I. THE RISE OF CHINA AND INDIA, AND THE CHANGE IN INTERNATIONAL LAW
There is an industry producing books on the rise of China and India.
Judging by the intellectual curiosity aroused by the impending effect on world politics of the emergence of these two states as economic and political powers, there is an evident need to consider the impact of the rise of the two states on the existing structure of international law. The rise of China, in particular, has significance. The dramatic changes in the political leadership of the US with the election of President Trump portended a change in approach in US policy on China. It accentuates the possibility of hostility between these two powers, premised on the theory that power changes inevitably provoke hostility,
which may result in the clash between two different approaches to international law. India will be an inevitable participant in this clash of systems of international law, being a regional power with a role to play in such possible contests. It has supported the Chinese position on occasion but is ambivalent on many issues. However, an Indian move towards the US for security reasons is evident in recent Indian policies.
As editors of a recent work, China, India and the International Economic Order,
we thought it appropriate to begin a study of the potential impact of the rise of these two Asian states on international law. Others have attempted the study of the individual impact of the two states on international law.
Having benefited from the separate works on China and India, we believe there are also good reasons to put China and India together and discuss their joint bearings on the international legal order. Our project seeks to look at the impact of both states to determine whether they would act uniformly or differently, and the respective impact in either scenario.
That is because, first of all, whatever the eventual outcome, the attitudes that these two states take, either together or individually, will make changes in international law and shift it from its present Euro-American moorings.
The two states represent together almost a third of humanity. Greater legitimacy should attach to their joint views than to the existing normative propositions they may seek to oppose. They were states of historical opulence together commanding over half of the world’s manufactured and agricultural goods prior to the age of European dominance. If they rise to power again as major trading nations and as military powers, they are merely recovering a status that went into abeyance due to the intervention of European hegemony in the region and in the world.
They have a shared experience of eclipse due to the imposition of control by the European powers. China was not fully colonized but its trade was prised open after the Opium Wars. The British in particular financed their adventures in India through the selling of opium to the Chinese people. Despite protests, the opium trade, that enervated China in many ways, continued. China was also subjected to a system of extra-territoriality, which required that European traders and settlers in China were not subject to Chinese law but to the law of their own home states.
This ignominy, referred to as “a century of humiliation”, still agitates China and influences its foreign policy.
The Indian experience was similar. The manner of the ending of colonialism through peaceful agitation may not have left the same rancour against foreign control as it did in China.
The British East India Company conquered India in stages.
It was an instance of private power, unrecognized in international law, conquering other peoples. The perfidy involved in the situation must not be overlooked, for it was but an instance where Eurocentric international law disguised an inequity by shielding the Company from any responsibility on the grounds that it did not have personality in international law, and denying any status to the people of the conquered areas on the grounds that they did not possess a standard of civilization necessary to enjoy such status. The hoary justification for colonialism was that the people needed to be brought up to the European standard of civilization. Civilizing India was the “white man’s burden”.
After the First War of Indian Independence (the Indian Mutiny of 1857), the British government took control of India until Indian independence in 1947.
Both China and India were denied personality on the pretext that they did not have a “standard of civilization” equal to that of the European states.
Despite being the cradles of human civilization, China and India needed, or so the Europeans maintained, to be elevated to the standards of European civilization through tutelage under imperial subjection.
However, in the modern age, as China and India emerge from that imperial aberration as significant economic, political, and military powers, they are bound to impact the existing international legal order and effect significant changes in the existing Eurocentric international law.
Change in international law results when epochal events take place, such as at the conclusion of the two World Wars or where there is substantial resistance to the norms of existing international law, either on the basis of their injustice or on grounds that they do not tie in with the visions for a world order of new actors who have emerged with sufficient power to change the norms they dislike.
They also take place when there is overwhelming recognition of the moral deficiency in the existing order or any of its normative prescriptions. Imperialism is now perceived as inconsistent with moral values based on self-determination. The norms that were associated with maintaining a system of inequality under imperialism became suspect and led to the decolonization of much of Africa and Asia, including India. To the extent that the imperialistic system may continue with hidden rules of inequality, the rules of that system will become suspect, will be objects of resistance, and will give way. Change then comes about when groups having significant power resist earlier unjust norms. With their increase in power, China and India can jointly marshal such power to displace rules of international law that emanate from imperial roots or are perceived as unjust. The rise of China and India presages changes. They may bring about the changes they desire when their interests coincide. It could also be that they may at some future time have the power to impose their will acting singly, at least within their immediate region. It is axiomatic that changes will result, consequent on their rise in status as big powers. One strong reason for such change is that both India and China share strong cultural and philosophical predispositions to legal and political orders based on morality. The task is to assess the changes that have taken place and anticipate those which may take place. An eventual aim of our project is to set out the changes that could take place and the context within which they may take place. The construction of a theoretical framework within which the changes will take place will also be useful.
Thus the connecting theme is change. We argue that the two states will lead other states, principally the newly industrializing states
and the developing states,
in making changes to the existing structure of the law either by leading resistance to norms that have been laid down on the basis of hegemonic power by Western states or by creating counter-norms to these existing norms. They may bring about dissonance as a result of their attitudes to existing norms or the norms proposed by the Western powers. Change may result as other states may choose to follow the leadership of both or one rather than the other of these states. Since our model envisages, in one sense, conduct motivated by realist interests, each of the states could also oppose or conform to such conduct for their own reasons. The model also envisages policies based on claims to justice made by both or one of the states. It is likely that such claims are more readily espoused by other states, particularly developing states, triggering a pressure for change. When such situations eventuate, there could be change, depending on how strong the resistance to existing norms is.
While showing resistance to existing norms, the two states may also seek to profit from existing international law. This is particularly so when they have disputes between themselves or with other states. It is most evident in their boundary disputes, where arguments based on traditional Eurocentric international law on the acquisition of property are used.
The same applies in the South China Sea dispute, where China claims historical rights in almost the entire South China Sea from imperial days.
China is inflexible in maintaining its claim, regarding it as a core interest of its foreign policy. This duality is a feature that has been noted, particularly when the two states make territorial claims or when they seek to advance their interests in international trade and investment. They do not confront the system but conform when the existing system can be utilized to further their ends. This ambivalence in their attitudes is perfectly consistent with the fact that they do not resist norms capriciously but only when necessary to secure a higher national interest or to secure interests that they jointly justify on moral grounds. They are content to live within the system while confronting rules they dislike. This duality does not dent in anyway the thesis that is advanced in this paper, as it does provide leeway for the explanation that the two states adopt a realist vision when it suits them. Such a realist vision condones conformity with existing norms of international law when they are seen as advantageous but does not find it inconsistent that the existing norms should be displaced when collective interests, either moral or politically beneficial, require them to be displaced.
Of course, China and India do not act or think alike in many areas. Yet, in the areas of their dissent from each other, the contrast will provide indications as to how they react to specific situations and what motivates them. This contrasting behaviour is itself significant in that the explanations for such difference will demonstrate internal and other constraints which dictate against a uniformity in approach that may exist in other areas.
As noted, this paper aims to set a framework and research questions for exploring the impact of the rise of China and India on the evolution of the international legal order, focusing on areas where there are possibilities for China and India to make meaningful contributions, in both state practice and theory-building, that may affect the direction of the future development of international law. The larger project includes the study of the security-based international political system, energy supply, climate change, and human rights, as well as international trade and investment, which would offer a look at the whole range of international law through the study of these issues, indicating how this law will be affected by the return to big power status of China and India. This paper does not have the same ambition as the whole project. It attempts to analyze and answer three topics: (1) the common and different stances of China and India on the existing international legal order; (2) the changes China and India have sought in the international status quo; and (3) the contributions that have been or could be brought by China and India to the development of international law, and their implications for the future.
We propose an analytical framework in which the impact of the rise of China on international law is viewed through two lenses, which we call the romantic vision and the realist vision. The romantic vision is the one that the leaders of the two states often attest to whenever they meet. It is inspired by the historical co-operation between the two states, and aspires that such co-operation will resume as the two rise together to big power status. It harks back to a past when the two states had deep cultural, religious, and social attachments. There is the assumption that this past will continue into the future. The second is the realist vision taken in the context of the fact that they co-operate in many matters but are equally rivals, competing for resources, trade, and, importantly, leadership of the region and the world. They also have an intractable boundary problem accentuated by the fact that the contested boundary involves Pakistan, an ally of China and a perennial enemy of India. Unresolved issues such as Kashmir and Tibet further complicate their relationship.
Needless to say, the two visions are, first of all, two different yet intertwined perspectives on China, India, and international law. In some sense, they are two ideal-type models of behaviour. None of them alone constitutes the reality. However, the international behaviours of China and India, jointly or individually, demonstrate more of the elements of one vision than the other at different times of history. We advance the proposition that the search for three factors determines the attitudes of China and India to international law and, more broadly, the orientation of their behaviours in the international order: national interest, power status, and justice. The three factors are embedded throughout our discussions of the two visions. The weight put by each country behind each factor will affect the formation of their individual and/or joint position in bilateral and international relations.
While it is clear that both China and India would relentlessly purse their national interests as well as global power status, it is the consideration of global justice which may determine whether the romantic vision will be eventually re-established. It involves revisiting the international order, including the international legal order, to help alleviate the economic, social, and political problems in developing countries. While many of these problems are essentially caused by the domestic political and legal structures of those countries, “the misery in many regions has a lot to do with the prevailing international system, comprising international law as its normative order and international politics as its actual practice”.
In other words, the problems are also attributed to unjust elements in the international system and the history of international law.
While the formation of international law is often a gaming process mainly influenced by the rise of power of the great powers, the pursuit of justice would require China and India, as leaders of the developing countries, to meet the demands of justice in international relations and global order in shaping the development of international law.
The paper proceeds as follow. Part II describes the romantic vision and the realist vision. Part III sets out six broad questions on our research agenda which we believe should be studied in a comprehensive and systematic manner within the analytical framework of the romantic and realist visions. Part IV concludes.
II. THE TWO VISIONS OF CHINA-INDIA RELATIONS
A. The Romantic Vision
The romantic vision weighs up the conditions and factors which can enable co-operation and collaboration between China and India at both bilateral and international levels. It emphasizes the significance of cultural origins and historical links in shaping China-India bilateral relations and their international behaviours. It recognizes that the two countries, stemming from their past sufferings from the West-dominated international law before independence, will pursue a different kind of justice that maintains equality of sovereignty and advances the Five Principles of Peaceful Co-existence to prevent the domination of the international society by any superpower, pushes for limited redistribution of global wealth in favour of developing countries in the name of trade and development, protects the rights of developing countries in preserving regulatory space against the pressure from forces representing American and global capitalism, and raises the representation of developing countries in global governance institutions. In addition, they are expected to peacefully solve the border and other disputes between them, following the rules of international law and even contributing to the development of international law on sovereign integrity and territorial disputes.
Using the words of Chinese Foreign Minister Wang Yi: “The Chinese ‘dragon’ and the Indian ‘elephant’ must not fight each other, but dance with each other.”
This vision of co-operation between China and India in the construction of a world order devoted to justice and the concept of harmonious relations is an old one going deep into the shared cultures of the two countries. This romantic vision surfaces every so often in modern times, keeping the vision a viable presence despite the tensions that arise between the two countries which may make it frustratingly untenable. The fundamental similarities in the notion of dharma that dictates Indian legal philosophy, as well as life with its Chinese counterpart and its concept of li, may form a basis for suggesting that the legal order that both nations seek will not be different in qualitative terms.
The two concepts mandate a duty-centred approach to conduct. Transferred to the international sphere, they command a duty to preserve peace and stability. The pursuit of rights was the basis of international order in the West. The doctrines of Eurocentric international law from the acquisition of statehood and title to territory, the rules on state responsibility, and the use of force to assert a just cause are rooted in the notion of the rights of states. The role of dispute resolution is tied to the recognition of the rights of one and the blame on the other. This was not the basis of the view of the world in the legal philosophy of Asia. The notion of preserving harmony and desisting from violence is the preferred course in the philosophy of China and India. There was a duty to ensure that harmony amongst people was maintained. War was an ultimate weapon of statecraft but was to be avoided at all costs.
Ancient texts of both states concentrate on these ideas and play down rights-based arguments as justifications for any conduct in interstate relations. While this aspect of traditional attitudes can be demonstrated, it is best to stick to evidence of its continued manifestation in present times.
Evidence for the continued manifestation of the quest for harmony comes from several quarters. The first constitutes of historical contacts. The second constitutes the instances in which international lawyers from the two states have looked at the vision of a world order through their shared cultural history, and the third is the modern period when the leaders of the two states have articulated, though mostly separately, their vision of establishing a harmonious order on the basis of justice rather than on the basis of power. The cynic may dismiss these as rhetorical standpoints based on deception, but the frequent assertions of recourse to such principles by statesmen from the two countries must be taken seriously, particularly if there is a basis for these assertions in practice. It is best to begin by analyzing the different instances which sustain the romantic vision of the world order as seen by China and India.
While the past in culture and philosophy is relevant, the recent adherence to justice as the basis of pursuing goals through international law is important. The pursuit of justice is itself rooted in cultural perceptions. It is more important to emphasize its recent articulation. The independence of India was secured through the assertion of the principle of self-determination, itself a moral principle that prevents the domination of one people by another. It is on this basis that both China and India sought to secure themselves from domination by the Western powers. China’s assertion of the doctrine of unequal treaties imposed upon it by the West is heavily centred upon arguments of the injustice of such treaties having a legal form but secured through means of an asymmetrical relationship.
Ending them was perceived as just. Both states began life with a heavy commitment to norms based on justice, which commitment they continued in securing the decolonization of other states of Africa and Asia. Thereafter they gave leadership to the formulation of a New International Economic Order [NIEO] which was intended to secure just relations in trade and investment.
This early co-operation at a time when both states were beginning to participate as independent and secure entities in the international order was based on romantic visions of co-operation, based on securing a just world order in which they would secure a new order that was free of the domination of hegemonic groups. That was an early vision, traces of which continue to dictate the course of the policies of China and India.
The China-India war in 1962 goes against this romantic vision. But it tends to get played down in modern times by the leaders of the two countries. As the former President of India, Pranab Kumar Mukherjee, related in a speech:
During my visit to China, the Chinese Prime Minister Wen Jiabao told me: “The time when China and India enjoyed friendly relations lasted 2000 years or 99.9% of the total of our interactions. In terms of conflicts, the conflicts between our two countries lasted only 2 years or less than 0.01% of our total interactions.”
Past interactions between the two peoples go back deep into history. Early contacts are recorded in the travel accounts of individuals, art forms that are common, the spread of Buddhism, epics like the Chinese classic Journey to the West, and contacts in educational spheres. Chinese travellers such as Fah Hsien have recorded reminiscences of their stays in India. Common art forms also testify to bonds. The spread of Buddhism took place without proselytization and continues to be an abiding influence in modern China. It helps to cement bonds between the two peoples and entrenches a similarity in their philosophical outlooks on life. Harmony in life and nature are basic to the traditions of both peoples. Yet the fact that there were the two years of war sours this optimism in that troops still face each other on the China-India border to this day. Both countries interacted peacefully in exchanging high thinking and other more noble pursuits of mankind in the past when Europe made international law in the context of its wars. The romantic vision needs to be looked at in some depth.
The writings of international lawyers do not seek to stress bonds. The assessments are not comparative but stress the foundations of each state’s historical attitudes separately. The few international lawyers who have written on Chinese and Indian attitudes have not referred to shared views. They have treated each state separately. There are studies on international relations which have compared the approaches of the two states.
But, there are none on international law. It is left to future scholars to discover whether there are similarities in the historical visions of the two states. As indicated, the concepts of dharma and li have such basic similarities that it is possible to argue that there is a shared vision of the world order. Both are concepts relating to how life should be lived as well as the ordering of a good society. International lawyers belonging to the two states transport these concepts into the construction of a view of a world order that bears remarkable similarities. Indian international lawyers have stressed the origins of an Indian international law in early religious texts that advocate the moral concept of dharma.
The foundations of international law and international relations as understood in Ancient China are rooted in moral concepts.
Ancient China had a tributary system which viewed peripheral states as inferior. It was not a system that was based on interdependence, but in early periods, when split into different kingdoms, it had recognized a system that needed to be based on just principles of leadership. It is believed that these early ideas and philosophical roots still colour the conduct of foreign policy of the two states. If so, concordant behaviour may become possible at least in some areas where the need for pragmatism is less or where pragmatism dictates concordance.
The romantic vision may also be aided through the construction of a similar identity for both states. Both states suffered the humiliation of foreign control. India was the “jewel” in the Crown of the British Empire over which the sun was never to set. China, after the Opium War had a “century of humiliation” (bainian guochi) which still arouses rancour in Chinese thinking, as noted previously. The perception of the Middle Kingdom as being at the top of the hierarchy survives in Chinese thinking that so large a state with such a large population and history cannot but return to the days of its former glory. India shares a similar perception as a state that once produced nearly a quarter of mankind’s wealth. The sharing of Third World leadership and its continuation in modern international politics also indicates joint action. Both countries purport to speak for the periphery, though these claims may become less significant in the future.
In the economic sphere, both states adopt state-controlled open-door policies. Their trade and investment rapidly expand overseas. They seek energy sources for their rapid industrialization, often competing with each other, in other states. They have common problems, requiring similar policies. The presence of secessionist forces within both states requires the assertion of non-interference. Negative factors like corruption and unease following the increasing gap between the rich and the poor are common to both countries. These common perceptions, and the construction of a similar identity for the two states, may lead to concordant behaviour.
On the basis of a constructivist theory, it may be possible to support the romantic vision of a joint push towards a shared vision of a world order.
It is important to understand later events in the context of this cultural and philosophical unity. Though the Communist Revolution initially turned away from the past, there is a renewal of ancient philosophical views in modern China. During the early period, the Communist Party drew closer to India for entirely different reasons. The Communist appeal was to peasants, workers, and intellectuals to broaden China’s attraction. Many in India were attracted to China by this appeal.
Its culmination was at the Bandung Conference, where the dynamic Chinese Foreign Minister, Zhou Enlai, was able to forge a positive understanding of China by the Third World, including India. India had recognized the Communist government early. It ensured that China emerged at the Bandung Conference as a leader of the Third World, ending China’s isolation from international politics.
At the Cairo Conference of Non-Aligned Nations, China sought to establish its historical links with Asia and Africa, and the silk route formed a centrepiece of that link.
The People’s Republic of China was absent during these years at the United Nations as its seat was occupied by Taiwan in the name of the Republic of China. Its voice could be heard only through India and other non-aligned nations.
Both Nehru and Mao sought to change the world. Nehru used force to annex Hyderabad and Goa. He did not complete the annexation of Kashmir through force against a Pakistan which was then weak. China waged a border war on Vietnam in 1979 and attacked Vietnam at sea. Both Nehru and Mao supported Vietnam in its wars against the US. In the case of Vietnam, events proved the moral legitimacy of the decisions of China and India. Both leaders wanted change to the international structure, though their ability to bring it about was not great. The war between India and China, arising from a territorial dispute on the Aksai Chin border, ended this early friendship. India from then on has looked upon China with suspicion, which somewhat dents the thesis of a romantic vision of co-operation between the two states. The suggestion is that, despite the war, there is a residual urgency for them to co-operate on many fronts as a result of their common policies.
At the present juncture, China and India, particularly in areas where they are prepared to engage in concerted action, can bring about the changes they desire. To the extent that justice formed a centrepiece of their world vision, there would be many other states which will join in the endeavour. The romantic vision will work particularly when the two states seek a justice-based solution in opposing power-based norms. Thus, for example, opposition to aspects of the Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPS], particularly as it affects access to medicines, will lead to norm changes as the leadership of China and India in effecting change will be accepted by other developing states. The defeat of the Singapore issues, largely formulated by the developed world, is an example of concerted action by India and China.
As a result of the support it receives from powerful NGOs, the resistance that results will lead to change. There is already evidence of such change having been effected. The romantic vision will remain a model with substance, but will not provide the whole explanation for the conduct of China and India. There would be instances in which the vision fails. Nevertheless, for the reasons stated, the romantic model must be taken seriously.
In successive conferences of the non-aligned movement, the themes that were stressed in setting the non-aligned states as different from other states were that they believed in mutual tolerance and non-interference. Unity of the movement was based on a common opposition to imperialism. The Indian national movement and the pacific struggle against British rule initiated by Gandhi had captured the imagination of Afro-Asian people. The acceptance of self-determination and the subsequent decolonization of Africa and Asia illustrated the triumph of Afro-Asian resistance to the international law that had condoned colonialism. A change had been initiated and China fully supported the norms of self-determination and anti-imperialism that had resulted. Colonialism, in the form of the occupation of land by the metropolitan powers, had ended due to decolonization. But imperialism in the form of hegemonic control through laws and institutions still remained. The fight was to dismantle the system of rules that were devised during imperial times to ensure the subjugation of the former colonial people.
Both states had agreed to base their mutual relations on the basis of the Five Principles of Peaceful Coexistence in 1954 in a treaty between them regarding trade in Tibet. The symbolism of the principles is that the Buddhist concept of Panchasila has five precepts, and the Asoka Chakra, a wheel with five spokes, was the symbol of the Buddhist-Indian Emperor Asoka who renounced war. The Asoka Chakra forms a symbol of India. China, thereafter, resorted to Panchasila as the cornerstone of its foreign policy.
The Five Principles of Peaceful Coexistence in international relations were re-formulated at the Bandung Conference and became the basis of the non-aligned movement, and the leaders of the two states have since repeated the five principles. In 2004, Chinese leaders and Indian leaders exchanged congratulatory messages to celebrate the fiftieth anniversary of the Five Principles.
China even held a state-level commemoration meeting for the fiftieth anniversary of the Five Principles, at which Chinese Premier Wen Jiabao stated:
The Five Principles of Peaceful Coexistence have withstood the test of time, and made a monumental contribution to the maintenance of peace and stability in Asia and the world over and the sound development of international relations. First, they provide a set of right guidelines for the establishment and development of relations among countries with similar or different social systems. Second, they point out an effective way to peacefully address the issues left over by history between countries or other international disputes. Third, they give a strong protection to the interests of developing countries and serve the improvement and expansion of North-South relations. Fourth, they have provided an important philosophical basis for the establishment of a new international political and economic order that is just and rational.
The establishment of the principle of self-determination and the leadership role that India played in the formation of that doctrine, leading to the dissolution of European imperial rule in Asia and Africa, must remain a singular contribution.
In this role, India was constantly supported by China. After the period of decolonization, there was co-operation in setting up the Non-Aligned Group of Third World nations, which played a significant role in the politics of the Cold War. During this period, though China was communist, it preferred to belong to the Non-Aligned Group, with its Foreign Minister Zhou Enlai playing a significant role.
Chinese leadership’s ambitions of the group were clear from the early stages, but it acknowledged the existence of other states with claims to leadership.
The continuation of the leadership of China and India was also most visible during this period in the championing of reforms associated with the NIEO. They co-ordinated effort in the establishment of the doctrine of permanent sovereignty over natural resources.
They were also instrumental in maintaining support for the package of norms associated with the NIEO, intent on securing fairness in international trade through payment of just prices for the commodities exported by developing states and access to markets for their manufactured products. In the sphere of foreign investment, the NIEO was associated with control over foreign investment by the host developing state. Whereas the international law developed by capital-exporting states emphasized the need to deal with the foreign investor according to an international minimum standard, the NIEO norms gave developing countries control over making decisions as to foreign investments through the regulatory use of their own domestic laws without incurring responsibility in terms of international law except in situations of egregious unfairness. Both China and India had records of the nationalization of foreign property and had a common interest in ensuring the acceptance of these norms. Later, espousing policies of liberalization, they were to soften their stances considerably.
On this it could well be that the earlier co-operation on behalf of developing countries gave way to more pragmatic considerations as both states searched for energy resources in Africa and elsewhere. It could well be argued that they are bent on a course of exploitation, just as the Europeans were.
It was in the sphere of international economic relations that the co-operation between China and India was strongest. This could be explained on the basis that, having ended the colonial period, the concentration of effort had to be on erasing the economic domination of the former imperial powers, which still remained. It could equally be explained on the non-altruistic basis that both states needed to change the playing field so that their own interests would be advanced, and saw in the collective advancement of all the former colonies a convenient method, backed by numerical strength provided by the new states, particularly at fora like the General Assembly of the United Nations, at which they sought political leadership. Whatever the explanation, the period did witness strong joint efforts to secure changes to the existing international law. This period of post-colonial politics was perhaps the period which provides the best evidence in support of the romantic vision of co-operation between China and India. The later establishment by China of an Asian Infrastructure Investment Bank [AIIB] and by the BRICS of a New Development Bank (the NDB or BRICS Bank) may indicate that these early efforts at promoting development as well as their leadership among the developing countries is an ongoing project. They also set out to challenge the international financial order maintained by the Bretton Woods institutions set up by the US and its European allies.
One can witness changes taking place to this vision around the 1990s with the end of the Cold War and the adoption of neoliberal views as to economic progress. China had changed course away from its pristine communist moorings to take a liberal road towards economic progress with its open-door policy in 1979. India joined in with a programme of liberalization a decade later in 1991. Both become active participants in the World Trade Organization [WTO]. India was an original member of the General Agreement on Tariffs and Trade [GATT] and hence a founding member of the WTO. China became a member through its acceptance by existing members after it had satisfied the US of its ability to conform to basic standards by adapting its domestic law to accommodate market concepts, thereby demonstrating further movement away from its earlier ideological stances. India participated in the making of the new instruments, which broaden the scope of the WTO on the basis that services and intellectual property rights have an impact on international trade. China accepted both instruments as part of its membership of the WTO. Both can be said to be instruments of neoliberalism, ensuring that high standards of protection are maintained for intellectual property, itself an idea of Western law, and that the services sector, increasingly important in the context of globalization, is opened and protected.
This movement away from earlier stances is further entrenched by the making of a series of investment treaties by both China and India. China’s practice has been more profuse. Its more recent treaties are made as a capital exporter, introducing into the treaty more standards of investment protection through investment arbitration, thereby signalling a desire on its part to join with the Europeans and Americans in bringing about external norms of investment protection. This will be an indication of a change from its common position relating to the NIEO.
Such is also the case with India. Indian practice, which is more recent, is largely intent on making treaties with states to which it exports foreign investment.
But, whereas China continues to make strong treaties on the basis that it is now a capital exporter, India has had reservations in making investment treaties as it has had to face several arbitrations based on them. In the light of its experience of having to face these challenges, India has changed its model treaty to accommodate defences to liability based on the ability of a state to regulate in the public interest.
It could be that China would also come to experience arbitrations against it, particularly if it has to take measures to protect its economy when it faces difficulties. China could well change its attitude to investment treaties then, as India has done. The approaches of the two states may begin to differ, despite the fact that both states are now exporters of capital.
It is without doubt the case that both China and India have profited as a result of their adoption of economic policies that tend towards liberalization. But they still retain considerable control over both international trade and investment. It would be an error to attribute their success entirely to joining in with the forces of globalization. Much had to do with the adoption of nuanced policies that protected domestic industries and opened sectors which could benefit from interaction with foreign business. To this extent, too, there may be similarities in the methods used, though China’s success has been the more spectacular. In both countries, corruption and the gap between the rich and the poor consequent upon globalization will bring about immense problems and tensions, which may require them again taking domestic legal stances that are seen as appropriate.
These were largely developments that took place when the fervour for neoliberal policies was high. But with the failure of neoliberalism demonstrated by the global financial crisis, the stances taken may go into reverse gear. The Doha Round of negotiations of the WTO demonstrated the resurgence of the militancy of the developing countries. Here, it may be possible to witness a resurgence of co-operation between China and India. There was leadership provided by the two states in reducing the scope of the applicability of the TRIPS instrument to the generic drugs needed to cope with widespread health problems in developing countries. The effort to introduce an instrument on investment within the WTO was again beaten back by collaborative leadership provided by the two states. In discussions on climate change, both states take a similar stance in requiring greater reduction of emissions from developed states and arguing for greater restraint in imposing obligations on developing states. Again, self-interest, rather than the common interest of developing states, may as well be an explanation for this stance. These instances are not indications of the old solidarity of the NIEO days making a resurgence. They can be explained as instances of self-interested action. Likewise, common attitudes taken to climate change may be explained on the grounds of a mutuality of interests rather than the championing of any common position on behalf of developing countries.
The two states are leading members of BRICS, a new grouping which brings together newly industrializing states: Brazil, Russia, India, China, and South Africa. This grouping may also have an effect on international economic relations. It is a telling fact that such an organization was considered necessary. BRICS has given China a role in the politics of development, as well as partners who will go along with its economic policies. The development bank that BRICS created is to cater to the development of African states and other developing countries, thereby reviving an old interest of China and India in aiding developing countries. This joint endeavour challenges the dominance of Western-led efforts by the World Bank and the International Monetary Fund [IMF] in similar areas.
The romantic vision, however, cannot be taken for granted. There are many factors which militate against it. Quite apart from the fact that China and India have boundary disputes, with armies facing each other across their borders, the conflicts between them arise as they compete for influence in the world, particularly in Southeast Asia, an historical area of conflict between them.
Another grouping, IBSA (India, Brazil, and South Africa) indicates how the BRICS can only be an economic grouping, for IBSA has the objective of propagating human rights and democracy as well, and as a result cannot include Russia and China, which have different views on human rights and democracy.
The contrast that these two groupings present is another romantic vision of India which China cannot possibly share—a long-term commitment to democracy, human rights, and secularism both domestically and internationally. In this area, there is a clear division of visions.
India was early in espousing human rights ideals at the international level. It was the first state to condemn apartheid and regard it as an international issue in the face of the apartheid regime’s presentation of it as an internal issue which was not the concern of the international community. India must be identified with the stance that no issue is internal to a state if violations of human rights cause anxiety outside its borders to the international community. Here, the position India took was a revision of the UN Charter in that there was no direct threat to peace arising from apartheid at that time, though the fact that it may have posed a future threat was a possibility. India was making a frontal attack on the concept of sovereignty in 1948 from the very first year of independence, and advocating the view that massive violations of human rights are the concern of the international community and that domestic jurisdiction notions contained in Article 2(7) of the UN Charter cannot provide a cloak for such violations. Though this is a position that India may find difficult to adhere to at present, particularly in the context of Kashmir, there is no sign that India will make a departure from its early formulation of the idea that violations of human rights cannot be considered as exclusively internal and do not concern the rest of the international community. In contrast, China has remained averse to this idea. On this issue, the two states are unlikely to see eye to eye. China is an “Asian developmental state” which maintains that development has to be given priority over human rights.
Yet, within both states, developments of global visions relating to human rights will bring about internal changes. The adoption of a monist view by the Indian courts is evident.
China will linger on this but there could be internal pressures for change which have to be met.
The romantic vision hence has scope. It cannot be dismissed as impractical. The leaders of the two states continue to subscribe to it, obviously acclimatizing the people to its acceptance. Each time leaders meet, there is reference to the shared history and a united future. Particularly in relation to their mutual relations in recent times, the leaders of both states have stressed bilateral negotiations as the solution to their disputes. These disputes presently relate to the boundary issues, the South China Sea, and possibly Chinese stances on Kashmir. To the extent that the vision is entrenched in the conscience of the people of both countries and in the personal attitudes of present and future leaders, the romantic vision will still fashion views and bring about support for norms that better fit in with that vision of justice and harmony than visions of conflict and aggression. But, caution is necessary in dealing with the romantic vision. It is no doubt frayed by suspicions. The search for power, resources, and markets will erode its force. The romantic vision still remains a predictive device in that it has to be considered when determining the future course of action that the two states would take on various issues. The announcement of the Belt and Road Initiative of China by President Xi Jinping has diverted Chinese foreign policy towards a more aggressive stance.
India finds it irksome that China seeks to drive itself into areas of its own past dominance. This includes Southeast Asia, which is seen as an Indian sphere of cultural influence. The romantic vision may progressively become dented as divergence from commonality widens. What must be kept in mind is that there is great fluidity in the interactions of these visions, depending on external factors at any given time, and what really happens will depend on external circumstances, the existence of these two visions merely providing insights into courses of developments.
B. The Realist Vision
The realist vision would have it that, like all potential hegemonic states, China and India would be guided by their own national interests and not by the achievement of any romantic vision about an ideal world to which the leaders of both states pay lip service. China’s pursuit of a harmonious world or India’s pursuit of Gandhian non-violence and peace belie hard policies that are designed to ensure that the two states achieve pre-eminent positions within the world order. In addition, rather than embracing the ideal of “Chindia”,
the realists view China-India relations as inevitably confrontational and believe that conflict is already under way.
It is apparent that both states support legal norms that would serve the pursuit of their individual interests rather than global interests common to humanity. Points on which contests and conflicts would appear have to be identified before conclusions can be reached.
India’s successive use of armed force—Hyderabad, Kashmir, Goa, the Indo-China Border Conflict (1962), the East Pakistan War (1971), and continuing border skirmishes with China and Pakistan—required it to relinquish any idealist orientations it may have had and build up its military strength to become a nuclear power. China has had similar experiences fighting wars with India and Vietnam. It is now engaged in an active programme of militarization enhanced by its need to defend claims in the South China Sea. Both states participate in the globalized economy and compete for natural resources and energy. In the context of these rapid changes, the romantic vision will have reasons to recede.
More importantly, there could be direct hostility and confrontation between India and China. Border disputes most significantly challenge China-India relations, as well as their stances towards international law. Both states have maintained troops on the border, though major violations of peace have not taken place since the end of the 1962 war. Both states have underplayed the conflict, though incidents that assert claims still continue.
An important principal issue relating to treaties that were made with China concerns the attitude China takes to the McMahon Line that was drawn in 1914, demarcating the border between the Chinese Tibetan province and India. China regards the treaty that determined the McMahon Line as an unequal treaty, as a part of the body of treaties that were imposed upon China at a time of its weakness by European powers. China does not recognize such unequal treaties. The doctrine is a novel contribution to treaty law and is presumptively sound in that treaties are made between equal parties and should have a mutuality of benefits. Some writers have considered modern treaties, such as investment treaties made between capital-exporting states and capital-importing states giving absolute protection to foreign investments, as modern instances of asymmetrical treaties, and hence unequal treaties. Whether a similar analysis could be made of instruments of the area of international trade like TRIPS remains to be seen. India is unlikely to accept the argument that the McMahon Line is not supported by the treaty. Instead, India considers the Line as a legal, national border. What complicates the issue is that the Line was drawn in a treaty that was made by Tibet and British India, with the Chinese representative having withdrawn from the negotiations. Tibet itself questioned the validity of the treaty on the grounds that China was not a party. This is considered a strong point. But China does not invoke it as it may indicate that Tibet had independence at a stage of its history. This may induce India to take the position that Tibet was sovereign at least at the time the treaty was made, a position that would be irksome to China. Chinese claims to Arunachal Pradesh, presently an Indian state, are linked with the disputed boundary lines. The boundary disputes will remain thorny issues in China-India relations. The official map issued by China in 2014 shows what China considers to be the boundary. It includes Arunachal Pradesh as a part of China.
Indian claims to the territory display strict adherence to the norms of acquisition of title. They rely on use by Indian citizens of the areas, resulting in prescriptive rights and prior acquisition through discovery.
It is interesting to note that the Chinese claims in the South China Sea follow the same basic rules on acquisition of territory which were used by the Western powers during the heyday of colonialism. Here again, legal practice is relevant, and the practice shows that there is innovation at times such as the notion of unequal treaties and adherence to the principles of Eurocentric international law as to the acquisition of title at other times. Expediency dictates the choice.
The border disputes have locked China and India in a security dilemma,
arising from which there are a number of derivative issues relating to the two countries’ use of strategic instruments with the aim of pre-empting each other. The first issue is of course China’s support of India’s arch-rival Pakistan. China has been Pakistan’s “all-weather friend” and largest defence supplier. “To New Delhi, by deliberately altering the balance of power on the India subcontinent, China is attempting a de facto ‘encirclement of India’ and thereby preventing India from achieving its aspirations in the South Asian region.”
The economic corridor linking the Chinese province of Xinjiang and the Pakistani Indian Ocean port of Gwadar, part of China’s One Belt, One Road initiative, is also irksome to India as it passes close to Kashmir.
Apart from border disputes and Pakistan, China and India have geopolitical concerns on each other’s rise in the regional and international arena. In the long run, these concerns will, to some extent, translate into legal issues. One issue is India’s possession of nuclear weapons. India launched the first round of nuclear tests on 11 May 1998, after which India’s military leaders made it clear that India needed a nuclear capability to counter a Chinese threat.
China voiced vehement objection to India’s nuclear activities, although it did not join the US-led countries to impose sanctions against India.
It was alleged that China’s lack-of-substance response to this was because of China’s nuclear exports and assistance to Pakistan, which launched its own nuclear tests shortly after India’s tests.
Given the rather muted Chinese protests at a similar explosion of a nuclear device by North Korea, it could well be that China takes the position that there is nothing in international law that limits the right of a state to possess nuclear weapons.
Another example is India’s bid for permanent membership in the United Nations Security Council [UNSC]. There is no doubt that the make-up of the existing Permanent Five (China, France, Russia, the UK, and the US) no longer reflects the global balance of power, and hence Brazil, Germany, India, and Japan (the G4) have made the strongest demand for permanent positions on the Security Council. After years of ambivalence (which was properly interpreted as more towards objection than support), China recently indicated it “understands and supports India’s desire to play a bigger role in the United Nations, including its Security Council”, thus making India the only candidate whose bid has been openly backed by all the Permanent Five.
It is however highly questionable whether China’s rhetoric in support is based on sincere intentions. To a large extent, one could question the sincerity of all the Permanent Five on this matter. Conflicts of interest aside, none of them has voiced support to all the G4 states.
Most recently, India promoted a newly emerged conceptual association of “Indo-Pacific”, which is essentially the old term of “Asia-Pacific”. The concept was coined about a decade ago and since then has been increasingly used in the discourse of world politics to “re-imagine” the “mental map” of Asia-Pacific.
US President Trump spoke of this term characteristically on his first trip to Asia in November 2017, shortly after it was mentioned in the joint statement between the US and India on, among other issues, “promoting stability across the Indo-Pacific region”.
It is now understood as a geopolitical attempt to develop an informal or even formal alliance among the US, Japan, Australia, and India to manage the growth of Chinese power and influence in the region.
All these issues involve taking legal positions. The law that is used is not consistent. One cannot witness any effort to articulate the disputes in terms of any legal principle, except the use of the doctrine of unequal treaties in the case of the boundary disputes and in the assertion of territorial claims by India as to its boundary with China, and China’s claims in the South China Sea. Yet, the realist emphasis on existing conflicts and the relevance of the law to them must no doubt be studied because the conflicts are often articulated in terms of the law. But, as indicated, it is unlikely that the vision of the world order(s) the two states desire will result from the emphasis on the areas of conflict between them. It would rather result from the attitudes they take on global and regional problems that may concern them as well as other states. They may seek to confront the existing Eurocentric principles in these areas. An organization through which they will direct their co-operation is BRICS, which has seen increased activity in recent times. It has the focus of building a possible alternative international financial architecture through the establishment of the New Development Bank.
The Bank is a direct challenge to the Bretton Woods institutions, performing precisely the same functions.
This co-operation in BRICS is a sign of the continuing vibrancy of the romantic vision.
III. RESEARCH QUESTIONS IN SEARCH OF A JUSTICE-BASED INTERNATIONAL LEGAL ORDER
Above we have outlined the two visions on China-India bilateral relations, as well as their individual and joint views on international law and the international order. As noted, the two visions offer mainly an analytical framework rather than any conclusive findings or substantiated analysis. We hope this framework can inspire further research on six broad questions. Our position is that the two broad visions will determine outcomes depending on circumstances. We realize that the two visions are not mutually exclusive and accept that what is put forward on the basis of the romantic vision is in reality what also serves the national interests of one or both states.
On this basis, our project aims to investigate the following six research questions.
The first question is about whether there are better theoretical approaches to understanding the rise of China and India, individually and jointly, in international law and the international order. Theories in international relations are particularly important since, assuming changes are to be made in international law with the rise of the two Asian powers, the underlying forces behind those changes must be, in part, understood from the lenses of international relations theories. To what extent can prevailing Western international relations and legal theories explain Chinese and Indian attitudes and approaches to international law, from historical to contemporary?
Is the rise of China and India so unique that new theories are needed to understand their international behaviours? The romantic vision is consistent with ethical viewpoints as well as constructivism, as it builds a profile of the states on the basis of thier past and recent history. The realist vision accords with the existing liberal notions which are in concordance with the notion of building up an international order that is suited to the hegemonic interests of the leading powers.
In examining China’s attitudes towards the regulation of natural resources by international law, Ben Saul soundly describes Chinese practice in international law as follows:
While China’s construction of strong sovereignty inevitably shapes its attitudes toward legal regulation, practice also suggests that China often adopts a nuanced approach which includes legal compromises, and a commitment to multilateral regulation or bilateral diplomatic settlement of key issues that were hitherto within the competence of national governments. China is often an active and constructive participant in contemporary international law making, even if its socialization is not necessarily linear, and even if—like all countries, and especially powerful ones—it also seeks to instrumentally use or change international law to secure its own interests and attain a comparative advantage.
Nevertheless, solid further research has to be done to elucidate why China acts as it does with respect to the international legal order. Our proposition is that the Chinese approach to international law, ambivalent and ambiguous as it is, may be the fusion of the following five influences. First is China’s position in the US-led international system, in which rules of international law not only constrain China but also benefit China in the sense of providing a largely rule-based international economic environment and regional peace under Pax Americana for China’s own development. Apart in a few highly sensitive cases, China is mostly a good global citizen in terms of complying with international law.
Second is Chinese ancient/traditional thoughts on law and order, which emphasize hierarchy, harmony, and, especially, a non-confrontational approach to dispute resolution. Third is the whole Chinese nation’s victimhood mentality as a result of suffering from the “century of humiliation” which led to a strong disbelief in the now America-dominated Eurocentric international order and the international legal system that sustains it. Fourth is a national determination to pursue power—or “great power status”—in international society which has been inspired both by the belief of luohou jiuyao aida (“lagging behind leaves one bullied and humiliated”) resulted from China’s past sufferings and by pride in the rapid rise of Chinese power and influence in the past few decades. Fifth is China’s self-identification as a developing country, which brings about its natural sympathy to Third World countries on a wide range of issues, even when taking such a position does not always conform to China’s own national (economic) interest. Existing theories in the Western discourse of international law and international relations do not seem to be able to accommodate these factors when examining China’s international behaviours as well as the Chinese approach to international law.
Some of these five factors identified for China are shared with India. While accepting and benefiting from existing international law, India, having suffered more years of colonial rule, has at least a similar inclination to dismantle offensive rules and create new ones. As in the case of China, the romantic vision drives India towards the creation of justice-driven rules and the development of the Third World. A difference may arise in the fact that China is the quintessential Asian developmental state, whereas India is the largest democracy in the world. But India also seeks to emphasize development while retaining democracy and goes along with the Chinese view that there are many paths to achieving such development, whereas the Western states advocate a uniform model through the financial architecture of the world they dominate.
A second broad question is about a general but critical concern on whether the rise of the two countries would bring down the Western-dominated “liberal world order” and undermine the rule-oriented international system. Essentially, it is about the past, present, and future attitudes of China and India towards the existing international order, which further concerns the legitimacy of the international order itself as well as the directions of these two countries’ own development. In March 2012, leaders of the BRICS countries met for the fourth time to discuss global governance in the new era. They issued a declaration not only to voice their concerns but also to put forward substantial reform proposals on the international financial infrastructure, the Doha Round of the WTO, climate change, food security, and energy security, among others, despite the traditional view that reforming the international order is within the power domain of Western countries.
Not surprisingly, the summit did not receive much attention in the West. But, as Simon Tisdall observes: “this neglect, or disdain, may also reflect the fact that the BRICS, representing almost half of the world’s population and about one-fifth of global economic output, pose an unwelcome challenge to the established world order as defined by the US-dominated UN Security Council, the IMF and the World Bank.”
Indeed, Chinese leaders have constantly called for the joint efforts of emerging powers to create a new international political and economic order.
Vestiges of the romantic vision seem to appear only to be dimmed by the suspicion that China may project its increasing economic power through the new banks it has helped to establish.
G. John Ikenberry has argued that the current world order is based neither entirely on realism nor on idealism. Instead, it is an order that aims to establish international rule of law while still leaving tremendous room for balance of power games in great-power relations. As Ikenberry has put it:
Today’s international order is the project of two order-building projects that began centuries ago. One is the creation and expansion of the modern state system … The other project is the construction of the liberal order … The two projects have worked together.
Ikenberry’s liberal internationalism features economic openness and the rule of law. Particularly, the world order “has an unusually dense, encompassing, and broadly endorsed system of rules and institutions” which form the backbone of our international law today.
In other words, the current system, in contrast with the previous international order, is maintained by a sophisticated body of rules in international law. “State sovereignty and the rule of law are not just norms enshrined in the United Nations Charter. They are part of the deep operating logic of the order … the overall system is dense with multilateral rules and institutions—global and regional, economic, political, and security-related.”
For many—maybe even most—international affairs, states follow international law and resolve their disputes in accordance with the procedures and rules of international law, which led Louis Henkin to make the famous remark that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time”.
However, the practice of realism-based power politics is still visible in international relations. The elements of openness and international law in this order preclude neither balance of power games nor states’ pursuit of wealth and power. States co-operate, but they also compete. In this sense, the rules and institutions in the international order can foster the former but cannot prevent the latter. In fact, “much of both the structure and substance of traditional international law appears to be built upon a Realist foundation”.
The realist view of world order, as widely known, asserts that states, in order to maintain survival and security in an international society which is in a state of constant antagonism, must possess as much wealth and power as possible, even if doing so might undermine the security of other states.
One may, of course, also believe that openness, the rule of law, and the pursuit of power can all co-exist in the existing international order. If “many aspects of traditional international law tacitly acknowledge the extent to which international relations are power relations”,
the pursuit of wealth and power by states can certainly be carried out within the framework of today’s international law through co-operation and, if necessary, peaceful competition, thus avoiding violent confrontation. If that is true, a rising state’s pursuit of power and global status, if done within the framework of the current world order, should not be automatically viewed as a challenge to the order per se. That requires one to distinguish between a challenge to the norms of the international order and that to the dominant position of the status quo power in the international system. If a rising power questions and would like to change the prevailing norms of the international order, which currently include non-discrimination-based free trade, rule-based state relations, and the peaceful resolution of disputes, this can be considered as challenging the international order. However, if the rising power aims at becoming a more important or even dominant player in the international system, and in so doing replacing the dominant position of an existing power, as long as the rising power still follows the internationally recognized rules and customs, its rise shouldn’t be considered as a challenge to the world order. Will China and India challenge just some norms of the international system (and thus to choose to rise within the system), or would they aim to reshuffle the international order? The romantic vision and realist vision may converge in answering this question, but further research is required to investigate whether this view is consistent with the manner in which China and India approach international law. Ideally, and consistent with their historical struggles, they would seek an order based on norms of justice and not power.
A related question is about the legitimacy of the contemporary international system (together the underlying international law) itself. It is increasingly clear that the current system faces a legitimacy crisis as it does not reflect the new balance of power or adequately represent countries and peoples. It has both a power deficit and a democratic deficit, and hence needs substantial reform. The real question, however, is about the nature and direction of that reform. It is both hypocritical (considering the many problems and crises caused by the “liberal world order”) and impractical (given the immense size and rapidly growing power and interest of China and India) for the current West-dominated international order to ignore the demands from China and India to have more say in international decision-making. On the other hand, many would predict that the liberal internationalism would risk great uncertainties or even a downfall of the whole system if the “illiberal” elements in the value and practice of the emerging non-Western powers, and even more so of China, are introduced into the international order. To what extent the current international system and the rising Asian powers can mutually accommodate each other is thus an open question.
The third broad question concerns China, India, and the modern operation of the principles of the Westphalia system, which include, among others, sovereignty, equality of states, non-interference in domestic affairs, the liberal idea of collective security in the United Nations Charter, and the realist idea of great power co-ordination in the United Nations Security Council. It has been argued that China might be “more Westphalian than the West” in the international system since “the West has been seeking major modifications that weaken the norm, whereas China has championed the established rule and the international order based on it”.
The same can be said about India. Both countries have a consistent record in defending the Westphalian norm of the primacy of national sovereignty and non-intervention. In a sense, the principles of Panchasila, which constitute the cornerstone of the foreign policy of the two states, include the Westphalian principles of equality of states and non-interference in domestic affairs, though they incorporate other ideas such as mutuality of interest and peaceful co-existence. Yet there is adherence to the Westphalian notions. China and India were among the five nations which abstained in the adoption of the United Nations Security Council Resolution 1973, which instituted a no-fly zone over Libya and authorized the use of “all necessary measures” to protect civilians in Libya.
It is widely known that China has unfailingly been opposed to or abstained from any resolution authorizing the use of force, although elements of pragmatism emerge from time to time in China’s state practice concerning sovereignty and intervention.
Both states vigorously oppose Responsibility to Protect [R2P] as interventionist.
As indicated, this practice in defending the Westphalian principles reflects the two states’ embodiment of the Five Principles of Peaceful Coexistence (Panchasila), which have their origin in both countries’ ancient philosophies, as noted previously, and were codified in the Sino-Indian Agreement on Trade and Intercourse between Tibet Region of China and India in 1954.
Needless to say, history matters a lot as the “century of humiliation”, as well as the Chinese Communist Party’s self-claimed credentials of confronting foreign invasion to secure China’s independence, has shaped China’s obsession with state sovereignty. Further, the Party clearly would not want foreign interference in the People’s Republic of China’s [PRC] own internal affairs concerning, inter alia, human rights issues. In the case of India, it is a founder and leader of the Non-Aligned Movement [NAM], and was the driving force behind the NAM’s endorsement of the Five Principles of Peaceful Coexistence. In explaining its abstention on UNSC Resolution 1973, the Indian Ministry of External Affairs stated that “[i]t is, of course, very important that there is full respect for sovereignty, unity and territorial integrity of Libya”, indicating that India would put sovereignty over other values.
One may, however, argue that the historical and present adherence to the Five Principles by China and India is still a makeshift to disguise the two countries’ true intention to pursue national interests and even geopolitical goals. For instance, in the Libyan case, India’s reliance on the Five Principles could be seen as a defensive tactic used to present the establishment of unintended precedent that could then be used against its government to justify outside intervention in conflict-ridden areas like Kashmir.
China has probably even stronger concerns regarding Tibet and Xinjiang. Many signs now suggest that China’s strict adherence to non-interference has given way to interest-driven pragmatism, e.g. the cautious use of humanitarian intervention as a tool to advance its geopolitical goals. Careful study will have to be conducted as to whether China and India will still adhere to the Five Principles, or become imperialists (and interventionists) like the old European powers or America, or go with an entirely new approach which ideally balances sovereignty with justice in international society, as their power and interests grow. The romantic and realist visions are useful guides for analysis, but states seldom disclose their exact intentions for such analysis.
A related question is the two countries’ approach to international dispute resolution. China’s rejection of both the jurisdiction and final award of the South China Sea Arbitral Tribunal has caused wide concern in the international community, where it was depicted as a belligerent and hawkish emerging superpower who disregarded international law and legalized dispute resolution with its newfound power. India does not seem to be so radical but is still not in favour of formal, legalized, third-party-driven means of dispute settlement. It is certainly easy to understand this position from a realist perspective that China is simply following in the footsteps of previous imperial powers in the principle that “the strong do what they have the power to do and the weak accept what they have to accept”.
However, one has to be very cautious when facing such an oversimplistic depiction of China as an outlier of the international legal system because (1) China’s out-of-tribunal arguments were largely based on the discourse of international law, (2) both the jurisdiction and the final decision of the tribunal are not unquestionable from the perspective of international law, and (3) China actively participated in the more formal and legalized dispute settlement system of the WTO in which it lost most cases but still complied with all the decisions. Sensible study on both the rhetoric and state practice of China and India should be done to categorically examine their approaches to international dispute resolution and, more importantly, explore the underlying reasons of such approaches from legal, political, historical, and cultural perspectives.
In particular, meticulous research is required on China’s effort to establish a comprehensive framework on dispute resolution for its Belt and Road Initiative, for which China has moved to establish a range of international commercial courts, arbitral tribunals, and other mechanisms to deal with disputes arising out of the BRI project.
As the BRI is posted as a China-sponsored platform for continental-wide economic co-operation in the areas of policy, trade, investment, finance, and sociocultural exchanges, the problem arises as to whether implementing the BRI would require China to impose standards of investment and trade on smaller states, thereby installing its own preferred model of governance. This would entail an interventionist policy which may restrict the sovereignty of other states. As it will have to abide by these rules itself, China will have to accept greater scrutiny of its own economy by foreign tribunals and courts. This is happening in the area of investment treaties, where China is increasingly becoming a respondent before arbitral tribunals.
The fourth question is about the roles played by China and India in the regional order of Asia Pacific, as well as the use of international law in establishing a rule-based security system in Asia, given the increasingly intensified conflicts in East and South Asia. Thus, one of the most imperative issues in Asia is the construction of a regional security order, or regional security architecture. We have now two competing visions. One is being promoted by the US in the name of the “Principled Security Network” for Asia with three features: (1) advancing shared values such as democratic autonomy, the peaceful resolution of disputes, and freedom of navigation and disputes; (2) co-sharing of the security burden by the US and its Asian allies and potential allies; and (3) a rule-based order with a web of bilateral and regional agreements in security co-operation to bind the US and its Asian allies, and which have the force of international law.
In contrast, China put forward an alternative vision labelled the “Asian Security Concept”. According to the speeches of senior Chinese officials and China’s most recent White Paper on Asia-Pacific Security Co-operation, this Asian Security Concept has five organizing principles: (1) a new security concept featuring common, comprehensive, co-operative, and sustainable security, which advocates consultation and dialogue, openness, inclusiveness, and win-win co-operation; (2) adherence to regional and international norms; (3) partnership, not alliance; (4) not a unified security framework in the region, but the further co-ordination and upgrading of the extant institutions; and (5) the promotion of common development and prosperity.
Comparing the two outlooks in the light of the role of international law, one can characterize the American approach as “power plus rules”, and the Chinese approach as “power plus relational building”. The common feature is that both countries based their proposals on their national powers. The difference is that the US emphasizes rules and values, which is often a framework of rules designed by the US and imposed on Asian countries, while China’s approach puts more weight on relational building, partnership, and common development, and less weight on rules, although the Chinese approach does not exclude the use of international law. It is, however, far too simple to characterize one (the American) vision as one based on rules and norms while the other (the Chinese) vision as one based on power and coercion.
India’s approach to Chinese efforts at creating an Asian Security System may not be to yield to Chinese dominance. India regards Southeast Asia as an area subject to its soft power. Its historical influence through culture and imitation is evident throughout the region. Its announcement of a freedom of navigation policy in the South China Sea is an example of such a clash in the making.
Timely research has to be done to tell which outlook on regional security ordering is more acceptable to Asian countries. Suffice it to say that, in the long run, an Asian security framework must have Asian characteristics, but it also must be based on the rule of law, which has become a universal value in our international society today.
The fifth question is related to China and India in the international economic order and the international legal framework for global and regional economic relations (i.e. international economic law). The two countries’ initial encounters with the Western-dominated international economic system both featured Western invasion and colonization, unequal treaties, and unilateral Most Favoured Nation [MFN] treatment.
They were both integrated into the so-called “liberal international economic order” in the past century and have been regarded as economies which have profited from the open and rule-based international economic system. India played a leadership role in promoting development in the international order while casting a hardline posture towards multilateral liberalization in the Uruguay Round of trade negotiations. India’s trade policy tends to favour protectionism, which is a result of both domestic election politics and a national policy to protect infant industries at home. China, on the other hand, has pursued a classical neoliberal approach to gradually open itself to international trade and investment since the late 1970s. During this period, China has grown to be the world’s second largest economy (and will become the largest in a few years) by riding, in part, on the free trade rules of the international economic system. However, both countries are depressingly underrepresented in the current international economic order under the auspices of the Bretton Woods institutions, including the IMF, the GATT/WTO, and the World Bank.
With the rise of China and India to the status of global economic powers, two transformative changes might follow. The first is related to India’s accelerated economic opening and liberalization. India practised socialism-inspired economic policy until it started its liberalization programme in 1991, which was also India’s turning point—towards active participation—with the liberal international economic order. As India is becoming increasingly open to global economic co-operation, and less inclined to shelter domestic industries with protectionism, it may ease its traditionally strong position on trade and development. Will this lead to the fall or at least the undermining of the development agenda in the international economic system and the international economic law that sustains it?
A second transformative change, which is to a large extent a challenge, is the rise of China-led international economic institutions. As noted, there are two of them at this stage: the Asian Infrastructure Investment Bank and the New Development Bank. Both are at the infant stage, but have been touted as a rival to the existing Bretton Woods institutions. In addition, China’s BRI is poised to generate more international economic institutions. Serious studies are required to examine how those China-led institutions may shape the international economic order in terms of agenda-setting, norm-creation, and rule-making.
Finally, the sixth broad question addresses the bilateral disputes between China and India. The international relations scholar Joseph S. Nye Jr. maintains that world politics has entered a stage where “(1) states are not the only significant actors …; (2) force is not the only significant instrument—economic manipulation and the use of international institutions are the dominant instrument; (3) security is not the dominant goal—welfare is the dominant goal”.
In the China-India case, neither the romantic vision nor the realist vision can offer realistic solutions for tackling the issues between the two countries. However, both visions suggest some truth about these complex and still evolving bilateral relations. We argue that most, if not all, issues in China-India relations could be resolved in the framework of international law.
Following the conventional wisdom, one may argue that there are three factors in China-India relations which will determine that the two Asian giants resolve their disputes not only through peaceful means, but also legitimately within the framework of international law. The factors are economic interdependence, the costs of military conflicts, and the acceptance of international law.
First, the growing economic interdependence between the two countries is making the benefits of co-operation too difficult to give up. Interdependence creates joint benefits. The larger the joint benefits, the more tempting it is for the countries involved to employ co-operation rather than confrontation. For China and India, their bilateral trade was US$2.9bn in 2000, which rose to US$84.44bn in 2017, an almost thirty times increase. China is India’s largest trading partner, as well as one of the largest sources of foreign direct investment for India.
The second factor is the cost of conflicts, especially in the case of military confrontations. Both countries possess nuclear weapons, together with a strong standing army. The limited war in 1962 caused the death of thousands of soldiers, and a modern war today would definitely give rise to many more casualties. More importantly, both countries are now focusing their resources on economic development, for which they have to try their best to avoid violent conflicts. As The Economist commented about China and India:
The booms in their countries have already moved millions out of poverty, especially in China, which is far ahead on almost every measure of progress … A return to confrontation, besides hugely damaging the improved image of both countries, would plainly jeopardize this movement forward. That is why the secular trend in China-India relations is positive.
The third factor is that both China and India have accepted, although with some reservations, the legitimate role of international law in their foreign relations. As China’s late distinguished international law scholar Wang Tieya observed; “It is now beyond doubt that the PRC has not only recognized the existence of international law, but also adopted and applied the principles and rules of international law in its conduct of foreign relations.”
For India, it inherited, in principle, a respect for international law from its colonial master on its Independence in 1947. Article 51 of the Constitution of India, adopted in 1950, provides that: “The State shall endeavour to (a) promote international peace and security; (b) maintain just and honourable relations between nations, and (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another.”
Are the three aforesaid factors sufficient for managing the major sources of tension between the two Asian giants? It has to be admitted that, after the 1962 war, China and India have been trapped in relations of hostility and a protracted contest for status and influence in Asia. Many in these two nations view each other as a major geopolitical enemy, and the two have stepped on the verge of war on numerous occasions in the past decade, the most recent being the Doklam/Donglang standoff which almost evolved into a military conflict between Chinese and India soldiers.
At the same time, it was reported that, economically, India was by far the largest beneficiary and top borrower of the China-led AIIB, as loans made to projects in India made up about twenty-eight percent of the bank’s total lending.
This demonstrates that the relations between the two do not have to be conflictual, and both have benefited from co-operation.