Published online by Cambridge University Press: 30 January 2019
This paper aims to build an analytical framework and a research agenda for a study of the potential impact of the rise of China and India on international law. In the light of the possibility that the two states may, together or individually, make changes in international law and shift it from its present Europe-America moorings, this paper 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 to 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. It proposes an analytical framework in which these questions are viewed through two lenses: the romantic vision and the realist vision.
Muthucumaraswamy Sornarajah is CJ Koh Professor of Law, and Jiangyu Wang is Associate Professor at the Faculty of Law, National University of Singapore. Many ideas in this paper and in our larger research project on China, India, and international law came from our discussions with the students on the course “China, India, and International Law”, which the two authors co-teach at the Faculty of Law, National University of Singapore. The authors would also like to thank Simon Chesterman, Antony Terence Anghie, Su Yu, Zeng Huaqun, Cai Congyan, Chen Huiping, Han Xiuli, and Fang Dong, and two anonymous reviewers for their valuable comments on early drafts. The usual disclaimer applies.
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2. There are many predictions of such hostility which see China asserting its power to emerge as an important player in the world. See e.g. Graham ALLISON, “The Thucydides Trap: Are China and the US headed for War?” The Atlantic (24 September 2015), online: The Atlantic <https://www.theatlantic.com/international/archive/2015/09/united-states-china-war-thucydides-trap/406756/>.
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5. Simon Chesterman has noted the declined significance of the role of states in shaping the structure and future of international law: “Though States remain important actors, the shift to what is perhaps best described as zero-polar order suggests that the great challenge might come not from individual States or groups of States like the BRICS, but to the role of the State as such.” See Simon CHESTERMAN, “International Law and Its Others”, National University of Singapore, Working Paper 2018/004, February 2018. While we recognize the increasingly important role of non-state actors in the development of international law, it is submitted (and elaborated upon through our analysis in the following parts of this paper) that there is still a larger role for states to play in impacting on international relations and bringing changes to the international legal order. As noted by Congyan Cai, the trends in the contemporary development of international law are that, among others, “First, [New Great Powers] are inherently and continuously motivated to share and reshape international law. What people see today may be the start of the process. Secondly, [New Great Powers] are positioned both differently from and similarly to [Old Great Powers] in the process of shaping and reshaping international law.” See Congyan CAI, “New Great Powers and International Law in the 21st Century” (2013) 24 European Journal of International Law 755 at 766.
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12. The poem “White Man’s Burden” was written by Kipling in the context of US rule over the Philippines but it is usually taken out of context due to Kipling’s connections with India. It is emblematic of European racism and provides an altruistic justification for imperialism. Both China and India have older claims to civilization.
13. The excesses committed by the British in quelling the mutiny are portrayed in DALRYMPLE, William, The Last Mouhal: The Fall of a Dynasty: Delhi, 1857 (New York: Vintage, 2008)Google Scholar .
14. The standard of civilization was a fictional notion that enabled Europeans to exclude other states from personality to enjoy rights under international law. See generally GONG, Gerrit W., Standard of Civilization and the Entry of Non-European Countries into International Society: The Cases of China, Japan and Siam (Oxford: Oxford University Press, 1981)Google Scholar . See also Anghie, supra note 6, 52–61.
17. India and China are members of BRICS, a grouping of newly industrializing states which includes Brazil, Russia, India, China, and South Africa. The group meets periodically to set out its agenda.
19. Thus China claims historic title to the islands in the South China Sea. India, which has an interest in the area due to its links with Vietnam, uses freedom of navigation to oppose Chinese dominance in the area. The McMahon line drawn in British times is maintained by India on the basis of rules such as prior discovery and prescription.
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22. Koller, ibid.
23. Following Peter Koller, principles of justices are understood as “(1) transactional justice applying to exchange relationships; (2) political justice concerning power relations; (3) distributive justice dealing with communal relationships; [and] (4) corrective justice focusing on wrongness relationships”; ibid., at 188. Specifically, transactional justice entails “fair rules and framing conditions which make sure that all participating peoples and nations can derive benefit from them”. It requires avoiding the practice of unilateralism and imperialism as well as sufficient control of multinational companies, ibid.; at 192–3. Political justice concerns the exercise of authorized power and requires “an impartial enforcement of international law and the provision of public goods” to deal with the world’s most severe problems in line with the common interest of all peoples; ibid., at 194. Distributive justice demands that “international economic cooperation is to the benefit of all peoples, in particular the less developed and poor nations”; ibid., at 197. Lastly, corrective justice may serve as “a subsidiary argument to support and supplement the other demands of justice”, but should not be treated with primary importance; ibid., at 197–8.
24. As The Economist has put it:
Globally, the rules-based system that the West set up in the second half of the 20th century brought huge benefits to emerging powers. But it reflects an out-of-date world order, not the current global balance, let alone a future one. China and India should be playing a bigger role in shaping the rules that will govern the 21st century. That requires concessions from the West. But it also requires commitment to a rules-based international order from China and India. A serious effort to solve their own disagreements is a good place to start.
See “Contest of the Century” The Economist (19 August 2010), online: The Economist <https://www.economist.com/node/16846256/print>.
25. “China and India Should Dance with Each Other, Not Fight with Each Other” Xinhua (3 March 2018), online: Xinhua <http://www.xinhuanet.com/politics/2018lh/2018-03/08/c_137024220.htm>. See also Vidhi DOSHI, “China’s Foreign Minister Suggests ‘Chinese Dragon’ and ‘Indian Elephant’ Should Dance, Not Fight” The Washington Post (9 March 2018), online: The Washington Post <https://www.washingtonpost.com/world/asia_pacific/chinas-foreign-minister-suggests-chinese-dragon-and-indian-elephant-should-dance-not-fight/2018/03/09/b27f81ac-2397-11e8-a589-763893265565_story.html?utm_term=.5e6510042c30>.
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28. See CHEN Tiqiang, “The People’s Republic of China and Public International Law” (1984) 8 Dalhousie Law Journal 3 at 5 (noting “Under the unequal treaties, China was actually deprived of the basic attributes of a sovereign state”).
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35. Despite Indian visions being different within India as to the ideal world order, there is cohesion in many areas within these strands; an opposition to imperialism, the pull of sovereignty, resistance to excesses of globalization, and the regulation of the multinational corporations are common themes. See CHIMNI, B.S., “Alternative Visions of Just World Order: Six Tales from India” (2005) 46 Harvard Journal of International Law 389 Google Scholar . Though it is not possible to talk of alternative visions in China except within the Communist Party, there would be agreement on the common strands.
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99. Xiangshan Forum, “Work Together to Improve Regional Security Architecture and Address Common Challenges”, speech by H.E. Liu Zhenmin, Vice Foreign Minister of China, at the First Plenary Session of the 7th Xiangshan Forum, 11 October 2016, online: Xiangshan Forum <http://www.xiangshanforum.cn/artseven/sevenforum/sspeech/fmeeting/201610/1824.html>.
100. Wang, supra note 49.
101. NYE, Joseph S. Jr., Understanding International Conflicts: An Introduction to Theory and History (New York: Pearson Longman, 2005), 207 Google Scholar .
102. Suparna Dutt D’CUNHA, “How China Is Positioning Itself among India’s Top 10 Investors despite Bilateral Differences” Forbes (1 May 2018), online: Forbes <https://www.forbes.com/sites/suparnadutt/2018/05/01/how-china-is-positioning-itself-among-the-top-10-investors-in-india-despite-bilateral-differences/#707c29bc1dac> (noting that China invested US$700m in 2016, which rose to US$2bn in 2017).
103. “A Himalayan Rivalry” The Economist (19 August 2010), online: The Economist <https://www.economist.com/briefing/2010/08/19/a-himalayan-rivalry>.
104. Wang, supra note 4 at 354.
105. James GRIFFITHS, “India, China Agree to ‘Expeditious Disengagement’ of Doklam Border Dispute” CNN (29 August 2017), online: CNN <https://edition.cnn.com/2017/08/28/asia/india-china-brics-doklam/index.html>.
106. Kingling LIU, “How India Became China-led Development Bank’s Main Borrower” South China Morning Post (19 January 2018), online: South China Morning Post <https://www.scmp.com/news/china/diplomacy-defence/article/2129686/how-india-became-china-led-development-banks-main>.