing
directive to the Court as to what it is to apply in deciding
cases brought before it . . .” (Gerald Fitzmaurice, “Some
Problems Regarding Formal Sources of International
Law”, F. M. Asbeck et al., eds., Symbolae Verzijl : présen-
tées au professeur J. H. W. Verzijl à l’occasion de son
LXXe anniversaire (M. Nijhoff Publishers, The Hague,
1958), p. 173).
of international law in various forums in global or

domestic society, they are assumed primarily as norms
prescribing conducts of States and other subjects of
international law. This means that norms of interna-
tional law are mainly discussed and dealt with as pre-
scriptive norms (or norms of conduct). Whether they
can be applied by the ICJ is a secondary problem. The
norms of international law also play roles of assessing,
justifying or delegitimizing acts of States. They further
play constructive, communicative and other ideational
functions. These are all demonstrated in Chapter II.
Some of the norms of international law may certainly
function as adjudicative norms and be applied by the
ICJ. But not all of them 126.
126
I have basically borrowed the idea of “norms of
conduct” and “norms of adjudication” from Eugen Ehrlich,
Grundlegung der Soziologie des Rechts (3. Aufl., Duncker
& Humblot, Berlin, 1967), pp. 10, 97 et passim. Ehrlich’s
famous concepts of Handlungsregel and Entscheidungs-
norm are generally translated into a “rule of conduct” and
a “norm for decision”, respectively (Fundamental Prin-
ciples of the Sociology of Law, translation by W. L. Moll
(Russell & Russell, New York, 1962), pp. 10, 121 et pas-
sim). I have adopted this terminology in my earlier writ-
ings (see supra footnote 121). However, in this chapter
and this lecture as a whole, I use the terminology of pre-
scriptive norm and adjudicative norm.
Ehrlich’s concept of Entscheidungsnorm is slightly dif-
ferent from my concept of adjudicative norms. First, the
former covers not only norms to be applied by the judicial
court, but other organs whose mandate is to settle conflicts
in general including courts of honour, courts of societies
etc. (ibid., p. 122). Second, it can mean various kinds of
legal and non-legal norms to be applied by such organs of
dispute settlement (ibid., pp. 123 et seq.). In contrast, adju-
dicative norms signify legal norms to be applied by the
judicial court as an institution of dispute settlement. Also,
Ehrlich defines the Handlungsregel as a rule including
both elements of customarily regulating human conduct
and a rule designating for the addressees how they ought
210 Onuma Yasuaki
In actuality, out of a huge number of cases involv-

ing norms of international law, those dealt with in
international courts, particularly in the ICJ, occupy an
extremely small portion. In addition, in those large
numbers of cases where the ICJ is not involved, parties
concerned do not act assuming that they can sue the
other party if the negotiation fails. Unlike domestic
societies of (Western) developed countries, in most
cases parties in conflict do not act in the “shadow of
the court”. International law as adjudicative norms
does not work even as tacit or hidden norms behind the
negotiation as assumed by both parties.
Thus, it is highly questionable whether international
lawyers should always refer to Article 38 of the ICJ
Statute when they discuss binding norms of interna-
tional law in general. Such attitude tacitly assumes
equating norms of conduct with norms of adjudication.
However, this assumption must be critically scruti-
nized. It may not be necessary for a norm of interna-
tional law to be characterized as customary inter-
national law in order to be evoked, applied and
implemented as a norm with universal validity, espe-
cially in non-judicial forums. As far as prescriptive
norms of conduct are concerned, there may be other
grounds than those enumerated in Article 38 that can
generate norms of international law with universal
validity. There may be, and most likely should be,
unwritten norms of general international law. But it is
not necessary at all to characterize these unwritten norms
of international law as customary international law.
to conduct themselves (Ehrlich, op. cit., pp. 11 et passim).

In my view, however, it is more appropriate to distinguish
between the validity and the efficacy of the legal norms.
Thus, my notion of the prescriptive norms simply means
norms prescribing specific conduct to the addressees as
law. Whether such norms are effectiveness or not is
another question.
Third, international lawyers, including those dis-

cussing the “sources” of international law, often refer-
red to classical writers such as Hugo Grotius and
Emmerich de Vattel, discussing their notions of inter-
national law. Yet, few have paid attention that those
classical writers did not think of international law as
the norm of adjudication between States. For example,
Grotius explicitly argued that judicial settlement is
impossible between States 127. Precisely for this reason,
he regarded instead just war as a means of enforcement
of rights of nations 128. When the classical writers dis-
cussed the problem of law among nations, what they
had in mind was the law functioning as the norms of
conduct. It was not the norms to be applied by an inter-
national court, which did not exist in their time.
Major provisions including those of Article 38 of
the ICJ Statute were made in 1920, when the PCIJ was
established. It is understandable, if not totally justified,
that international lawyers at that time were enthusiastic
about the establishment of the PCIJ, and that they
tended to equate the norms of adjudication with the
norms of conduct. For many international lawyers,
who had a kind of inferiority complex toward domestic
lawyers because there was no permanent judicial court
127
Hugo Grotius, De jure belli ac pacis libri tres,
Vol. I, Chap. 3, 2 (1), Vol. II, Chap. 1, 2 (1). See also
Onuma Yasuaki, “War”, idem, ed., A Normative Approach
to War (Clarendon Press, Oxford, 1993), pp. 57, 78-79, 99.
128
Ibid., pp. 77-93, esp. 78-79. In the case of Vattel,
natural law, the most important international law, is not
enforceable. Only positive international law, such as
voluntary international law, treaties and customary inter-
national law, are enforceable. However, the means of
enforcement is not the decision by an international court
and its enforcement mechanism. It is the power of nations
and the normative consciousness shared by nations that
were assumed to be the means of enforcement (Emerich de
Vattel, Les droits des gens, III (1758), Chap. 12, § 188).
212 Onuma Yasuaki
in international society, this was an excellent opportu-

nity to get rid of this inferiority complex. Some inter-
national lawyers such as Hersch Lauterpacht even
advocated that all international conflicts should be
settled by judicial settlements or arbitration 129.
However, as referred to in Chapter II, this argument
was severely criticized by E. H. Carr as a sheer uto-
pianism 130. Lauterpacht could not rebut Carr. More
importantly, among international lawyers themselves,
such an argument as advocated by Lauterpacht has not
been supported either. The basic nature of international
law as prescriptive norms of conduct with a limited
role as adjudicative norms has not been changed ever
since.
Fourth, demonstrating that a certain norm is cus-
tomary law does not guarantee its universal validity at
all. Customary international law is an existential form
of international law, whose applicability can be either
limited or universal. There has actually been a special
international law whose applicability is limited, for
example, to Latin American nations. Equating custom-
ary international law with general international law
confuses different categories of law. The former is an
existential form, whereas the latter is concerned with
the range of applicability of law. Equating the former
with the latter is a conceptual confusion.
Finally and most importantly, from the viewpoint of
global legitimacy and power constellation of the
twenty-first-century world, it is not appropriate for
international law with a universal validity to be
equated with customary international law, especially
the old “customary” rules and principles. Most of the
129
Hersch Lauterpacht, The Function of Law in the
International Community (Clarendon, Oxford, 1933).
130
Edward H. Carr, The Twenty Years’ Crisis, 1919-
1939 (2nd ed., Macmillan, London, 1946), pp. 193-207.
so-called “customary” norms were formulated by lead-

ing international lawyers of a few powerful Western
States when a large portion of humanity was under
colonial or semi-colonial rule. They were created when
the value of equality and democracy was not highly
evaluated as they are today. The overwhelming majority
of humanity was excluded from the creative process of
international law with a universal validity. Regrettably,
this crucial fact was not considered as a serious
problem.
In the twenty-first-century world, the situation is
radically different both in terms of ideas on legitimacy
and realities on power. As to the normative idea widely
shared in global society today, democracy, equality and
fair representation are regarded as crucial for a legiti-
mate global order in the twenty-first century. As to the
power supporting and realizing international law, the
power relations between major Western nations and
non-Western nations are radically different from those
in 1920. There should be other norm creating mecha-
nisms that are more legitimate and responsive to reali-
ties than such an outmoded mechanism of “customary”
international law. Legal norms created through the tra-
ditional “customary” norm creating process may have
been effective by the power of Western States. It may
have been possible to conceal the lack of global legiti-
macy by such effectiveness through the twentieth cen-
tury. But it is no longer the case. The legitimacy deficit
of “customary” international law is so evident in terms
of globally shared ideas that it can no longer be con-
cealed by the power of Western States, which is appar-
ently declining in relative terms.
(2) Attitude of the ICJ

As far as the ICJ is concerned, the equation of gen-
eral international law with customary international law
214 Onuma Yasuaki
in the twentieth century may have been understand-

able, though not wholly justifiable. The ICJ is bound to
identify the applicable norms within the framework of
Article 38 of the ICJ Statute. According to the predomi-
nant theory of international law, a treaty has generally
been regarded as lex specialis, lacking a universal
validity. Also, the principle pacta tertiis nec nocent nec
prosunt has been rigidly interpreted. If the ICJ is
required to apply only norms enumerated in Article 38
of the ICJ Statute, it has to apply either norms of “cus-
tomary” international law or those of “general prin-
ciples of law recognized by civilized nations”, when
it needs to apply norms with a universal validity.
The ICJ sought to avoid resorting to the notion of
general principles of law recognized by civilized
nations, because this notion has a number of problems.
The term “civilization” had often been abused by
Western powers to rationalize worldwide colonization
and discriminatory treatment against non-Western
people. There have also been long debates as to whether
the “general principles” are those of domestic laws, of
international law, or of both. There are other problems
as well. Thus the ICJ hardly resorted to the notion of
the general principles of law explicitly, even when it
actually appeared to rely on it. The ICJ has sought to
demonstrate norms universal validity in terms of cus-
tomary law even in a situation where it is difficult to
do so according to the traditional theory of customary
law in its rigid form. The ICJ has sought to recharac-
terize the concept of customary law so as to apply
norms of general international law under the name of
customary international law.
From a theoretical perspective, this is not persuasive
at all. As suggested earlier, the category of customary
law is concerned with the existential form of law. The
category of general international law is concerned with
the range of validity or applicability of law. They are
different categories. Demonstrating that a certain norm

is customary law does not guarantee its universal
validity at all 131. In fact, there are norms of special
customary law which lack universal validity. The ICJ is
naturally aware of the distinction between general cus-
tomary law and special customary law 132. Yet, the ICJ
often characterized a certain norm as customary inter-
national law when they needed to demonstrate the uni-
versal validity of the norm.
In some cases, however, the ICJ referred to general
rules of international law without characterizing them
as customary norms. The ICJ has resorted to such
notions as a “[general and well-recognized] principle
of [international] law”, “well-established and generally
recognized principle of law”, and other similar notions
for identifying a legal norm with a universal valid-
ity 133. Further, it has become more inclined to rely on
131
See Onuma, “The ICJ”, supra footnote 121, p. 208,
and “A Transcivilizational Perspective”, supra foot-
note 121, p. 174. I owe this critical understanding of the
relations between the category of general international law
and customary international law to Komori Teruo, “Joyaku
no daisansha koryoku to kanshuho no riron” (The Effect of
Treaties upon Third States and the Theory of Customary
Law), (1) (2) (3), Chiba Daigaku Hokei Ronshu, IX
(1980), pp. 53 et seq. ; X (1981), pp. 79 et seq. ; and XII
(1982), pp. 43 et seq.
132
See Peter Haggenmacher, “La doctrine des deux
éléments du droit coutumier dans la pratique de la Cour
Internationale”, Revue générale de droit international pub-
lic, XC (1986), pp. 5 et seq., esp. pp. 32-104.
133
See, e.g., North Sea Continental Shelf case, supra
footnote 122 ; Factory at Chorzów case, Judgment of
13 September 1928, in which the PCIJ wrote, “it is a prin-
ciple of international law, and even a general conception
of law”, PCIJ, Series A, No. 17, p. 29 ; Corfu Channel
case, Judgment of 15 December 1949, in which the ICJ
wrote, “Such obligations are based . . . on certain general
and well-recognized principles”, ICJ Reports 1949, p. 22 ;
Effect of Awards of Compensation Made by the United
216 Onuma Yasuaki
multilateral treaties, the UNGA resolutions and some

other international normative instruments for demon-
strating the universal validity of an international legal
norm in question 134. As these cases suggest, the ICJ
has made great efforts to adapt itself to the new norm
creating processes during the postwar period within the
framework of the ICJ Statute. These tendencies may
thus be characterized as a tacit sign of the de facto
deviation of the ICJ from the traditional theory of
customary international law, which basically equates
general international law with customary international
law.
It may also be possible to argue that the ICJ has
tacitly applied rules or principles of international law
which do not fall within the category of Article 38 (1)
(a)-(d). This may suggest that the ICJ has interpreted
Article 38 not as an exhaustive enumeration but as an
exemplary enumeration of the applicable rules. If this
is the case, we may be able to argue that even the ICJ,
which is required to apply adjudicative norms, has
Nations Administrative Tribunal case, Advisory Opinion

of 13 July 1954, in which the ICJ wrote, “According to a
well-established and generally recognized principle of law,
a judgment rendered by such a judicial body is res judicata
and has binding force between the parties to the dispute”,
ICJ Reports 1954, p. 53 ; Legal Consequences for States of
the Continued Presence of South Africa in Namibia case,
Advisory Opinion of 21 June 1971, in which the ICJ
wrote, “One of the fundamental principles governing the
international relationship thus established is that a party
which disowns or does not fulfil its own obligations can-
not be recognized as retaining the rights which it claims to
derive from the relationship”, ICJ Reports 1971, p. 46.
134
See, e.g., Military and Paramilitary Activities in
and against Nicaragua case, Merits, Judgment of 27 June
1986, ICJ Reports 1986, pp. 99-100 ; Legal Consequences
of the Construction of a Wall in the Occupied Palestinian
Territory case, Advisory Opinion of 9 July 2004, ICJ
Reports 2004, pp. 195, 199.
actually abandoned the idea that all binding norms of

international law should be found in Article 38 of the
ICJ Statute.
(3) “Absurdity” in relying on Article 38 of the ICJ
Statute for identifying norms of international
law
As suggested in subparagraph (2) above, it may be
understandable that the ICJ tends to identify general
international law in terms of customary international
law. However, it is not so for international legal studies
in general. When considering the problem of binding
norms of international law in general, international
lawyers are not required to think within the framework
of Article 38 of the ICJ Statute. The ICJ Statute may
certainly be an important treaty that international
lawyers should take into consideration when they con-
sider the problem of identifying norms of international
law. But there is no compelling reason for international
lawyers to consider solely the ICJ Statute when they
conceive of identifying norms of international law in
general 135.
As demonstrated in Chapter II, international law pri-
marily exists and functions as norms prescribing the
conducts of States (and other subjects of international
law). Therefore, when they discuss the problem of
135
See Fitzmaurice, supra footnote 125. As early as in
1966, Richard Falk wrote that
“Such an approach [to associate the creation of
international law with ‘the sources of international law’
contained in Article 38 of the ICJ Statute] distorts
inquiry by conceiving of law-creation exclusively from
the perspective of the rules applicable in this one cen-
tralized, judicial institution”, Richard Falk, “On the
Quasi-Legislative Competence of the General Assembly”,
American Journal of International Law, LX (1966),
p. 782.
218 Onuma Yasuaki
“sources” of international law, they could, and they

should, think of them independently of Article 38,
which stipulates only adjudicative norms to be applied
by the ICJ. The adjudicative norms may provide a use-
ful clue to the problem of cognitive bases for identify-
ing international law in general. Yet, they do not repre-
sent all norms of international law. Whether a norm
can be applied by the ICJ cannot be a decisive test for
the identification of the norm of international law.
The failure to identify the proper way of identifying
international law independently of Article 38 produced
a number of problems. It helped prolong the preva-
lence of the mystical theory of customary law beyond
its proper lifespan. In fact, a number of rules which
had been characterized as “customary” international
law did not actually possess the characteristic features
of customary law. Thus, international lawyers were
more or less compelled to distort the notion of custom-
ary law. The most awkward example of this failure is
the famous concept of “instant” customary interna-
tional law 136. Although this concept was invented by
Bin Cheng, he himself was fully aware of the prob-
lematic nature of this neologism.
Bin Cheng was quite right when he argued that
there may be norms of general international law pre-
scribing the conduct of States in outer space and
claimed that such norms might be created almost
instantly based on the shared legal consciousness of the
members of international society. Yet, he sought to put
new wine into old bottles by explaining this new pheno-
menon within the traditional framework of Article 38
of the ICJ Statute. Thus he was compelled to invent
a term which he himself did not particularly like :
136
Bin Cheng, “United Nations Resolutions on Outer
Space : ‘Instant’ Customary Law ?”, Indian Journal of
International Law, V (1965), pp. 23 et seq.
“instant customary law” 137. The term itself is, of

course, a contradiction. It clearly reveals how inappro-
priate and outdated it is to think of general interna-
tional law within the framework of Article 38. Cheng
himself was aware of this fact, and continued to
express reservations to the use of the concept of
“instant customary law”, which he himself invented 138.
Robert Jennings wrote, already in 1982, that “The
time has surely come to recognise boldly that it [most
of the non-treaty international law of today] is not cus-
tom at all, and never was.” 139 He even went on to say
that “To use Article 38 as it stands, as we constantly do
still, for the purpose of analysing and explaining the
elements and categories of the law today, has a strong
element of absurdity.” (Emphasis added.) 140 Jennings
was perfectly right. Jennings’s view is even more
important in the twenty-first-century world, where we
should consider the problem of general international
law from the viewpoint of global legitimacy and reali-
ties of the multi-polar and multi-civilizational world.
Elucidating this critical problem requires us to deal
with important questions. We must ask why such a
view which, according to Jennings, contains “a strong
element of absurdity” prevailed so long. Why could the
137
Bin Cheng, “On the Nature and Sources of Inter-
national Law”, B. Cheng, ed., International Law (Stevens,
London, 1982), p. 223.
138
Ibid. See also idem, “Some Remarks on the Cons-
tituent Element(s) of General (or So-called Customary)
International Law”, Antony Anghie and Garry Sturgess,
Legal Visions of the 21st Century (Kluwer Law Inter-
national, The Hague ; Boston, 1998), pp. 377-390. Note
that he intentionally uses such expression as “General (or
So-called Customary) International Law”.
139
Robert Yewdall Jennings, “The Identification of
International Law”, B. Cheng, ed., International Law,
supra footnote 137, pp. 1, 6.
140
Ibid., p. 9.
220 Onuma Yasuaki
adjudicative norms to be applied by the ICJ claim such

a far-reaching status to judge the binding quality of the
entire international law prescribing the behaviour of
States ? Why did an article which was made in 1920 to
provide for the newly born PCIJ norms to be applied
by it still enjoy such a preeminent status as the most
authoritative criterion to judge the legal nature of inter-
national law at large ? By analysing and answering
these questions, we can discern not only problematic
features on general international law and customary
international law, but also those of excessive judicial-
centrism in the studies of international law in the twen-
tieth century.
(4) Factors responsible for the over-evaluation of

Article 38 of the ICJ Statute
The following factors may answer these questions.
First, many international lawyers in the twentieth
century did not pay sufficient attention to the fact that
forms of international law as social construct change
over time. They have basically reiterated that “two
major sources (or forms)” of international law are
treaties and customs, and that Article 38 expresses this
almost axiomatic formula in positive law. However, if
seen from a historical perspective, one can easily see
that this argument was valid only in the twentieth cen-
tury. Until the late nineteenth century, customary inter-
national law occupied only a marginal place. In
Francisco de Vitoria, Francisco Suárez and Grotius,
natural law occupied the most important place. For
Grotius, it was natural law that was applicable to all
subjects of law 141. In Vattel, natural law still occupied
141
In the case of Grotius, one might be able to argue
that some rules and principles of his natural law and vol-
untary law of nations were, from an analytical perspective,
the most important place, although voluntary interna-

tional law actually gained a greater significance. In his
theory, customary law was just a special international
law 142. Equation of general international law with cus-
tomary international law was unthinkable to him and
other great publicists of the pre-nineteenth century.
Even among the nineteenth-century “positivists”,
the notion that treaties and customs are two major
sources of international law was not so prevalent as is
generally thought to be today. This is evident if we
actually identify the “sources” of international law in
the textbooks of the major nineteenth-century publi-
cists such as Henry Wheaton, Johann Ludwig Klüber,
August Wilhelm Heffter and William Edward Hall 143.
The characterization of custom and treaty as two major
sources of international law is basically a twentieth-
century construct. These historical facts have seldom
been aware of. Thus, the perception that treaties and
customs have always been major sources of interna-
tional law and that Article 38 expresses this unques-
tionable truth prevailed, although this perception was
not historically founded at all.
Second, predominance of excessive positivism of
international legal studies in the twentieth century may
a kind of European customary law at the time. However,

this notion of customary law is not the one adopted by
most international lawyers in the twentieth century. See
Onuma, “Conclusions”, idem, ed., A Normative Approach
to War, supra footnote 127.
142
Vattel, Les droits des gens, supra footnote 128.
143
Henry Wheaton, Elements of International Law
(Carey, Lea & Blanchard, Philadelphia, 1836), pp. 48-50 ;
Johann Ludwig Klüber, Droit des gens moderne de
l’Europe (new ed., rev., Guillaumin, Paris, 1861), pp. 4-6 ;
August Wilhelm Heffter, Le droit international de
l’Europe (3rd ed., E.-H. Schroeder, Berlin, 1873), pp. 4-6,
16-17 ; William Edward Hall, A Treatise on International
Law (4th ed., Clarendon Press, Oxford, 1895), pp. 1-17.
222 Onuma Yasuaki
be another factor responsible for the over-evaluation

of “customary” international law. Most international
lawyers, either consciously or unconsciously, sought to
identify some “positive” source of general international
law when they dealt with this question. They wanted
some explicit provisions in treaties or statements in
jurisprudence of the ICJ and other courts. Article 38 of
the ICJ Statute provides such “positive” sources, which
make many international lawyers feel comfortable.
They believed that they found a “solid” basis in “posi-
tive” international law. And as long as they rely on
Article 38, the only feasible candidate for general
international law would be customary international
law. According to them, all norms which claim univer-
sal validity must therefore take the form of customary
international law. This equation of general international
law with customary international law appeared so
natural to many international lawyers in the twentieth
century. It thus prevailed.
Third, related to this second problem, it must be
admitted that it is not easy to identify the whole range
of the binding rules and principles of international law
as the norms of conduct on an empirical basis. Even
if it is inappropriate to rely wholly upon Article 38,
it is still useful to use it as a clue to the identification
of the binding norms of international law in general.
With the increase of cases brought before the ICJ during
the last decades, the number of rules whose binding
force is reviewed by the ICJ also increased. At least
with regard to the rules and principles which are actu-
ally applied by the ICJ, the equation of the norms of
conduct with the norms of adjudication creates few
problems, because the latter generally presumes the
former.
Fourth, the predominant view has, either consciously
or unconsciously, adopted what I call a domestic
model approach. Although international lawyers knew
well that international society differs in many respects

from domestic societies, they nevertheless tended to
consider the structure, nature and functions of interna-
tional law by consciously or unconsciously relying on
concepts, terms and cognitive and evaluative frame-
works of domestic law. As a part of prevalent West-
centric ways of thinking in international legal studies,
this domestic law used as a model was in most cases
that of major Western States, whether consciously or
unconsciously.
In Western societies, judiciaries function effectively
as an important means of realizing legal norms. In the
Anglo-American countries in particular, law has gener-
ally been considered in terms of adjudicative norms.
Law is something that the judiciary declares or applies.
It is assumed that the law to be applied by the court is
the same as the law prescribing the conduct of the
subjects of law. In Western societies, particularly in
Anglo-American societies, negotiations between par-
ties in conflict are generally carried out “under the
shadow of the court”. Some non-Western societies
such as Japan and Korea have been witnessing a simi-
lar tendency in recent decades, although this is not the
case with most non-Western societies, whose popula-
tion occupies the overwhelming majority of humanity.
The fact that international lawyers of the Anglo-
American countries have always been influential in
international legal studies contributed to strengthening
the tendency to regard adjudicative norms as law itself
in the field of international law. Moreover, many lead-
ing international lawyers have been not only academics
but also practising lawyers. There have been actual
demands for leading international lawyers to deal with
international law in the judicial setting as practitioners.
It was natural for leading international lawyers to
conceive of norms of international law in terms of
adjudicative norms. It was natural for them to seek to
224 Onuma Yasuaki
find the “sources” of norms of international law in

Article 38 of the ICJ Statute, which is the most conspic-
uous provision to enumerate the adjudicative norms.
The assumption of regarding Article 38 of the ICJ
Statute as providing the exclusive “sources” of interna-
tional law appeared to be so apparent that it was not
seriously questioned, although there were prominent
exceptions in this respect 144.
The failure to recognize that prescriptive norms of
conduct, not adjudicative norms, are the primary form
and function of law has prevented many international
lawyers from questioning the appropriateness of rely-
ing on Article 38 when discussing the cognitive bases
of international law in general. Had they been keen on
the fact that the prescriptive norms of conduct are not
necessarily the same as the adjudicative norms, they
would have been aware that it would have been inap-
propriate to rely entirely on Article 38 when discussing
the whole range of binding norms of international law.
Although most of the binding norms of international
law are expected to regulate the conduct of States, they
are not necessarily applied by the ICJ. Few have been
alert to this critical point 145.
144
Jennings’s bold assertion cited in the text earlier is
one of such examples. Another prominent figure who has
been critical of judicial-centrism is Michael Reisman, who
raised this issue in his International Incidents : The Law
that Counts in World Politics (co-edited with Andrew
R. Willard, Princeton University Press, Princeton, New
Jersey, 1988). There have been a substantial number of
other prominent international lawyers questioning such
“natural” assumptions and reasoning, because theoretical
flaws are so apparent. See references cited in footnotes
131, 135, 146 and 147.
145
Although Hugh Thirlway apparently read my article
dealing with this problem (Onuma, “The ICJ”, supra foot-
note 121), he does not seem to grasp the fundamental point
(Hugh Thirlway, “Concepts, Principles, Rules and Ana-
These factors certainly can explain why Article 38

has been used by most international lawyers as almost
the only criterion of the “sources” of international law.
However, they cannot legitimate the widely held atti-
tude of international lawyers to center on Article 38
their argument about the binding rules of international
law in general. Even as the adjudicative norms, rules
provided in Article 38 of the ICJ Statute may be out-
dated, almost 90 years after their enactment. As the
prescriptive norms of conduct, it is hardly believable
that they can still express the exclusive “sources” of
international law functioning in the twenty-first-
century world.
2. Liberation of the concept of general international

law from the mystical theory of “customary” inter-
national law
(1) The legitimacy deficit of the so-called “custo-
mary” international law
As suggested in paragraph 1, above, the defect flaw
of relying on Article 38 uncritically is even greater in
the area of prescriptive norms of conduct. Here, inter-
national law is expected to regulate actual conduct of
States acting based on assumptions of, and in response
to, expectations, aspirations, interests, values and the
power constellation which are radically different from
those of 1920. It is almost unthinkable that interna-
logies”, Recueil des cours, Vol. 294 (2002), pp. 316-318).

That is, in all law including international law, the nature
and function of prescribing the conduct of their addressee
(i.e. prescriptive norms of conduct) are the primary raison
d’être, existential form and function of law. Law as adju-
dicative norms only follows this primary nature and func-
tion of law as norms of conduct, presupposing the latter.
See Chapter II, footnote 55.
226 Onuma Yasuaki
tional law as prescriptive norms of conduct has not

changed at all for nearly a century. We must liberate
ourselves from the outdated understandings on the
“sources” of international law and its accompanying
mystical theory of “customary” international law.
In the traditional theory of customary international
law, most of the so-called “customary” norms were for-
mulated and provided by leading international lawyers
of the Western Great Powers in their writings. The
treatises of Lassa Oppenheim have been a leading
example. These leading international lawyers sought to
identify acts and statements of the executive branch of
the Government, arbitral awards, domestic laws, and
domestic court decisions as major materials of State
practice. Basically the same materials have been used
as the evidence of opinio juris.
According to the prevalent view on customary inter-
national law, a customary law must be demonstrated by
two standards : State practice and opinio juris. As to
the latter, however, there have always been criticisms
on various grounds. Particularly, the criticism to the
effect that a State as a fictitious entity cannot have an
opinio juris is a pertinent one. Thus many international
lawyers sought to search for more concrete agents of
the opinio juris, i.e. various organs of the State. Many
international lawyers and the ICJ came to argue that
the opinio juris can be induced from external acts, i.e.
State practice, as expressed by those concrete agents.
However, these acts of State agents are extremely
diverse and numerous. They range from a statement of
the head of the State to a shooting of a soldier. It was
impossible to identify all these acts of all States.
Leading Western international lawyers chose the prac-
tice of a few, yet powerful and influential, Western
States, and regarded it tacitly or explicitly as represen-
tative of general practice of States. Oscar Schachter
frankly admitted that “As a historical fact, the great
body of customary international law was made by

remarkably few States.” 146
.
Rules and principles characterized as “customary”

through this method usually enjoyed a high degree of
effectiveness in the twentieth century, precisely
because they were formulated on the basis of the prac-
tice of the powerful States. The effectiveness of the
“customary” law supported by the substantive power
of major Western States eclipsed its lack of generality.
These facts may reveal a crude historical reality of cur-
rent international law, which has reflected the power
structures in international society. Seen from the per-
spective of global legitimacy that is required for norms
with a universal validity in the twenty-first century,
however, this state of affairs constitutes a serious
flaw 147. Further, seen from a realistic perspective, such
a theoretical stance is losing relevance to the realities
146
Oscar Schachter, “New Custom : Power, Opinio
Juris and Contrary Practice”, Jerzy Makarczyk, ed.,
Theory of International Law at the Threshold of the 21st
Century (Kluwer Law International, The Hague, 1996),
p. 531. See also Charles de Visscher, Théories et réalités
en droit international public (4th ed., A. Pedone, Paris,
1970), p. 170 ; Brigitte Stern, “La coutume au coeur du
droit international : Quelques reflections”, Mélanges
offerts à Paul Reuter (A. Pedone, Paris, 1981), pp. 492-
494 ; J. Patrick Kelly, “The Twilight of Customary
International Law”, Virginia Journal of International Law,
XL (2000), pp. 519-522 ; Anthea Elizabeth Roberts,
“Traditional and Modern Approaches to Customary
International Law : A Reconciliation”, American Journal
of International Law, XCV (2001), pp. 767-768.
147
A number of international lawyers, not only non-
Western but many Western, have criticized this flawed
aspect of customary international law as general interna-
tional law. See, e.g., Jonathan Charney, “Universal Inter-
national Law”, American Journal of International Law,
LXXXIII (1993), p. 537 ; Kelly, supra footnote 146,
pp. 519-522 ; Roberts, supra footnote 146, pp. 767-768.
228 Onuma Yasuaki
of the power constellation in the twenty-first century,

in which major Western States can no longer effec-
tively control global affairs as they used to do in the
twentieth century. From both perspectives, it must be
rectified.
(2) The widening gap between the reality and tradi-

tional “customary” international law
Effectiveness is an important element of interna-
tional law. However, the element of effectiveness or
power must be discussed separately from the element
of legitimacy and generality. If the effectiveness
eclipses the lack of generality of law, then it becomes a
sugar-coated expression of camouflaging the ideologi-
cal and discriminatory nature of international law as
the hand-maiden of powerful States. This lack of legiti-
macy would exasperate a large number of peoples
who have already felt that they have been ignored,
despised and even attacked by predominant forces of a
few powerful Western States.
In the prevalent theory of the “customary” interna-
tional law, mainly advocated and formulated by lead-
ing Western international lawyers, the lack of State
practice and opinio juris of a large number of non-
Western nations was not considered a serious problem
which can destroy the legitimacy of international law.
Why was it so ? Because the study of international law
itself has been overwhelmingly West-centric. The study
of international law in the twentieth century centred on
a small number of Western nations, which were power-
ful not only in substantive but also in ideational power.
The fact that the non-Western nations occupy the over-
whelming majority of the human species was virtually
ignored.
Most leading (Western) international lawyers who
formulated the “State practice” and “opinio juris” do
not seem to have been seriously concerned with the

continued ignorance of the State practice and the
opinio juris of the overwhelming majority members of
the international society. They do not seem to have
been much concerned with the problem of legitimate
representation in international society. It is true that
many non-Western nations have problems of democ-
racy in their domestic regimes. However, this is a
separate problem, which should not be used as an
excuse to ignore the participation of the overwhelming
majority of humanity in the norm-creating process of
general international law.
Theoretically, the notions of acquiescence and tacit
(or inferred) consent have often been used to camou-
flage the lack of generality. However, because there
was no international forum where States could express
their view to a “customary” norm creating process,
both acquiescence and tacit consent inevitably assumed
a highly fictitious character. For those who do not
adhere to the voluntarist-positivist construction of
international law, either “natural law” or some other
form of “objective” idea played a similar camouflaging
role 148.
Neither is far from satisfactory as grounding the
global legitimacy needed for general international law
in the twenty-first century. Nor does it respond to the
realities of the twenty-first century represented by the
emergence of China and India as candidates of super-
powers in the global arena.
The West-centric structure of international law or
the creation of international legal norms based on the
power of leading Western States was certainly criti-
cized in the twentieth century. It seems that such criti-
cism was well received in that it was not basically
refuted in public. Yet, the theoretical defects as
148
Stern, supra footnote 146, pp. 493-494.
230 Onuma Yasuaki
described above were not rectified. They remained

throughout the twentieth century. With the ongoing
power shift in the twenty-first century, we must face
the problem by seeking to reconsider and reconstruct
the basic framework of identifying the cognitive bases
of international legal norms of conduct which should
be both legitimate and realistic.
The relative power of Western States is diminishing
in relations with the increasing of the power of emerg-
ing Asian States. It may have been possible for the
major Western States to camouflage the lack of gener-
ality of general international law qua customary inter-
national law by their predominant power. However, it
is no longer the case in the twenty-first century. The
gap between the ever-increasing power of Asian States
and the fictitious character of the so-called “custom-
ary” international law is widening year by year. This
dangerous state of affairs must be rectified as soon as
possible.
The change of realities is not limited to the problem
of power constellation between States. In the twenty-
first-century world, unlike the world of 1920 when the
original provisions of Article 38 of the ICJ Statute
were made, the excessively State-centric structure of
international law can hardly be maintained. It is likely
that the importance of non-governmental actors will
continue to increase. Also, in sharp contrast with the
era of racism and the typical Eurocentrism preceding
1920, the overcoming of West-centrism and the appre-
ciation of multi-cultures and plural civilizations is a
great task to be fulfilled in this century. The norms of
international law with a universal validity must satisfy
the highest degree of legitimacy in order to be accepted
by all members in international society, including non-
State actors as well as various actors with diverse
cultures and civilizations. The rules and principles of
general international law must satisfy not only interna-
tional, but also transnational and transcivilizational

legitimacy.
Seen from this perspective, the prevalent theory
relying on “customary” norms when identifying gen-
eral international law has serious deficiencies as cogni-
tive bases of general international law, as demonstrated
above. Comparatively speaking, a theory appreciating
the significance of multilateral treaties with a universal
or quasi-universal applicability and UNGA resolutions
adopted by unanimity or consensus can satisfy the
requirements of global legitimacy and the relevance
with realities far more than a theory relying on the
mystical concept of “customary” international law.
International lawyers in the twenty-first century must
explicitly identify these norm-creating processes as
legitimate and realistic cognitive bases of general inter-
national law.
(3) Multinational treaties as a cognitive basis of

general international law
In actuality, most international lawyers, national
Governments and other participants of international
legal processes have recognized, albeit often implicitly
and unconsciously, that provisions of the multinational
treaties with a universal or quasi-universal applica-
bility constitute important cognitive bases for identify-
ing norms of general international law. For example,
experts of the law of the sea generally develop their
arguments by utilizing or resorting to the norms pro-
vided in the UN Convention on the Law of the Sea as
the most important cognitive and interpretative bases
of general international law on the law of the sea. In
such cases, many of them refer to these norms not nec-
essarily as norms of the treaty law whose applicability
is limited to State parties, but as norms of general
international law. The same can be said of the attitude
232 Onuma Yasuaki
of most international lawyers dealing with specific

problems referring to provisions of multilateral treaties
whose provisions are supposed to have a universal or
quasi-universal validity such as the UN Charter, the
Geneva Conventions of 1949, etc.
In these cases, many of them refer to the provisions
of these treaties as expressing norms of general inter-
national law without necessarily demonstrating their
“customary” nature in terms of satisfying subjective
and objective criteria which were required by the tradi-
tional theory of customary international law. Rather,
they basically assume that norms provided in these
treaties are recognized as generally valid in interna-
tional society as a whole. Many international lawyers
certainly argued that norms of general international law
can exist (only) as norms of customary international
law as provided in Article 38 of the ICJ Statute when
they deal with the problem of “sources” of inter-
national law. However, when they actually deal with
specific issues of international law functioning as
prescriptive norms of conduct, and norms assessing,
justifying or delegitimating the conduct of States, they
have not necessarily relied on this approach.
It is true that when national Governments and/or
international lawyers appear in the court of the ICJ,
they seek to identify norms with a universal validity in
terms of customary international law. This is only nat-
ural because they have to demonstrate their arguments
in accordance with Article 38 of the ICJ Statute.
However, as already referred to earlier, in most cases
parties in conflict do not settle their conflicts by judi-
cial means. Nor do they negotiate with each other in
the “shadow of the court”. It is again only natural. If
there is little possibility for the parties to refer the case
to the ICJ, and if there is no jurisprudence of the ICJ
on the case in question, they have little incentive to
formulate their claims within the framework of the ICJ
Statute. We should here recall that only 66 States out

of more than 190 States in international society accept
the jurisdiction of the ICJ. It should also be noted that
only the United Kingdom among five permanent mem-
bers of the UNSC accept it.
It would thus be quite natural for them to seek to
find out as many cognitive bases of international law
as possible, and to make use of them for justifying
their claims. Whether a certain claim as to the interpre-
tation of the norm of international law in question is
accepted depends on the relative persuasiveness of the
claim in actual forums where the claim is made. These
forums are, for example, diplomatic negotiations
between parties in conflict, the organs of international
organizations (the UNSC, the UNGA, the WTO panels,
human rights committees attached to multinational
human rights treaties, etc.), international conferences,
and global or national market of public opinion. The
participants of the international legal processes in these
forums are not only the organs of States. They include
organs of international organizations, multinational
enterprises, NGOs, minorities, indigenous peoples,
media institutions, experts, etc.
Even when the States in conflict do not refer the
case to the ICJ characterizing it as a judicial dispute,
they have to settle it anyhow. And if this conflict can
be formulated as a legal dispute, either or both of the
parties may do so, and seek to settle the conflict by
communicating with each other utilizing norms of
international law. The parties may or may not be able
to settle the issue by international law. But in any case,
this is a typical example in which international law is
referred to, used and may contribute to the peaceful co-
existence and/or co-operation between nations.
The participants of the international legal processes
do not always have relations with the notions and insti-
tutions of international law in the adversarial forums.
234 Onuma Yasuaki
International law comes to the mind of people when

people face some ideas or phenomena and grasp or
understand such ideas or phenomena by referring to
some notions and/or frameworks of international law.
For example, when someone faces a large scale of vio-
lence involving armed attacks committed by some pri-
vate group, and construes and/or constructs this particu-
lar case as a case comparable to the “armed attack”
by a State and considers that a State attacked by such a
group can resort to self-defence, then he or she already
refers to international law. In this case he or she has to
identify the norm of international law. It is most likely
that what he or she does first is to refer to Article 51
of the UN Charter. Such non-judicial, non-adversarial
reference to international law is still one of many
cases where international law matters in human affairs.
The argument on the problem how we can and should
identify international law based on which kind of cog-
nitive bases must respond to such a problem either.
(4) Relative nature of the “universal” validity of

general international law
A norm provided in the multinational treaties with
an overwhelming majority of State parties enjoys a far
higher degree of global legitimacy than an old “cus-
tomary” norm which was created on the State practice
and opinio juris of a limited number of powerful
States. Yet, the problem of this legitimacy deficit of an
old “customary” norm has not been regard as a serious
problem. One of the reasons for this state of affairs
seems to be, ironically, the apparent “defect” of the
“universal” validity of the multinational treaties. In the
case of a multinational treaty, States that are not parties
to it are apparent. In the case of the Convention on the
Rights of the Child, for example, the United States and
Somalia are not parties to the Convention. In contrast,
because of the vagueness and the mystical character of

the “general” State practice and opinio juris, lack of
universality of the “customary” norm is not apparent. It
is easier to point out the lack of universal validity of
multilateral treaties than “customary” international law
because of this apparent lack of universality in terms of
the parties to the treaty.
However, most “customary” norms which have been
regarded as universally applicable do not have such a
high degree of explicit recognition of norms as univer-
sally applicable legal norms. The alleged universal
applicability of such “customary” norms has been
based on the alleged acquiescence or tacit agreement
of the overwhelming majority of States. However,
as already suggested earlier, this is a highly fictitious
argument. “Acquiescence” or “tacit agreement” consti-
tutes a much weaker agreement than a positive expres-
sion of the State will such as the ratification of a treaty.
In fact, there were a number of cases where a certain
“customary” norm was claimed to be general interna-
tional law, yet there were a certain number of States
negating such a claim. The “customary” norms in ques-
tion were often realized by a more powerful State con-
flicting with a State that denies the “customary” nature
or universal applicability of the norm in question.
Power, rather than legitimacy, prevailed.
In order to overcome this regrettable state of affairs,
we must explicitly recognize that “universality” is a
matter of degree. As suggested in footnote 120 above,
we cannot identify the universality in an unqualified
and unequivocal manner. If we define the term
universality in international law as being valid to all
subjects of international law (or States), a serious prob-
lem of what are the subjects of international law (or
States) occurs. This problem cannot be answered in an
unqualified and unequivocal manner. Whether a certain
political entity is a State in international law depends
236 Onuma Yasuaki
on various factors such as territory, effective rule and

integrity of the population of this entity, as well as for-
eign policy of other States whose relations with this
entity are diverse. Thus, the problem on universality of
a particular norm must always conditionally be dis-
cussed and answered, whether it involves human
rights, use of force or rules on the law of the sea. It is
always a matter of degree in comparative persuasive-
ness of the arguments in question.
A certain rule which may not be expected to be
applied by the ICJ can function as a norm of interna-
tional law, if it is perceived as such by overwhelming
majority members of international society. For a rule
to be a binding norm in international law, it is not nec-
essary at all that the rule in question prescribing an
issue and/or justifying a claim on the issue is an appli-
cable rule of the ICJ. This is true with any norms of
international law including norms of general interna-
tional law. During the Cold War period, no one would
have expected that either the United States or the
Soviet Union would resort to the ICJ when they had a
conflict in interpreting arms control treaties. Yet, these
treaties were perfectly regarded as international law,
and actually functioned as such. One may argue that
the treaty is listed in Article 38 of the ICJ Statute as a
“source” of international law. However, the argument
made above is valid to other cognitive bases of interna-
tional law which are not listed in Article 38 of the ICJ
Statute. The UNGA resolution, which will be dealt
with, is a leading such example.
It must be recalled here that provisions of interna-
tional instruments, whether they are in the treaties, or
the resolutions of the UNGA, UNSC, or international
conferences etc., constitute merely cognitive bases of
international law. Provisions in the treaties, like provi-
sions in the statute of States, are not law per se. They
are most important cognitive basis of law. Law must be
identified through interpreting the provision of a

statute or a treaty which expresses the law in a written,
relatively unequivocal and identifiable form. This is the
case with a “custom” as well, although “custom” is not
as unequivocal and identifiable as written provisions of
the statute or treaty. Custom itself is not law. Neither
State practice nor opinio juris are international law per
se. They are just cognitive bases through which people
identify some unwritten norm of international law.
If this simple truth is reaffirmed, then we can make
use of the rich materials and elaborate theories on
“customary” international law as an important cogni-
tive basis of identifying norms of general international
law, without relying on the dubious notion of “custom”
in international law. Accumulated studies on customary
international law qua general international law can be,
and should be, used as important theoretical assets for
identifying norms of general international law. It
should be noted, however, that earlier studies on cus-
tomary international law qua general international law
must be used cautiously and selectively.
As referred to earlier, a number of theories on gen-
eral international law resorted to various fictitious and
artificial notions in order to characterize “customary”
international law as general international law. When
we use theoretical assets on “customary” international
law, we should be alert to this fact. We should seek to
avoid such fictitious and artificial notions, and make
use of only theoretically sound and suggestive parts of
theories on “customary” international law qua general
international law. If we can deliberately carry out this
task, we can make use of the latter part of the theory
on “customary” international law for identifying norms
of general international law, by relying on norms pro-
vided in the multinational treaties or other cognitive
bases of international law such as the UNGA resolu-
tions.
238 Onuma Yasuaki
(5) UNGA resolutions as a cognitive basis of inter-

national law
Arguments similar to those on the multinational
treaties as described in subparagraphs (3) and (4) above
can be made, with necessary modifications and qualifi-
cations, as to the UNGA resolutions as an important
cognitive basis of international law. The UNGA has
played a tremendously important role in creating norms
which embody the universal will of the global commu-
nity and therefore must be observed by any actor in
global society. A number of international lawyers have
argued for resorting to the UNGA resolutions as a
means to identify international legal norms with a uni-
versal validity. However, they have been criticized from
various quarters. As is well known, the norms provide
in the UNGA resolutions have only hortatory force.
Consequently, the juridical nature of the UNGA resolu-
tions and declarations has long been discussed. A brief
clarification as to the UNGA resolutions characterized
as a cognitive basis of international law is in order.
First, those critical of resorting to the UNGA resolu-
tions have argued that the UNGA resolutions are not
enumerated in Article 38 of the ICJ Statute, which
should provide “sources” of international law. This
argument has already been settled above. Even from
the viewpoint of adjudicative norms, Article 38 may
not enumerate all applicable adjudicative norms in an
exhaustive manner. More fundamentally, the fact
whether particular rules or principles of international
law can be applied by the ICJ provides only a useful
clue, not a decisive test, to the question whether they
are norms of international law in general. Legal norms
of international law cannot be equated with adjudica-
tive norms that should be applied by the ICJ.
Even if a certain norm is not applied by the ICJ, it
can still be a norm of international law, which performs
a number of important societal functions as interna-

tional law. It prescribes conducts of States and induces
compliance with international law as norms of conduct.
It fulfils an important role of communicative function
as a “common language” between States with diverse
interests, values and cultures, or even between States
conflicting with each other. It embodies common
understandings of international society in an authorita-
tive, explicit and relatively determinate manner. It
legitimizes behaviours of States that are compatible
with international law. It constructs social realities by
providing cognitive, interpretative and evaluative con-
cepts and frameworks through which people under-
stand the world and decide how to behave accordingly.
These were fully demonstrated in Chapter II 149.
Second, it was also asserted that it is impossible to
identify the legal consciousness or the intention of a
State to be legally bound by a norm in question from
their voting in the adoption of an UNGA resolution
containing the norm in question. Voting is a political
act of a State, it is argued, not a juridical one. Because
States know that the UNGA resolution has only horta-
tory force, they would vote in the affirmative 150. In my
view, whether States regard certain norms binding
upon them as juridical norms provides a decisive test
whether they are legal norms or not. From this perspec-
149
See also Onuma Yasuaki, “International Law in and
with International Politics : The Functions of International
Law in International Society”, European Journal of inter-
national Law, XIV, No. 1 (2003), pp. 130 et seq.
150
See Stephen Schwebel, “The Effect of Resolutions
of the U.N. General Assembly on Customary International
Law”, Proceedings of the American Society of Interna-
tional Law, LXXIII (1979), pp. 301-309 ; Karol Wolfke,
Custom in Present International Law (2nd ed., Martinus
Nijhoff Publishers, London, 1993), p. 84 ; Danilenko,
Law-Making in the International Community, supra foot-
note 124, pp. 203-210.
240 Onuma Yasuaki
tive, these arguments seem to have some persuasive

power.
However, it must be recalled that the traditional
notion of State practice does share a similar problem
from the viewpoint of the distinction between what is
political and what is juridical. Many international
lawyers have regarded statements or declarations by
the executive organ such as the president, prime minis-
ter and foreign minister as an expression of State prac-
tice and/or opinio juris. Yet, they are typically political
acts. A non-verbal act by an executive organ of a State
is not a purely juridical act either. Most of the concrete
acts of the executive organs are discretionary and have
political aspects as well as juridical aspects. If one
argues that the act of the executive is constrained by
law and therefore could be characterized as juridical,
then the same argument should apply to the voting of a
state representative in the UNGA.
Representatives of States do not vote independently
from the laws of their States. Although they have a
certain degree of discretionary competence, they act
within the framework of their domestic laws. In this
respect, there is no difference whether a concrete act of
a State is performed in the international organization or
elsewhere. Unless concrete acts to be used as indicat-
ing “State practice” and opinio juris are limited to
domestic laws and judgments of the domestic courts,
one cannot be sure whether the State agent in question
really acts with the sense of law, or the sense of “hor-
tatory force”, or some other sense. It is only through an
interpretation by international lawyers or courts that
certain elements within the concrete act of State should
be characterized as juridical. No act of State is inher-
ently purely political or purely juridical 151.
151
One cannot resort to the distinction between the
juridical act (Rechtsgeschäft, acte juridique) and real act
Once these common features of acts of States are

recognized, then we can compare advantages of relying
on the UNGA resolutions as a cognitive basis for iden-
tifying the norms of general international law with the
norm creating process of so-called “customary” inter-
national law in more detailed manner. It is a matter of
course that not all resolutions and declarations adopted
by the UNGA should be considered as a cognitive
basis of legal norms with a universal validity. Only
those norms stipulated in the limited number of impor-
tant declarations that can be construed as expressing
the norms of general international law by their wording
and voting patterns should be considered so.
Norms provided in the UNGA declarations such as
the Declaration on Principles of International Law con-
cerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United
Nations are leading examples which can, and should,
be used as a cognitive basis of the norms of general
international law. The UN Charter is the most impor-
tant cognitive basis of general international law. Yet,
provisions in the UN Charter are not necessarily
unequivocal and clear. The Declaration concerning
Friendly Relations elaborates a number of such norms,
and constitutes an extremely useful cognitive basis for
identifying fundamental norms of international law
provided in the UN Charter in a general and equivocal
manner.
There are also extremely important norms which are
not explicitly stipulated in the provisions of the UN
Charter. The norm of non-intervention between States
is such an example. Article 2 (7) provides for the non-
(Realakt), because these two acts are the same in the sense
that both can produce legal consequences. Even an act that
is characterized as real or non-juridical can have a juridi-
cal meaning and can be a cognitive basis of law.
242 Onuma Yasuaki
intervention norm, but not in terms of the inter-State

norm, but in terms of prescribing relations between the
United Nations and member States. Article 2 (4) pro-
hibits the threat or use of force between States, but
does not prohibit interventions in other forms. Under
such a juridical situation, the Declaration provides for
the norm of non-intervention between States in a com-
prehensive manner. We can identify the non-interven-
tion norm with a universal validity from various cogni-
tive bases of international law, but the Declaration
constitutes the most important cognitive basis in terms
of its global legitimacy and elaborate formulation of its
content.
There are other provisions in the UNGA resolutions
which can be used as cognitive bases of general inter-
national law as well. The norms created through this
process of the UNGA are far clearer and more elabo-
rate in articulating the normative consciousness of
nations than verbal or non-verbal acts of political
organs of individual nations that were used in the tradi-
tional theory of customary international law. Most
importantly, the UNGA process of adopting resolutions
can satisfy the requirement of quasi-universal partici-
pation of States for the creation of general international
law concretely and explicitly. The traditional theory of
customary law lacks this global representative legiti-
macy. The comparative advantage of the UNGA norm-
creating process as a cognitive basis for identifying
general international law is evident.
It must be noted here again that norms provided in
the UNGA resolutions are not norms of international
law per se. They are just one of many cognitive bases
of the norms of international law. If so, the fact norms
provided in the UNGA resolutions have only a horta-
tory force, lacking legally binding force per se, cannot
be an obstacle for characterizing them as a cognitive
basis of international law. Just like provisions of multi-
lateral treaties and State practice are not international

law per se, but constitute important cognitive bases of
international law, provisions of the UNGA resolutions
constitute a cognitive basis of international law. We
should not confuse the question of cognitive bases of
international law with the question of whether the
UNGA resolutions have only hortatory force. These are
conceptually different questions.
Finally, the UNGA norm-creating process satisfies a
far more transnational and transcivilizational legiti-
macy than the traditional norm creating process of
“customary” international law. In the UNGA norm-
creating process, voices of transnational actors such as
NGOs are much more explicitly heard than in the
process of traditional “customary international law”.
NGOs including associations of enterprises enjoy the
consultative status in the UN organs and have actively
introduced various voices of non-State actors into the
UNGA norm-creating processes in various stages. In
contrast, the traditional norm creating process is a
mystical process that cannot be explicitly identified. It
lacked accountability, transparency, and transnational
legitimacy.
Further, from the transcivilizational perspective, the
UNGA norm-creating process can provide a far more
equitable forum than the traditional norm-creating
process of “customary international law”. In the former
case, States with diverse civilizational backgrounds
participate in the norm creating process of the United
Nations, whereas in the latter case, States participating
in the norm-creating process were limited to a small
number of Western States, whose civilizational back-
ground was much narrower. Thus, the UNGA norm
creating process can claim a much higher degree of
legitimacy in terms of global participation, introduc-
tion of various transnational actors, and the possibility
of arguments and debates from various transciviliza-
244 Onuma Yasuaki
tional perspectives than the traditional norm creating

process of “customary international law”. This relative
superiority is tremendously important for norms with a
universal applicability in the twenty-first century 152.
II. Towards Proper Understandings of the Judiciary

in Global Society
1. Liberation of the study of international law from
excessive judicial-centrism
(1) Enhanced significance of the judiciary in inter-

national society ?
We have elucidated various problematic features
found in the prevalent way of thinking in the twentieth
century to conceive of general international law in
terms of customary international law. We have also
sought to identify factors underlying such a prevalent
way of thinking. We have further sought to demon-
strate relative advantages of the post-Second World
War norm-creating process of multinational treaties
and UNGA resolutions as cognitive bases of general
international law, compared with the mystical process
of “customary” international law. In conducting these
researches, we have encountered, among others, two
outstanding features which seem to be responsible for
the understanding of customary international law qua
general international law, which was prevalent among
international lawyers of the twentieth century.
152
Although the UNGA declarations have these merits,
they do not necessarily possess the element of effective-
ness. They must therefore be followed and completed by
more concrete behaviour of States possessing influential
powers. The adoption of the UNGA declaration per se
does not generally create a norm of general international
law, even if adopted unanimously or by consensus.
One problem was the pre-eminence of substantive

and ideational power expressed in terms of effective-
ness of the State practice and opinio juris of major
Western States. This problem of ideational power has
been dealt with basically in Chapter II. The other prob-
lem is the persistence of what I suggested earlier as a
“domestic model (of Western society) approach” in
international legal studies, represented by excessive
judiciary-centrism 153. This judiciary-centrism is particu-
larly strong in the theory on the so-called “sources” of
international law. Although most international lawyers
actually deal with problems of international law mainly
in terms of prescriptive norms of conduct, when they
consider “sources” of international law, they conceive
of the problem in terms of the adjudicative norms,
expressed in Article 38 of the ICJ Statute. We must
elucidate this problem of excessive judiciary-centrism
in more detail.
It is true that norms of international law function as
adjudicative norms both internationally and domesti-
cally. Adjudication is an important means to redress
violations of international law, to settle disputes
between States, and more generally to realize norms of
international law. There are various kinds of judicial
organs playing important roles in international society.
The ICJ, the International Tribunal of the Law of the
Sea, the European Court of Human Rights and the ICC
are leading examples. Among these the ICJ has been
perceived as the most important judicial organ in inter-
national society. The ICJ itself has repeatedly empha-
sized its character as a judicial organ 154.
153
154
See Northern Cameroons case, Judgment of 2 De-
cember 1963, ICJ Reports 1963, p. 29 ; Haya de la Torre
case, Judgment of 13 June 1951, ICJ Reports 1951, p. 79 ;
and Nuclear Tests case, Judgment of 20 December 1974,
246 Onuma Yasuaki
This characterization of the ICJ as the most impor-

tant judicial organ has been associated with the percep-
tion of the ICJ as an important agent of dispute resolu-
tion in international society. The significance of the
ICJ as an agent of dispute settlement appears to have
increased both in terms of the number of cases it dealt
with and the political or societal significance of the
problems brought into the ICJ. Further, in the fields of
human rights, international criminal law, and the inter-
national economic law, judicialization in the wider
sense of the term, if not in the strict sense of the term,
has been in progress. These trends have been highly
appreciated not only by international lawyers, but by
some international relations scholars as well.
The latter have even talked about “legalization” in
international society from the late twentieth century.
International Organization, a leading journal in the
study of international relations, published a special
issue titled “Legalization and World Politics” in 2000 155.
Although those international relations scholars have
been interested in the legalized dispute resolution in
ICJ Reports 1974, pp. 270-271. A number of scholars of

international relations refer to the WTO dispute settlement
mechanism as an evidence of the “judicialization” in the
late twentieth century. But it is questionable whether this
mechanism, under the present scheme and functioning,
should be characterized as a judicial one in the strict sense
of the term.
155
International Organization, LIV, No. 3 (2000).
Informative and stimulating studies have been done by
prominent international lawyers and international relations
scholars, including K. Abott, J. Brunée, G. Downs and
D. Rocke, M. Finnemore, H. Koh, J. Goldstein, A. Hurrell,
P. Katzenstein, R. Keohane, S. Krasner, F. Kratochwil,
J. Mearsheimer, N. Onuf, J. Ruggie, I. Scobbie, S. Scott,
D. Shelton, K. Sikkink, B. Simmons, H. Suganami,
A. Wendt, O. Young, since the late 1970s, especially since
the 1990s.
the wider sense of the term rather than the ICJ 156, they
share the judicial-centrism in understanding law in
general. They tend to equate law, which they uncon-
sciously understand in terms of prescriptive norms of
conduct, with adjudicative norms. Apparently they
have been influenced by the positivistic understanding
of law centred on the judiciary, which has been preva-
lent in the United States and international society.
Moreover, the status of the ICJ as the agent of
authoritative interpretation of international law has
been much elevated. Writings of leading publicists
such as Lassa Oppenheim still enjoy a high reputation
as an authoritative cognitive basis for identifying and
interpreting norms of international law, but their signi-
ficance has decreased, if compared with the former
period. The relative significance of the judgments and
advisory opinions of the ICJ as the major cognitive
basis for identification of international law increased
during the latter half of the twentieth century. Today,
most international lawyers rely heavily on the judg-
ments and advisory opinions of the ICJ when they seek
to establish the most authoritative identification and
interpretation of international law.
(2) Aspects not referred to in the prevalent dis-

course on the “legalization” and “judicializa-
tion” in international society
We certainly have to appreciate the significance of
the ICJ when we see the ICJ as an agent to interpret
international law. When we deal with a particular issue
involving international law, the interpretation of the
156
See Robert O. Keohane, Andrew Moravcsik and
Anne-Marie Slaughter, “Legalized Dispute Resolution”,
International Organization, LIV (2000), pp. 457 et seq.
(See Chapter II, section II, 1 (2).)
248 Onuma Yasuaki
norm in question by the ICJ has a tremendously impor-

tant value, especially if there is a jurisprudence of the
ICJ on the issue. Even though the binding force of the
precedents is not recognized for the ICJ judgments 157,
still the interpretation of the ICJ enjoys the most
authoritative one. It gives a tremendous persuasive
power and authority to the party who makes use of
such interpretation in its argumentation. If the discus-
sion on the significance of the ICJ is limited to this
aspect, I certainly agree with those who emphasize the
significance of the ICJ.
However, when we evaluate the significance of the
judiciary in the twenty-first-century global society, we
must take into consideration other aspects of the prob-
lem, and seek to elucidate a well-balanced, comprehen-
sive picture of the judiciary in the global society. As
demonstrated in Chapter II, section I, 1 (2), most cases
where international law is referred to, discussed and
dealt with are not in the ICJ. The ICJ is not the most
important forum of international law. International law
functions primarily as prescriptive norms of conduct,
justifying State behaviours in diplomatic negotiations,
international organizations, international conferences,
national parliaments and many other forums such as
web sites, newspapers and TV programmes. The sig-
nificance of the ICJ must be assessed in these compre-
hensive forums where international law is actually
referred to, discussed, invoked, applied and realized.
One might also be able to see various phenomena of
“legalization” in international society from around the
end of the twentieth century. Even if this is the case,
this should not be equated with the judicialization. Law
is not the same with the judiciary. At least, legalization
cannot be equated with the enhancement of the impor-
tance of the ICJ. The participants of international legal
157
See Article 59 of the ICJ Statute.
processes generally do not act in the “shadow of the

ICJ”. The ICJ is not the most important organ for
settling international conflicts, which have non-juridi-
cal aspects as well. Moreover, whether we should talk
about legalization of world politics starting around the
end of the twentieth century is itself a problem that
should be critically examined.
The fundamental problem is whether we should
evaluate the ICJ as an important agent of international
conflict resolution, and talk of the “legalization” and
“judicialization” in the global society at large. It is cer-
tainly true that there have been some conspicuous phe-
nomena which appear to allow such talk. It is certainly
attractive to find an ally among international relations
scholars, many of whom have negated the raison d’être
of international law for years. Yet, as experts of law,
international lawyers must be more cautious in joining
those who hail the “legalization” and “judicialization”
in international society.
(3) Necessity for differentiating the significance of

the ICJ as an agent of international conflict
resolution and the most authoritative organ to
interpret international law
Those who have argued for “legalization” seem to
understand that while law was not an important institu-
tion in international society, it came to be important
toward the end of the twentieth century. The establish-
ment and management of the WTO, global environ-
mental protection mechanisms, the ICC and other insti-
tutions involving law seemed to provide a basis for this
understanding. However, this understanding is at least
one-sided and misleading. As has been argued by the
English School, and is demonstrated in Chapter II,
section II, 1 (2), law has always been an important
institution in international society, which is basically a
250 Onuma Yasuaki
Western construct. Legalism, a characteristic feature of

the Western society, has been embedded in the modern
international society. Law may have become more con-
spicuous and more institutionalized toward the end of
the twentieth-century global society. But it did not
suddenly become important as a global institution.
The role of the ICJ in conflict resolution is a part of
a more comprehensive global process in settling vari-
ous types of conflicts, involving political, social, eco-
nomic, cultural, emotional and historical aspects in
global society. Seen from this perspective, judgments
rendered by the ICJ constitute only a minor part of this
comprehensive process. Most Governments, especially
those of powerful States, rarely consider that a conflict
involving their serious national interests should be
settled by an independent judiciary whose judgment
they cannot control. Although the ICJ may bring a final
settlement to some conflicts, in most cases, conflicts
between States are settled by diplomatic negotiations
between Governments of the conflicting States. Or, inter-
national organizations engaged in the conflict in the
form of mediating the States in conflict, or adopting reso-
lutions urging them to take certain measures or con-
demning a certain party may play a more important role.
Even if the States in conflict refers a case to the ICJ,
and the ICJ happens to have jurisdiction over the case
and renders a judgment, it cannot necessarily settle the
case. International lawyers tend to assume that once
the ICJ renders the judgment, this judgment should
settle the conflict, tacitly equating the legal dispute
with the substantial conflict. Whether the judgment is
actually realized has not been seriously considered
in the study of international law 158.
158
See Oda Shigeru, “The Compulsory Jurisdiction of
the International Court of Justice”, International and
Comparative Law Quarterly, XLIX (2000), p. 251.
However, we must distinguish between a dispute,

which can be defined as a conflict contested in terms
of normative terms between parties, and a conflict in
the general sense of the term, which underlies the dis-
pute 159. A dispute may be settled by a judgment of a
court, which has binding force on the parties. Yet, the
conflict is not necessarily settled by a judgment of a
court. Although the conflict is submitted to a court as
the juridical question, this does not mean that it ceases
to have political, economic, historical, sociological and
emotional dimensions.
The Government of the State party losing the case
in the ICJ should know, and generally knows, that the
settlement given by a judgment of the ICJ is final and
that the State must obey the judgment. Yet, this under-
standing may not be shared by others in the country.
The rivals in the ruling party, the opposition parties,
powerful associations of private enterprises, NGOs and
media institutions may not share such an understand-
ing. And if the public of the State losing the case are
not satisfied with the settlement given by the ICJ, there
is always a possibility of manipulation of this dissatis-
faction by politicians who are opposed to the Govern-
ment responsible for agreeing to the conflict settlement
by the ICJ. Although this possibility is relatively small
in the case of “juridical questions” in comparison with
“political questions”, there is no categorical difference
between the two if seen from a political or sociological
perspective. Thus the judgment may not be imple-
mented by a party which has lost the case. Actually,
this can happen fairly often in international society.
Here, we must recall that there is no enforcement
mechanism for realizing the judgment of the ICJ. Nor
does the general consciousness exist in today’s global
159
As to this distinction, see Hirose Kazuko, Hunso to
Ho (Conflicts and Law) (Keiso Shobo, Tokyo, 1970).
252 Onuma Yasuaki
society that such mechanism should exist among

nations. Fundamentally, only 66 States out of more
than 190 States have accepted the compulsory jurisdic-
tion of the ICJ 160. Even those which have accepted the
jurisdiction of the ICJ, a substantial number of States
have made various kinds of reservations to it. Given
the fact that only one out of five permanent members
of the UNSC accepts the jurisdiction of the ICJ, we
cannot expect that major international issues involving
major powers are settled by the ICJ.
Simply regarding the increase of cases brought to
the ICJ and the conspicuous phenomenum of “legaliza-
tion” in international society as a “progress” in interna-
tional law or a “judicialization” of international society
overlooks these crude realities of the contemporary
global society. We must adopt a wider, more compre-
hensive perspective from which we can see how inter-
national law is perceived by the Governments and
other participants of international law, and how it
works based on such shared understanding in interna-
tional and domestic societies. We must see various
forums where international law is actually referred to
and used, as well as actors that conceive of and actu-
ally use international law.
2. International law in the real world

(1) Pre-eminence of non-judicial forums where
norms of international law are actually referred
to, discoursed and used
In Chapter I we referred to cases where norms of
international law are actually being aware of, referred
160
The Court at a Glance, available at http ://www.icj-
cij.org/presscom/en/inotice.pdf (last visit : 25 May 2009).
The document is dated 4 May 2009.
to, deliberated, invoked, discussed, applied, and real-

ized or implemented. In order to assess the significance
of the judiciary in terms of power and legitimacy in
international law, we must elucidate how international
law is recognized and used in these actual cases and
how the judiciary is involved there. Only by assessing
the role of the judiciary in such actual cases in a more
specific manner can we have the proper understanding
of the significance of the judiciary and of international
law as adjudicative norms.
First, international law is being aware or conceived
of, or referred to, by organs of the Governments, experts
and ordinary citizens when these agents vaguely or
deliberately consider some matters or phenomena by
referring to some concepts of or on international law.
When, for example, they conceive of some question
as a “problem” or an “issue” relating to such prob-
lems as “sovereignty”, “human rights”, “territory”, “self-
defence” etc., they either consciously or unconsciously
have some notions and/or frameworks of international
law in mind. They understand, interpret and construct
these matters through such notions and/or frameworks,
which are notions and/or frameworks of, or on, interna-
tional law.
Second, international law is referred to and invoked
in (1) diplomatic negotiations between Governments of
States in conflict ; (2) discussions, debates and negotia-
tions in international organizations and conferences ;
(3) international tribunals such as the ICJ or the ICC ;
(4) dispute settlement mechanisms such as WTO dis-
pute settlement mechanisms ; (5) adversarial processes
including domestic courts between persons who claim
their rights have been violated by the acts of a certain
Government of a State, and the Government denying
the claim ; (6) discursive forums in the national parlia-
ment and local media of the State ; and (7) discursive
forums in regional and global media such as CNN, the
254 Onuma Yasuaki
BBC, the New York Times, as well as various media

run by or covering diverse groups such as minorities,
indigenous peoples, associations of influential cor-
porations, labour unions, and major world religions,
etc. 161
Third, international law is applied by international
and domestic courts, national Governments and inter-
national organizations. In most cases international law
is applied by national Governments and is realized
without producing serious problems. This is the nor-
mality of international law, and international law is not
being aware of because there exists no conspicuous
problems inviting attention of people. When, however,
there are some conflicts between nations or other sub-
jects of international law, and international law is
invoked by the parties in conflict in the third party
forum, most typically the tribunal of the internatio-
nal court, this tribunal should apply international law
and seek to solve the conflict. Through this appli-
cation, norms of international law is expected to be
realized.
Among these cases, only (3) of the second case and
a certain portion of the third case are concerned with
international law as adjudicative norms to be applied
by the ICJ. However, as was demonstrated in sec-
tion II, 1 (2), the problem cannot be settled by the ICJ
if the State party whose act constitutes an issue of
international law has not accepted the jurisdiction of
the ICJ on the issue in question. In the case (1) of the
second case, one of the party States may want to sue
the other party in an international court including the
ICJ, if it believes that it can win the case. However, in
the absence of the compulsory jurisdiction of the court,
it cannot do so unless the other party agrees to settle
the case by the judicial mechanism. Under these cir-
161
See Chapter II, section I, 1 (2).
cumstances, the shadow of the court can hardly play an

important role in the argumentative or bargaining
processes between the parties in conflict or participants
of the international legal processes. In the case (5) of
the second case, international law may function as
adjudicative norms, but not in the ICJ but in domestic
courts.
It is thus evident that in most cases, forums where
international law is referred to, invoked, discussed,
applied, and realized or implemented are outside the
ICJ. Arguments on the legality or illegality of the act of
States do not centre on the interpretation of interna-
tional law as the adjudicative norms. The discourses
on, and actual treatment of, international law by vari-
ous kinds of participants of the international legal
processes are basically on the identification and the
interpretation of international law as the prescriptive
norms of conduct.
Governments, political rivals, opposition parties,
NGOs, media institutions and activists resort to various
sources of interpretation of these norms of conduct in
question in order to secure an interpretation favourable
to them. They do so because they know that justifying
their argument by international law would enhance the
legitimacy of their argument and can secure a good
chance of winning the case. The various sources such
as multilateral treaties, precedents of the ICJ, UNGA
resolutions, and unwritten norms of international law
which are generally called “customary” international
law constitute cognitive bases of international law
functioning primarily as prescriptive norms of con-
duct. They also function as norms for assessing the
legality or illegality of the act in question, and con-
sequently legitimating or delegitimating it. This is the
“living” international law that international lawyers
must deal with, analyse, interpret, elucidate and
explain.
256 Onuma Yasuaki
(2) Higher values of multinational treaties and

UNGA resolutions as cognitive bases of general
international law
These cognitive bases of international law range
widely according to subject matters and actual contexts
of the conflicts. Provisions of treaties are generally the
most important cognitive basis. If there are judgments
and/or advisory opinions of the ICJ on the issue with
which international law is concerned, they are highly
valuable. Among many cognitive bases of international
law, interpretation of the norm in question given by the
ICJ has the highest authority and persuasive power.
Arbitral awards and judgments of international courts
other than the ICJ have a similar, if not equal, value.
However, such cases are not a rule, but rather an
exception, as indicated above.
In many cases, resolutions or declarations of the
UNGA and decisions of the UNSC are cited or referred
to as authoritative bases for identifying and interpret-
ing the norm of international law in question. Except
for a limited number of the Security Council decisions
that are based on Article 25 of the UN Charter, they
lack binding force per se. However, as already demon-
strated earlier, this does not deny their value as cogni-
tive bases for identifying international law. Reports of
the panels and of the appellate body of the WTO, as
well as views, opinions and recommendations of the
monitoring bodies of various multilateral treaties also
constitute cognitive bases for identifying norms of
international law in question. Resolutions of various
international organizations and important international
conferences other than the United Nations, judgments
of municipal courts, views of the leading international
lawyers are further cited and referred to as cognitive
bases of international law.
Arguments made in forums other than the judiciary
in global society do not necessarily have the same

argumentative style as those in a court. Without a judi-
ciary with compulsory jurisdiction, argumentation
between parties to a dispute does not proceed under the
shadow of the court. Under such circumstances, the
degree of persuasiveness of the argumentation on the
interpretation and assessment on legal norms of inter-
national law matters greatly. It involves the argument
concerning the procedural and participatory legitimacy
in the promulgation of the norm in question, interna-
tional, transnational and intercivilizational substantive
legitimacy, relative strength in terms of effective
realization of the rule, and so on.
Seen from this perspective, the comparative persua-
sive power of the traditional theory of “customary”
international law is not as great as it has been believed
to be. Neither “State practice” nor “opinio juris” advo-
cated by the proponents of the traditional theory of
customary international law can provide more con-
vincing evidence of the sufficiently general and wide
coverage of States than multinational treaties of a uni-
versal nature. Such treaties as the Geneva Convention
of 1949, the UN Charter, and the Convention on the
Rights of the Child can provide a far more explicit and
transparent evidence of the commitment of the over-
whelming number of States than the fictitious notion of
“State practice” or “opinio juris”, which should satisfy
the requirement of generality yet actually does not.
Similar conclusions can be drawn as to the UNGA
resolutions adopted unanimously or by consensus. The
norm creating process of the UNGA satisfies the
requirement of a global participation far better than the
traditional “customary” international law-making pro-
cess does, because the UNGA is an organ composed of
virtually all States of the world. Even in terms of the
traditional doctrine respecting the sovereign will of
individual States, the UNGA norm-creating process is
258 Onuma Yasuaki
more legitimate in that it actually gives an opportunity

to all members of the UNGA whether they agree or
disagree with the proposed norms. This has been amply
demonstrated in section I, 2.
(3) The element of power in the creation of general

international law
When we consider the problem on international law
including general international law, we must take into
consideration not only the element of legitimacy but
also that of power. This problem was amply discussed
in Chapter II. Here, a brief comment on the problem of
the “persistent objector” and on the problem of voting
in the UNGA resolutions is in order.
Even if multilateral treaties satisfy the requirement
of global legitimacy far more than the traditional “cus-
tomary” international law, if there is a powerful State
persistently objecting to a certain norm in the treaty,
this factor must be seriously considered. The “persis-
tent objector” rule was argued and discussed as a rule
obstructing an emerging norm from becoming custom-
ary international law 162. However, the crucial problem
of the persistent objector is not concerned with the
existential form of law, but the universal validity of
law. Thus, we must consider the problem of the persist-
ent objector whenever we deal with the problem of
general international law, whether it derives its univer-
sal validity from a general custom, a general treaty or a
UN resolution.
If we see the problem of the so-called persistent
objector rule from this perspective, we can see why
162
See Ted L. Stein, “The Approach of the Different
Drummer : The Principle of the Persistent Objector in
International Law”, Harvard International Law Journal,
XXVI (1985), and other references dealing with this prob-
lem.
this “rule” was advocated and was quickly accepted by

a considerable number of influential international
lawyers in the late twentieth century. It was the time
when the problematic features of the traditional theory
on customary international law came to be widely
recognized. It was the period when the ICJ and some
international lawyers sought to identify norms of inter-
national law by relying on multinational treaties and
the UNGA resolutions. When the traditional theory on
customary international law had been prevalent with-
out being questioned of its legitimacy, it had not been
necessary for major Western States and their interna-
tional lawyers to seriously consider the possibility of a
certain norm becoming general international law with-
out their consent or agreement. Because general inter-
national law was formulated as “customary” norms that
were identified by leading Western international
lawyers who relied on the State practice of major
Western States, there had been little need for those
major powers to object to these “customary” norms.
However, when a number of international lawyers,
and even the ICJ began to rely on multinational treaties
and the UNGA resolutions as cognitive bases for iden-
tifying norms of general international law under the
name of customary international law, there emerged a
possibility, and even an actuality, that a norm to which
a major Western State had objected to be identified as
“customary” international law. Under the assumed
equation between general international law and cus-
tomary international law, such a norm might well be
regarded as a norm of general international law. Even
the most powerful State, i.e. the United States, would
have to abide by it, although it had objected to it. Such
a situation must be avoided. This seems to be one of
the major reasons why the so-called the persistent
objector “rule” came to be quickly fashionable in the
study of international law in the late twentieth century,
260 Onuma Yasuaki
where the intellectual power of the leading Western

nations was paramount.
The problem of the effectiveness of the norm lingers
in the case of the UNGA resolutions as well. In order
that a norm provided in the UNGA resolution can be
identified as a cognitive basis of a positive norm of
general international law, it must be followed and com-
pleted by concrete behaviours of States including
major powerful States. If a resolution is adopted with-
out an affirmative vote of powerful States, the value as
a cognitive basis of a norm of general international law
is very low. In particular, if that vote is an objection
rather than an abstention of a number of powerful
States, such a UNGA resolution is almost valueless as
a cognitive basis of general international law. It lacks
not only the power realizing the norm, but also legiti-
macy in that it does not represent the will of global
community as a whole.
As has been demonstrated earlier, the problem of
whether and to what extent the norms in the UNGA
resolutions can be used as cognitive basis of general
international law must be scrutinized in comparison
with so-called “customary” international law under the
traditional doctrine, both in terms of power and legiti-
macy. In terms of legitimacy, relative superiority of
identifying general international law on the basis of
multinational treaties or the UNGA resolutions in com-
parison with the traditional theory of customary inter-
national law was amply demonstrated. The “custom”,
“State practice” or “opinio juris” which was used in
the traditional doctrine is also a cognitive basis of
international law, not international law per se. There is
no difference between them in this critical sense. It is
not fair at all to allow camouflaging the lack of gener-
ality by the abuse of “tacit (or inferred) consent”,
“acquiescence” and other fictitious notions for the tra-
ditional theory of customary international law on the
one hand, and to set an excessively high threshold for

an alternative theory seeking to formulate the notion of
general international law on the basis of multinational
treaties or the UNGA resolutions on the other.
Even in terms of power, the power of a small
number of Western States, which eclipsed the lack of
legitimacy in terms of generality of State practice
and opinio juris by guaranteeing the effectiveness of
the “customary” international law in the nineteenth
and twentieth centuries, is gradually decreasing in the
twenty-first century. In the 1970s, even if the non-
Western States occupied an overwhelming majority in
the UNGA and sought to create norms of international
law by adopting the UNGA resolutions, they could not
do so if the small number of Western States were deter-
mined to obstruct such a norm-creating process. There
was an apparent gap between those who held power
and those who occupied the majority. However, this
gap will become gradually but steadily smaller. The
non-Western States will not only continue to occupy
the majority, but also gain more substantive power
guaranteeing the effectiveness of the norms of interna-
tional law. In this way, properly appreciating the norm-
creating process through the UNGA resolutions is
needed not only in terms of legitimacy but in terms of
power as well.
(4) Towards a more comprehensive perspective for

assessing the proper status and functions of
international law
When we conceive of the global legal order in the
twenty-first century, we must think of general norms of
international law that can effectively influence the
behaviour of States and other international actors.
Some of these prescriptive norms of conduct in general
international law that are identified through various
262 Onuma Yasuaki
cognitive bases as described above may not be able

to make all States comply with specific norms which
are strictly defined and interpreted in international
courts.
However, they can still demonstrate the shared goals
and understandings of the global community, exert a
certain influence on the behaviour of States including
the hegemonic State, and induce convergence of vari-
ous behaviours of States with diverse ways of viewing
and constructing interests, values, and other normative
or material notions and frameworks. They can further
carry out a number of other important societal func-
tions as law in international society.
In order to identify such general prescriptive norms
of conduct in international law, we need to identify
actual situations where rules and principles of interna-
tional law are actually involved, resorted to, and uti-
lized. We also need to identify actual actors who are
involved in the process where rules and principles of
international law are discussed, drafted, formulated,
applied, utilized to justify or criticize certain claims or
interests of various subjects, violated by some actors,
enforced and finally realized. By paying attention to
such specific realities from international, transnational
and transcivilizational perspectives, we can liberate
ourselves from our deeply rooted excessive State-
centrism and judicial-centrism.
Today, a large number of non-State actors are heav-
ily involved in a process where international law is
involved, invoked and utilized. These actors are num-
erous. They include enterprises, NGOs, international
lawyers and other experts, various kinds of activists,
media institutions, ethnic minorities, indigenous
peoples, churches, independent priests, Buddhist monks,
ayatollahs, victims of human rights violations, etc.
They resort to international law in order to justify their
claims and interests, or to negate the legitimacy of the
claims made by their opponents. They use international

law to rectify wrongs imposed on them by States or by
powerful groups, and to realize various values and
interests they pursue. Even powerless peoples within a
State such as linguistic or religious minorities, indi-
genous peoples, and many other groups who are subju-
gated and/or exploited by some domestic powerful
groups including those in the Government can make
use of international law in a variety of forums. Through
such “political” use of international law, international
law contributes to various socially useful functions
including legitimation through the process of conflict-
ing justification 163.
It is therefore important to pay attention to the
aspect where international law works not as a means of
settling some conspicuous conflicts, but as an impor-
tant means to help realize values and interests of
people’s lives in a less conspicuous manner. International
law generally works in a far more quiet and invisible
manner than in the cases which are brought to the judi-
ciary, where international law functions as adjudicative
norms in a visible form of judicial proceedings and
judgments. It may be easier for international lawyers to
centre on such conspicuous and accessible materials as
judicial judgments of the courts and construct a theory
of international law that is based on such “positive”
materials of law. However, as amply demonstrated
above, such a theory covers only a very limited field
where international law is referred to, invoked, dis-
cussed and used. Rules and principles of international
law function in far larger fields than international judi-
cial processes. A theory of international law must be
rewritten against this reality.
As Rosalyn Higgins wrote at the very beginning of
her excellent book Problems and Process,
163
264 Onuma Yasuaki
“If a legal system works well, then disputes are

in large part avoided. The identification of required
norms of behaviour, and the techniques to secure
routine compliance with them, play an important
part . . . Of course, sometimes dispute-resolution
will be needed ; or even norms to limit the para-
meters of conduct when normal friendly relations
have broken down and dispute resolution failed.
But these last elements are only a small part of the
overall picture.” 164
H. L. A. Hart expressed the same idea in the following
way :
“The principal functions of the law as a means of
social control are not to be seen in private litigation
or prosecutions, which represent vital but still ancil-
lary provisions for the failures of the system. It is to
be seen in the diverse ways in which the law is used
to control, guide, and plan life out of court.” 165
In these ways, international law contributes to the
well functioning of the international system as a whole
without necessarily being recognized of its importance.
International law certainly plays its important role
of settling disputes between States as adjudicative
norms. The establishment of the rule of law with effec-
tive judiciaries is an important objective in interna-
tional society of the twenty-first century. We have wit-
nessed and are witnessing the gradual increase of the
significance of judiciaries and mechanisms of quasi-
judiciary functions in the twentieth-century interna-
tional society. We cannot deny that the traditional
164
Rosalyn Higgins, Problems and Process : Interna-
tional Law and How We Use It (Clarendon Press, Oxford,
1994), p. 1.
165
Herbert Lionel Adolphus Hart, The Concept of Law
(2nd ed., Clarendon Press, Oxford, 1997), p. 39.
theory of customary law for identifying general inter-

national law has a long history and is highly sophisti-
cated. To maintain the doctrine relying on the “custom-
ary” international law may be possible by making it
technically even more sophisticated.
Yet, recognizing these facts and possibilities does
not mean at all that we should conceive of international
law exclusively, or even mainly in terms of adjudica-
tive norms. We must recognize that the major arena of
international law is in non-judiciary forums. This
recognition does not mean dwarfing international law.
On the contrary, this recognition leads people to prop-
erly understand that international law plays a great
number of socially important functions as described in
Chapter II. And such understanding of the various roles
and functions of international law is the key for its sur-
vival as a theoretical and practical tool in the twenty-
first-century world. It is useless to revive the theory
equating the fictitious notion of “customary” interna-
tional law with general international law, which has
virtually been dead for many years. The theory has
definitely out-lived its proper lifespan. It is now time
for us to make efforts to elaborate a theory based on
the recognition that ordinary prescriptive norms of con-
duct in international law can be identified independently
of Article 38 of the ICJ Statute, although the latter
can provide a useful clue to such identification.
266
CHAPTER IV
HISTORY OF INTERNATIONAL LAW AS SEEN

FROM A TRANSCIVILIZATIONAL PERSPECTIVE
“From whose perspective is the ‘Far

East’ far east ?
If there is a ‘Far East’, where is the
‘Far West’ ?”
(An unknown Japanese scholar
in the twentieth century.)
Introduction
One area where the transcivilizational perspective
proves its usefulness as a cognitive, interpretive and
evaluative framework of international law is the his-
tory of international law. International law that people
in the world generally think of today assumes the exis-
tence and functioning of the institution of the sover-
eign States, i.e. the sovereign States system on a global
scale. If there are no States that have territorial and
personal sovereignty recognizing each other, there is
no international law. If there is a world State dominat-
ing all territories and people on earth, there is no inter-
national law.
If one defines international law as law between
States, defined in the wider sense of the term, includ-
ing political or politico-religious entities that are not
necessarily sovereign, regulating relations between
such “States” on a regional scale, then one can talk of
international law in the pre-modern period. One may
be able to find such “international law” in Mediter-
ranean, Indian, Chinese or some other antiquity, or
medieval Europe, or somewhere and sometime else.
But we must recognize that such “international law” is

different, perhaps fundamentally different, from inter-
national law as we, the people of today’s world,
assume generally.
This, however, does not mean at all that we need
not, or should not, study normative ideas and institu-
tions in the pre-modern world for understanding inter-
national law. On the contrary, we must study normative
systems existing in various regions in pre-modern
days. We have to study not only the pre-modern Euro-
pean normative system, which was composed of jus
naturae, jus gentium and other similar norms which
were valid in Europe. We also have to study other
regional normative systems which co-existed with the
pre-modern European normative system. This study is
both necessary and important because in order to eluci-
date characteristic features of the European normative
system, which later became global international law,
we have to compare this system with other regional
normative systems. By such comparative study, we can
understand why and how peoples who had not shared
the European normative system during the pre-modern
period came to share it. Through the accumulated
receptive process by non-Europeans, European interna-
tional law became global international law as we see it
today.
As suggested above, exploring the history of inter-
national law is not simply narrating or describing the
birth and development of international law “as it has
been”. Such a project is simply impossible. It urges us
to question or doubt our own perspective or standpoint
for seeing and understanding the world. Through
studying the history of international law, we can, and
should, ask ourselves, (1) What is “international” ?
(2) What is law ? (3) From whose perspective do we
see and interpret the world ? And finally, (4) what is
international law ?
268 Onuma Yasuaki
In more concrete terms, I will seek to view the his-

tory of international law as the process of inter-percep-
tion between agents of a globalizing European ordering
of the world, i.e. the modern Eurocentric sovereign
States system, and agents of competing orderings of
the world, such as the Sinocentric tribute system and
Islamocentric siyar system. This process has generally
been narrated as the growth or expansion of the
European international legal system into a global inter-
national legal system. It certainly is. On the other hand,
if this globalizing process is a process of law, and if
international law is the law of international society as a
whole, this law must be recognized as such law not
only by Europeans but by members of the international
society as a whole. We must therefore construe and
construct this process by asking, “How did Europeans
and non-Europeans as a whole, i.e. the humanity as a
whole, perceive this process as a process of inter-
national law ?” It is the normative consciousness of the
addressee of the law that constitutes the ultimate basis
of law. Without the general recognition of the validity
of law by its addressee, we cannot talk about law
whether it is domestic or international 166.
In this way, the task of exploring how the globaliz-
ing of the European international law was perceived
not only by Europeans but also by non-Europeans
should constitute a crucial enquiry into the validity of
international law in its globalizing process. It is sub-
mitted that by introducing a transcivilizational perspec-
tive we can direct our attention more deliberately on
this important aspect of the history of international law,
which has often been neglected in earlier studies. It is
to re-view the history of international law with a keener
and more sensitive concern for the global (including
166
This problem has been discussed in detail in
Chapter II.
trans-cultural, trans-religious and transcivilizational)

legitimacy of international law.
As the following text will illustrate, the globaliza-
tion of European international law in the geographical
sense was basically realized around the end of the
nineteenth century. However, the globalization of inter-
national law did not end at that time. Globalization in
terms of the subjects of international law occurred in
the latter half of the twentieth century. With the inde-
pendence of Asian and African nations, European inter-
national law became global international law as far as
its formal subjects — independent States — are con-
cerned 167.
Yet, still today in the twenty-first century, a number
of non-Western people feel uncomfortable with Euro-
centric or West-centric international law. European or
Western international lawyers often refer to our inter-
national law. This is natural for them, given the West-
centric creation, development and prevalence of inter-
national law. However, for many non-Western people,
it is not the case. The globalization of international law
167
I failed to demonstrate this aspect of the globaliza-
tion of European international law in an article, which
constitutes a basis of this chapter (Onuma Yasuaki, “When
Was the Law of International Society Born ?”, Journal of
the History of International Law, II, No. 2 (2000)) in a
clear and explicit manner. R. P. Anand pointed out this
important aspect in his review of my article. See R. P.
Anand, “Onuma Yasuaki’s ‘When was the Law of Interna-
tional Society Born ? — An Inquiry of the History of
International Law from an Intercivilizational Perspec-
tive’ ”, Journal of the History of International Law, VI,
No. 1 (2004), p. 12. Xue Hanqin pointed out the same
problem (Xue Hanqin, “What Has Been Changed of the
International Legal System ?”, Austrian Review of Interna-
tional and European Law, VIII (2003), p. 238, note 14). I
am grateful to these distinguished international lawyers for
providing me with an opportunity to reconsider and revise
my view.
270 Onuma Yasuaki
in the civilizational sense is still an ongoing process. In

order for non-Western people around the globe also to
be able to talk about our international law in a natural
and comfortable manner, it must undergo a number of
revisions and modifications. Reappraisal of the history
of international law from a transcivilizational perspec-
tive can, I hope, contribute to such globalization of
international law in the civilizational sense.
I. Problematiques Surrounding the History

of International Law
1. The problem of projecting a present notion on to the
past
(1) Treaties between States ?

Let us start by asking a simple yet basic question :
Can we, and should we, say that international law
exists if there is a treaty between States ? When we
refer to a treaty in this question, what kind of instru-
ment do we assume as a treaty ? Also, what kind of
human group do we assume as a State ? And, when we
say that international law exists, what state of affairs,
what kinds of ideas, institutions, and/or behaviours of
political entities or people in general do we assume ?
In this way, this simple question raises a number of
crucial problems related to our prevalent assumptions,
to the epistemological and methodological frameworks
for the study of international law, and to the scope
and limit of the definition and concept of international
law.
Facing this question, many international lawyers
would first consider the prevalent notion of a treaty
under current international law. They thus would ask,
“What is the definition of a treaty in international
law ?” Given the prevalence of the positivistic approach
to international law, many of them will likely look to

the 1969 Vienna Convention on the Law of Treaties as
a clue to identify the prevalent notion of a treaty in
international law. The Vienna Convention on the Law
of Treaties is considered to be the most important
positive international law on treaties. Many of its
provisions are considered to embody the norms of
the general international law on treaties.
There are some international lawyers, historians and
scholars of international relations, however, who talk
about “treaties” in pre-modern Europe, Asia and other
regions, without following this kind of a positivistic
procedure. They just assert that they have demon-
strated the existence of “treaties” in those regions dur-
ing the pre-modern period, without exploring the prob-
lem of the concept of treaty. Although I am not a
positivist at all, I doubt whether such a way of reason-
ing without scrutinizing the concept of treaty can be
regarded as a solid, serious and professional under-
taking of international legal studies. Even if one
is not a positivist in the narrow sense of the term, a
scholarly argument should not be just an assertion
without elaborate demonstration.
So, let us first follow the rigid, positivist way.
Article 1 of the Vienna Convention provides that
“treaty” means an international agreement concluded
between States in written form and governed by inter-
national law, whether embodied in a single instrument
or in two or more related instruments and whatever its
particular designation 168. This provision appears to
limit the treaty to an agreement in written form.
However, it has been well established that an unwritten
agreement can be a treaty. This understanding is shared
by almost all international lawyers. Thus we tend to
apply this notion of a treaty, basically provided by the
168
UN Treaty Series 1155 (1980), p. 333.
272 Onuma Yasuaki
Vienna Convention on the Law of Treaties and modi-

fied by established practice to include unwritten agree-
ments, to agreements between “States” in pre-modern
days.
Yet, we have to be cautious in projecting this cur-
rent notion of treaty uncritically on to the past. We
must be aware that when we consider a “treaty” in
accordance with today’s predominant way of thinking
about international law, we already assume a number
of ideas, societal conditions, activities and phenomena
in today’s world which are associated with today’s
international law. However, when we consider a
“treaty” in the past, we need to consider a number
of factors differentiating the past “treaty” from the
present one, as well as other factors surrounding or
underlying the “treaty”.
(2) Problems related to “treaties” during the pre-

modern period
First, what kind of human entity do we assume
when we refer to States as subjects of treaties ? Today,
when we think of States, we assume nation States.
These nation States are sovereign States, which are
independent and equal under international law. They
have a definite territory and nationals who are dis-
armed and not authorized to rule other nationals.
Territorial sovereignty of the State basically excludes
and denies other powers and authorities, domestic or
foreign. The State itself is a subject of international
law and acts under its own name, not under the name
of its head.
However, ancient and medieval States, or more pre-
cisely, political or politico-religious entities or commu-
nities (or bodies politic, often assuming the character
of religious communities) did not possess these
characteristic features. These “States” ranged from
empires 169 such as Rome, the Abbasid dynasty and the

Tang dynasty to city States in ancient Greece or
medieval Italy. They were not sovereign States whose
territorial and national organization was definitely
established, as is assumed of States today. Many of the
States were a combined group of rulers who ruled their
own subjects within their own local territories, where
even the head of State (the king or emperor) could not
generally intervene.
The component rulers’ personal allegiances changed
fairly often. Moreover, there was no technological
means to define the territory of the State precisely.
Hence the State lacked a definite territory. Nomads in
Central Asia were a typical example of the State with-
out “territory” in today’s sense of the term. They some-
times became extremely powerful groups and con-
cluded various kinds of agreement with the Chinese
emperor and other leaders in their neighbourhood for
the purpose of commercial dealings and peace settle-
ments.
Should we characterize these various kinds of agree-
169
It is important to note that
“we should not give the definition of empire a priori
and conclude that ancient Rome, the Qing and Han
dynasties, and the Ottomans were empires because they
fall within this definition. Rather, ancient Rome was the
empire (imperium), and the Qin or Han dynasty, and the
Ottomans were called as empires because they looked
similar to the Roman Empire in the eyes of Europeans”
(emphasis in the original) (Tadasuke Yoshimura,
“Teikoku to iu gainen ni tsuite” (On the Concept of
“Empire” ; English translation by Onuma), Shigaku
Zasshi (The Journal of Historical Science), CVIII,
No. 3 (1999), p. 60).
As a working definition, “empire” in this book basically
means a body politic which rules more than two human
societies, with one society superior to other society or
societies.
274 Onuma Yasuaki
ments concluded by politico-religious-military leaders

of the independent human entities as treaties between
States ? A number of international lawyers, historians
and international relations experts do characterize these
agreements as treaties. If they do so after scrutinizing
the methodological and epistemological problems I
described above, they may be entitled to argue that
they were treaties between States. One may be able to
invoke a highly abstract notion of a treaty and there-
fore can (or should) disregard the factors differentiat-
ing today’s assumptions and past ones as described
above. Unfortunately, such scrutiny or justification has
rarely been provided.
Second, this problem is related to the question of
“what is international (and what is domestic) ?” When
we refer to international law, we assume today that this
is different from domestic law. However, there was no
such sharp distinction between them prior to the
modern period. Fundamentally, as described above,
States themselves were not sovereign States composed
of disarmed nationals without authority to rule other
nationals. Within a State, there existed various types of
independent powers with the authority to rule others
and to fight with each other by effective means of vio-
lence, i.e. arms. “States” and other political or reli-
gious-military entities were not as sharply differen-
tiated as they are today.
When Hugo Grotius, the “father of international
law” 170, referred to just war as a sanction against the
violator of natural law and the law of nations, such law
170
We should be aware of the fact that Grotius was
called neither “mother of international law” nor “a parent
of European international law”. Reference to “father” and
unqualified international law despite the fact of European
international law reveals the predominance of male-centric
and West-centric way of thinking during the modern
period.
was not limited to the State, which Grotius generally

expressed as civitas. The subject or author of war could
be a private person (privatus) such as the head of a
family (pater-familias). Although Grotius made serious
efforts to differentiate the characteristic features asso-
ciated with States and non-State actors, the fundamen-
tal continuum between States and non-State political
entities persisted 171. Agreements concluded between
political entities, often characterized as “States”, could
not escape from such fundamental conditions of the
time when Grotius lived.
The lack of a sharp distinction between the interna-
tional and the domestic can be seen in other forms as
well. When powerful empires such as the Roman
Empire and the Chinese dynasties made arrangements
with foreign States or political entities, they were
reluctant to characterize them as treaties concluded
between independent States. Rather, they regarded
these arrangements as the emperor’s orders, or char-
ters, concessions, or unilateral measures of other kinds.
On their understanding, the arrangement would be
imposed upon, or granted to, the other party regardless
of that party’s will. Should we assume that such an
arrangement constitutes a treaty, despite the fact that
one party — a more authoritative party — did not so
recognize it ?
Third, most pre-modern “treaties” were basically
agreements between rulers 172. They were not agree-
ments between States. In order that the treaty remain
171
Onuma Yasuaki, “War”, idem, ed., A Normative
Approach to War (Clarendon Press, Oxford, 1993), pp. 98-
121.
172
For example, in the case of a famous “treaty”
between Rameses II of Egypt and Hatsilsi III of the
Hittites in the thirteenth century BC, the parties to the
agreement were Rameses and Hatsilsi. It was not an agree-
ment between the State of Egypt and the State of Hittites.
276 Onuma Yasuaki
valid after the death of one party, i.e. the ruler of a

State concerned, it was necessary to stipulate a specific
provision to that effect. The “State” as an abstract
entity which is the subject of law, is basically a modern
construct. Here again we find an example of how
Grotius had one foot in the medieval era and another in
the modern. Although he referred to the civitas as a
subject of law, he also referred to optimates, principa-
tus, populus and other similar subjects interchange-
ably 173. This lack of the concept of the State as an
abstract subject of law was not limited to pre-modern
Europe. Other regions also generally lacked this con-
cept.
Fourth, many of the pre-modern agreements between
political-religious-military leaders were implemented
under the guarantee of gods or similar supernatural
beings. If either party violated the treaty, these gods,
characterized as guarantors of the treaty, were expected
to punish the violator 174. This is what we today call
“religious” sanctions. Should we characterize them as
legal norms or religious norms ? Or are they norms
with two characteristic features ?
We should here recall that the sharp distinction
between law and other norms, either religious or ethi-
cal, is itself a modern construct. It was basically Chris-
tian Thomasius, Immanuel Kant and other modern
European thinkers who brought forth such a sharp dis-
tinction between legal and non-legal norms. This dis-
tinction certainly fits the modern life of humanity, and
therefore has prevailed since the eighteenth century.
Although we take this distinction for granted today,
it is basically a historical construct of modernity.
173
174
See, for example, the agreement between Ram-
eses II of Egypt and Hatsilsi III of the Hittites, supra foot-
note 172.
Unqualified projection of such a modern construct on

to the past is not without methodological problems.
As is demonstrated above, there are a number of
factors differentiating today’s notion of a treaty, State
or international law from those of the past. If we use
such terms as treaty, State and international law in the
historical study of international law, we have to use
them with full awareness of the different assumptions
in today’s world and in the worlds we seek to explore.
Unfortunately, a number of international lawyers deal-
ing with historical agreements between political enti-
ties and regional normative ideas and institutions have
not taken such a cautious approach. The very concept
of “international” must be carefully applied to or pro-
jected on to the past. The concept of inter-cultural,
inter-religious, trans-cultural, trans-religious, or trans-
civilizational may be more appropriate to express
relations between the politico-religious entities under
the rule of politico-military-religious leaders in the pre-
modern days.
(3) Problems on the character of the political (or

politico-religious) and regional units and their
relations
There is a further problem in considering the history
of international law. It may be insufficient for the exis-
tence of international law that we witness the sporadic
presence of treaties. In order to be called international
law, it may be necessary for treaties and/or inter-State
customs to constitute a legal system or legal order 175.
If so, what constitutes the requirements for such a sys-
tem or order ? We have had a number of works dealing
with this subject. Here again we find the problem of
175
See, e.g., Tabata Shigejiro, Kokusaiho (International
Law) (2nd ed., Iwanami shoten, Tokyo, 1966), pp. 7-9.
278 Onuma Yasuaki
terms, notions and concepts to employ. Fundamentally,

if such legal or at least normative systems or order
existed, in which area and on what human groups such
normative systems or orders existed ?
For most of human history, i.e. until the nineteenth
century, many independent human entities or groups
co-existed in various regions of the globe. These
human entities generally shared a common world
image with other entities within the region. These
world images were in most cases based on religions
which these groups or entities shared, but in some
cases on other factors. These regional units of inde-
pendent entities can be referred to in various ways. We
may call them (1) (regional) international systems,
international societies or international orders such
as European or Mediterranean international system,
(2) (regional) civilizations such as Egyptian or East
Asian civilization, (3) world systems, following the ter-
minology of the Wallerstein school, or simply
(4) worlds, meaning vaguely parts of the globe com-
prising plural independent human groups or entities,
such as the Sinocentric world and the European world.
What specific term and notion should one adopt to
denote and to explain the various regional human units
in human history ?
This is basically a question of definition and con-
ceptual analysis, and what definition or concept one
should adopt basically depends on each researcher’s
objectives. Researchers have actually used various
terms depending on their interest, objective, methodo-
logy, discipline and other factors. Historical studies
have explored a number of “civilizations”, which
existed in certain regions comprising plural States or
political entities and lasted for some centuries. Some
historians talked about “world orders” such as the
Chinese World Order. Some other historians talked
about “worlds” such as the Islamic or Muslim World
as well as the European or Christian World. Compar-

ative legal history has tended to talk about “regional
legal circles” or “spheres”. Wallerstein and others
have sought to explore the development of human his-
tory by resorting to the concept of “world systems”.
Hedley Bull distinguished the notion of “international
order”, “international system”, and “society of States”
(Bull equates this with international society) in a
sophisticated manner 176. Barry Buzan and Richard
Little, leading experts on international relations, sought
to explore world history by deliberately applying the
analytical concept of “international system” 177. I will
return to this theoretical or conceptual problem in sec-
tion IV.
Suffice it to say, at this stage, that we should not
assume that there existed regional substantive units
comprising all areas of human ideas and activities such
as politics, economics, social, normative and cultural
ideas and activities. There may have existed some
discernable normative ideas and practices common to
people in a certain region of the earth. However, this
does not necessarily mean that the people in the region
shared political and administrative institutions, or had a
common economic market, or were under some com-
mon military authority. These factors might overlap,
but often they did not.
The spheres corresponding to the shared images of
the world, including those based on shared religions,
tend to be larger than the territories which are ruled by
political authorities with institutionalized administra-
tions, although the latter can create or strengthen dis-
176
Hedley Bull, The Anarchical Society (Columbia
University Press, New York, 1977), pp. 8-10.
177
Barry Buzan and Richard Little, International
Systems in World History (Oxford University Press, New
York, 2000).
280 Onuma Yasuaki
tinctive common ideas and cultures within territorial

boundaries. The density of any shared ideas and/or
common activities differs according to geographical,
technological and industrial conditions. Thus, when we
explore “systems”, “orders”, “spheres”, “circles”, “civi-
lizations” or “worlds” existing in various regions in
various times, we should not regard them as substan-
tive, monolithic and comprehensive entities. Whatever
term or concept we adopt, we should use it as a func-
tional construct whose functions and scope may vary
from case to case. Also, it is necessary to always keep
in mind that any of these terms are not immune from
problematic features referred to in subparagraph (2)
above. When we choose a particular term to describe
and analyse the history of international law, we should
use it by making explicit such problematic features.
(4) International law as an inter-subjective con-

struct
Among various terms and concepts used or pro-
posed in the fields of international law, history, com-
parative law and international relations, I have found
the concept of the international system proposed by
Buzan and Little most attractive 178. Yet, I have some
reservations regarding its unqualified application to
pre-modern societies. As suggested earlier, there is a
problem of the use of term “international” as a trans-
historical concept. The term “international” used in
such analytical notions as “international orders”, “inter-
national systems” or “international relations” is typi-
cally appropriate for the co-existence of sovereign
nation States. It is a modern construct.
It is true that if one broadly defines a State as a
group of humans inhabiting a certain territory, with a
178
Supra, footnote 177.
legitimate rule-subordination relationship within the

group and a capability to fight with effective means of
violence with other such groups, one can observe the
existence of such “States” in most pre-modern worlds.
One could then talk of interstate relations between
such States in antiquity, in the medieval Muslim
region, in pre-modern East Asia, and so on. However,
as mentioned earlier, these States were neither sover-
eign nor nation States, which are basically a modern
construct. The contemporaries living in pre-modern
societies did not generally understand their relations as
interstate or international in the way in which today’s
people usually understand those terms.
For example, in the Muslim world from the seventh
to the eighteenth century, the crucial criterion in distin-
guishing among existing human groups was not
whether one belonged to some State in the sense of a
territorial body with a certain “national” population
under a Government. The most important criterion was
a religious one : whether one was a Muslim or not.
Likewise, according to the Sinocentric notion of the
world, prevalent in East Asia until the nineteenth cen-
tury, whether one was a civilized member of the
Sinocentric world was assumed to be more important
than the notion of a nation or State.
Even in Europe, for Europeans living in the medi-
eval period, what was critical for them was whether
they were Christians. Also important was the fact that
they were members of villages, cities, guilds, fiefs
and/or other intermediate bodies. Whether one was a
member of some nation was not as crucial as it is
today. Under such circumstances, the term “interna-
tional” could not have the crucial meaning that we give
to that term today. Today, the “international” perspec-
tive from which we see various phenomena as those
between nations or States is the most important per-
spective which is tacitly adopted by people all over the
282 Onuma Yasuaki
world when people refer to phenomena transcending

ethnic, national, regional, cultural and religious bound-
aries. The criterion of distinguishing “we” and “they”
is often attributed to the belonging to a particular
nation or State, although such a belonging is not neces-
sarily relevant in explain the differences between the
“we” and “they”.
This problem on the concept of “international” may
be overcome if we adopt a definition of international
law that is wide enough to include all normative rela-
tions between distinctive human societies existing in
pre-modern days. A theoretician can adopt whatever
concept or definition he or she likes. However, the
problem remains whether we should enlarge the con-
cept of “international” so that it becomes very different
from today’s ordinary meaning of the term, risking var-
ious kinds of misunderstanding. Moreover, in the case
of law, which is closely associated with the sense of
legitimacy shared by the addressee of the law, it entails
another difficult problem.
As referred to in Chapter I, law is valid when it is
recognized as legitimate by the addressee of the law as
a whole. In the case of the globalization of European
international law, however, there was no shared norma-
tive consciousness or a sense of legitimacy between the
Europeans and non-Europeans for most of the time.
Each side had very different norms and notions of law.
Without shared normative consciousness between the
parties, how could one argue for the expansion or glob-
alization of European international law ?
More concretely, how did actors belonging to differ-
ent regional systems or civilizations, each with a par-
ticular normative consciousness or a sense of legiti-
macy, perceive each other ? How did they establish
common frameworks of communication and common
understandings, arrange their relationships and manage
various affairs in terms of law ? If they could not make
such arrangements and management based on the com-

mon legal frameworks, and yet it has been narrated
that an international legal relationship existed, what
does such narratives mean ? These are the problems
which we must first be aware of, and then seek to
respond to.
2. Pre-modern worlds without a global international

society
(1) Independent human groups sharing a world
image and their relations with other such groups
In order to deal with the questions as shown in para-
graph 1, it is necessary to reflect on a number of prob-
lems. We need to recognize first that the world human-
ity inhabits today is, historically speaking, a very pecu-
liar and exceptional one. When today’s people refer to
their world, they assume a world which covers the
entire globe. This globe is divided by the meridian with
Greenwich at zero degrees. It is composed of sovereign
States. Human species are basically divided into mem-
bers of such sovereign States. People spend their lives
under this sovereign States system, which covers the
entire globe. Human activities are conducted through
the functioning of international law, which humanity as
a whole recognizes as a common body of positive
norms regulating human relations on earth.
For most of human history, the situation was very
different from the one described above. Human spheres
of activity did not cover the entire globe. People lived
as members of various groups, societies, or communi-
ties, ranging from families to clans, tribes, villages,
cities, States, empires and civilizations. Members of
these societies of various sizes shared a perception or
image of the world among themselves. These world
images constituted the bases of cognitive, interpretive,
284 Onuma Yasuaki
and evaluative frameworks through which they saw,

understood, interpreted and assessed the ideas and acti-
vities in which they were engaged or involved. They
were common ideas or perceptions on the ordering of
the world. The people often shared this world image
with those who belonged to other political entities yet
shared certain material and/or spiritual ties. These
ties were based on various factors such as : vicinity ;
repeated contacts ; transplantation of religious, politi-
cal, economic, social and legal ideas and institutions,
rituals and ceremonies ; trade between these entities ;
and sporadic military contacts.
These world images were often egocentric and
sometimes universalistic, accompanied by a superiority
complex towards other peoples who did not share these
perceptions. Intercourse between people who lacked a
common world image was limited. However, when
people were engaged in trade or in war with those who
did not share their world image, they still needed to
regulate their relations by some common communica-
tive and normative frameworks. Without such frame-
works they could not even engage in a war. Why ?
Because war involves a certain exchange of intention
for a number of acts. These acts include surrender, a
truce, a distinction between soldiers and civilians,
treatment of hostages and other related matters. War
thus requires some frameworks through which the
warring parties can communicate with each other.
Some experts who seek to demonstrate the existence
of international law in pre-modern times assume that
since there were actually relations between political
entities belonging to different civilizations, there must
have been international law which intermediates those
entities. It has been asserted that the universal rule of
pacta sunt servanda should have been valid in such
cases and that this universal rule grounds international
law which existed from the pre-modern time. However,
it is doubtful whether there existed in pre-modern

times a common legal framework such as international
law that we assume today. Even if we surmise that
there had to be some communicative and normative
frameworks, their existence must be demonstrated in
an empirical manner. Further, even if there existed
such frameworks, whether they could, and should, be
characterized as international law, as we assume today,
is another problem. As to the so-called “universal” rule
of pacta sunt servanda, it has been demonstrated by
experts of legal history that such a legal rule did not
exist universally in pre-modern days. This problem
will further be dealt with in detail in section II, 4.
In fact, in many of these cases, each party sought to
communicate with the other party by unilaterally
applying norms based on its own world image. When
one party is powerful and authoritative enough to
impose its own norms on the other party, the norms of
this party prevail. When, however, the party is not so
powerful, it has to take one of the following measures
or a combination thereof : (1) to cut off the relations
with the other party, and ignore the other party com-
pletely, (2) to lower the level of the relations to a mini-
mal one so that the first party can substantially ignore
the other party, (3) to reach an agreement with the
other party by compromise, while claiming domesti-
cally that this party maintains its superior position, or
(4) to give in and accept the norms of the other party.
When none of these are available, it may have to resort
to war, and settle the disagreement by force.
The shared world images range from small ones,
whose subjects are small tribes or clans, to those
shared by much larger groups of people. The largest
world images of this sort were shared within the
spheres of civilizations composed of plural political
entities that existed in various regions in various time
periods. In most cases, so-called universal religions
286 Onuma Yasuaki
provide such world images. Christianity, Buddhism,

and Islam are leading examples. In some cases, a kind
of cosmology with social ethics provides such a world
image. Confucianism is a typical example. Most of
these religions and cosmology are universalistic and
tend to provide comprehensive cognitive, interpretive
and evaluative frameworks of all ideas and pheno-
mena, whether social or natural. The image or percep-
tion of the co-existence of plural units of people or
independent political entities is provided by such uni-
versalistic religions or social ethics.
(2) A world of co-existing regional civilizations and

a world of Eurocentric sovereign States system
Modern Europeans created the sovereign States sys-
tem as the central idea of an ordering of the world that
responded to emerging realities in modern Europe. It is
a system to manage transnational, inter-social and
inter-religious affairs mainly through the institution of
sovereign States. International law was born, institu-
tionalized, practised and developed as an integral part
of this system. It developed from regional normative
ideas and practices to a global system with the expan-
sion of the European sovereign States system.
This development was a violent process. It came to
be global mainly because modern European States
became superior to competing powers in other regions,
such as the Mogul Empire, the Ottoman Empire, and
the Qing Dynasty. The sovereign States system and
international law were imposed upon non-Europeans 179.
179
As suggested by Jörg Fisch, what European States
really wanted to impose on non-Europeans was not the
sovereign States system and international law as was
administered between European States, i.e. the system
based on the equality of nations. It was the inferior status
such as that of a colony or an uncivilized nation that the
However, this development was also a process in

which people in non-European regions accepted the
sovereign States system and international law. Without
reception and recognition of these modern European
ideas and institutions by non-Europeans, it would have
been difficult for the sovereign States system and inter-
national law to become global ideas and institutions.
Therefore, this process must be explored from both
sides. From a European perspective, it is necessary to
explore what kind of causes, cognitive frameworks,
justifications and problems were involved in the pro-
cess of globalization of European international law.
From the other side, i.e. from non-European perspec-
tives, it is necessary to explore how and why they gave
up their own ideas and institutions of world ordering.
Why did they come to accept and recognize modern
European ideas and institutions of world ordering, i.e.
the sovereign States system and international law ?
Historical studies of international law have gener-
ally centred on the first question, reflecting the
predominance of a Eurocentric way of thinking in the
discipline. The latter aspect, how non-Europeans, who
have made up a far larger portion of humanity, per-
ceived this process, was not studied sufficiently until
the end of the twentieth century. Although Charles
Alexandrowicz and some Asian and African interna-
tional lawyers sought to elucidate this aspect of history,
European States wanted to impose on the non-Europeans.

They were powerful enough to impose such status on most
Afro-Asian nations by the First World War. But they were
not powerful enough to maintain such a state of affairs
indefinitely. The Afro-Asian nations attained independence
and acquired equal status at least in the formal sense of the
term after the Second World War. See Jörg Fisch, “Power
or Weakness ? On the Cause of the Worldwide Expansion
of European International Law”, Journal of the History of
International Law, VI, No. 1 (2004), pp. 21-23.
288 Onuma Yasuaki
the overall picture did not change much. In the twenty-

first century, the picture must change by various
efforts. By deliberately adopting a transcivilizational
perspective, I seek to join the common efforts to rectify
this problematic feature.
As I referred to in Chapter I, the notion of civiliza-
tion is equivocal. In exploring the history of interna-
tional law from a transcivilizational perspective, I will
basically pay attention to groups of independent human
groups or political (or politico-religious) entities shar-
ing a common world image or common idea of world
ordering. This method is justified by the fact that poli-
tically organized human groups (political entities) which
are independent from each other and which differ in
specific cultures nevertheless share a common image
of the world in terms of religion and/or cosmology.
It cannot be denied that the notions to be utilized
here have problems as analytical concepts. They can-
not unequivocally define the scope of ideas, activities
and phenomena of various types of human groups that
are associated with legal ideas, activities and pheno-
mena which can play the equivalent role of today’s
international law. Whatever definition of civilization
one may adopt, one can hardly distinguish peoples and
regions at a particular time in an unequivocal manner.
There always exists a certain degree of overlapping in
a particular human’s belonging to a certain civilization.
The notion of civilization adopted here is, as I empha-
sized earlier, a functional, not a substantial one 180.
Yet, other concepts, such as the concept of an inter-
national system, have their own, often even more
serious, problems. No notion is immune from flaws
in analysing trans-regional and trans-historical pheno-
mena. Rather than being too concerned with metho-
dological and conceptual problems, I believe that we
180
See Chapter I, section III, 2 (4).
should engage in exploring concrete problems which,

in my view, connote crucial meanings in understanding
the history of international law as described above. We
will then return to the theoretical questions, including
methodological and conceptual ones, in section IV.
Relations among independent human groups within
a region with a shared world image were generally regu-
lated by agreements between the independent human
groups sharing this world image, customs generally
followed by such groups, and/or unilateral rules of a
central State or empire, if there was such a central
State. However, there scarcely existed a common norm
(the equivalent with today’s international law) among
political or politico-religious entities belonging to dif-
ferent spheres of civilizations. I will explore this state
of affairs by elaborating on the co-existence of three
major regions with distinctive world images, i.e. East
Asia, the Muslim world and Europe 181.
II. The Co-existence of Regional Civilizations

in the Pre-Twentieth-Century World
1. The Islamic regional civilization and the siyar
(1) A world composed of dar al-Islam and dar al-
harb
A vast area ranging from today’s Southeast Asia to
North Africa was under the hegemony of Muslim
181
After I published the article constituting a basis of
this chapter (supra footnote 167), I have sought to enlarge
my study to pre-modern independent human groups
sharing their respective world images in Africa, the Indian
subcontinent and Central and South America. However,
I am still not confident in my understanding of those
civilizations and their normative ideas and institutions.
Therefore, in this lecture, I have to limit my analysis to
these three spheres of civilization.
290 Onuma Yasuaki
powers approximately from around the twelfth to the

eighteenth century, although the duration of the reign
and the degree of control and influence differed from
region to region. People in the region more or less
shared a world image heavily influenced by Islam.
Islam was born in Arabia as a minor religion but
rapidly transformed itself to a universalistic belief
system. It rapidly expanded its sphere of believers
under the Abbasid dynasty (750-1258), which was an
Islamic empire including many non-Arabs, Jews and
Christians. The Abbasid rule was legitimized by the
ulama, a group of religious leaders, on the basis of
Islam.
The Islamic world image was expressed in the theory
of sharia. The sharia is composed of norms which
are based on the Qur’an and regulates the behaviour of
Muslims in their internal and external affairs. Thus, it
regulates or seeks to regulate not only relations among
Muslims themselves but also their behaviour in rela-
tion with non-Muslims.
The norms which prescribe Muslims’ external affairs
are called siyar. The basic theory of the siyar was
established by al-Shaybani. Al-Shaybani was a dis-
ciple of Abu Hanifa, the founder of the Hanafi school,
which was one of the four major Sunnite schools of
sharia.
Islam is inherently a religion addressed to individ-
uals. Its basic category distinguishing the self and
the other is “believer versus unbeliever”. However, in
the process in which the Abbasid dynasty expanded
its territory in the eighth century, al-Shaybani and
other jurists came to consider dividing the world into
the dar al-Islam (abode of Islam), the territory under
the Muslim rule, and the dar al-harb (abode of war),
the territory under the rule of unbelievers. This
dichotomy was basically maintained during subsequent
periods.
According to the prevalent interpretation of Islam at

the time, Muslims must constantly make efforts to con-
vert those in the dar al-harb to Islam. These constant
efforts are called the jihad 182. Although the jihad
includes peaceful as well as military efforts, the jihad
by military means occupied a central place in the early
period of Islamic expansion. The relationship between
the dar al-harb and the dar al-Islam was characterized
as a state of war, even though there might not be actual
hostilities between them. That these terms became pre-
dominant to express the fundamental relations between
the self and the others demonstrates the supremacy of
militaristic thinking among Muslims under the Abbasid
dynasty in this period.
The terms dar al-Islam and dar al-harb were not
found in the Qur’an. The use of these terms became
widespread only after the theory of Abu Yusuf of the
Hanafi School exerted its influence. The teaching of
sharia, as established during the expanding Abbasid
dynasty, sought to overcome ethnocentrism, which was
common to most religions in those days. However, in
the process of overcoming the ethnocentricity, it tended
to regard Islam as the universal and absolute religion
and to proselytize others even by forceful means. The
interpretation of Islam as dividing the world into the
dar al-Islam and the dar al-harb reflected the aggres-
sive and universalistic nature of the early Abbasid
dynasty.
182
As to the jihad, see Majid Khadduri, War and Peace
in the Law of Islam (Johns Hopkins Press, Baltimore,
1979), pp. 50-82. See also Fred Donner, “The Sources of
Islamic Conceptions of War”, John Kelsay and James
Johnson, eds., Just War and Jihad (Greenwood Press, New
York etc., 1991) ; Abdulaziz Sachedina, “The Develop-
ment of Jihad in Islamic Revelation and History”, James
Johnson and John Kelsay, eds., Cross, Crescent, and
Sword (Greenwood Press, New York etc., 1990).
292 Onuma Yasuaki
(2) Relations with other politico-religious groups as

prescribed by the siyar
During the subsequent years, however, the Muslims
gradually modified this resolute stance. They were
actively engaged in commercial activities between Asia
and Europe, making full use of their geographical
hegemony over a major portion of the Eurasian conti-
nent. According to the prevalent interpretation, Mus-
lims were allowed to engage in economic and cultural
activities in the dar al-harb. The “people of the Book”,
such as Christians and Jewish people, were allowed to
do the same in the dar al-Islam. Commercial activities
demanded lasting peaceful relations between the
Muslims and other religious groups or political entities.
Jurists explained the peaceful relations with the “non-
believers” as the sulh, a suspension of the jihad.
A fundamental contradiction was involved, how-
ever, in explaining the enduring peaceful relations
between Muslims and non-Muslims as the suspension
of the jihad. Once the rapid expansion ended, the peace
became a normal state of affairs. Many agreements
with limited duration under the name of the suspension
of the jihad were concluded between Muslim powers
and non-Muslim powers.
The discrepancy was often masked by a theory of a
renewal of the limited peace period. Rules concerning
peaceful relations increased in the siyar, which origi-
nally was mainly composed of rules concerning hostil-
ities. Although the siyar was originally a unilateral sys-
tem of norms addressed to Muslims, it came to be more
agreement-oriented and less unilateral in character 183.
183
Revisions in the doctrine of the sharia were also
unavoidable with regard to the relations among Muslims
themselves. In the eighth century, the Umayyads, who
were expelled by the Abbasids from Central Asia, re-estab-
During the period when the Muslim dynasties were

powerful and prosperous, they could basically impose
their rules of world ordering on their non-Muslim
neighbours including the European nations. This was
particularly the case with the Ottoman Empire. They
generally maintained the principle of unilateral diplo-
macy towards Europeans by applying the rules of siyar.
The powerful Muslim dynasties granted some
autonomy to Christian and Jewish merchants who were
engaged in commercial activities in their territories.
They generally characterized the arrangements with
non-Muslims as the unilateral ahdname, which the
Muslim ruler conferred ex gratia and could unilaterally
revoke when they deemed the pledge of friendship to
have been violated. Thus they could generally control
the relationship with these non-Muslim merchants and
their Governments by the discretionary power reserved
to them. For example, the famous agreement of 1536
between Francis I and Suleiman the Magnificent which
Europeans regarded a treaty of alliance was
“no more than an ahdname (contract) granted uni-
laterally by the sultan . . . For Suleiman the 1536
ahdname was not a formal alliance but rather a con-
lished a dynasty in Spain. In the tenth century, the

Fatimids established their dynasty in North Africa. With
three dynasties co-existing, the unity of the Muslim com-
munity began to appear fictitious. In the thirteenth century,
with the collapse of the Abbasid dynasty, the Muslim
world became even more pluralistic in its political struc-
ture. Some scholars called these dynasties dawla and tried
to explain their co-existence in that they would realize the
universal sharia in their own territory. However, the dis-
crepancy between the theory and reality was too evident.
(Khadduri, supra footnote 182, pp. 268-270 ; Suzuki
Tadasu, Isurammu no ie kara baberu no to e (From the
Abode of Islam to the Tower of Babel ; English trans-
lation by Onuma) (Libro Port, Tokyo, 1993), pp. 25-27,
154-164.)
294 Onuma Yasuaki
venient instrument of policy, fashioned unilaterally,

against the Habsburgs.” 184
However, from the seventeenth century on, while
European nations increased their economic and military
power, the Muslim powers gradually declined. With this
decline, they found it difficult to regulate their relation-
ships with the non-Muslims through the application of
their rule, the siyar. They were gradually forced to accept
the style, substance and interpretation of European
international law. Not only they had to accept European
international law, but they had to accept it as an infe-
rior member whose rights are severely restricted under it.
For example, the recognition of European States’
consular jurisdiction had once been regarded as a
generous grant by the emperor, based on a notion of
Muslim superiority. The consular jurisdiction had been
interpreted as allowing foreign merchants to settle their
own conflicts so that the law and order of the Muslims
might not be bothered by these conflicts. Later, it came
to be interpreted as a bilateral agreement that could not
be unilaterally revoked by the Muslim ruler. It thus
came to imply a serious restriction of the territorial
jurisdiction of the Muslim dynasties. Similar processes
will be demonstrated in the discussion of the globaliza-
tion of European international law in section III.
2. The European world and its world images : prosely-
tizing Christianity, secularization of the society and
colonization of other regions
(1) The decentralized structures and Christianity in
the European world
After the collapse of the Western Roman Empire in
the fifth century, decentralized and feudalistic struc-
184
Thomas Naff, “The Ottoman Empire and the
European States System”, Hedley Bull and Adam Watson,
tures were long maintained in Europe. Those who held

power and authority to rule others at various levels
swore loyalty to the more powerful and authoritative,
and secured protection from them. These relations took
the form of multi-layered networks, which extended
beyond the borders of the various kingdoms and of the
Holy Roman Empire. The decentralized structures were
favourable to arrangements by means of agreements
between independent human groups. There was no
combination of egocentric universalism and a single
central power which could impose unilateral norms in
an authoritative manner, although the pope and the
emperor of the Holy Roman Empire each played a simi-
lar role to a limited extent. Like in the Muslim world,
law played an important role in Europe.
However, in these decentralized structures, law was
to be realized by self-help undertaken by various sub-
jects of rights including the heads of households,
who held effective means of violence. Thus medieval
Europe witnessed thousands of private wars and blood
revenges.
To be accepted in such a society, Christianity aban-
doned the absolute pacifism of the early Church and
approved of certain types of war. St. Augustine, whose
ideas on the relationship between Christianity and secu-
lar power prevailed in medieval Europe, adopted a
just war doctrine. Thomas Aquinas, who brought about
a radical change and rejuvenated the Christian doctrine
in late medieval Europe, also adopted a just war doc-
trine. According to him, wars conducted under the
authority of a prince, with a just cause such as self-
defence and reparation of injuries, and accompanied by
a just intention such as promoting good or avoiding
evils, should be regarded as just wars.
eds., The Expansion of International Society (Clarendon

Press, Oxford, 1984), pp. 147-148.
296 Onuma Yasuaki
By compromising with the actual power structure of

the society, Christianity penetrated the European mind.
The Church took care of Europeans from the cradle to
the grave. Many tasks which national and local govern-
ments carry out today, such as the registration of births
and marriages, the provision of education, medical
care, and funerals, and the settlements of disputes,
were carried out by churches. Bishops, cardinals and
the pope played an important role in arbitrations, in the
restriction of wars by declaring the Peace of God and
Truce of God, in providing for refugees in time of war,
and in various other matters.
On the other hand, just war doctrine, which was
elaborated by Christian theology and Roman law dur-
ing the medieval period, served as an ideology to jus-
tify certain kinds of war, rather than as a rule to pro-
hibit or restrict wars. Blood revenges and private wars
were characterized as a means to vindicate rights of the
subjects of law whose right was violated by other
subjects of law. Moreover, the restrictive function of
the just war doctrine was further limited : only wars
among the Christians were restricted. “Pagans” or
“Infidels”, who were regarded as hostile to the Chris-
tians, were sometimes viewed as agents of the devil. To
convert them to Christianity even by force was
believed by many Christian Europeans to be a sacred
mission. Thus, the pope often justified the expansion of
Christian monarchs’ rule as spreading the Gospel. He
often tried to prohibit Christian monarchs from allying
themselves with, or trading with, Muslims. When
they did not abide by these prohibitions, he sought to
impose severe sanctions on them such as excommuni-
cation, deprivation of public offices and expropriation
of their properties.
The primary self-image of Europeans during this
period was a Christian one. This self-image was con-
solidated by the image of confrontation with Muslims.
It provided a psychological basis for the Crusades, the

Northern Crusades, Portuguese expansion into North
West Africa and the Reconquista movement in the
Iberian Peninsula 185.
The famous bull of Alexander VI of 1493, which
endorsed the domination of the American continent by
Isabella of Castilla and Fernando of Aragon after the
“discovery” of America by Columbus, was based on
this long-established notion of universal propagation of
Christianity.
(2) Francisco de Vitoria and Spanish colonization

of America : a prototype of European coloniza-
tion of the world
The European powers colonized the world from the
sixteenth century to the early twentieth century simul-
taneously with the establishment of the sovereign
States system and its accompanying system of modern
international law in Europe. This European expansion
on a global scale and the development of the sovereign
States system occurred in the process of the seculariza-
tion of the European mind. Francisco de Vitoria’s De
indis, the famous lecture on the Amerindians, exempli-
fied a prototype of the justification of the modern
European colonization. And Hugo Grotius’s De jure
belli ac pacis exemplified a prototype of modern
European international law as a secular normative sys-
tem among nations, which quietly accompanied the
European colonization of the world.
185
It should be noted, however, that Christianity was
just one of the psychological factors that brought forth
these bloody undertakings. Other factors such as personal
desire for material profit and for honour constituted major
factors as well. Thus, the Crusades fought violently not
only with Muslims but also Christians who belonged to the
Eastern Orthodox Church.
298 Onuma Yasuaki
As is well known, Vitoria dealt with the problem of

Spanish colonization of the American continent in his
famous lecture of 1539 entitled De indis. In the six-
teenth century when Vitoria lived, the Spanish conquis-
tadores were engaged in a large-scale conquest of the
original inhabitants of the American continent in a vio-
lent manner. The problem whether, how and to what
extent the Spaniards can resort to violence for conquer-
ing those original inhabitants who were “barbarians”
and acquire their properties and territories constituted
a serious problem in contemporary Spain. In those
days a large number of Spaniards were pious Catholics,
accompanied with an egocentric superiority complex
based on the belief that Christianity provided the
absolute truth and salvation to humanity.
According to Vitoria, even the “barbarians”, i.e.
Amerindians, were entitled to their own property and
their own rulers. Titles based on universal imperial
jurisdiction, papal grant, discovery, sin on the part of
the Indians, and other titles claimed by many of his
contemporaries could not legitimize colonization. In
this sense, one could see a secular, humanitarian or
even some egalitarian feature in his theory. It is aston-
ishing to see such a spirit in the time when most of his
contemporaries were obsessed with prejudices and pre-
conceptions. This positive aspect of Vitoria’s theory
should be highly evaluated.
However, his argument did not end here. He argued
that humans were sociable by nature and were entitled
to have social intercourse with others. Therefore, the
Spaniards were entitled to travel in America, to have
intercourse and dealings with the inhabitants and to
engage in commercial activities there. If the “barbar-
ians” hindered these activities, the Spaniards could
resort to war and realize their rights. Furthermore, it
was the right and the duty of Christians to propagate
Christianity. If the “barbarians” hindered this sacred
mission, the Christians could resort to war, depose the

Indian ruler and establish a new ruler 186.
Vitoria made these arguments when the Spaniards
were already in America but no Amerindians were in
Europe, and when the Spaniards were actually con-
quering the Amerindians. In such an asymmetrical con-
text, Vitoria’s theory could not but function as an ide-
ology to justify the actual colonization of America by
the Spaniards. The combination of Vitoria’s seemingly
secular and egalitarian theory and the Spaniards’ mili-
tary supremacy and ruthlessness, i.e. the critical ele-
ments of modern European civilization, realized and
justified European domination over the non-Europeans.
This archetypal combination of modern European
international law, based on a formal egalitarianism
among nations and European supremacy in military
power, resulted in worldwide colonization by the Euro-
pean powers 187.
Furthermore, Vitoria’s egalitarianism was decisively
qualified by the discriminatory axiom that Christianity
was the only true religion which could save humanity.
In order to be absolved from sin and to find salvation
after death, human beings must accept Christianity.
The belief in the absolute superiority of Christianity
over any other value system enabled the Spaniards to
resort to “just war” in case the Amerindians hindered
the propagation of Christianity.
This notion was not subsequently followed because
of the secularization of European society. However, the
view which regarded international law as the law
186
Francisco de Vitoria, De indis relectio prior (Latin
texts ; translation by J. P. Bate, Classics of International
Law, Carnegie Institution of Washington, Washington DC,
1917), A, sec. II.
187
Onuma Yasuaki, “Eurocentrism in the History of
International Law”, idem, ed., A Normative Approach to
War, supra footnote 171, p. 384.
300 Onuma Yasuaki
among Christian nations remained until the nineteenth

century. Since the nineteenth century, the view of
European supremacy changed its basis from Christian-
ity to Civilization, and maintained this new basis until
the middle of the twentieth century. The definition of
international law as the law of civilized nations, which
was advocated by major European and American pub-
licists, exemplifies a deeply rooted sense of supremacy.
This definition was adhered to even by the non-
Europeans through the mechanisms of Western intel-
lectual influence all over the world 188.
(3) International law in its European form

International law has often been associated with the
name of Hugo Grotius, who has often been called the
“father of international law”. In actuality, however, he
had a complex approach to the relationship between
Christianity and secularization, as well as to the emer-
gence of the European States system. Grotius has gen-
erally been associated not only with international law
but also with the “secularization of natural law”. In
fact, what Grotius pursued was the minimization of
bloodshed in the seventeenth-century Europe, where
religion was both an actual cause of bloody wars and
an excuse for resorting to violence. In order to realize
his primary object of minimizing bloodshed, Grotius
had to ecumenize the law — mainly natural law, and
secondarily law of nations — which he expected would
restrain and regulate wars between various sorts of
independent powers.
Yet, Europeans in the seventeenth century were
deeply committed to Christian social ethics. Had legal
norms advocated by Grotius been de-Christianized,
they would not have been able to restrain or regulate
188
Supra footnote 187, pp. 385-386.
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
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.
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
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
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-
economic measures has been gradually enhanced, par-

ticularly in developed countries such as West European
nations and Japan. Except for the United States, efforts
for substantiating economic and social rights have
been common to developed countries. Although there
remained influential theories denying the legal charac-
ter of socio-economic and cultural rights in the devel-
oped countries in the 1960s and 1970s, such stubborn
theoretical resistance has gradually been disappearing
in the twenty-first century 269. Even in the United
States, there has been an emerging criticism of the
negligence of socio-economic rights, as exemplified by
the widespread criticism of the failure to establish
a national health insurance plan. The situation where
the poor cannot take appropriate medical treatment
because of this failure has become a serious concern
for the US society in the twenty-first century. Par-
269
Clair Apodaca, who wrote on the subject of eco-
nomic and social rights in 2007, wrote : “The debate on
whether economic and social rights are authentic human
rights or merely national aspirations is virtually nonexist-
ent outside the West.” (Clair Apodaca, “Measuring the
Progressive Realization of Economic and Social Rights”,
Shareen Hertel and Lanse Minkler, eds., Economic Rights
(Cambridge University Press, Cambridge etc., 2007),
p. 165, note 2). Western human rights experts and NGOs
should appreciate this fact. However good-willed these
human rights NGOs may be, their policies would not be
fully appreciated if they behave in accordance with their
own West-centric notion of human rights and act in a self-
righteous manner. A more persuasive assessment and
activities of human rights based on a globally accepted
notion of human rights must be sought out. On the other
hand, most theories still cited today as advocating the pri-
macy of civil and political rights are those advocated by
Western experts in the 1960s and 1970s. We should be
aware that even in the West such a theory advocating the
typical liberty-centrism has been gradually diminishing at
least among experts.
402 Onuma Yasuaki
ticularly after the serious financial crisis starting in

2007, even the people in the United States seem to
have been considering about the need and significance
of socio-economic rights. This might bring about a
substantial change in the United States over the course
of the twenty-first century.
Second, the primacy of civil and political rights has
been challenged by developing countries for years.
When they became independent, the first thing they
had to do was to liberate their nations from poverty. As
was the case with the Western powers and Japan, it is
difficult for them, at this stage of development, to
regard civil and political rights as a matter of first
priority. If they are interested in human rights, it
is economic rights, which have a direct bearing on
the day-to-day life of people. Freedom from star-
vation, freedom from hunger and freedom from poverty
are their primary concern.
Third, it is widely recognized that human rights vio-
lations by non-State actors such as anti-governmental
military groups and private companies are no less seri-
ous than those by State organs. Another serious prob-
lem now characterized as violations of human rights is
the structural deprivation of human dignity : economic
exploitations, discriminatory social customs, etc. Seen
from these perspectives, whether human rights are vio-
lated by State organs or by non-State actors does not
matter. What is important is the obligation of States to
ensure that all human persons under their jurisdiction
can enjoy subsistence with human dignity. The viola-
tion of civil rights by the State power is regarded as
just one of many forms of denial of human dignities.
Finally, the debates on the interdependence of
human rights have changed since the 1980s. Until the
1970s, the interdependence of human rights was
mainly advocated by Governments and experts in
developing countries against the predominant liberty-
centrism. They used the notion of interdependence in

order to emphasize the importance of socio-economic
rights. The political and opinion leaders in the devel-
oped countries were reluctant to accept this notion.
However, the situation has greatly changed. In 1981,
Amartya Sen demonstrated that the effective protection
of the freedom of press and the free flow of informa-
tion are crucial in preventing famines 270. Other experts
and NGOs began to make similar arguments. The inter-
dependence of human rights thus came to be claimed
not only by those in developing countries but by those
in developed countries.
In order that States may effectively guarantee civil
and political rights, sufficient infrastructures in organi-
zations, financial resources, and education and training
of human resources are needed. For example, the reali-
zation of freedom from torture requires States to take
positive actions such as giving human rights education
and training to policemen and prison guards, as well as
cultivating competent lawyers.
In this way, the prevalent view that categorically
differentiates civil and political rights from socio-eco-
nomic and cultural rights has been gradually modified.
Seeking to respect both categories of rights on an equal
footing has become more and more influential in inter-
national society.
The Vienna Declaration of 1993 provided that
“[a]ll human rights are universal, indivisible and
interdependent and interrelated. The international
community must treat human rights globally in a
fair and equal manner, on the same footing, and
with the same emphasis.” 271
270
Amartya Sen, Poverty and Famines (Oxford Uni-
versity Press, New York, 1981).
271
supra footnote 265, para. 5 (A/CONF.157/23).
404 Onuma Yasuaki
As will be fully discussed in section III, 2, this

formulation reflects the comprehensive or integrated
notion of human rights that was adopted at the end of
the twentieth century after long and deliberate discus-
sions and negotiations. It was adopted not only after
serious, heated, and difficult negotiations between
Governments seeking various kinds of interests and
values. It was adopted by overcoming long, heated
controversies between those who claim West-centric
universalistic notions of human rights and those who
claim relativistic or “particularistic” notions of human
rights, represented by proponents of “Asian values” or
“Asian human rights”. It thus could be seen as express-
ing the most legitimate notion of human rights
accepted by humanity on a global scale.
The Vienna Declaration, however, has not been
evaluated as highly as it should have been. When
experts, policymakers and journalists talk about impor-
tant international instruments on human rights, they
almost always refer to the Universal Declaration of
1948 as well as the ICCPR and ICESCR of 1966.
According to them, these instruments constitute the
International Bill of Human Rights. Few refer to the
Vienna Declaration together with these instruments.
This is unfortunate. As demonstrated earlier, the criti-
cal importance of the Vienna Declaration as expressing
the global agreement on human rights reached at the
end of the twentieth century must be far more recog-
nized and emphasized.
On the other hand, there has been a steady move to
realize the basic philosophy of the Vienna Declaration
in various ways. Major human rights NGOs such as
Amnesty International and Human Rights Watch,
which had once been almost exclusively interested in
civil and political rights, have begun to deal with the
problem of socio-economic rights. They have begun to
take up serious problems on the right to subsistence,
right to health, right to housing and other socio-eco-

nomic rights as human rights problems. Also, interna-
tional organizations, scholars, lawyers and NGOs deal-
ing with the problem of human rights have begun to
argue the significance of the integrated approach to
human rights. This means that an increasing number
of experts have begun to think that the approach
expressed in paragraph 5 of the Vienna Declaration as
shown above must be adopted when dealing with the
problem of human rights. This shift from the excessive
liberty-centrism or civil-and-political-rights centrism
to a more comprehensive notion of human rights
appreciating the importance of socio-economic and
cultural rights is extremely important as demonstrating
the realization of the spirit of the Vienna Declaration
in the twenty-first century.
(3) The insufficient situation for integrating socio-

economic data to the assessment of human
rights conditions
Although there has been a steady recognition of the
importance of socio-economic rights as described
above, the actual realization of this recognition has
been far from satisfactory. In carrying out global
human rights policies, we must approach human rights
problems based on the globally accepted notion of
human rights. We should not take up specific human
rights problems based on political or ideologically
biased considerations or on sporadic concerns, often
instigated by influential media in an emotional manner.
Such an arbitrary attitude towards human rights prob-
lems would waste limited resources of global society.
It would also invite or strengthen suspicions of double
standards and selectivity in the approach to human
rights problems, and seriously hurt the legitimacy of
human rights. In order to avoid such consequences, we
406 Onuma Yasuaki
must actually apply the globally legitimate notion of

human rights, expressed in the Vienna Declaration and
other major international human rights instruments, to
specific situations in accordance with the seriousness
and urgency of the problem.
However, few national Governments or NGOs have
taken necessary actions based on this globally accepted
comprehensive notion of human rights. Rather, they
have tended to take actions based on their subjective
assessment of human rights conditions, in most cases
centered on civil and political rights. Most Govern-
ments have used human rights as a politically useful
instrument to enhance their own image or to criticize
unfriendly States or other actors. Human rights NGOs
are expected to rectify such politically biased attitude
and behaviour of the Governments. They have cer-
tainly fulfilled this important role and contributed to
improving human rights situations to a certain extent.
Yet, even those NGOs have not necessarily acted
according to a globally accepted notion of human
rights, as expressed in the Vienna Declaration.
Assessments of human rights conditions conducted
thus far by major Western human rights NGOs and the
actions taken on the basis of such assessments have
demonstrated this unfortunate state of affairs. They
tended to concentrate their concerns and activities on
cases involving civil and political rights. They did not
pay sufficient attention to socio-economic rights,
which those targeted nations regard as important. In
the past, a large number of opinion leaders, NGOs and
journalists did take up problems on famine, hunger,
malnutrition, miserable health conditions and other
socio-economic matters. Yet, these problems have rarely
been regarded as human rights problems. They have
been treated as problems on economic development or
poverty. Most of the human rights NGOs, on the other
hand, tended to be interested in the advocacy of civil
and political rights. Economic, social and cultural

rights have not been as an important problem either
among the specialists of human rights, or among the
specialists of development or poverty. From the 1990s,
the situation has been gradually changing, yet much
should be done in the twenty-first century. Death by
hunger, death by malnutrition, serious diseases by
poverty and other similar serious violations of human
dignity are all human rights problems of primordial
importance.
As noted earlier, the Vienna Declaration of 1993
made it clear that international community must treat
human rights in a fair and equal manner, on the same
footing, and with the same emphasis. Therefore,
national human rights conditions must be assessed on
the basis of this comprehensive or integrated notion of
human rights. Specific actions must be taken based on
such comprehensive and well-balanced assessments.
More specifically, when we talk about evaluations of
human rights conditions all over the world and con-
sider improving these human rights conditions on a
global scale, we must include not only the assessment
of civil and political rights, but also that of socio-
economic and cultural human rights conditions, which
are no less important for the well-being of humanity
than civil and political rights.
Assessing human rights conditions in a fair and
objective manner is a difficult task. This difficulty
exists both in the fields of civil and political rights, and
socio-economic and cultural rights. However, major
assessments of human rights conditions thus far con-
ducted have tended to concentrate on civil and political
rights. The UN Committee on Economic, Social and
Cultural Rights has been engaged in monitoring condi-
tions on socio-economic and cultural rights of the
member States already more than 20 years since 1985.
Yet, studies and activities on the assessments of the
408 Onuma Yasuaki
condition of socio-economic and cultural rights have

been far fewer than those on the assessment of the con-
dition of civil and political rights.
This is strange, given the fact that as far as objective
data are concerned, many data that may be used for the
purpose of measuring the overall standard and develop-
ment of the condition of socio-economic and cul-
tural rights are already available. For example, statisti-
cal data on life expectancy, infant mortality rate, years
of schooling, literacy rate, income share of lowest
20 per cent and highest 20 per cent of households and
other similar data are available. They have been actu-
ally used for measuring the standard and development
of the socio-economic conditions in specific countries
by the researchers and policy makers engaged in the
problem of poverty, health, housing, education, eco-
nomic and/or human development and other similar
areas. They could well be used in the assessment of
how successfully nations realize economic, social and
cultural rights in specific countries at least in general
terms. Yet, these figures have not been used in assess-
ing human rights conditions in a satisfactory manner.
Although specialists on this problem have made
serious efforts and discussed this problem for a
few decades, the situation has not been sufficiently
improved 272. Why ?
According to many experts who have been engaged
in the study of assessing human rights conditions, a
major reason for the obstacle to using statistical and
other objective data comes from theoretical difficulties
272
See Maria Green, “What We Talk about When We
Talk about Indicators”, Human Rights Quarterly, XXIII
(2001), pp. 1062-1097 ; Hertel and Minkler, supra foot-
note 269. See further Onuma, supra footnote 254, pp. 73-
77, and references cited therein ; idem, Jinken, kokka, bun-
mei (Human Rights, States and Civilizations) (Chikuma
Shobo, Tokyo, 1998), pp. 324-329.
in establishing reliable methods for assessing the reali-

zation of socio-economic and cultural rights by using
these data. Although the experts have discussed this
problem of theoretical difficulties for a few decades,
they have not succeeded in reaching an agreement on
this issue. Various commentators have argued about
various theoretical difficulties in a repetitious manner 273.
For example, the following kind of arguments have
been made for years. These socio-economic data, espe-
cially those of statistical data, are all aggregate data.
However, in order to assess the socio-economic rights
conditions of the people discriminated against or dis-
advantaged people such as females, the physically
handicapped, children, the poor etc., these aggregated
data cannot and should not be used. These data must be
disaggregated in order that the more specific condition
of disadvantaged groups can be more concretely
observed, but this disaggregation has not been con-
ducted. Fundamentally, these statistical aggregated data
cannot by themselves provide a concrete picture of
how well an individual’s socio-economic and cultural
rights are protected. If one were to use the data cur-
rently available as an index or benchmark of the pro-
tection and promotion of economic, social and cultural
rights, the results might be at a considerable variance
with the experience of individual human rights condi-
tions on the ground. There is further a problem of
determining whether conditions measured are depen-
dent on government efforts and behaviour. They may
273
See Green, supra footnote 272 ; Andrew Chapman,
“The Status of Efforts to Monitor Economic, Social and
Cultural Rights”, in Hertel and Minkler, supra foot-
note 269, pp. 143-144 ; David Cingranelli and David
Richards, “Measuring Effort to Respect Economic
and Social Human Rights”, ibid., pp. 214-232. See also
Onuma, supra footnote 254, pp. 73-77, and idem, Jinken,
kokka, bunmei, supra footnote 272, pp. 324-329.
410 Onuma Yasuaki
reflect phenomena beyond government control such as

weather changes. These flaws have repeatedly been
referred to and used as major reasons for not using
these data to assess national conditions of socio-
economic rights 274.
There is another reason for the insufficient situation
since the twentieth century for integrating the assess-
ment of socio-economic rights in the overall assess-
ment of human rights conditions on a global scale. A
number of Western NGOs and experts have been con-
cerned that the argument in favour of liberating human
rights discourse from liberty-centrism may be abused
by authoritarian Governments and their ideologues.
These authoritarian Governments have tended to argue
that because they have succeeded in the overall eco-
nomic development they can claim that they have
succeeded in improving the condition of human rights.
This kind of argument must certainly be critically
examined. It cannot be denied that a number of
Governments have argued that civil and political
rights must be subjected to economic development
and the stability of social order of the society. This
kind of apologetic argument must not be allowed.
(4) The critical importance of a comprehensive and

well-balanced assessment of human rights con-
ditions
We certainly should be cautious that the argument in
favour of integrating socio-economic rights will not be
abused to justify State-centric policies solely empha-
274
See arguments about “obstacles” to measuring
socio-economic rights by statistical and other objective
data in Chapman, supra footnote 273 ; Apocada, supra
footnote 269 ; Green, supra footnote 272. See also Onuma,
supra footnote 254, pp. 73-77 ; idem, Jinken, kokka, bun-
mei, supra footnote 272, pp. 324-329.
sizing economic development and the “stability” of the

existing order and to deflect attention from civil and
political rights to other issues. I also agree in that there
are theoretical difficulties in using existing socio-
economic data such as infant mortality rate for the
assessment of socio-economic rights conditions. These
problems raised by many experts thus far should be
fully appreciated.
A critical reason for these important data not having
been used for assessing the human rights conditions of
countries thus far, however, seems to be elsewhere.
That is the tacit predominance of liberty-centrism in
the overall treatment of and discourse on human rights.
When one talks about “human rights violations”, it is
the torture of the accused or the suppression of free-
dom of expression that generally comes to one’s mind.
It is not the absolute poverty that causes death by
starvation for a far greater number of people. Nor
maltreatment or diseases of children which causes
an incredibly high rate of infant mortality.
As to the so-called “flaws” or “obstacles” in the
possible use of these data for assessing socio-economic
rights, we should compare the possible method of
using these data with the existing methods of assessing
civil and political rights. We have not yet developed a
sophisticated, objective and reliable method in assess-
ing the condition of civil and political rights. Whether
country A’s protection of freedom of expression should
be assessed higher than that of country B is very diffi-
cult to determine in an objective manner. For example,
one may be able to say that freedom of expression is
better guaranteed in France than in North Korea, but it
should be difficult to judge whether the freedom is
better guaranteed in France or in the United States.
Many other liberties have a similar kind of difficulties
for their objective assessment.
Yet, we have been accustomed to assessing condi-
412 Onuma Yasuaki
tions on civil and political rights. It is quite common

for ordinary people, even for experts, to compare con-
ditions on civil and political rights in specific countries
by certain standards. Even today, even among the
experts, there is a unconsciously or consciously shared
view that it is easier to assess the human rights condi-
tion in the field of civil and political rights than those
in the field of socio-economic rights 275. Some NGOs
such as Freedom House have dared to rate countries by
assessing the condition on civil and political rights
with their extremely subjective criteria. Although
Governments, international organizations and NGOs
have been making efforts to improve the objectivity
and reliability in their assessment of civil and political
rights conditions, the existing assessments are far from
satisfactory.
If this is the case, we could have made use of exist-
ing socio-economic and cultural data for assessing the
socio-economic and cultural rights condition of coun-
tries, with an awareness of their limitations and quali-
fications. If we have assessed civil and political rights
conditions with unsophisticated methods, and have not
assessed socio-economic rights conditions by the
reason that we do not have sufficiently sophisticated
methods to assess them, this means that we have dealt
with the human rights by a double standard : we have
275
For example, Cingranelli and Richards, supra foot-
note 273, is an important contribution to this subject, but it
is based on the assumption that “there are clear standards
for determining whether a government is respecting the
civil and political rights and personal integrity rights”,
whereas “there are no accepted benchmarks for evaluating
whether particular governments are providing an adequate
level of respect for the economic and social rights of their
citizens” (Cingranelli and Richards, supra footnote 273,
p. 215). While the latter statement is definitely right, it is
highly questionable as to the former statement on the
present level of the assessment of civil and political rights.
not dealt with all human rights “in a fair and equal
manner, on the same footing, and with the same
emphasis”, which is obligated in the Vienna Declara-
tion of 1993 276.
This means that not only Governments but also
experts and NGOs have failed to substantiate or apply
the globally agreed notion of human rights, which
is the comprehensive or integrated notion of human
rights, in specific situations. It means that they have
still been obsessed with traditional, West-centric
liberty-centrism, albeit unconsciously. As referred to
earlier, the very fact that most Governments, internatio-
nal organizations, NGOs, experts and media institutions
have always referred to the Universal Declaration on
Human Rights of 1948, an instrument adopted before
the decolonization period, rather than the Vienna
Declaration of 1993, in the overall discourse on human
rights, also reveals this hidden predominance of the
West-centric liberty-centrism. Although the integrated
approach has been advocated among the circle of
experts in the international organizations, human rights
scholars, activists and NGOs, the substantiation of this
approach remains to be an important task for the
twenty-first century.
(5) Ways to enhance the legitimacy of global human
rights policies
We should not seek vain perfectionism in the assess-
ment method of human rights conditions. Integrating
economic, social, and cultural data in theoretical ana-
lyses of human rights standards is an important task
for substantiating the integrated approach with a com-
prehensive notion of human rights, which was globally
agreed in the Vienna Declaration at the end of the
276
supra footnote 265, para. 5 (A/CONF.157/23).
414 Onuma Yasuaki
twentieth century. This substantiation of the globally

agreed notion of human rights can help improve the
objectivity and legitimacy of human rights evaluations.
It can eventually help enhance the effectiveness of
global human rights policy because it can be more per-
suasive to many developing, non-Western countries.
Emphasizing the significance of economic rights
should not only be abused either as a justification of an
authoritarian Government to camouflage suppression
of civil and political rights. It should also not be
abused as a justification of economically centred ideo-
logy of free market economy. In most countries includ-
ing an overwhelming number of developed countries
such as West European nations and Japan, the idea of
socio-economic rights has generally been grounded in
the philosophy of the social welfare State, whose major
task is the protection of those suffering from the eco-
nomic power, more specifically the power of the capi-
talist economy. The raison d’être of the socio-eco-
nomic rights is to mitigate the cruelty of the capitalist
market economy, which, despite increasing total eco-
nomic well-being in the society, can violate essential
values and interests of individuals. These essential
values and interests are expressed in the form of
socio-economic rights such as the right to subsistence
and equality among members of the society 277.
277
We should be cautious of an argument regarding
economic freedom based on the market economy as eco-
nomic rights. According to some NGOs such as Freedom
House, economic freedom means the maximization of the
freedom of “free individuals” in the capitalist market
economy. This freedom would make each individual’s fate
dependent upon the power of market economy. This kind
of “economic freedom” has nothing to do with the notion
of economic, social and cultural rights defined as human
rights. The fundamental philosophy of socio-economic
rights does not lie in the maximization of the capitalist
market economy : quite the opposite is the case.
In order to integrate existing socio-economic data to

the assessment of human rights conditions on a global
scale, we certainly need to refine theoretical frame-
works for evaluating the economic, social and cultural
data at an individual level. We must make use of both
quantitative method and qualitative method to improve
the assessment of socio-economic and cultural rights
conditions within the limitation of currently available
data 278. By accumulating such an effort, we should
gradually be able to use the existing aggregate data on
socio-economic conditions of human rights for assess-
ing human rights conditions of individuals in these
socio-economic fields. Yet, it should be borne in mind
that such a rigid requirement may well strengthen the
current liberty-centrism, if the “flaws” in using the
existing socio-economic data for the assessment of
socio-economic rights is emphasized in a one-sided
manner. As noted earlier, the current assessment of
civil and political rights conditions has similar, or
sometimes even worse, flaws. We must make fair and
well-balanced efforts to establish theoretical frame-
works and standards that can be used as more effective
tools in global human rights and aid policy, which must
be regarded as fair and legitimate.
Such well-balanced efforts would contribute to the
most appropriate allocation of the limited resources of
the global society to human rights problems which are
omnipresent in today’s world. This is a tremendously
important agenda for all researchers, practitioners and
activists who engage in international law, human
rights, development assistance, and other related areas
of studies and practices. The critical importance of
such well-balanced efforts must be disseminated to
278
See, e.g., Green, supra footnote 272 ; Apocada,
supra footnote 269 ; Cingranelli and Richards, supra foot-
note 273 ; and references cited therein.
416 Onuma Yasuaki
ordinary citizens by experts and media institutions so

that the correct understanding and normative con-
sciousness of the people can support such legitimate
undertakings of human rights conditions on a global
scale.
3. The judiciary as a bastion of human rights ?

(1) The areas or cases in which the judiciary can
work as a bastion of rights
If human rights is to be characterized as the most
important means to protect vital values and interests of
individuals under the modern sovereign States system
and capitalist economy, the effectiveness of mecha-
nisms guaranteeing human rights must be considered,
analysed and assessed from this instrumentalist per-
spective. A comparative study of the effectiveness of
various mechanisms for protecting vital values and
interests of individuals should be necessary and useful.
I briefly addressed this issue and gave a very general
and tentative answer 279, but far more elaborate
and sophisticated comparative studies are needed.
Regrettably, this need has not been satisfied.
The most important reason for the failure to see
human rights mechanisms from a comparative instru-
mentalist perspective is, it seems to me, an excessive
judicial-centrism in legal studies and practices. Judicial
remedies have been considered to be the most effective
means of protecting or realizing human rights and that
this judicial-centrism has achieved a nearly axiomatic
quality. Because the idea regarding the judiciary as the
most effective bastion of human rights is axiomatic,
279
See Onuma Yasuaki, Jinken, kokka, bunmei, supra
footnote 272, pp. 93-139 ; idem, supra footnote 254,
pp. 38-46.
the idea of comparing various mechanisms for realiz-

ing human rights including the judiciary has not been
regarded as a serious question.
Domestic legal theories have made great efforts to
justify normative claims characterized as rights that
can be enforced through the judiciary. The belief in the
judiciary as a bastion of rights has been most influen-
tial in societies with Anglo-American legal culture.
Here, law has been considered to be a norm to be
applied and realized through the judiciary. Nations with
this judiciary-centric culture, especially the United
States and the United Kingdom, have exerted a huge
intellectual/ideational influence in the field of law,
human rights, and legal and political discourse in
general. Accordingly the judicial-centrism has been
accepted by most experts and ordinary citizens of other
nations as almost axiomatic.
This belief in the judiciary can be seen in the area of
international human rights as well. In international
society, “human rights diplomacy” or resolutions
adopted by competent organs of the United Nations
and monitoring bodies of human rights treaties con-
demning a certain State as a violator of human rights
appear to play a significant role in rectifying human
rights violations. Yet experts, particularly international
and human rights lawyers, stick to the idea that the
judiciary is the best mechanism for protecting human
rights. Most experts have regarded the non-judicial
mechanisms such as individual and State reporting
mechanisms and adopting “non-binding” resolutions
by monitoring bodies as belonging to a “low-level” or
“undeveloped” stage to the ultimate goal of judicial
enforcement of human rights.
I am ready to admit that there are certainly areas
where the judicial mechanism is most effective in guar-
anteeing human rights. Many of the issues involving
civil and political rights in the Western society should
418 Onuma Yasuaki
be such cases. It is also true that even in the area of

socio-economic rights, a number of constitutional, inter-
national, human rights lawyers and NGOs have been
working hard to characterize these rights as rights
which can be applied and realized by domestic courts.
Over the years, these efforts have proved to be at least
partially successful in some developed countries, espe-
cially West European countries.
In developed countries, the independence of the
judiciary is generally well respected and maintained.
Ordinary citizens share a culture to fight against the
power of the State or other powerful actors in court.
Even the poor and powerless people can rely on public
institutions whose financial and institutional subsidies
make it possible for them to sue the State or the power-
ful. Under such circumstances, the role of the domestic
court as a bastion of human rights can certainly be
assumed. A victim of a violation of human right may
even win the case by negotiation with a powerful per-
petrator of the human rights violation, which is sensi-
tive to its reputation as a law-abiding and human rights
respecting social actor, by engaging in the negotiation
“under the shadow of the court”. Equally important in
this respect is the role of the European Court of Human
Rights. This court has been playing an exceptionally
significant role in rectifying the human rights viola-
tions by the member States through judicial means. If
we consider the problem within the framework of these
factual and normative situations, we may be able to
assume that the judiciary is an effective bastion of
human rights.
(2) The exceptionality of the judiciary as a bastion

of human rights
However, if we see the situation of human rights
from a global perspective, we should become aware
that these cases are not the rule, but the exception.
Cases in West Europe, however conspicuous they may
appear, occupy only a very small part of widespread
and large-scale human rights violations, which are
omnipresent in today’s world. There are a huge number
of cases in which a general or axiomatic assumption
regarding the judiciary as the most effective mecha-
nism of human rights is not valid. More concretely,
most non-Western developing countries, where an
overwhelming majority of humanity lives, lack factual
and normative conditions that support the assumption
regarding the judiciary as the most effective bastion of
human rights.
In many of these countries, the judiciary’s indepen-
dence is not well established. In not a few cases,
the judiciary is either bound up with administrative,
legislative, or military powers, or suppressed by them.
Or, it may be intimidated by anti-government terrorist
organizations. The judiciary in many developing or
non-Western countries does not necessarily enjoy such
a high prestige as its counterpart enjoys in developed
or Western countries. Under such conditions, it is diffi-
cult for the judiciary to effectively correct or rectify
human rights violations committed by government
administrators, powerful private companies, military
officers, various types of local elites, or terrorist
groups. Even if a court renders a judgment declaring a
certain act committed by these actors as illegal, such a
judgment is often ignored.
Moreover, people in the non-Western countries do
not necessarily enjoy a legalistic culture, which many
Western nations have taken for granted. The majority
of the population living in agricultural communities
rarely considers judicial means as a way to combat vio-
lations of their fundamental interests. Victims of
human rights violations have few financial resources or
insufficient access to lawyers to fight against violations
420 Onuma Yasuaki
of their rights or interests through legal means. They

do not live in environments that allow them to sue the
State, local municipalities or local elites.
Even in developed countries, the “self-evident” idea
shared by lawyers to regard the judiciary as a bastion
of human rights may be doubted in not a few cases and
in various ways. In the United States, for example,
the domestic applicability of the ICCPR by the US
domestic court has been virtually “killed” by reserva-
tions, declarations and understandings adopted by the
Congress 280. The ICESCR has not even been ratified
by the United States. Accordingly, there is virtually no
room where the court can play a major role for realiz-
ing human rights provided in the ICCPR and the
ICESCR in the United States. Accordingly, human
rights experts seeking to sue the violator of human rights
in the US court have heavily relied on the notion
of human rights norms as customary international law.
In Europe, the European Court of Human Rights,
which was so effective in rectifying human rights vio-
lations in West European countries, has proved to be
not so effective when the EU has been enlarged and
East European countries have become members of the
European Convention on Human Rights. Cases of
the East European nations have been dealt with in
the Court, but some of the judgments have not been
executed. This may suggest the need to reconsider the
axiomatic assumption or the “taken for granted” that
the judiciary is the strongest bastion of human rights.
Even in Europe, we must evaluate the role and signifi-
cance of the judiciary in comparative and empirical
terms, liberating ourselves from the absolutistic or
axiomatic assumption that the judiciary is the most
280
Louis Henkin, “U.S. Ratification of Human Rights
Conventions : The Ghost of Senator Bricker”, American
Journal of International Law, LXXXIX (1995).
effective mechanism for guaranteeing the protection of

human rights.
In Japan, a number of experts, activists, and NGOs
have been working hard to protect human rights of
aliens and socio-economic rights of the poor and disad-
vantaged in the Japanese court. However, in most cases
they lost the case in the court. Although independence
of the judiciary has been fully respected and main-
tained, the judiciary, which has been conservative and
ignorant of international human rights law, has not
proved to be the effective bastion of human rights.
Rather, it has been an overall pressure based on the
widespread public opinion supported by influential
media institutions imposed on the Government and the
National Diet that has brought about improvement in
the human rights condition in the form of revision of
the existing law as well as changes in governmental
policies and in social practices.
Under such conditions, the “general theory” that
holds out the judiciary as a bastion of human rights
protection reveals its fictitious nature as well as its limi-
tation. By exaggerating the abilities of the courts, such
a theory will function as a pernicious ideology spread-
ing the illusion that human rights are effectively guar-
anteed by the judiciary. The promises and limits of the
judiciary, as the best guarantor of human rights, will
become clearer once one asks what the nature and
function of the judiciary in a given society are and
what kind of human rights the judiciary is expected to
protect. These questions bring to the fore the problem-
atic nature of simply asking whether human rights lend
themselves to judicial enforcement or not, and simply
evaluating movement toward judicial remedies as
“progress”, or “advancement”. Achieving human rights
on a global scale requires stepping away from the pre-
conceived notion of the judiciary as the best guarantor
of human rights. Instead, we should ask a more general
422 Onuma Yasuaki
and basic question : what is the most effective way to

realize human rights ?
(3) For a realistic approach to identify effective

mechanisms for protecting human rights on a
global scale
Today, it is widely recognized that violations by
non-State actors such as terrorist groups, anti-govern-
mental military groups and private companies are no
less serious than those by State organs. Another serious
problem which is now characterized as an important
issue of human rights is the collective or structural
deprivation of human dignity by means of the patron-
clientele relationship in rural communities, discrimina-
tory, violent, sexist, racist and other inhuman social
cultures and customs, and other similar social institu-
tions and practices. Seen from these perspectives,
whether human rights are violated by State organs or
by non-State actors does not matter. What is important
is the obligation of States to ensure that all human
persons under their jurisdiction can enjoy subsistence
with human dignity.
In these cases, social and welfare policies by the
Government, human rights education in schools, fami-
lies, local communities and societal groups of various
sorts, as well as information campaigns by the local
media may ultimately create and maintain solid grounds
for alleviating violations of human rights. Constructive
criticisms, encouragement, and economic, educational
and technical support from international organizations,
developed countries and NGOs to developing countries
can also be effective, if both sides can work together
with a sense of self-restraint and self-reflection. They
may be more effective than the judiciary in the gradual
realization of human rights. We should see a variety of
human rights not solely from a perspective of whether
they are judicially enforceable, but from a perspective

of the most effective way to realize them.
These views are gradually becoming widely shared
by experts. Theoretically, classifications which are dif-
ferent from the traditional dichotomy between civil and
political rights on the one hand, and economic, social
cultural rights on the other, have been proposed by a
number of experts. To classify obligations of States to
four groups, i.e. (1) the obligation to respect, (2) the
obligation to protect, (3) the obligation to ensure, and
(4) the obligation to promote is a leading example 281.
This classification may enable more elaborate analyses
of human rights with regard to the relations between
their objectives and realization.
In this way, the relative, rather than absolute, differ-
ence between civil and political rights on the one hand,
and economic and social rights on the other, has
become more widely recognized in recent years.
Interdependence and indivisibility of human rights has
repeatedly been reaffirmed in international human
rights instruments including the Vienna Declaration of
1993. The classification which categorically distin-
guishes the two groups of human rights — civil and
political rights on the one hand and economic, social
and cultural rights on the other — was typically valid
in the early stage of development in Western nations.
However, it is not necessarily a universal and supra-
historical classification applicable everywhere and
every time. This view has gradually been spreading
among experts of human rights. Today’s important task
is to disseminate this comprehensive or integrated
281
See, e.g., G. J. H. van Hoof, “The Legal Nature of
Economic, Social and Cultural Rights”, Philip Alston and
Katarina Tomaševski, eds., The Right to Food (Nijhoff,
Dordrecht, 1985) ; Asbjørn Eide, “Study on the Right to
Adequate Food as a Human Right” (E/CN.4/Sub.2/1983/25).
424 Onuma Yasuaki
notion of human rights to non-experts, as well as to

strengthen the various means of effective realization of
human rights in the respective field.
Depending on the country, historical situation and
the content of the right in question, the judiciary can be
a powerful bastion of human rights. Yet, the judiciary
is just one bastion among many. This relativist under-
standing on the mechanism for guaranteeing human
rights, liberating ourselves from an excessive judicial-
centrism, which is deeply rooted in the prevalent think-
ing on human rights held by lawyers, including inter-
national lawyers, is crucially important for a more
realistic approach to human rights problems in the
twenty-first century. Only through such an approach
can we universalize human rights with less resistance
and more realistic chances for its realization on a
global scale.
4. Liberation from individual-centrism

(1) The myth of independent and self-reliant indivi-
dual in modernity
In the developed countries and in the international
society at large, where they have strong influence,
human rights has been considered “the rights that one
has simply because one is a human”. This definition, in
its very brevity, articulates a powerful universal ideal.
However, it has its own problems. Problems on the
actual restrictions previously imposed on the subject of
human rights in terms of race, gender, religion and
other grounds were dealt with in section I, 1 (1).
Another problem lies in the preconceived idea of a
human. In the predominant human rights discourse, the
term “human” has connoted the modern Western
notion of a human, equated with an “individual”. A
person who lives as a member of a collectivity or a
group such as women, the labouring classes, and ethnic

minorities is not generally considered to be a human in
the sense of a subject of human rights.
This equation, however, is a novelty even in
Western civilization. In pre-modern Europe, a human
was always a member of a family, a manor, a village, a
Christian church, and of other collectivity. It was diffi-
cult for Europeans to think of an individual indepen-
dent from these entities. Humans came to be character-
ized as individuals only when the sovereign State and
market economy dissolved various corps intermé-
diaires. Humans were dissociated from them, and
confronted the newly born Leviathan, the sovereign
State, and market economy, as naked individuals 282.
The modernity based on this “free, autonomous and
independent individual” brought forth various benefits
to humanity. They were liberated from religious
controls of the Christian church, unreasonable village
institutions and practices, the rules of the closed guild,
male-centred hierarchical family systems, and other
institutions based on feudalistic social standings.
Human rights theories in the modern period have
advanced the notion that individuals exist completely
independent of the State. They have exerted strong
influence on the thoughts and behaviours of modern
persons, who have enjoyed various kinds of profit such
as a tremendous increase of material wealth, improve-
ment of health and medical conditions, etc. in the
282
Onuma Yasuaki, “War”, idem, ed., A Normative
Approach to War (Clarendon Press, Oxford, 1993), pp. 70-
71. Naturally, an individual human being as a physical or
material entity had always existed even during the pre-
modern period. Also a human being characterized or iden-
tified as an individual existence before God or some supra-
natural being had existed before. Yet, the overall identity
of a human being as an individual is certainly a modern
construct.
426 Onuma Yasuaki
process of modernization. Thus, there has been a strong

tendency to assert individuality as a universal and
trans-historical value.
However, human rights have been guaranteed
basically within the framework of the nation State, as
expressed in the locus classicus of human rights, the
French Declaration of the Rights of Man and Citizen of
1789. While in theory human rights in a nation State
are universally guaranteed, in practice most of them
are realized through each individual’s affiliation with
the nation State. Human rights of aliens have been
seriously restricted if compared with those of natio-
nals. Although a person is supposed to choose his or
her affiliation with a nation State under modern consti-
tutions, this is naturally a fiction. People are born
not choosing the country in which they are born and
live. Either by place of birth or by bloodline, nation
States impose nationality upon each person 283.
Behind this tendency was the process by which
the person who was supposedly liberated as an indi-
vidual from the intermediary powers was integrated
into a membership of the nation State. In most cases,
an “individual” has never existed as an abstract indi-
vidual, but as an individual member of a nation
State 284.
283
It is not until a person reaches maturity that he or
she can make a decision about his or her nationality, which
is a deciding factor in the protection of his or her human
rights. Moreover, if one considers the actual conditions of
the daily lives of the overwhelming majority of human-
kind, the decision to change nationality after becoming an
adult is extremely rare.
284
Edward Hallett Carr, Nationalism and After (Mac-
millan, London, 1945) ; Emile Durkheim, Textes (Les
Editions de Minuit, Paris, 1975), p. 171. See also Charles
Taylor, “The Politics of Recognition”, idem et al., Multi-
culturalism : Examining the Politics of Recognition (Prince-
ton University Press, Princeton, 1994).
Whereas a person in pre-modern Europe might have

identified himself primarily as a Christian or a member
of some village community, the modern man thinks of
himself as a German, an Italian or Polish. Where a per-
son might have regarded herself a Bourguignonne, a
resident of the Burgundy region of France, the modern
woman considers herself a Française, a Frenchwoman.
It is as a part of the nation State that the modern person
enjoys a host of interests, plans self-fulfilment, and
realizes the meaning of their life.
(2) The false dichotomy between “the individualis-

tic West versus the collectivistic East”
The national aspect of modern individuality has

generally been ignored in the predominant discourse
on human rights. This ignorance has strengthened the
simplistic image of the “individualist West” versus the
“collectivist East”. It has been asserted, often by both
sides, that whereas the “West” has individualistic
culture and therefore is prone to human rights of indi-
viduals, the “East”, not having such individualistic
culture, is inherently alien to the idea of human
rights. Arguments for so-called “Asian values” or
“Asian human rights” made in the 1990s were typical
examples, but there have been a number of literatures
to this effect.
In this prevalent discourse, the fact that even in the
West the notion of a human as an individual is novel
and firmly established as late as during the modern
period has generally been forgotten. Nor has the reality
that during the modern period a human has lived as an
individual member of a nation, a powerful and impor-
tant collectivity, been fully appreciated. Further,
the fact that human rights had to struggle against pre-
existing ideas and institutions based on powerful
collectivist ideas and institutions for establishing
428 Onuma Yasuaki
itself as a major philosophy and institution in the

West 285 has generally been ignored.
The assertion of the “collectivist East” has similar
problematic features. The non-Western assertion of
“Eastern (Asian, African, or non-Western) collec-
tivism” made in opposition to “Western individualism”
has often been made as a repercussion against the
West-centric notion of equating humanity with the
individual. As such, it is also caught up in the indi-
vidual-centric approach, without careful scrutiny of
diverse societies and histories in the East. We should
be aware that the very dichotomy of the individual
versus the collective is itself strongly coloured by the
modernistic thinking. During the pre-modern period, a
way of thinking emphasizing such dichotomy was not
predominant.
Pre-modern people certainly lived as a member of
some collectivity in most societies, whether in Europe,
in Asia, in America or in Africa. However, such a state
of affairs was so natural to contemporaries, the very
question whether one exists as an individual or a mem-
ber of some collectivity was not seriously considered
nor asked. There were a number of cases in which an
individual had to face a conflict of his or her identity
285
Franck quoted my argument in that
“[t]he discourse on human rights is part of contempo-
rary West-centric intellectual discourse which domi-
nates the entire world. This discourse on human rights
is foreign to many developing nations because of their
diverse civilizational backgrounds.” (“In Quest of Inter-
civilizational Human Rights”, Asia Foundation’s Center
for Asian Pacific Affairs, Occasional Paper, No. 2
(1996), p. 1.) (T. Franck, “Is Personal Freedom a
Western Value ?”, American Journal of International
Law, XCI (1997), pp. 593-594.)
This argument however does not endorse any simplistic
dichotomy of the “East versus West”.
as a Christian, Buddhist, Muslim, etc. or as a member

of some familial, social, political and/or economic
group or community. However, in most cases, such
was a conflict between a person’s affiliations with
plural groups or communities rather than a conflict
between an individual and a member of some collec-
tivity. In many cases, the assertion of “collectivist
East” is a myth, based on a one-sided and falsely con-
structed monolithic image of the “East”, the “Orient”,
or Asia, Africa, etc.
(3) Negative consequences of individual-centrism

The equation of humans with individuals has
worked against taking up the problem of suppression
of various types of people as the problem of the viola-
tion of human rights. People under colonial rule, vari-
ous kinds of minorities, indigenous peoples, powerless
women and children in the male-centred families and
other discriminated-against people were neglected for a
long time. When the mechanism of human rights pro-
tection within the UN system was considered after the
end of the Second World War, the protection of minori-
ties was considered unnecessary or unsuitable to the
framework of human rights protection.
There are other factors responsible for this failure.
The memory that the international protection of
minorities in the inter-war period was abused by Nazi
Germany was one of these factors. Because this
memory was so strong immediately after the end of the
war, those who architected the post-war mechanism for
international protection of human rights were cautious
of the possibility that the protection of groups or
minorities might be abused for political purposes. Also
responsible was the attitude of developing countries
that asserted the importance of collective rights in the
1960s and 1970s without necessarily providing theoreti-
430 Onuma Yasuaki
cally solid arguments. These factors worked against

understanding the problem of denial of human dignity
in a collective manner as the problem on human rights.
Yet, the obsession with the dogma to equate humans
with individuals was, and still is, certainly one of the
major reasons why such important issues as described
above have been barred from the mainstream treatment
of human rights until recently.
Another serious consequence of excessive indi-
vidual-centrism is isolation and alienation of humans
in developed societies, where the intimate relationship
between people have been destroyed in the process of
modernization. Looking at human rights through an
individual-centred prism has depicted the separation of
each person as a self-reliant individual from their fam-
ily, local community and other collectivities as unques-
tionably desirable progress. This kind of individual-
centrism produces problems seen in many developed
countries today, typically the problem of isolation and
alienation of humanity. The dissolution of three-genera-
tion families and the universal spread of the nuclear
family have certainly liberated housewives and ele-
vated the standing of children other than the eldest son.
The dissolution of village communities in rural areas
have contributed to the liberation of the inhabitants of
village communities from various feudalistic customs
and practices. Yet, they have also yielded a number of
serious problems.
These include the serious issue of caring for the
aged, delinquency among children cut off from the
wisdom of their elders, and the potential dissolution
of the family. Liberation from communities such as
groups of neighbours or the “village” may have
ameliorated the pressures that these communities could
bring to bear on the individual, including, at the
extreme, ostracism. However, the failure to replace the
intense relationships of the traditional community with
close personal relationships and community ethics has

had its own negative outcomes. The moral of working
seriously and spending a life in a modest and decent
manner has substantially deteriorated. Based on their
experience of modernity, many people in the developed
countries that were once proponents of individualism
are now facing the problem of excessive individual-
centrism.
In many developed countries, where individual-cen-
trism flourishes, the widespread appeal of religion and
cult beliefs, along with the re-evaluation of the impor-
tance of family and community values, highlights this
problems of excessive individual-centrism. Criticism
of the notion of the unencumbered self by Charles
Taylor, Mary Glendon and other leading thinkers in
North America is well-known 286. In France, another
nation which has long cherished the notion of inde-
pendent and autonomous individuals, the identification
of humans with individuals or Cartesian selves has
been criticized from various perspectives 287. A call for
the reconstruction of families and communities, and a
resurgence of various kinds of religions, raise a serious
question : are humans really strong enough to be as
independent as individualists claim them to be ?
286
MacIntyre, supra footnote 267 ; Sandel, supra foot-
note 267 ; Bellah et al., supra footnote 267 ; Glendon,
supra footnote 267 ; Charles Taylor, Sources of the Self :
The Making of Modern Identity (Cambridge University
Press, Cambridge, 1992) ; idem, The Ethics of Authenticity
(Harvard University Press, Cambridge, Mass, 1991).
287
Patrice Meyer-Bisch, Le corps des droits des
l’homme (Editions universitaires Fribourg Suisse, Fribourg,
1992) ; Blandine Barret-Kriegel, Les droits de l’homme et
le droit naturel (Presses universitaires de France, Paris,
1989) ; Norbert Rouland, “Les fondements anthropo-
logiques des droits de l’homme”, Institut international des
droits de l’homme, vingt-quatrième session d’enseigne-
ment, 2 juillet-30 juillet 1993, Recueil des cours (1993).
432 Onuma Yasuaki
Even from a perspective of effective realization of

human rights, which has been considered in individual-
istic terms, understanding human rights merely in indi-
vidualistic terms may be doubted. Reflecting upon the
history of human rights movements, the successful
movements were in most cases the ones in which
people were bound by ethnicity, gender, religion, class,
occupation, or language. In other words, it was when
people were very conscious of their ties to a collectiv-
ity or their shared bonds that they were able to formu-
late, express, and co-operate to pursue their material
and spiritual well-being. Even with human rights that
has been conceived of within the framework of the
rights of the individual, it is as collective movements
that people have sought to realize their human rights.
Theories of human rights, for their future development,
must take this fact fully into consideration.
III. A Search for Transcivilizational Human Rights
1. The significance of the international human rights

instruments and the Vienna Declaration of 1993
(1) The significance of the current international
human rights instruments
How can we identify the most legitimate expres-
sions of human rights in global society ? In other
words, how can we identify human rights that should
be respected regardless of nationalities, political
regimes, economic systems, religions, cultures and
other factors separating humanity ? If some human
rights is in conflict with some other values, virtues or
interests that are respected and regarded as crucially
important by some people or nation, how can we, and
should we, resolve this conflict ? A great number of
people have sought to answer these questions.
Some people seek to rely on theories on human

rights by great thinkers such as Jürgen Habermas or
John Rawls for answering these questions. As referred
to later, I believe that ideas and theories of great
thinkers and experts are important in construing, recti-
fying and supplementing the internationally and
transnationally agreed notion of human rights, which
may still embrace flaws due to its State-centric, West-
centric or some other biases or preconceptions. Yet,
the theories on human rights given by some individual
thinker, however great he or she may be, cannot by
itself constitute the most legitimate expressions of
human rights in global society 288.
On the other hand, a number of people in the United
States, the superpower in the late twentieth century,
unconsciously seem to believe that ideas of civil liber-
ties embodied in the US Constitution express the most
legitimate and universal notion of human rights.
However, the ideas of human rights held by a single
nation, even though this nation is the most powerful
and influential one, cannot by itself constitute the most
legitimate expressions of human rights in global
society. Concrete flaws of the idea and institution
on human rights in the United States have been amply
demonstrated earlier. Although the serious efforts made
by the US Government and citizens to improve the
288
In fact, although Habermas’s theory seems to be
universally valid, its West-centric tendency is evident in its
assumptions, contents and backgrounds. Rawls made seri-
ous and admirable efforts to overcome his Anglo-Amer-
ican centred narrowness in his Law of Peoples. Yet, his
efforts ended in a theoretical degradation, losing the power
of rigidity and coherency found in A Theory of Justice. See
Jürgen Habermas, “Human Rights and Popular Sover-
eignty”, Ratio Juris, VII (1994) ; John Rawls, A Theory of
Justice (Harvard University Press, New York, 1971) ;
idem, The Law of Peoples (Harvard University Press,
Cambridge, Mass, 1999).
434 Onuma Yasuaki
overall human rights conditions all over the world must

be fully appreciated, we cannot deny that they have a
tendency for self-righteousness, ignoring the interna-
tionally agreed notions on human rights.
The most legitimate expression of human rights on a
global scale should be found in the major international
instruments on human rights, represented by the
Vienna Declaration of 1993, the ICESCR and the
ICCPR of 1966, and the Universal Declaration on
Human Rights of 1948. They were adopted by an over-
whelming majority of nations existing at the time of
their adoption. Comparatively speaking, they should be
regarded as embodying the will of humanity in the
most legitimate and comprehensive manner. First,
these instruments were adopted by the overwhelming
majority of national Governments, which officially
represent the people of their countries. As demon-
strated in Chapter I, section II, 1, the agreement of the
States, represented by the Governments, still provide
the most legitimate basis of human undertakings in
today’s world. Second, many of the provisions in these
instruments constitute not only international agreement
among States, but also a clue to identifying trans-
nationally and transcivilizationally legitimate human
rights. A concise elaboration is in order.
(2) The critical importance of the Vienna Declara-

tion
In my view, the Vienna Declaration enjoys the high-
est legitimacy in the twenty-first-century global society
even among these most legitimate instruments. There
may be different views on this issue. Some may argue
that the Universal Declaration should be evaluated as
the most important human rights instrument. It is true
that the Universal Declaration has been most influen-
tial in terms of disseminating the idea of human rights.
It has played a critical role in educating and enlighten-

ing the people all over the world as to the critical sig-
nificance of human rights in human life. In legalistic
terms, on the other hand, the ICESCR and the ICCPR
are more important than the Universal Declarations
and the Vienna Declaration because the two Covenants
are legally binding on State parties. While norms
embodied in the two Covenants can generally be
enforced as law, norms embodied in the two Declara-
tions can be enforced as law only when it is demon-
strated that these norms should be interpreted as law by
being accepted as law by States concerned.
However, in terms of global legitimacy, the Vienna
Declaration, with more States’ commitment and with a
relatively higher transnational and transcivilizational
legitimacy, as shown later, is more important than the
Universal Declaration and the two Covenants. The
Vienna Declaration was adopted unanimously by 171
nations, representing more than 90 per cent of human-
ity, while the Universal Declaration was adopted by
40 nations with 8 nations abstaining, at a time when a
large part of humanity was still under colonial rule. In
terms of the representative legitimacy of humanity as a
whole, there is a huge difference between the two
Declarations. It may be argued that a certain number of
non-Western intellectuals were involved in the drafting
process of the Universal Declaration. Moreover, after
more than a half a century of its adoption, many of its
provisions became norms of general international law.
Yet given the overall atmosphere of the time of 1948,
and the fundamental structure of the instrument includ-
ing the basic philosophy underlying the provisions and
actual provisions, its overall West-centric and exces-
sively liberty-centric character cannot be denied.
As to the comparison of the Vienna Declaration
with the ICESCR and the ICCPR, we should be aware
that legitimacy is not the same as legality. The Vienna
436 Onuma Yasuaki
Declaration is based on the commitment of 171

nations, in comparison with some 160 nations for the
two Covenants. Even if norms embodied in the Vienna
Declaration are not legally binding norms per se, inter-
national legitimacy of the Declaration is superior to the
two Covenants. Further, when considering the question
of global legitimacy, we should not concentrate merely
on the international, that is, inter-State or inter-govern-
mental aspect of an instrument. We must take into con-
sideration transnational and transcivilizational aspects
of the human rights instruments, which could supple-
ment the legitimacy of the inter-governmental instru-
ments, when we evaluate the overall significance of the
instruments. The Vienna Declaration was adopted not
only with 171 nations’ agreement expressed in the
form of the commitment by the Governments. It was
adopted also in a setting where some 1,500 NGOs were
carefully watching its drafting process and introducing
voices of the civil society that were not appropriately
represented by many of the Governments attending the
conference.
The so-called democratic deficiency in terms of rep-
resentation of the will of people due to the fact of
including many undemocratic Governments may be, at
least to a certain extent, rectified by this impressive
input of NGOs. In fact, the rights of women were
improved in the drafting process of the Vienna Confer-
ence by the strong pressure coming from the NGOs
watching and lobbying the delegates of the Govern-
ments. This fact demonstrates a conspicuous example
of the transnational rectifying function of NGOs. The
Vienna Declaration thus enjoys a high degree of
transnational legitimacy, if compared with other inter-
national instruments including the Universal Declara-
tion and the two Covenants on Human Rights.
Moreover, the Vienna Declaration is a product that
overcame fierce controversies involving diverse reli-
gious, cultural and ethical views held by diverse

peoples in global society. In the early 1990s, there
were fierce conflicts, controversies and debates centring
on the problem of “Asian values” or “Asian human
rights”. The universal nature of the then predominant
West-centric construct of human rights was severely
criticized by the proponents of these theories or asser-
tions. On the other hand, these theories and assertions
were also severely criticized as camouflaging the sup-
pression of human rights by such nations as Singapore,
China, Malaysia and others that vocally asserted these
“Asian value” theories.
It is certainly true that controversies on “Asian val-
ues” or “Asian human rights” revealed a highly West-
centric nature of the then predominant notion of “uni-
versal” human rights. It is also apparent that many of
the proponents of these theories or assertions tended to
be political elites in East Asian regimes, many of
which were suppressive of civil and political rights.
National interests, grudges of non-Western nations
against Western powers, domestic political considera-
tions and the problem of keeping faces were all at
stake. Further, the controversies involved not only law,
but also philosophy, anthropology, cultural or religious
studies, and epistemology. They gave an impression
that the conflicts were insurmountable. However, these
seemingly intractable or insurmountable conflicts were
resolved in the process of producing the final docu-
ment of the Vienna Declaration. A concise explanation
is in order.
(3) Norms in the Vienna Declaration as the most

authoritative guide to the interpretation and
implementation of the human rights instruments
The Vienna Declaration “reaffirms the solemn com-
mitment of all States to fulfil their obligations to pro-
438 Onuma Yasuaki
mote universal respect for, and observance and protec-

tion of, all human rights”. According to the Declaration,
“[the] universal nature of these rights and freedoms is
beyond question” (para. 1) 289. It also provides that
“[w]hile the significance of national and regional
particularities and various historical, cultural and
religious backgrounds must be borne in mind, it is the
duty of States, regardless of their political, econo-
mic and cultural systems, to promote and protect all
human rights and fundamental freedoms” (para. 5).
These provisions reaffirm, without any doubt, the
universal nature of human rights, although it fully
appreciates the significance of local and regional diver-
sity in terms of historical experiences, cultures and
religions. It thus succeeded in transcending cultural,
religious and civilizational differences.
The Vienna Declaration also overcame the defence
based on the non-intervention principle or the concept
of domestic jurisdiction or domestic matter. It expli-
citly provides that the protection of human rights “a
legitimate concern of the international community”. It
further provides that the protection of human rights
“must be considered a priority objective of the United
Nations” (para. 4). The recognition of the universality
of human rights and the characterizing human rights as
legitimate concern of the international community are
extremely important in that it overcame politically
oriented resistance by the Governments which sought to
ward off criticisms coming from outside. We have wit-
nessed a large number of cases in which the non-inter-
vention principle are abused by national governments
which committed serious violations of human rights.
289
supra footnote 265 (A/CONF.157/23). The following quo-
tations are all from this document.
On the other hand, the Vienna Declaration provides

that
“[a]ll human rights are universal, indivisible and
interdependent and interrelated. The international
community must treat human rights globally in a
fair and equal manner, on the same footing, and
with the same emphasis” (para. 5).
This formulation denies the traditional, West-cen-
tred emphasis on liberty. Taken together with the provi-
sions quoted in the above paragraph, these provisions
exemplify the comprehensive notion of human rights,
reaffirming the universal nature of human rights on the
one hand, and declaring the equal status of civil and
political rights, and economic, social and cultural
rights on the other. The comprehensive, and inter-
dependent and interrelated nature of human rights is
reiterated in various ways in the Declaration.
Likewise, the Declaration provides on the one hand,
that “[d]emocracy, development, and respect for
human rights and fundamental freedoms are inter-
dependent and mutually reinforcing”, and in this
context, the international community should support
“respect for human rights and fundamental freedoms
throughout the world” (para. 8).
On the other hand, it affirms that “the right to devel-
opment is a universal and inalienable right and an inte-
gral part of fundamental human rights” (para. 10). For
the first time, the right to development was recognized
in the international instrument with the agreement of
the United States, which had been resisting to it. This
was made possible by providing that the human person
is the central subject of development (ibid.).
Further, the Vienna Conference called upon the
international community to make all efforts to help
alleviate the external debt burden of developing coun-
tries, in order to supplement the efforts of the Govern-
440 Onuma Yasuaki
ments of such countries to attain the full realization of

the economic, social and cultural rights of their people
(para. 12). Moreover, it stressed that the elimination of
poverty and discrimination is a high priority or a prior-
ity task for the international community (paras. 14, 15).
The comprehensive or integrated nature of recognized
human rights in the Vienna Declaration is evident.
Thus, the Vienna Declaration should be construed as
the most authoritative — internationally, transnation-
ally and transcivilizationally legitimate — expression
of human rights, agreed by humanity at the end of the
twentieth century. The Vienna Declaration succeeded
in transcending not only national boundaries by reach-
ing agreement between nation States, but also cultural,
religious and civilizational boundaries by overcoming
such fierce controversies on various levels and dimen-
sions. Its transcivilizational legitimacy is compara-
tively very high against this background. Its provisions
should be characterized as embodying guiding prin-
ciples in interpreting, qualifying and modifying any
rules and principles of human rights, whether these
rules and principles are international, regional or
national. All provisions in any instrument on human
rights must be evaluated and interpreted in accordance
with the provisions of the Vienna Declaration. If
they are in conflict with the Vienna Declaration, their
global legitimacy comes into question.
2. The modification and supplementation of internatio-

nal human rights norms from a transnational per-
spective
(1) The political and ideological nature of interna-
tional human rights instruments
We should certainly recognize the global legitimacy
of the existing international human rights instruments,
as represented by the Vienna Declaration. These inter-

national human rights instruments are products of long
and deliberate exchange of diverse views and patient
negotiations between States, which are the most legiti-
mate human entity in today’s world, as elaborated
earlier. Even the smartest philosopher, even the most
respected lawyer or most experienced human rights
expert must appreciate these undeniable points. When
we deal with a certain problem in a particular society
from a perspective on human rights, the first thing we
should do is to understand and assess the problem by
referring to these international human rights instru-
ments. We can assess the specific condition on human
rights as legal, legitimate, illegitimate or illegal pri-
marily by applying norms provided in these instru-
ments. This assessment must basically be appreciated
by all parties concerned because these international
instruments enjoy an extremely high degree of
global legitimacy as it has been described above.
Yet, we should not forget that they are products of
political struggles and compromises between States,
represented by Governments. It is inevitable for those
human rights instruments to express the power rela-
tions between States existing at the time of their adop-
tion. For example, although the global legitimacy of
the Universal Declaration has widely been recognized,
it cannot be denied that its provisions are relatively
West-centric, reflecting the international power struc-
tures existing in 1948, when the global colonial system
still existed. Only a limited number of socio-economic
and cultural rights are provided in it. Views of the
overwhelming majority of humanity were not heard in
the process of its adoption.
Since the attainment of independence by Afro-Asian
nations on a global scale, nations have sought to
enhance the legitimacy of international human rights
instruments by re-conceptualizing human rights. This
442 Onuma Yasuaki
has been realized in the form of enlargement of human

rights, which used to be understood in a narrow field of
civil and political rights. Various kinds of economic,
social and cultural rights came to be recognized as
human rights. This is clearly demonstrated by the
development of the notion of human rights provided in
the Universal Declaration of 1948 to the two Inter-
national Covenants of 1966 to the Vienna Declaration
of 1993. The comprehensive notion of human rights
including those rights is now widely accepted.
On the other hand, we have also witnessed the
inclusion of collective rights as human rights in this
development. This also suggests the political and ideo-
logical nature of international human rights instru-
ments. Both theoretical and practical problems have
been involved in the inclusion of collective human
rights in these international human rights instruments. I
am not certain whether this enlargement of human
rights should be positively evaluated.
Afro-Asian States have energetically emphasized
the importance of including collective rights repre-
sented by the right of self-determination in human
rights. It cannot be denied that the concept of self-
determination played a critical role in legitimating the
decolonization, and consequently contributed to secur-
ing overall human rights to people in the colonies.
Without attainment of national independence, it would
have been meaningless to talk about human rights of
those people who suffered from colonial rule. In this
sense, the right of self-determination constituted the
most important basis for the enjoyment of human
rights of the people in the former colonies.
In addition, the very fact that a number of political
and intellectual leaders of the Afro-Asian nations
argued that the right of self-determination and other
collective rights should be characterized as human
rights demonstrates the universal validity and attrac-
tiveness of the idea of human rights. Had the idea of

human rights not been so universally attractive, appeal-
ing to the heart of humanity as a whole, the leaders of
the Afro-Asian nations would not have argued that the
right of self-determination and other collective rights
should be characterized as human rights. Further, such
characterization of the right of self-determination as a
human right certainly contributed to legitimating the
independence movement and the establishment of a
new nation based on certain “people”. We should
recognize these positive aspects of the concept of
self-determination.
Yet, from a theoretical perspective, I am not confi-
dent whether the right of self-determination and other
“collective” rights should have been characterized as
human rights. There still remain problems as to the
proper subject, the substance and means of realization
of these “collective” rights. No agreement has been
reached as to the workable definition of “people”. As
referred to earlier, the very dichotomy of “individual
versus collective” itself is a modern construct. Pre-
modern people were not so concerned with this dicho-
tomy.
From a practical perspective too, the right of self-
determination has produced serious problems as well.
It has been abused by a number of nationalistic politi-
cal leaders to rationalize their causes and interests at
the cost of serious abuse of human rights of large num-
ber of peoples who are supposed to belong to different
peoples. Lack of workable definition of people and
lack of concrete mechanisms for determining the sub-
ject of right of self-determination have prevented the
notion from working in a peaceful and orderly manner.
We must be cautious of this ideological nature of the
assertions on collective human rights, including the
right of self-determination. It should be recalled that in
a number of African nations human rights conditions
444 Onuma Yasuaki
deteriorated, rather than being improved, after they

attained independence.
In this way, we have witnessed that many of the
assertions made by non-Western political leaders
reveal their ideological character rather than seeking
transnational and transcivilizational legitimacy. There
are a substantial number of non-Western nations whose
Government does not necessarily represent the will
of their people. They lack democratic representative
legitimacy. Who should correct these flaws and
deficiencies ? Here lies an important role of NGOs,
experts and media institutions.
(2) Public roles of NGOs in supplementing and

rectifying international perspectives
NGOs and other “civil society” actors such as
groups of experts and media institutions are involved
in various problems at the local, national, regional and
global level to which government bureaucracy cannot
adequately respond. These problems include human
rights violations and salvation of various types of vic-
tims, deterioration of the global, regional, national and
local environment, care for the elderly, disaster relief,
and care for the mentally disturbed. In other words,
NGOs have been performing important functions
needed in our societies instead of local and national
Governments as well as international organizations.
Particularly in the field of human rights, one cannot
think of effective realization of human rights in today’s
world without various types of activities of the NGOs,
experts, journalists and media institutions.
Given these important societally needed functions,
activities of these civil society members cannot simply
be identified as private in opposition of governmental
activities. To the extent that their activities are equiva-
lent to that of States and international organizations,
they must be characterized as public. In the field of

protecting and promoting human rights, various NGOs
have been performing this kind of public role on a
local, national, regional and global level. Many of their
activities contribute to substantiating specific norms
provided in the international instruments on human
rights. It is only through the devoted activities of these
civil society members that the human rights norms
can actually perform their normative roles, over-
coming resistance coming from reluctant govern-
ment officials, local elites and the powerful institutions
with vested interests and long-lasting biases and
preconceptions.
Scholars and practitioners should incorporate the
views of these civil society members as supplements to
and modifications of international, i.e. inter-govern-
mental, perspectives on human rights, as expressed in
the international human rights instruments. In the aca-
demic fields of international law, the object of research
should no longer be limited to views and activities of
States (more specifically Governments) and interna-
tional organizations, as they were in the past. Aca-
demic enquiry built on an examination of the public
function of NGOs, experts, journalists and media
institutions is essential in understanding the actual
state of affairs related to international law on human
rights.
A transnational perspective seeks to rectify and
modify the political or ideological elements often
found in “international” undertakings, whether they be
treaties, declarations or even controversies. The views
of NGOs have actually played such a rectifying or
modifying role, based on the transnational perspective.
For example, as referred to earlier, the NGOs watching
the World Conference on Human Rights of 1993,
which was an inter-governmental conference, played
such a public role. They succeeded in improving the
446 Onuma Yasuaki
human rights of women by lobbying the Governments

attending the Conference 290.
Further, when Asian Governments adopted the
Bangkok Declaration of 1993, which expressed the
“aspirations and commitments of the Asian region” 291,
110 Asian NGOs adopted the Bangkok NGO Declara-
tion on Human Rights 292. While the former expressed
a so-called “relativistic” or “particularistic” perspective
of human rights, stressing national and regional particu-
larities, the latter expressed a “universalistic” perspec-
tive, stressing the importance of women’s rights,
demilitarization and the like. This is a notable example
of how we can hear different voices in Asia through
NGOs. The “representative” nature of the Bangkok
Declaration as “expressing the Asian voice” was quali-
fied by the Bangkok NGO Declaration commanding a
certain degree of transnational legitimacy 293. The
activity of the NGO contributed to refuting the myth of
the “Asian” value or “Asian” voice as understood in a
monolithic manner.
However, as I emphasized in Chapter I, we should
not simply idealize the NGO or “civil society”. Although
the NGOs sometimes have a great impact on the life of
many people through their power and influence, not a
290
They also put forward the Initial Response of Non-
Governmental Organizations to the Draft Vienna Decla-
ration. In it, they criticized the Draft Declaration on vari-
ous accounts : the refusal of the Governments to address
the inequality between the North and the South, and the
like. Although these criticisms were not accepted by the
Governments at that time, we should assess the Vienna
Declaration bearing this fact in mind.
291
Preamble of the Bangkok Declaration of 2 April
1993 (A/CONF/157/PC/59), Human Rights Law Journal,
XIV (1993), p. 370.
292
Bangkok NGO Declaration on Human Rights of
27 March 1993 (A/CONF.157/ASRM/8).
293
few of them lack the sense of public responsibility.

Western NGOs are often self-righteous and arrogant,
without scrutinizing their own accountability and trans-
parency as public entities. Some of the non-Western
NGOs are dissociated from ordinary people and tend to
be West-centric even in the non-Western world. We
need to make up for the shortcomings of both the inter-
national and the transnational perspectives. The trans-
civilizational perspective should be able to contribute
to carrying out this important mission.
3. The modification and supplementation of internatio-

nal human rights norms from a transcivilizational
perspective
(1) The role of academia
Current international instruments on human rights,
either multilateral human rights treaties or declarations
on human rights adopted by the UNGA or major inter-
national conferences, reflect a process through which
nations with diverse national interests, cultures and
religions laboured to bring forth points of agreement.
We must at first recognize that these instruments stand
for a kind of universality that no other form of human
rights assertion can claim. They embody a global legiti-
macy that is certain and real, which cannot be found in
any theories or assertions on human rights, however
great the proponents of these theories or however influ-
ential the asserting entities may be. We must start our
argument on the globally legitimate expression of
human rights from this recognition. Any kind of criti-
cism of State-centrism, which has been so fashionable
in developed countries since the late twentieth century,
should not, and cannot, deny this fundamental starting
point.
Yet, among factors which produced these interna-
448 Onuma Yasuaki
tional human rights instruments, the most important

were national interests of States parties to these instru-
ments, as perceived by their Governments, and their
compromises based on the considerations of national
interests. Cultural, religious and civilizational considera-
tions occupy only a secondary place in producing
these instruments. We have already dealt with the prob-
lem of modification and supplementation of inter-
national human rights instruments, which are the
products of Governments including some illegitimate
Governments, from a transnational perspective in sub-
section 2. In addition to this supplementary work,
we have to deal with the problem of modifying and
supplementing human rights norms embodied in
these international, which are inter-governmental,
instruments from a transcivilizational perspective. As
is the case with the modification and supplementation
from the transnational perspective, epistemological
and interpretive communities composed of academia
and practitioners can play an important role in these
functions.
As already referred to, even the leading theories on
human rights do not represent transcivilizational legiti-
macy by themselves. However, scientific, relatively
objective, solid and reliable works that have survived
severe criticisms among experts can contribute to
clarify complex problems hidden in the controversies
involving Governments, international organizations,
ethnic minorities, indigenous peoples, NGOs, media
institutions and other actors on human rights. They can
clarify politically oriented, biased and/or prejudiced
arguments, and demonstrate where seemingly legiti-
mate agreements reached by Governments must be
rectified from the perspective of global legitimacy. As
experts with solid knowledge and experiences that are
relatively less biased because of their high academic
and professional character, they can suggest or propose
ways to an agreement with a relatively higher global legi-

timacy. By offering important frameworks for analysing,
construing, supplementing, and reformulating views
expressed in the international human rights instru-
ments, these experts can demonstrate relatively less
biased perspectives from which people should see the
problem on human rights.
For example, Amartya Sen’s study on famines per-
suasively demonstrated that freedom of expression, a
civil right, and right to subsistence or right to food, an
economic right, are closely interrelated 294. His work
contributed to solving the controversy between those
who almost exclusively argue for the primacy of civil
and political rights, and those who argue for the pri-
macy of the right to subsistence. Sen’s work and subse-
quent studies played an important role for solving long
lasting controversies between developed countries and
developing countries and for reaching agreement on
the issue of primacy between civil and political rights,
and socio-economic and cultural rights.
However, in considering theories of prominent
thinkers, we must be careful how and to what extent
they transcend their own cultural, religious and civi-
lizational preconceptions. Great theorists and philoso-
phers whose works are well read and influential are
mostly Western thinkers. They may have produced
ideas as general theory with universal applicability, but
it must always be asked whether they transcend civi-
lizational boundaries and demonstrate transcivilization-
ally valid reasoning and conclusions 295. If we examine
an international human rights instrument by applying a
294
Amartya Sen, supra footnote 270.
295
John Rawls’s Theory of Justice, which had appeared
to be a general theory on justice, was criticized of its
Anglo-American assumptions. Rawls sought to overcome
this narrowness in his Law of Peoples, but it is doubtful
whether he succeeded in his attempt. Many other leading
450 Onuma Yasuaki
theory which seems to have a universal validity yet is

civilizationally bound in terms of the sources of its
ideas, facts on which it bases its argument and other
assumptions, and other factors characterizing it,
such an examination will not contribute to legitimate
evaluating the instrument in question. On the con-
trary “critical analyses” by such civilizationally pre-
occupied theories may result in an unfair evaluation
of the instruments in question.
(2) Gaps between dominant cultures and current

human rights norms
We have witnessed a large number of cases in which
certain religions, cultures, customs, practices and
social institutions or prevalent interpretations thereof,
which have been respected and maintained for a long
time in a country, are criticized by foreign Govern-
ments, media institutions and NGOs as human rights
violations. The most conscious cases of these collisions
between human rights and prevalent religions, cultures
and practices are those in the non-Western developing
countries. Conflicts between Islam and human rights
are most well known. Cultures and social practices
based on a long-lasting and/or prevalent interpretation
of Confucianism, Hinduism, other major religions, and
local religions or cultures have also been taken up as
conflicting with current human rights norms.
In contrast, there are fewer glaring inconsistencies
between norms governing international human rights
protection and dominant national or ethnic religions
and cultures in the Western societies. Yet, current inter-
national norms on human rights reflect an agreement of
theorists such as Jürgen Habermas, Michael Foucault and

Ronald Dworkin have the same problems of West-centric
narrowness in their seemingly “general” or “universal”
theories.
normative ideas between nations. They do not embody

the dominant religious or cultural norms of a single
nation or group of nations with particular cultures or
religions. In any nation, there should, and actually do,
exist contradictions and conflicts between international
norms on human rights and the dominant culture and
religion, although the size and degree of such contra-
dictions may vary from one country to the other. Even
in the United States, the United Kingdom and France,
which have been associated with the birth and develop-
ment of human rights, there are serious problems
involving the collisions between prevalent religions,
cultures and practices, or prevalent interpretation
thereof, and human rights.
For example, the United States, which has been a
driving force in promoting the global advance of
human rights in the latter part of the twentieth cen-
tury 296, has also serious cultural problems in accepting
globally agreed notions on human rights. As referred to
earlier, the United States has maintained a narrow
focus on civil and political rights. This narrow focus on
296
I am ready to recognize the critical role that the
United States has played in disseminating the idea of
human rights and rectifying a large number of serious
human rights violations all over the world. This admirable
achievement was made possible by combined efforts of
experts, NGOs, journalists, media institutions, research
and educational institutions, the Congress, and the
Government of the United States. Had there not been such
an admirable pursuit for universal justice by the people in
the United States at large, the global human rights situa-
tion would have been more serious than what we have
observed. Yet, this fact does not deny another fact that the
United States has its own serious problems from the per-
spective of human rights, which are associated with its
religious and cultural beliefs and practices. Because this
aspect of reality has not been sufficiently referred to inter-
nationally, it must be deliberately taken up and discussed,
together with similar problems in other nations.
452 Onuma Yasuaki
civil liberty at the expense of a more comprehensive

vision of human rights is evident in a number of areas.
First, there is no explicit provision of economic, social,
and cultural protections in the US Constitution. This is
a peculiar characteristic of the US Constitution among
constitutions in developed countries. Second, there is no
comprehensive health insurance system that includes
all citizens, including the poor 297. Again, this is
exceptional among developed countries. Third, the US
Government has not ratified the ICESCR which has
been acceded to or ratified by 157 nations, including
all developed countries. It has also spurned the Con-
vention on the Rights of the Child, the human rights
treaty with a comprehensive notion of human rights,
which has received the most support from the interna-
tional society, i.e. as many as 193 nations 298.
The United States has strongly resisted the tendency
in international society to consider human rights in
comprehensive or integrated terms based on the idea of
interdependence and interrelationship between civil
and political rights, and economic, social and cultural
rights 299. There has been a persistent view in the
United States that economic, social, and cultural rights
are associated with socialist ideology, inconsistent with
the philosophy of free and independent individuals.
297
Even a very modest and limited attempt by the
Clinton administration to establish a national health insur-
ance programme ended in failure in the late twentieth cen-
tury. Whether the United States in the twenty-first century
can realize a national health insurance plan, which is criti-
cally important from the perspective of right to health and
right to subsistence, remains to be seen.
298
http ://treaties.un.org/Pages/ViewDetails.aspx
?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en.
(last visit : 16 May 2009).
299
Philip Alston, “U.S. Ratification of the Covenant on
Economic, Social and Cultural Rights”, American Journal
of International Law, LXXXIV (1990).
This notion — and its tenacity — is contrary to the

view held not just in developing and socialist coun-
tries. It is not held by advanced capitalist countries of
Europe, Japan, Canada, Australia, and New Zealand.
The United States is the only nation among the
developed countries that has not ratified the ICESCR.
This position speaks volumes about the dominant
idea in the United States, deeply rooted in its cultural
and religious beliefs. One such belief is in the inde-
pendent, self-sufficient and free individual ; a con-
sideration embodied in a general resistance to gun
control, for example. This kind of excessive attention
to individual liberties at the expense of a more com-
prehensive vision of human rights must be overcome
through a critical reinterpretation of the dominant cul-
ture. This is a challenge for political leaders, experts,
media institutions and ordinary citizens in the
United States, which must accept the reality of being
a superpower, not the superpower, in the twenty-first-
century multi-polar world.
In France, a strong belief in secularism has pro-
duced a number of problems involving human rights,
especially problems on discrimination and religious
freedom. Other West European nations, including the
United Kingdom, which should be proud of a long tra-
dition of protecting human rights, continuing through
the writings of John Locke, David Hume and other
great thinkers, have their own problems on human
rights with their cultures and religions. There have
been a number of cases where a certain practice or
policy of a particular West European nation which had
been judged as legal or constitutional by the Supreme
Court or the Constitutional Court of this nation was
criticized and finally judged as a violation of human
rights norms by the European Court of Human Rights.
In Japan, the myth of mono-ethnic society and
national homogeneity stands in the way of the process
454 Onuma Yasuaki
of accepting human rights protecting the right of

minorities, including aliens, Korean minorities and the
Ainu people. The Japanese Government expressed this
conventional idea in its first report to the Human
Rights Committee of the ICCPR in 1980 300. After
having been criticized by the Committee, experts and
NGOs, it finally changed its attitude in the 1991 report
stating that the Ainu, some of the earliest inhabitants of
the Japanese archipelago, can be considered a minority
as provided in Article 27 of the ICCPR 301. The fact
that the Japanese Government resisted to the criticism
coming from human rights experts and this government
position was not seriously doubted by ordinary citizens
in Japanese society in the 1980s reveals how deeply
was this myth of mono-ethnic society rooted in Japa-
nese society as a common sense or social culture.
It is true that in developing countries, most of which
are non-Western nations, the degree of incompatibility
or gaps between current human rights norms and domi-
nant cultures is far greater than in the developed coun-
tries. Given the limited resources available in global
society for rectifying human rights violations occurring
everyday and everywhere, we must take up the most
serious and urgent human rights violations and seek to
rectify them, occurring in many cases in non-Western
developing countries. However, in carrying out this
important task, we should be aware of the fact that
many of these nations with serious human rights viola-
tions once suffered from colonial rule or interventions
from colonial powers. These powers are basically
today’s developed countries that are prone to criticize
human rights violations in the developing countries.
It is critically important, therefore, that such an
important act of rectifying violations of human rights
300
CCPR/C/10/Add.1, p. 10.
301
CCPR/C/70/Add.1, p. 49.
should not be perceived as an arrogant, preachy, selec-

tive and self-righteous intervention. Rectifying func-
tion of human rights violations must be viewed as a
public policy with global legitimacy. It is thus highly
important to emphasize that the incompatibility
between dominant cultures and human rights exists
in any nation, including developed countries. Criti-
cisms that are viewed as arbitrary, selective, unfair,
based on a double standard and/or a religious or cul-
tural bias cannot be persuasive. They are sometimes
counterproductive, and must be avoided.
This is not to say that incompatibility closes off cer-
tain kinds of human rights activism. There have been a
number of cases in which a nation yields to external
pressure from the human rights diplomacy of the
United States and West European nations, recommen-
dations and public hearings by international bodies
such as various organs of the United Nations and moni-
toring bodies attached to human rights treaties, and
criticisms by NGOs and media institutions of the
developed countries. In these cases, a particular human
rights violation may be corrected. However, this is
hardly a spontaneous expression of “respect for human
rights”, and does not mean that such sentiments have
taken root in the nation where the violation has
occurred. When the external pressure lets up, similar
violations will likely recur. To guarantee the protection
of human rights in a nation, human rights must be
made a part of the religion, culture and society to the
point that the people of that nation will see human
rights protections as a natural part of their lives.
(3) The need for reinterpretation of dominant cul-

tures and religions
In order for human rights to take root in nations
with diverse political, economic, social, religious and
456 Onuma Yasuaki
cultural systems, they must be accepted by people who

have been living under these systems of each nation.
Regardless of whether it is a Western or non-Western
society, human rights must be grounded in the interpre-
tation and reinterpretation of prevalent local cultures,
religions, customs and morals. Needless to say, this is
an enormous task. Every day and everywhere, we hear
news on the conflict between certain human rights such
as gender equality, freedom of expression and freedom
of religion, and religious teachings of Islam, Hinduism,
Confucianism and the like. These conflicts are so harsh
and violent that they seem to be insurmountable. We
have heard so many stories discouraging us to believe
in the possible compatibility between existing reli-
gions, cultures, customs and social practices on the one
hand and human rights on the other.
However, it is widely recognized that no culture or
religion is immutable. All cultures, religions and civi-
lizations, including Christianity, European civilization,
various cultures in European nations and regions, once
contained a number of anti-human rights teachings and
interpretations. Christianity, French or British culture,
and European civilization as a whole gradually came
to be relatively compatible with human rights by
changing themselves over the course of time during
the modern period. It is only toward the end of the
twentieth century that West European nations could
claim that they enjoy a relatively high standard of human
rights. Before that West European nations experienced
a large scale of abominable human rights violations,
including Holocaust, racism, anti-Semitism, religious
intolerance represented by the Inquisition, etc. Many of
these serious human rights violations occurred in
close relation with an interpretation, dominant at a par-
ticular time, of a long-standing predominant religion —
Christianity — and of various cultures in Europe.
When human rights emerged in modern Europe,
many of them were at odds with dominant cultures

and Christianity as practised at the time. Those who
asserted human rights and demanded their realization
engaged in constant and repeated contests with those
who supported the dominant culture and the leadership
of the Christian church. This was a culture that toler-
ated or even institutionalized discrimination against
women and Jews. It was a culture that protected the
vested interests of the nobility and the gentry, and that
permitted the torture and inhuman treatment of those
suspected of crimes. It was through continued serious
debates and reinterpretations of the dominant culture
and the teachings of Christianity that human rights
took root in Europe. In the United States too, the
achievement of human rights ideals such as racial
equality has required fierce battles with the dominant
interpretations of culture and religion in the United
States.
It is true that relatively speaking, legalism and indi-
vidual-centrism both have a long tradition in Europe,
which has been buttressed by the notion of a covenant
between each individual and God in Judeo-Christian
teaching. To a certain extent, these traditions con-
tributed to the birth, spread and establishment of
human rights in European society. Yet one can see a
similar tradition of legalism and individual-centrism in
the Islamic civilization, which is now regarded as one
of the greatest sources of resistance to human rights in
various areas. The centrality of an individual in Islam
may be seen in the individual’s direct relationship with
God and the rejection of an institution mediating the
individual and God. Strong legalism may be seen in the
overall significance of the sharia (Islamic law in the
wider sense of the term) in whole human affairs. If
seen from a comparative civilizational perspective,
these features suggest a similarity rather than opposi-
tion between European civilization and Islamic civi-
458 Onuma Yasuaki
lization. One might be able to argue that Islamic civi-

lization has an even stronger legalist and individualist
tradition than the Christian civilization, opening up the
possibility for an Islam that is compatible with human
rights as closely associated with legalism and indi-
vidual-centrism.
In every nation where the idea of human rights has
taken root, there has been a conflict between human
rights ideals and the dominant religion and culture.
Dissemination and establishment of human rights by
means of reinterpreting the dominant cultures and reli-
gions in societies where human rights is expected to
prevail has been common to European, American,
Japanese and other developed countries. Europeans
have sought to change anti-human rights teachings and
interpretations of Christianity, and succeeded in adapt-
ing to human rights relatively well. In other regions, a
number of believers of Buddhism, Islam, Confucian-
ism and other religions or social ethics have been
doing basically the same thing, although their efforts
may not have been so conspicuous. These various
forms of reinterpretation of religions which have been
regarded as absolute, sacred and unchangeable will
likely continue everywhere in the world. Through these
processes, human rights will gradually be accepted by
people who once believed that the specific human right
is in conflict with teachings of their religions or their
valuable cultures.
(4) The need for re-conceptualization of all value

systems including human rights
The same kind of argument made in subparagraph (3)
above can apply to the doctrine or prevalent inter-
pretation of human rights. Many of the “universalists”
have pointed to cultural change in their criticisms of
the relativist position that opposes the universality of
human rights. Yet, many of them tacitly assume the

immutability of human rights and tend to adhere to a
specific notion of human rights. This specific notion
that these “universalists” adhere to is often a narrow
and liberty-centric notion of human rights. This atti-
tude contradicts to their own position, because the very
notion of human rights centred on civil and political
rights has its own historicity and is culturally bound.
Even if this narrow notion was valid when the idea of
human rights was produced in the modern Europe and
spread to the United States, it cannot be unchangeable
over the course of its existence.
A comparison of the 1789 Declaration of the Rights
of Man and Citizen, the Universal Declaration of 1948,
and the Vienna Declaration of 1993 reveals these
changing notions and perspectives on human rights
over the past two centuries. The notion of human
rights, once almost exclusively characterized as civil
rights, has come to embrace a number of socio-eco-
nomic and cultural rights. A number of third-generation
rights are also embraced in many international instru-
ments adopted in the latter half of the twentieth cen-
tury. We could compare this process to the dramatic
changes undergone by major world religions. Christia-
nity was born in Palestine and spread to Europe, North
America, Latin America, Africa and Asia by changing
its predominant interpretation. Even greater changes
can be seen in Buddhism, which spread from India to
Southeast Asia and Northeast Asia. Buddhism in Japan,
Korea and China is extremely different from Buddhism
in today’s Sri Lanka, Thailand and Myanmar, or origi-
nal Buddhism born in India. One might be tempted to
argue that Buddhism practised today in Japan, Korea
and China is not Buddhism at all, if the standard of
judgment is the original teaching of Buddhism.
This recognition of changeability of any culture,
religion and other ideas or belief systems, including the
460 Onuma Yasuaki
notion of human rights is highly important to under-

stand the status of human rights in the twenty-first-
century world 302. To appreciate that neither today’s
predominant interpretation of a particular religion such
as Islam nor that of particular human rights are abso-
lute and that both can change themselves according to
the course of time constitutes a clue to overcoming the
seemingly absolute contradiction between the two uni-
versalistic notions. We could advise both camps to look
back on their own history and recognize the change-
ability of their own belief systems, which no one can
deny if he or she squarely looks back on the long
history of what he or she believes in.
On the other hand, such vicissitudes will raise seri-
ous problems to scholars and practitioners seeking the
optimal point between human rights and other predomi-
nant notions strongly adhered to by people who doubt
the supremacy of human rights. If the religion or cul-
ture of each nation were fixed, or if human rights were
fixed, then it would be possible, at least in theory, to
find the conditions under which human rights will take
root in an unequivocal manner. However, with both the
religion/culture of a nation changing and human rights
changing, it becomes extremely difficult, both in
theory and practice, to identify the conditions of com-
patibility between human rights and a particular culture
or religion at a specific time and place 303.
Yet, again, this problem of change and universaliza-
tion is not limited to the case with the universaliza-
tion of human rights. The problem is common to all
religions, cultures and civilizations. Humanity has
302
303
See Simon Chesterman, “Human Rights as Subjec-
tivity : The Age of Rights and the Politics of Culture”,
Millennium : Journal of International Studies, XXVII
(1998), pp. 97-118.
struggled with this problem over the centuries. Human-

ity has succeeded in some regions as to some religions
or cultures to a certain extent, and is still struggling as
to some religions or cultures in other regions. Today,
there are conflicts within and among the various deno-
minations over the changing nature of Christianity. In
the Catholic Church, this includes battles between the
Vatican and US and European congregations on the
Church’s approach to issues such as abortion. There
are also tensions between the Vatican and priests in
Latin America over liberation theology. There are simi-
lar or even greater tensions in other world religions, in
Islam between Sunni and Shi’a factions and among the
various sects of Buddhism.
It is beyond my ability to answer this question that
we actually face in all societies of how we should
solve the conflicts between human rights on the one
hand, and national or local cultures, world or local reli-
gions, and other belief systems or worldviews on the
other, in a specific manner. It should take years to find
an optimal point between the two and solve the spe-
cific problems. Yet, this solution cannot be a solution
that can remain for ever. This solution, an optimal
point between a conflicting norm of human rights and
some religion or culture, is itself subject to change, and
will have to be reappraised. Still, it is highly important
to recognize that conflicts between human rights and
cultures or religions are not something special, new or
peculiar, but one of problems that humanity has expe-
rienced, tackled and solved at least partially. Such
recognition can give some equanimity to those who
seek to solve the problem and enable them to persuade
conflicting parties to view a seemingly insoluble prob-
lem from such a historical perspective.
Adopting the transcivilizational perspective would
require us to doubt the “universal” validity and sub-
stance of human rights and to re-conceptualize them
462 Onuma Yasuaki
from various perspectives of cultures, religions and

civilizations. This would constitute an important part
of our critical task — overcoming West-centrism,
deeply rooted in our thinking in an unconscious and
hidden manner —, which is desperately needed to
respond to emerging reality of the multi-polar world of
the twenty-first century. At the same time, the re-con-
ceptualization of human rights will help persuade non-
Western nations to accept human rights, which is criti-
cally important for protecting the value of individual
human being from the power of sovereign States,
capitalist economy and other violent forces of various
kinds. Because the number of human beings is far
greater in non-Western societies than in Western
societies, acceptance and realization of human rights
by the non-Western people is a far more important, far
more challenging task than any other tasks on human
rights from the perspective of the universalization of
human tights. By deliberately adopting the transcivi-
lizational perspective, we can contribute to identify this
double function of liberating human rights discourse
from the predominant West-centric perspectives and
spreading human rights on a global scale. In this way,
the transcivilizational perspective should, and can,
contribute to grounding human rights in more diverse
societies, as well as qualifying human rights discourse
in its proper range.
463
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476
ABOUT THE AUTHOR
BIOGRAPHICAL NOTE
Onuma Yasuaki, born on 8 March 1946, in Japan.
LL.B. (Public Law), Department of Public Law, Faculty
of Law, University of Tokyo (1969) ; LL.B. (Political
Science), Department of Political Science, Faculty of Law,
University of Tokyo (1970) ; LL.D., Graduate School of
Law and Politics, University of Tokyo (1999).
Research Associate, Faculty of Law, University of Tokyo
(1970-1973) ; Associate Professor of International Law,
Faculty of Law, University of Tokyo (1973-1984) ; Pro-
fessor of International Law, Faculty of Law, University of
Tokyo (1984-1991) ; Professor of International Law, Faculty
of Graduate Schools for Law and Politics, University of
Tokyo (1991-2009) ; Distinguished Professor, Faculty of
Law, Meiji University (since 2009) ; Visiting Lecturer, Yale
Law School (1992) ; Visiting Professor, Colombia Univer-
sity (1997, 2002) ; Institut universitaire de hautes études
internationales (1997) ; University of Michigan (1999, 2004,
2006) ; Université de Paris I (2003) ; Peking University
(2005) ; Tsinghua University (2007) ; Jawaharlal Nehru
University (2010).
8th Adachi Mineichiro Award (Adachi Mineichiro
Memorial Hall, 1975) ; 8th Ishibashi Tanzan Award (Ishi-
bashi Tanzan Memorial Foundation, 1987) ; 2nd Stefan
A. Riesenfeld Memorial Award (University of California,
Berkeley, Boalt Hall School of Law, 2002).
Lecture given as Visiting Professor of Montague Burton
Chair of International Relations at the University of Edin-
burgh (1989) ; Lezione Magistrale at the 10th Convengno di
Studi Giornata Gentiliana at the Centro Internazionale Studi
Gentiliani (2002) ; Ashby Lecture at Clare Hall, University
of Cambridge (2004) ; Toyota Lecture at Australian National
University (2005) ; lectures at the Hague Academy of
International Law (2007) ; lectures at the Collège de France
(2008).
About the Author 477
PRINCIPAL PUBLICATIONS
Major Publications in English
Edited volumes
The Tokyo War Crimes Trial : An International Symposium
(Kodansha International, 1986) (ed.).
A Normative Approach to War : Peace, War, and Justice in
Hugo Grotius (Clarendon Press, Oxford, 1993) (ed.).
Articles
“Nationality and Territorial Change : In Search of the State
of the Law”, Yale Journal of World Public Order, VIII,
No. 1 (1981).
“The Problem of Eurocentric Education in International
Law”, Proceedings of the 75th Anniversary Convocation
of the American Society of International Law, April 23-25,
1981 (1983).
“Beyond Victors’ Justice”, Japan Echo, XI, Special Issue
(1984).
“Pitfalls of Internationalization”, IHJ Bulletin, IV, No. 4
(1984).
“The Historical Change in International Legal Order : With
Special Reference to the Ideological Function of the Con-
cept of Civilization”, Yong Sang Cho, ed., Conflicts and
Harmony in Modern Society (Keimyung University Press,
Taegu, 1985).
“ ‘Japanese International Law’ in the Prewar Period : Per-
spectives on the Teaching and Research of International
Law in Prewar Japan”, Japanese Annual of International
Law, No. 29 (1986).
“Between Natural Rights of Man and Fundamental Rights of
States”, Neil MacCormick and Zenon Bankowski, eds.,
Enlightenment, Rights and Revolution (Aberdeen Uni-
versity Press, 1989).
“ ‘Japanese International Law’ in the Postwar Period :
Perspectives on the Teaching and Research of Inter-
national Law in Postwar Japan”, Japanese Annual of
International Law, No. 33 (1990).
“Interplay between Human Rights Activities and Legal
Standards of Human Rights : A Case Study on the Korean
Minority in Japan”, Cornell International Law Journal,
XXV, No. 3 (1992).
“Beyond the Myth of Mono-ethnic Japan”, The Committee
to Commemorate the Sixtieth Birthday of Prof. Su Yong-
478 About the Author
Dal, ed., Asian Citizens and Koreans in Japan (Nihon

hyoron sha, 1993).
“Japanese War Guilt, the ‘Peace Constitution’, and Japan’s
Role in Global Peace and Security”, M. Young and
Y. Iwasawa, eds., Trilateral Perspectives on International
Legal Issues (Transnational Publishers, 1996).
“In Quest of Intercivilizational Human Rights : Universal
vs. Relative Human Rights Viewed from an Asian Per-
spective”, D. Warner, ed., Human Rights and Humani-
tarian Law (Kluwer Law International, 1997).
“The Quest for Intercivilizational Human Rights : Japan’s
Task in the Twenty-first Century”, Japan Review of Inter-
national Affairs, XI, No. 3 (The Japan Institute of Inter-
national Affairs, 1997).
“Towards an Intercivilizational Approach to Human Rights”,
Joanne Bauer and Daniel Bell, eds., The East Asian
Challenge for Human Rights (Cambridge University
Press, Cambridge, 1999).
“When Was the Law of International Society Born ?”,
Journal of the History of International Law, II, No. 2
(2000).
“Towards an Intercivilizational Approach to Human Rights”,
Asian Yearbook of International Law, VII (2001).
“The ICJ : An Emperor without Clothes ?”, N. Ando et al.,
eds., Liber Amicorum Judge Shigeru Oda (Kluwer Law
International, 2002).
“Japanese War Guilt and Postwar Responsibilities of Japan”,
Berkeley Journal of International Law, XX, No. 3 (2002).
“International Law in and with International Politics : The
Functions of International Law in International Society”,
European Journal of International Law, XIV, No. 1
(Oxford University Press, 2003).
“A Transcivilizational Perspective on Global Legal Order in
the Twenty-First Century : A Way to Overcome West-
centric and Judiciary-centric Deficits in International
Legal Thoughts”, Ronald St. John Macdonald and
Douglas M. Johnston, eds., Towards World Constitutio-
nalism (Martinus Nijhoff Publishers, 2005).
Major Publications in Japanese
LL.D. Dissertation
Jinken, kokka, bunmei (Human Rights, States, and
Civilizations) (Chikuma shobo, 1998 ; Chinese ed., SDX
Joint Publishing Company, Beijing, 2003).
About the Author 479
Books
Senso sekinin ron josetsu (Prolegomena to the Responsi-
bility for War) (Tokyo University Press, 1975).
Tan-itsu minzoku shakai no shinwa wo koete (Beyond the
Myth of A Mono-ethnic Society) (Toshindo, 1986 ; 2nd
ed., 1993 ; Korean ed., Korea University, Asian Research
Center, 1993).
Tokyo saiban kara sengo sekinin no shiso e (From the Tokyo
War Crimes Trial to the Philosophy of Japanese Postwar
Responsibilities for War) (Yushindo, 1985 ; 2nd ed., Tosh-
indo, 1987 ; 3rd ed., Toshindo, 1993 ; 4th ed., Toshindo,
1997).
Wakoku to kyokuto no aida (Between the Country of “Wa”
and the “Far East”) (Chuo koron sha, 1988).
Saharin kimin (Koreans Left in Sakhalin) (Chuo koron sha,
1992 ; Korean ed., 1993).
Zainichi Kankoku-chosen jin no kokuseki to jinken (The
Nationality and Human Rights of Koreans in Japan)
(Toshindo, 2004).
Kokusaiho (International Law) (Toshindo, 2005 ; 2nd ed.,
Toshindo, 2008).
Tokyo saiban, senso sekinin, sengo sekinin (Tokyo War Crimes
Trials, Japanese War Guilt and Postwar Responsibility of
Japan) (Toshindo, 2007).
“Ianfu” mondai towa nandattanoka (What Was the “Com-
fort Women” Problem ?) (Chuo koron shinsha, 2007).
Edited volumes
Kokusaihogaku no saikochiku, I, II (Reconstruction of the
Study of International Law) (Tokyo University Press,
1977-1978) (ed.).
Tokyo saiban wo tou (Questioning the Tokyo War Crimes
Trial) (Kodansha, 1984) (ed.).
Senso to heiwa no ho (The Law of War and Peace)
(Toshindo, 1987 ; 2nd ed., Toshindo, 1995) (ed.).
Kokusaiho, Kokusai Rengo to Nippon (International Law,
the United Nations and Japan) (Kobundo, 1987 ; Korean
ed., International Society of the Law of the Sea, 1997)
(ed.).
Shiryo de yomitoku kokusaiho (Intercivilizational Law :
Cases and Materials) (Toshindo, 1996 ; 2nd ed., 2005)
(ed.).
Toa no koso (Toward a Normative Order of East Asia in the
Twenty-first Century) (Chikuma shobo, 2000) (ed.).
480 About the Author
Kokusai shakai ni okeru ho to chikara (Law and Power in

International Society) (Nihon hyoron sha, 2008) (ed.).
Articles
“Zainichi chosen jin no hoteki chii ni kansuru ichi kosatsu”
(“Reflections on the Legal Status of Koreans in Japan”),
Hogaku kyokai zassi, XCVI, Nos. 3, 5, 8, XCVII, Nos. 2,
3, 4 (1979-1980).
“Hugo Grotius ni okeru ‘ippan kokusaiho’ no kannen”
(“The Concept of ‘General International Law’ in Hugo
Grotius”), Kokka gakkai hyaku nen kinen : Kokka to
shimin, II (Yuhikaku, 1987).
“Kokusaihogaku no kokunai moderu shiko” (“Domestic
Model Approach in the Study of International Law”),
Tanaka Tadashi and Hirobe Kazuya, eds., Kokusaiho to
kokunaiho (Keiso shobo, 1991).
“ ‘Heiwa kenpo’ to shudan anzen hosho” (1), (2) (“Japan’s
‘Peace Constitution’ and the Collective Security”),
Kokusaiho gaiko zassi, XCII, Nos. 1, 2 (1993).
“Bunsaiteki jinken wo mezashite” (“In Quest of Trans-civi-
lizational Human Rights”), Watanabe Akio, ed., Ajia no
jinken (Nihon Kokusai Mondai Kenkyusho, 1997).
“Bunsaiteki jinken ron no kochiku ni mukete” (“Towards the
Establishment of the Theory of Intercivilizational Human
Rights”) (1) (2) (3), Kokka gakkai zassi, CXI, Nos. 3-4,
Nos. 9-10, Nos. 11-12 (1998).
“Kokusai shakai ni okeru ho to seiji” (“Law and Politics in
International Society”), Kokusaiho gakkai, ed., Nihon to
kokusaiho no hyakunen, I (Sanseido, 2001).
“Nihon no senso sekinin to sengo sekinin” (“Japanese War
Guilt and Postwar Responsibilities of Japan”), Kokusai
Mondai, No. 501 (2001).
“Ho no jitsugen katei to iu ninshiki wakugumi” (“A
Cognitive Framework of the Law Realization Process”),
Nihon Hoshakai gakkai, ed., Ho no kochiku (Hoshakai-
gaku), No. 58 (Yuhikaku, 2003).
PUBLICATIONS
OFTHEHAGUEACADEMY
OFINTERNATIONALLAW
COLLECTEDCOURSES
Since 1923 the top names in international law have taught at the Hague
Academy of International Law. All the volumes of the Collected
Courses which have been published since 1923 are available, as, since
the very first volume, they are reprinted regularly in their original format.
There is a complete and detailed catalogue. (See below.)
Since 2008, certain courses have been the subject of a pocketbook edi-
tion (see below).
In addition, the total collection now exists in electronic form. All works
already published have been put “on line” and can be consulted under
one of the proposed subscription methods, which offer a range of tariffs
and possibilities.
WORKSHOPS
The Academy publishes the discussions from the Workshops which
it organizes. The latest title of the Workshops already published is as
follows : Topicality of the 1907 Hague Conference, the Second Peace
Conference (2007).
CENTREFORSTUDIESANDRESEARCH
The scientific works of the Centre for Studies and Research in Inter-
national Law and International Relations of the Hague Academy
of International Law, the subjects of which are chosen by the
Curatorium of the Academy, have been published, since the Centre’s
1985 session, in a publication in which the Directors of Studies
report on the state of research of the Centre under their direction.
The titles of the latest booklets published are as follows : The
Cultural Heritage of Mankind (2005) ; Terrorism and International
Law (2006) ; Rules and Institutions of International Humanitarian
Law Put to the Test of Recent Armed Conflicts (2007). In addi-
tion, when the work of the Centre has been of particular interest
and originality, the reports of the Directors of Studies together with
the articles by the researchers form the subject of a collection pub-
lished in the series The Law Books of the Academy. (See below.)
Requests for information, catalogues and orders for publications

mustbeaddressedto
MARTINUS NIJHOFF PUBLISHERS
P.O. Box 9000, 2300 PA Leiden — The Netherlands
(http://www.brill.nl)
INDEXBYVOLUMEOFTHECOURSESPUBLISHED
THESELASTYEARS
Volume308(2004)
Rigo Sureda, A. : The Law Applicable to the Activities of
International Development Banks, 9-252.
González Lapeyre, E. : Transport maritime et régime por-
tuaire, 253-378. (ISBN 978-90-04-14547-4)
Volume309(2004)
Karaquillo, J.-P. : Droit international du sport, 9-124.
Maresceau, M. : Bilateral Agreements Concluded by the
European Community, 125-452.
(ISBN 978-90-04-14548-1)
Volume310(2004)
Kamto, M. : La volonté de l’Etat en droit international, 9-428.
(ISBN 978-90-04-14552-8)
Volume311(2004)
Struycken, A. V. M. : Co-ordination and Co-operation in
Respectful Disagreement. General Course on Private
International Law, 5-552. (ISBN 978-90-04-14553-5)
Volume312(2005)
Gaudemet-Tallon, H. : Le pluralisme en droit international
privé : richesses et faiblesses (Le funambule et l’arc-en-
ciel). Cours général, 9-488.
(ISBN 978-90-04-14554-2)
Volume313(2005)
Mani, V. S. : “Humanitarian” Intervention Today, 9-324.
David, E. : La Cour pénale internationale, 325-454.
(ISBN 978-90-04-14555-9)
Volume314(2005)
Draetta, U. : Internet et commerce électronique en droit inter-
national des affaires, 9-232.
Daillier, P. : Les opérations multinationales consécutives à
des conflits armés en vue du rétablissement de la paix,
233-432. (ISBN 978-90-04-14557-3)
Volume315(2005)
Dogauchi, M. : Four-Step Analysis of Private International
Law, 9-140.
Mohamed Salah, M. M. : Loi d’autonomie et méthodes de
protection de la partie faible en droit international privé,
141-264.
Radicati di Brozolo, L. G. : Arbitrage commercial internatio-
nal et lois de police. Considérations sur les conflits de
juridictions dans le commerce international, 265-502.
(ISBN 978-90-04-14558-0)
Volume316(2005)
Cançado Trindade, A. A. : International Law for Humankind :
Towards a New Jus Gentium (I). General Course on Public
International Law, 9-440.
(ISBN 978-90-04-15375-2)
Volume317(2005)
Cançado Trindade, A. A. : International Law for Humankind :
Towards a New Jus Gentium (II). General Course on
Public International Law, 9-312.
Borrás, A. : Le droit international privé communautaire : réa-
lités, problèmes et perspectives d’avenir, 313-536.
(ISBN 978-90-04-15376-9)
Volume318(2005)
Kinsch, P. : Droits de l’homme, droits fondamentaux et droit
international privé, 9-332.
Bothe, M. : Environment, Development, Resources, 333-516.
(ISBN 978-90-04-15377-6)
Volume319(2006)
Hartley, T. C. : The Modern Approach to Private International
Law. International Litigation and Transactions from a
Common-Law Perspective. General Course on Private
International Law, 9-324.
Crawford, J. : Multilateral Rights and Obligations in Interna-
tional Law, 325-482.
(ISBN 978-90-04-15378-3)
Volume320(2006)
Goldstein, G. : La cohabitation hors mariage en droit interna-
tional privé, 9-390.
(ISBN 978-90-04-15379-0)
Volume321(2006)
Shaker, M. I. : The Evolving International Regime of Nuclear
Non-Proliferation, 9-202
Klein, P. : Le droit international à l’épreuve du terrorisme,
203-484. (ISBN 978-90-04-16100-0)
Volume322(2006)
Loquin, E. : Les règles matérielles internationales, 9-242.
Dinstein, Y. : The Interaction between Customary Internatio-
nal Law and Treaties, 243-428.
(ISBN 978-90-04-16101-6)
Volume323(2006)
Fernández Arroyo, D. P. : Compétence exclusive et compétence
exorbitante dans les relations privées internationales, 9-
260.
Silberman, L. J.. : Co-operative Efforts in Private International
Law on Behalf of Children : The Hague Children’s Con-
ventions, 261-478. (ISBN 978-90-04-16102-3)
Volume324(2006)
Bedjaoui, M. : L’humanité en quête de paix et de développe-
ment (I). Cours général de droit international public, 9-530.
(ISBN 978-90-04-16103-0)
Volume325(2006)
Bedjaoui, M. : L’humanité en quête de paix et de développe-
ment (II). Cours général de droit international public, 9-542.
(ISBN 978-90-04-16104-7)
Volume326(2007)
Collins, L. : Revolution and Restitution : Foreign States in
National Courts (Opening Lecture, Private International
Law Session, 2007), 9-72.
Gotanda, J. Y. : Damages in Private International Law, 73-
408. (ISBN 978-90-04-16616-5)
Volume327(2007)
Mayer, P. : Le phénomène de la coordination des ordres juri-
diques étatiques en droit privé. Cours général de droit
international privé (2003), 9-378.
(ISBN 978-90-04-16617-2)
Volume328(2007)
Garcimartín Alférez, F. J. : Cross-Border Listed Companies,
9-174.
Vrellis, S. : Conflit ou coordination de valeurs en droit inter-
national privé. A la recherche de la justice, 175-486.
(ISBN 978-90-04-16618-9)
Volume329(2007)
Pellet, A. : L’adaptation du droit international aux besoins
changeants de la société internationale (conférence inau-
gurale, session de droit international public, 2007), 9-48.
Gaillard, E. : Aspects philosophiques du droit de l’arbitrage
international, 49-216.
Schrijver, N. : The Evolution of Sustainable Development
in International Law : Inception, Meaning and Status,
217-412.
(ISBN 978-90-04-16619-6)
Volume330(2007)
Pamboukis, Ch. P. : Droit international privé holistique : droit
uniforme et droit international privé, 9-474.
(ISBN 978-90-04-16620-2)
Volume331(2007)
Pinto, M. : L’emploi de la force dans la jurisprudence des
tribunaux internationaux, 9-160
Brown Weiss, E. : The Evolution of International Water
Law, 161-404. (ISBN 978-90-04-17288-3)
Volume332(2007)
Carlier, J.-Y. : Droit d’asile et des réfugiés. De la protection
aux droits, 9-354.
Fatouros, A. A. : An International Legal Framework for
Energy, 355-446.
(ISBN 978-90-04-17198-5)
Volume333(2008)
Müllerson, R. : Democracy Promotion : Institutions, Interna-
tional Law and Politics, 9-174.
Pisillo Mazzeschi, R. : Responsabilité de l’Etat pour vio-
lation des obligations positives relatives aux droits de
l’homme, 174-506. (ISBN 978-90-04-17284-5)
Volume334(2008)
Verhoeven, J. : Considérations sur ce qui est commun. Cours
général de droit international public (2002), 9-434.
(ISBN 978-90-04-17289-0)
Volume335(2008)
Beaumont, P. R. : The Jurisprudence of the European Court of
Human Rights and the European Court of Justice on the
Hague Convention on International Child Abduction, 9-104.
Moura Vicente, D. : La propriété intellectuelle en droit interna-
tional privé, 105-504.
(ISBN 978-90-04-17290-6)
Volume336(2008)
Decaux, E. : Les formes contemporaines de l’esclavage, 9-198.
McLachlan, C. : Lis Pendens in International Litigation, 199-
554.
(ISBN 978-90-04-17291-3)
Volume337(2008)
Mahiou, A. : Le droit international ou la dialectique de la rigueur
et de la flexibilité. Cours général de droit international public,
9-516. (ISBN 978-90-04-17292-0)
Volume338(2008)
[A paraître/Forthcoming]
Volume339(2008)
Sicilianos, L.-A. : Entre multilatéralisme et unilatéralisme :
l’autorisation par le Conseil de sécurité de recourir à la
force, 9-436.
(ISBN 978-90-04-17294-4)
Volume340(2009)
Beaumont, P. R. : Reflections on the Relevance of Public Inter-
national Law to Private International Law Treaty Making
(Opening Lecture, Private International Law Session, 2009),
9-62.
Carbone, S. M. : Conflits de lois en droit maritime, 63-270.
Boele-Woelki, K. : Unifying and Harmonizing Substantive Law
and the Role of Conflict of Laws, 271-462.
(ISBN 978-90-04-17295-1)
Volume341(2009)
Bucher, A. : La dimension sociale du droit international privé.
Cours général, 9-526.
(ISBN 978-90-04-18509-8)
Volume342(2009)
Musin, V. : The Influence of the International Sale of Goods
Convention on Domestic Law Including Conflict of Laws
(with Specific Reference to Russian Law), 9-76.
Onuma, Y. : A Transcivilizational Perspective on International
Law (Questioning Prevalent Cognitive Frameworks in the
Emerging Multi-Polar and Multi-Civilizational World of the
Twenty-First Century), 77-418.
(ISBN 978-90-04-18510-4)
THELAWBOOKSOFTHEACADEMY
(By chronological order of publication)
Dupuy, R.-J. (dir. publ./ed.) : Manuel sur les organisations

internationales/A Handbook on International Organiza-
tions. (1988, 714 pages.)
(ISBN 978-90-247-3658-4)
Dupuy, R.-J., and D. Vignes (eds.) : A Handbook on the New
Law of the Sea. (2 volumes)
Volume 1 : 1991, 900 pages. (ISBN 978-0-7923-0924-3)
Volume 2 : 1991, 882 pages. (ISBN 978-0-7923-1063-1)
Bardonnet, D. (dir. publ./ed.) : Le règlement pacifique des dif-
férends internationaux en Europe : perspectives d’avenir/
The Peaceful Settlement of International Disputes in
Europe : Future Prospects. (1992, 704 pages.) (Broché/PB.)
(ISBN 978-0-7923-1573-5)
Carreau, D., et/and M. N. Shaw (dir. publ./eds.) : La dette
extérieure/The External Debt. (1995, 818 pages.)
(ISBN 978-90-411-0083-2)
Dupuy, R.-J. (dir. publ./ed.) : Manuel sur les organisations
internationales/A Handbook on International Organiza-
tions. (2e éd./2nd ed., 1998, 1008 pages.)
(ISBN 978-90-411-1119-7)
Eisemann, P. M., et/and M. Koskenniemi (dir. publ./eds.) : La
succession d’Etats : la codification à l’épreuve des
faits/State Succession : Codification Tested against the
Facts. (2000, 1058 pages.)
(ISBN 978-90-411-1392-4)
Caron, D. D., et/and Ch. Leben (dir. publ./eds.) : Les aspects
internationaux des catastrophes naturelles et industrielles/
The International Aspects of Natural and Industrial Catas-
trophes. (2001, 912 pages.)
(ISBN 978-90-411-1485-3)
Bothe, M., et/and P. H. Sands (dir. publ./eds.) : La politique
de l’environnement. De la réglementation aux instruments
économiques/Environmental Policy. From Regulation to
Economic Instruments. (2002, 958 pages.)
(ISBN 978-90-411-1604-8)
Forlati Picchio, L., et/and L.-A. Sicilianos (dir. publ./eds.) :
Les sanctions économiques en droit international/Eco-
nomic Sanctions in International Law. (2004, 912 pages.)
(ISBN 978-90-04-13701-1)
Boisson de Chazournes, L. et/and S. M. A. Salman (dir.
publ./eds.) : Les ressources en eau et le droit interna-
tional/Water Resources and International Law. (2005,
848 pages.)
(ISBN 978-90-04-13702-8)
Mahiou, A., et/and F. Snyder (dir. publ.) : La sécurité alimen-
taire/Food Security and Food Safety. (2006, 992 pages.)
(ISBN 978-90-04-14543-6)
Kahn, Ph., et/and T. W. Wälde (dir. publ./eds.) : Les aspects
nouveaux du droit des investissements internationaux/
New Aspects of International Investment Law. (2007,
1072 pages.)
(ISBN 978-90-04-15372-1)
Glennon, M. J., et/and S. Sur (dir. publ./eds.) : Terrorisme
et droit international/Terrorism and International Law.
(2008, 864 pages.)
(ISBN 978-90-04-16107-8)
Nafziger, J. A. R., et/and T. Scovazzi (dir. publ./eds.) : Le
patrimoine culturel de l’humanité/The Cultural Heritage
of Mankind. (2008, 1168 pages.)
(ISBN 978-90-04-16106-1)
Daudet, Y. (dir. publ./ed.) : Actualité de la Conférence de La
Haye de 1907, Deuxième Conférence de la Paix/Topi-
cality of the 1907 Hague Conference, the Second Peace
Conference. (2008, 528 pages.) (Broché/PB.)
(ISBN 978-90-04-17422-1)
Forthcoming
Momtaz, D., et/and M. J. Matheson (dir. publ./eds.) : Les
règles et institutions du droit international humanitaire
à l’épreuve des conflits armés récents/Rules and Institu-
tions of International Humanitarian Law Put to the Test
of Recent Armed Conflicts. (2009)
(Relié/HB : ISBN 978-90-04-17283-8)
(Broché/PB : ISBN 978-90-04-18697-2)
POCKETBOOKSOFTHEACADEMY
(By chronological order of publication)
Gaillard, E. : Aspects philosophiques du droit de l’arbitrage

international, 2008, 252 pages.
(ISBN 978-90-04-17148-0)
Schrijver, N. : The Evolution of Sustainable Development in In-
ternational Law : Inception, Meaning and Status, 2008, 276
pages.
(ISBN 978-90-04-17407-8)
Moura Vicente, D. : La propriété intellectuelle en droit interna-
tional privé, 2009, 516 pages.
(ISBN 978-90-04-17907-3)
Decaux, E. : Les formes contemporaines de l’esclavage, 2009,
264 pages.
(ISBN 978-90-04-17908-0)
McLachlan, C. : Lis Pendens in International Litigation, 2009,
492 pages.
(ISBN 978-90-04-17909-7)
Carbone, S. M. : Conflits de lois en droit maritime, 2010,
312 pages.
(ISBN 978-90-04-18688-0)
Boele-Woelki, K. : Unifying and Harmonizing Substantive Law
and the Role of Conflict of Laws, 2010, 288 pages.
(ISBN 978-90-04-18683-5)
Onuma, Y. : A Transcivilizational Perspective in International
Law, 2010, 492 pages.
(ISBN 978-90-04-18689-7)
[A paraître/Forthcoming]
Alvarez, J. : A New Public International Law Regime for Foreign
Direct Investment, 2010.
(ISBN 978-90-04-18682-8)
Thürer, D. : International Humanitarian Law : Theory and Prac-
tice, 2010.
(ISBN 978-90-04-17910-3)
Printed in June 2010
by Triangle Bleu,
59600 Maubeuge (France)
Setting : R. Mirland,
59870 Warlaing (France)
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© Hague academy of InternatIonal law, 2010

all rights reserved

cover illustration : A manga by Yamashina Keisuke, artist, Tokyo, 2010.

A collection of law lectures

There is nothing new in the observation that positive

issues : what is the international law of the twenty-first

of non-State players, is certainly one of the indispens-

nance of the State, holders of power, utilitarian ideas

(2) the significance of the transnational

(3) the most frequently asked question :

(1) critiques of west-centrism and their

(3) multinational treaties as a cognitive basis

(2) Problems related to “treaties” during the

(2) the macartney mission and the collision

(1) critical differences between today’s

(2) rectifying excessive liberty-centrism :

(1) the political and ideological nature of

a transcivilizational perspective and manga ?

* the order of names is given according to the proper

on the other hand, I have tried to maintain the vivid

** the term “transcivilizational” is a neologism. I first

like major poems, paintings, novels, movies and other

atlantic or euro-american) centricity of the prevalent

for chapter II, I have learned not only from interna-

tions, etc. Professors abe Kohki, Philip alston, abdul-

“Seek not what the sages taught.

This is a research on international law based on my

tional law can do something, but its power, value and

national law, we can make international law more

world by comparing them with those in the twentieth-

civilizational perspective should be able to respond to

must respond to this new reality and reconstruct its

dicative, then we can identify cognitive bases of inter-

only through general recognition by the addressee

re-conceptualized and made responsive to the diverse

examination itself, can we revitalize the study of inter-

“Is it not a pleasure to learn and review

Because humans have used law so long to manage

tioning in international society as well. However, (public)

But in many cases, this kind of argument does not

International society characterized as such a society

however reluctantly, generally seek to comply with

tional law of co-operation” expresses this second

change ? And how should it change ? How should we

I. From a State-centric and West-centric

such a comparison is certainly needed and useful, it

where most of today’s international legal norms were

(2) Characteristic features of the twentieth-century

characterized as the “era of America” 6. Major West

inevitable to adopt the State-centric structures to protect

tion by States. Therefore, with the incessant increase of

2. Conflicts destabilizing the international order 7

question in various fields. The predominant features

(1) The conflict between the transnationalization of

The mass media of developed countries constantly

“[n]o State or group of States has the right to inter-

political, economic and cultural elements are in vio-

managed mainly by corporations and by government

(2) The conflict between the global quest for human

(The Pocket Books of the Hague Academy of International Law _ les Livres de Poche de l'Académie de Droit International de la Haye Ser.) Yasuaki Onuma - A Transcivilizational Perspective on Internation

(The Pocket Books of the Hague Academy of International Law _ les Livres de Poche de l'Académie de Droit International de la Haye Ser.) Yasuaki Onuma - A Transcivilizational Perspective on Internation

(The Pocket Books of the Hague Academy of International Law _ les Livres de Poche de l'Académie de Droit International de la Haye Ser.) Yasuaki Onuma - A Transcivilizational Perspective on Internation