Critical Analysis of the Transcivilizational Perspective of International Law

I. Introduction

The year of 2025 marked the 80th anniversary of the United Nations (UN) and the victory of the Allies over the Axis powers, primarily Nazi Germany and Imperial Japan. A historical review of the causes of war, particularly World War II (WWII) is essential ‘to save succeeding generations from the scourge of war’ as stated in the UN Charter. ¹ The head of Chinese delegation attending the UN Conference remarked that ‘China, perhaps more than any other nation, understands the necessity for the success of this Conference; for it is universally recognized that a second world war had started when the Japanese invaded Manchuria in 1931, thus depriving China of 30,000,000 of her people and of the rich natural resources so essential to her national existence.’ ² This invasion was part of Japan's aggressive expansion that began in 1894 when Japan instigated the Sino-Japanese War. By the Treaty of Maguan or Shimonoseki in 1895, Japan occupied Chinese Taiwan. As ‘the territories Japan has stolen from the Chinese,’ including Manchuria in 1931, they ‘shall be restored to’ China in accordance with the Cairo Declaration of November, 1943. ³ However, Professor Onuma Yasuaki (1946–2018), ‘a great international legal scholar’ ⁴ holds the view that:

The Treaty of Peace between China and Japan of 17 April 1895 (Treaty of Shimonoseki) had a tremendous significance in world history surpassing that peace settlement between two individual countries, Japan and China. China not only lost the war with Japan, which had been as a member of the West-centric international system. Most importantly, China had to recognize that Korea would definitely secede from the Sinocentric tribute system, a system of the long-established Sinocentric world ordering. This fact had a critical importance in the establishment of the international society and the birth of international law as the law of such international society. ⁵

The core of Onuma's theory of international law from an intercivilizational perspective is well-illustrated by his article posing the question ‘When was the Law of International Society Born’?. which is not confined to the issue of the encounter between the Chinese civilization and the European civilization in the mid-nineteenth century. Nevertheless, his main argument evidently hinges on the event of the 1895 Treaty of Maguan or Shimonoseki between China and Japan. As Onuma concludes:

What I have sought in this article is to demonstrate that what most international lawyers have called international law during the sixteenth to the eighteenth century was just one of many normative systems which existed in various regions of the globe. It was as late as the end of nineteenth century that international law as the law of global international society came into existence. ⁶

Onuma re-affirmed this viewpoint in his last work before passing away in 2018, stating that ‘the Peace Treaty between Japan and China symbolized a fundamental, even revolutionary, change in human history.’ ⁷ He also refers to the European colonization of Africa in the late nineteenth century as another event representing ‘the birth of international law as the law of global international society in the geographical sense of the term’ ⁸ , although he does not explain what is the African civilization in the context of intercivilizational perspective between Africa and Europe.

It is necessary to distinguish the real significance of the 1895 Treaty within the historical context from its significance from a theoretical perspective such as in the transcivilizational perspective of international law. History itself cannot be rewritten, ⁹ whereas academic viewpoints may differ. ¹⁰ However, as Xue Hanqin recently noted: ‘Hopefully, constructive dialogue and interactions among the various actors will prevail over detrimental confrontation, promoting mutual understanding and cooperation among states.’ ¹¹

Investigating the origin of international law can be regarded as an academic issue, which has been debated by numerous contemporary international lawyers. ¹² This also holds true for the discussion on Onuma's transcivilizational perspective of international law. This article shares the same academic intention. Through a critical analysis, it aims to identify the core of the transcivilizational perspective of international law and discuss the relevant issues arising from Onuma's ideas regarding general international law, as well as China's stance towards contemporary international law.

The core of Onuma's transcivilizational perspective on international law posits the historical event of 1895 Sino-Japanese treaty as a landmark in the birth of global international law, rather than regarding it as a turning point for Japan to become an imperialist nation. Japan's colonization of Chinese Taiwan was the initial step in emulating European colonial practices, ultimately leading to more aggressive wars, which were among the root causes of WWII. Based on this historical review, this article conducts a critical analysis of the transcivilizational perspective of international law. This analysis does not aim to cover all aspects of Onuma's theory. Instead, it focuses on three underlying issues: first, an evolutionary construction of the Chinese civilization, specifically exploring the origin of the tribute system and the situation of East Asia; secondly, a dual understanding of the general international law; thirdly, the Chinese attitude towards the contemporary international law.

The rationale for this focus is that Professor Onuma misinterprets the 1895 event. This not only reflects his disregard of the Japanese colonization in Asia stemming from this event but also indicates a lack of an evolutionary construction of Chinese civilization. Undoubtedly, modern international law originated from the interactions among European nation-states. However, it seems that Onuma failed to clearly distinguish between the colonization brought about by the Eurocentric law of nations and the equal relations under the general international law that has developed since the early seventeenth century in Europe and has become the cornerstone of the UN.

China has emerged as the world's second-largest economy and faces challenges in formulating its attitude towards contemporary international law. ¹³ Professor Onuma offered somewhat ambiguous remarks in this regard, which need to be clarified. It should be emphasized that these underlying issues are integrated, centered around the core of the transcivilizational perspective of international law, and related to Onuma's ideas. This critical analysis will be beneficial for international legal scholars to further discuss the transcivilizational perspective of international law.

II. Evolutionary Construction of Chinese Civilization

Onuma argued that the 1895 event was critically important for the birth of global international law. However, he did not only downplayed the aggressive nature of the event and its colonizing outcome but he also misunderstood the tribute system of East Asia, which evolved from the Chinese civilization.

Part II focuses on the academic issue of the evolutionary construction of Chinese civilization against the historical background of the 1895 event. Logically, for our understanding of transcivilization, particularly the encounter between the European civilization and Chinese civilization, one of the preconditions is to know what Chinese civilization is.

Chinese civilization emerged 5000 years ago as one of the major ancient civilizations. There were five ancient civilizations of Eurasia between 3500–1000 B.C.: Mesopotamia, Egypt, Crete, Indus and Shang (China). In addition, there were three major civilizations in America: the Mayan, in present-day Yucatan, Guatemala, and Honduras; the Aztec, in present-day Mexico; and Inca, stretching for 3000 miles from mid-Ecuador to mid-Chile. ¹⁴ Since then, the civilizations have been diversified without a single global center.

The Xia (Hsia) Dynasty (2100–1600 B.C.) was the first ancient Chinese dynasty, followed by the Shang Dynasty (1600–1100 B.C.). ¹⁵ Recently, Chinese archaeologists discovered more evidences of the earlier Chinese civilization dating back 3000 B.C.

In ancient time, the peoples lived separately in different areas. Their kings or emperors claimed universal jurisdiction. For example, Hammurabi (1704–1662 B.C.), the well-known emperor of the Babylonian Empire, stated in the Hammurabi Code of Law that ‘the gods of old had predestined Babylon to be supreme in the world, and predestined him to cause justice to shine in the land, to destroy the wicked and the evil, that the strong might not oppress the weak.’ ¹⁶ Similarly, it was a traditional idea in the ancient China that ‘all the world under Heaven is the realm of the emperor’. ¹⁷ It reflected the power of kingship in the Western Zhou (Chou) Dynasty (1100–771 B.C.). In fact, there was no intercourse between the Babylonian Empire and the Western Zhou Dynasty. These claims about ‘the world’ were obviously limited to the territories of the empire or the dynasty. The words ‘the world under Heaven’ (Tianxia) did not originate from the emperor. ¹⁸ It is the idea of later generations to refer the system of Heaven (Tianxia system). ¹⁹

Chinese civilization has developed without interruption. In terms of geographical evolution, it mainly originated from the central area of Yellow River valley (in present-day, the city of Zhengzhou, Henan Province). There were more than a dozen of the primitive society sites in the north, south, and west areas before Xia Dynasty. ²⁰ It gradually extended to the surrounding areas during the dynasties of Xia, Shang and Zhou until the Qin (Ch’in) Dynasty (221–206 B.C.), when the first centralized empire replaced the previous feudal system. The Qin Dynasty ‘left a deep and permanent imprint on China. … It is only appropriate that the accidental name for China is derived from the Ch’in.’ ²¹

The territory under the Qin Empire included the North China, with the Great Wall as the defensive boundary; the East China, with the coastline ending at its northern and southern frontiers with Korea and Vietnam respectively; and the West China, located in the original Qin domain.

Chinese territory was enlarged to the minorities’ areas in the west, southwest, and north (in present-day, Xinjiang Uygur Autonomous Region, Xizang Autonomous Region and Inner Mongolia Autonomous Region respectively) mainly during the Han (206 B.C.-220), Tang (618–907), Song (960–1279), Yuan (1271–1368), Ming (1368–1644) and Qing (1644–1911) dynasties. An inclusive Chinese civilization resulted from the historical evolution with the Han majority and 55 minorities.

In terms of cultural evolution, Chinese civilization has contributes its unique philosophy to the world. Coincidentally, Confucius (551–479 B.C.), an ancient Chinese philosopher-teacher regarded as ‘the most outstanding’ ²² of the ‘Hundred of Schools’ in the Spring and Autumn Period (770–476 B.C.), left behind his Analects (Collected Sayings), in comparison with Plato (427–374 B.C.) in Classical Greece, who was ‘one of the shapers of the whole intellectual tradition of the West’ ²³ and wrote over twenty philosophical dialogues.

Both great thinkers concentrated on domestic governance, which partially demonstrated the isolation of ancient civilizations. Confucius said: ‘Govern the people by regulations, keep order among them by chastisements, and they will flee from you, and lose all self-respect. Govern them by moral force, keep order among them by ritual and they will keep their self-respect and comes to you of their own accord.’ ²⁴ This was the basic idea of Confucianism and the general principle of the Chinese traditional legal culture: governance by moral force and ritual as priority with supplemental penal punishment. ²⁵

Confucianism had evolutionary developments after being adopted as the official dogma based on the suggestions of Tung Chun-shu (179–104 B.C.), the most important thinker of Confucianism of that time. He suggested to the seventh Emperor of Western Han Dynasty (141–87 B.C.): ‘that all those which have nothing to do with the Six Classics or the doctrine of Confucius, be abolished in order to stop their contest.’ ²⁶ It means that the Hundred of Schools shall be abolished while authorizing Confucianism as the official dogma to unify thoughts for the unity of the central dynasty. He also emphasized the natural and social order ‘within the home, he has the family relationships of father and son, elder and younger brother. Outside, he has the social relationships of ruler and subject, superior and inferior.’ ²⁷ It was codified by the Criminal Code of Tang Dynasty as a death penalty for anyone disobeying this order.

Another evolutionary development was promoted by Chu Hsi (1130–1200) whose ‘influence in the Confucian world was comparable to that of Thomas Aquinas in Western Christendom.’ ²⁸ He prioritized the rites of benevolence and reverence, saying:‘If you are a ruler, you should investigate until you know benevolence. If you are a subject, you should investigate until you know reverence.’ ²⁹

In summary, evolutionary Confucianism was a philosophy of domestic governance regarding the vertical relation between the king or emperor and subjects. Confucianism itself was not relevant to the Sinocentric tribute system.

A question arises: where did the Sinocentric tribute system come from against the above background of the evolving Chinese civilization? Professor Onuma explains his theory of international law from intercivilizational perspective, stating that there was a regional ‘system’ in East Asia: ‘the Sino-centric sphere of civilization existed until the nineteen century. … Thus, there should be no relationship based on equality between the (Chinese) emperor and other rulers, even if the latter was not actually subordinated to the former.’ ³⁰ He says that ‘In East Asia, which today approximately covers China, Mongolia, the Korean peninsula, Japan, Taiwan and Vietnam, the Sino-centric sphere of civilization existed until the nineteen century.’ It must be noted that Taiwan is a part of China.

It appears that the Sinocentric tribute system came from China's dealings in the foreign relations. Further questions arise: when did China treat foreign countries in the Sinocentric way and how?

The ancient Chinese had no idea of ‘foreign relations’ or ‘foreign countries’ before Qin Dynasty. The word ‘China’ (Zhongguo) in the Chinese character might have originated from the works of Chuang Tzu (369–286 B.C.), the most representative figure of Taoist School in the period of Warring States (475–221 B.C.), referring to ‘the Middle State’ (the feudal states in the central area of Yellow River valley). ³¹ It was also interpreted as ‘the location of royalty’. ³² At that time, the Han majority in ‘China’ regarded the minorities of surrounded areas as ‘Yi’, ³³ i.e., the barbarian. Those minorities incorporated with Qin Dynasty.

After unifying the ancient Chinese territory as described above, Qin and Han dynasties referred to the peoples beyond their boundaries with particular names such as ‘Hiung-nu’ (Xiongnu). The Hiung-nu were the nomadic people of the northwest Asia (in present-day, Mongolia). They frequently attacked China. China had to build the Great Wall for military defense against them.

The Western Han Dynasty carried out a policy of peace through the royal marriage with Hiung-nu by the equal agreement. The historical record stated that ‘the first Western Han Emperor, Gao Ti (256–195 B.C.) ordered his minister Liu Jin arrange a loyal marriage between a Han princess and the King of Hiung-nu’. ³⁴ This policy lasted for more than 150 years (198–33 B.C.). The Sinocentric tribute system did not exist during that period.

The Western Han Dynasty summarized the lessons for dealing with the Hiung-nu as follows:

The doctrine does not apply for them, and the governance dose not extend them either.We should defend ourselves if they attack us, and be prepared even if they leave. We should accept their tribute and return gifts to them with due ceremony. ³⁵

It is clear that the word ‘tribute’ in the Western Han Dynasty did not imply anything about the Sinocentric system. The historical record also stated that: ‘If the Hiung-nu pays respect our sanctity by offering tributes, these goods shall be accepted with the equivalents given in return.’ ³⁶ Apparently, the tribute was symbolic of the peaceful relationship between the Han Dynasty and the ‘Yi’ including the Hiung-nu. The principles for handling the affairs of ‘Yi’ were mainly non-intervention, self-defence, and reciprocal treatment.

The first officially recorded tribute was payed by the Gao-juli ³⁷ in the 8th year of Jianwu (32 A.D.) after the Gao-juli had been incorporated as a local county of the Eastern Han Dynasty (25–220 A.D.). ‘Gao-juli send an envoy to pay the tribute to the Han Dynasty.’ ³⁸ Actually, it occurred within the jurisdiction of Dynasty. It was also officially recorded that Japan (Wo-nu state), in the 2nd year of Jianwu Zhongyuan reign period (57 A.D.), sent an envoy with tribute. ‘The envoy introduced himself as a high official. The state is located in the far south of Wo, Emperor Guangwu bestowed on him a seal with a tassel.’ ³⁹ However, it did not reflect the vassal relationship with China. It was a peaceful relationship based on the principle of accepting tribute and returning gifts with ceremony. There was no Sinocentric tribute system in the Eastern Han Dynasty.

It is interesting that the practice of ‘tribute’ generally emerged from the commercial contacts between the Roman and Han empires via the ancient Silk Road, either through overland trade routes or across the Indian Ocean from the Arab world to China via India and Southeast Asia. Roman traders in the second and third centuries A.D. reached Ch’ang-an (Sian), the capital city of Han Dynasty. To cite Stavrianos:

They represented themselves as official Roman envoys in order to further their ends. The Han court doubtless detected the fraud, since the imperial ‘gifts’ were mere products of nearby Southeast Asia that had been bought by the merchants. Nevertheless, the Chinese were flattered by the proffered ‘tribute’ and probably allowed the Westerners to load profitable cargoes of silk. ⁴⁰

The Song (Sung) Dynasty (960–1279) began to name some ‘foreign countries’ such as Korea (renamed Gao-li), Japan, India (Tian-zu), and also left more details about tributes. Korea gained independent status due to the chaos of the late Tang Dynasty. The Korean king (Gao) sent the envoy to China to pay tributes, which did show that Korea wanted to keep the vassal relationship with China.

As mentioned above, Japan's payment of tributes to China could be traced back to the Eastern Han Dynasty: ‘it started to deliver the tributes to China from that time and continued in the following dynasties’. ⁴¹ Japan had more respects for Chinese culture rather than being in submission. Professor Shin Kawashima, a distinguished scholar in East Asia study, said that ‘the tribute system (chaogong or jingong) meant that the kings from the surrounding countries yearned for the emperor's virtue, which then indicated that the rule of virtue (jiaohua) was indeed being realized. Also, as long as the rules were being observed, the dynasty did not interfere in these countries’ domestic affairs.’ ⁴²

India had a good relationship with ancient China, especially from the Han to Tang dynasties when Chinese pilgrims traveled there to learn Buddhism. Indians came to pay tributes during Tang Dynasty as evidence of friendship with China.

The comparative study of ‘pan-Asian ritual diplomacy’ demonstrates that there was a ‘common layer’ of diplomatic practices shared from Mamluk Egypt to the Mongol Yuan dynasty in China. ⁴³ The tribute system was not only a diplomatic practice in ancient China. There were also various tributes in Asia. ‘Bear in mind that these tributary relations waxed and waned. Sometimes there was a political agenda, but for a great part these relations were cultivated by South East Asian rulers for pragmatic and economic ends.’ ⁴⁴

A conclusion can be drawn about the Sinocentric tribute system through an evolutionary examination of historical records. Before Song Dynasty, there was no such system with foreign countries in China because ‘Yi’ was not equated with ‘foreign countries’. The Koreans paid tribute to China due to the 2000-year historical connection (from the Zhou to Tang dynasties, 1100 B.C.- 907). However, this did not hold true for Japan.

In East Asia, unlikely as Professor Onuma argued, the so-called Sinocentric tribute system did not exist as a single model in the bilateral relationship between Korea and China. The 1895 event did change this bilateral relationship. Meanwhile, Japan colonized the Chinese Taiwan under the unequal treaty, which was the first step following the European colonization in Asia. The 1895 event was essentially part of the interaction between China and Europe. Professor Onuma admitted that in 1890s, Japan ‘had been as a member of West centric international system’. ⁴⁵

III. Dual Understanding of the General International Law

For the purpose of a critical analysis on the transcivilizational civilizational perspective of international law, it is necessary to discuss what the general international law is. Professor Onuma believes that the 1895 event was the landmark of the birth of global international law in the geographical sense of the term. It could be understood that the global or general international law was the non-regional international law.

The modern international law originated in Europe. However, it had dual aspects from the very beginning: the positive one as the legal instrument regulating the equal relationship between or among the sovereign nations not only in Europe but also in other non-European nations; the negative one as the justification for the European colonization.

Professor Onuma remarks that the mainstream of the study on the history of international law ignored the meaning of colonization in relation to international law. ‘Moreover, it understood the emergence of the European sovereign states system as an event of worldwide significance from the very beginning. Lying behind such an understanding is Eurocentrism, which holds what is important for Europe should be important for the world.’ ⁴⁶ It might be his idea of intercivilizational perspective to take the 1895 event as ‘a fundamental, even revolutionary, change in human history’ because of its ‘critical importance in the establishment of international society, global society and the birth of international law as the law of such international society.’ ⁴⁷ It is incorrect not only for the ignorance of the 1895 event as the turning point for Japan to become an imperialistic country, with colonizing the Chinese Taiwan as the first step following the European colonization, but also for the confusion of ‘the very beginning’ about the modern international law.

Therefore, Part III will address the dual understanding of general international law as an academic issue. It is extended from the previous discussion on the evolutionary construction of the Chinese civilization with the tribute system and the conclusion that there was no such system in East Asia with a single model of the bilateral relation between Korea and China. The 1895 event was the Japan's step to follow European colonization. It was not the birth of global international law because of its global nature already existed.

First, the modern international law emerged with the global nature related to the law of sea. Hugo Grotius (1583–1645) prepared his arguments for the case of Catharine in 1604, which led to his book De Iure Preadae (On the Law of Prize). Although this was first published in its entirety only in 1864, one chapter was published in 1609, entitled Mare Liberum (The Freedom of Seas), at the request of the Dutch East India Company. ⁴⁸ It did address ‘to the rulers and to the free and independent nations of Christendom’, ⁴⁹ not to the world as a whole. However, the subject matter was not limited to the intercourse between or among the European nations. The sea is global by nature; the freedom of seas refers to the world as a whole. Grotius said that ‘I shall base my argument on the following most specific and unimpeachable axiom of the Law of Nations, called a primary rule or first principle, the spirit of which is self-evident and immutable, to wit: Every nation is free to travel to every other nation, and to trade with it.’ ⁵⁰ In fact, he talked about ‘the Law of Nations (juris gentium)’ in the global sense.

Grotius resorted to ‘Pliny's description of the route to the East’ ⁵¹ from the ancient Roman to the islands in the Indian Ocean via the Cape of Good Hope. ‘These island of which we speak, now have and always have had their own kings, their own government, their own laws, and their own legal systems.’ ⁵²

It is believed that: ‘Throughout Mare Liberum, Grotius showed awareness of an independent political and legal system and society in Asia with their own rules of inter-state conduct. He was particularly mindful of the long traditions of free navigation and trade in the Indian Ocean from Roman times and even earlier which had been uninterrupted for centuries.’ ⁵³ ‘The Grotius concept of freedom of seas gradually attracted general support, including that of Great Britain, and became a principle of customary international law.’ ⁵⁴ It has been codified by the UN Convention on Law of Seas as the Article 87 ‘Freedom of the high seas’. ⁵⁵ It was no doubt that from ‘the very beginning’ of modern international law, for which Grotius as one of the founders. ‘Grotius is generally venerated as one of the fathers of International Law even if he is no longer believed to be the sole founder of this branch of jurisprudence.’ ⁵⁶ His Mare Liberum implied the global nature of general international law. As Professor H. Lauterpacht comments on the Grotian contributions, ‘His share in the evolution of the principle of the freedom of the seas needs no elaboration. In all these matters his teaching became part of international practices, wholly or in part.’ ⁵⁷ Interestingly, Professor Onuma mentions neither Mare Liberum in his article ⁵⁸ nor relation to the intercivilizational perspective in his book. ⁵⁹

Secondly, it is more important that Grotius argued for the sovereign equality not only for the European nations but also of non-European nations. He said that ‘The Portuguese are not sovereigns of those parts of the East Indies to which the Dutch sail, that is to say, Java, Ceylon, and many of the Moluccas. … The inhabitants (of these islands) allow the Portuguese to trade with them, just as they allow other nations the same privilege.’ ⁶⁰ The reason was that those islands ‘have had their own kings, their own government, their own laws, and their own legal systems.’ ⁶¹ In a word, they were sovereign nations just like the European nations. The primary purpose of Mare Liberum was a defense for the Dutch as a de facto independent nation ⁶² which would have the equal right to take part in the East Indian trade, just like some other European nations such as the Portuguese. Meanwhile, Grotius regarded other non-European nations as the equal trade partners. It implied the sovereign equality from ‘the very beginning’ of the modern international law, as Grotius argued for.

Whether this implication is correct requires further exploration of Mare Liberum and De Iure Belli ac Pacis (On the Law of War and Peace), which also necessitates a discussion of De Iure Preadae. It is recognized that ‘Grotius revised and expanded the theoretical part of De Iure Praedae which became De Iure Belli ac Pacis.’ ⁶³ The main theme of De Iure Preadae, including the chapter 12, which was published separately with some modifications as Mare Liberum, was the justification of the war against Portugal. The opening words of De Iure Preadae stated that ‘A situation has arisen that is truly novel, and scarcely credible to foreign observers, namely: that those men who have been so long at war with Spaniards and who have furthermore suffered the most grievous personal injuries, are debating as to whether or not, in a just war and public authorization, they can rightly despoil an exceedingly cruel enemy who has already violated the rules of international commerce.’ ⁶⁴ This determined that Grotius created his theory of international law primarily to settle disputes with European nations. It would be a principle of equality that ‘Access to all nations is open to all, not merely by the permission but by the command of the law of nations.’ ⁶⁵ The Dedication of De Iure Belli ac Pacis was written to the King of France as ‘the most Christian King’, ⁶⁶ which indicated what was the book saying to the Christian world first. However, Grotius actually wanted to give this to mankind as a whole. The subject was the law of nations ‘not of particular states, but of the great society of states. And this is what called the law of nations, whenever we distinguish that term from the law of nature.’ ⁶⁷ He also made it clear that: ‘The law of nature, again, is unchangeable——even in the sense that it cannot be changed by God. … The law which is broader in scope than municipal law is the law of nations; that is the law which has received its obligatory force from the will of all nations, or of many nations.’ ⁶⁸ He argued for the just war with an idea of peace. ‘War itself will finally conduct us to peace as its ultimate goal.’ ⁶⁹ ‘Grotius paved the way for a consensual and secular concept of international law.’ ⁷⁰ That was the ‘very beginning of’ the modern and general international law existed already globally at the time of 1895 event.

The critical issues must be taken to distinguish the positive aspect of modern international law from ‘the very beginning’ of the negative one. As the analysis above shoes, Grotius contributed his theory with the positive aspect of international law as the legal instrument generally regulating the equal relationship between or among the sovereign nations not only in Europe but also other non-European nations (such as Java, Ceylon, and many of the Moluccas) at least when he wrote and published Mare Liberum. Grotius did not even mention the words ‘colony’ or ‘colonization’ in his three publications on international law, i.e., Mare Liberum, De Iure Preadae and De Iure Belli ac Pacis. Based on mainly the Roman laws ‘to regulate the relations of men among themselves’, ⁷¹ Grotius intended to create his theory of international law ‘in a comprehensive and systematic manner’ ⁷² that was exclusively related to the intercourse of different nations ‘who are not held together by a common bond of municipal law’ ⁷³ in time of war or peace. They were the sovereign powers in the sense that ‘their actions are not subject to the legal control of another’. ⁷⁴

Partially influenced by Grotius’ theory, the Treaty of Westphalia was concluded under the principle of sovereign equality. The words ‘sovereign equality’ did not appear in this Treaty. However, the contracting parties including the Electors of Roman Empire, the other Princes and States were invited to participate in ‘an Assembly of Plenipotentiary Ambassadors’, ⁷⁵ which indicated that the participants were equal as the parties of this Treaty. The plenipotentiary ambassadors or plenipotentiaries had been the representatives of sovereignty since the Treaty of Westphalia. ‘Only in 1648 when the Treaty of Westphalia——which concluded the Thirty Years War——had established a new order of relationships, however precarious at first, could the age of classical European diplomacy (the direct origin of all diplomacy) be said to have begun.’ ⁷⁶ In regard of the system set up by the Treaty of Westphalia, ‘by the same token it recorded the birth of an international system based on a plurality of independent states, recognizing no superior authority over them.’ ⁷⁷ It has been developed as the basic principle of sovereign equality as the cornerstone of the UN. ⁷⁸

In contrast, one of Grotius’ predecessors, Franciscus de Victoria (Francois de Vitoria,1480–1546) ‘as one of the founders of International Law’ ⁷⁹ presented his lectures on De Indis (On the Indians) and De Jure Belli (On the Law of War) in 1532,‘in which he examined the titled which the Spaniards might allege to justify their domination in the New World.’ ⁸⁰ He described that ‘The whole of this controversy and discussion was started on account of the aborigines of the New World, commonly called Indians, who came 40 years ago into the power of Spaniards, not having been previously known to our world.’ ⁸¹ In Victoria's view, the issue arising from the Spanish discovery of the New World was the power of the Spaniards over the Indians. Whether the Spanish power or sovereignty would be extended to the New World depended on the answer ‘concerning the lawfulness or unlawfulness of which men were doubtful’. ⁸² What would be the applicable law? As a professor of theology, Victoria said that ‘I accordingly assert that in doubtful matters a man is bound to seek the advice of those whom the Church has appointed for that purpose, such as prelates, preachers, and confessors, who are people skilled in divine and human law.’ ⁸³ Victoria provided his advice like those people. After supporting that ‘the Indian aborigines are or were true owners’ of the New World ⁸⁴ and rejecting seven titles by which ‘the Spaniards could have come into possession’ of the New World, ⁸⁵ Victoria developed his arguments for ‘the lawful titles whereby the aborigines of America could have come into the power of Spain’. ⁸⁶

Primarily, Victoria believed that ‘The Spaniards have a right to travel into the lands in question and to sojourn there, provided they do not harm to the natives, and the natives may not prevent them. Proof of this may in the first place be derived from the law of nations (jus gentium), …Therefore it is lawful.’ ⁸⁷ Victoria further argued that: ‘But when the Indians deny the Spaniards their right under the law of nations they do them a wrong. Therefore, if it be necessary, in order to preserve their right, that they should go to war, they may lawfully do so.’ ⁸⁸

That was ‘the very beginning’ of the European colonies overseas under jus gentium by discovering the New World and staying there with the necessary use of force. This negative aspect of modern international law was developed by many international legal scholars in the West. For example, Emmerich de Vattel, a great Swiss jurist in eighteenth century, explained that the in the New World, ‘the aborigines uncertain occupancy of these vast regions cannot be held as a real and lawful taking of possession; and when the Nations of Europe, which are too confined at home, come upon lands which the savages have no special need of and are making no present and continuous use of, they may lawful take possession of them and establish colonies in them.’ ⁸⁹ This European perspective of ‘lawfulness’ was the Eurocentric international law which ‘has proven wrong because it is incomplete. Not only does it generally ignore the violence, ruthlessness, and arrogance which accompanied the dissemination of Western rules, and the destruction of other legal cultures in which that dissemination resulted.’ ⁹⁰ It must be distinguished from the positive aspect of the modern international law as discussed above.

Apparently, Professor Onuma recognizes that ‘In any event, the very question whether Grotius, Vitoria or Vattel should be regarded as the father of international law assumes that international law was born in modern Europe, and is confined within the perspective of Eurocentric modernity.’ ⁹¹ However, it seems that he dismisses the positive aspect of the modern international law originated in Europe, in particular, Grotius’ contributions of Mare Liberum, De Iure Preadae and De Iure Belli ac Pacis. It is true that Victoria, as one of fathers of modern international law, developed his theory to justify the European colonization overseas. It was definitively the negative aspect of Eurocentric perspective. It might be a conclusion that the modern international law emerged from the very beginning inherently as a global system mainly regulating the intercourse of European nations, but also applied to non-European nations such as Java, Ceylon, and many of the Moluccas, which had ‘their own kings, their own government, their own laws, and their own legal systems.’ ⁹² This positive aspect finally became the principle of sovereign equality for the general international law under the UN Charter.

Meanwhile, the European colonization was also resulted from the very beginning of the geographical discovery globally. Thus, the real significance of the 1895 event was not the birth of global international law as Professor Onuma argues for, but rather the first step of Japan following the European colonization in Asia.

Drawing together the discussions of Parts II and III, it may be concluded that the Sinocentric tribute system of East Asia did not exist in the term of bilateral relations between China and Korea before the 1895 event. As one of the East Asian states, Japan had been a member of Eurocentric system in 1890s. The 1895 event had no revolutionary significance for the birth of global international law because it had been developing for centuries already.

IV. The Chinese Attitude Towards Contemporary International Law

Primarily, the critical analysis of the transcivilizational perspective of international law is limited to the historical review of the evolutionary Chinese civilization and the dual aspects of general international law. However, Professor Onuma comments on the Chinese attitude towards the contemporary international law, which is related to so-called ‘resorting to the idea of Sino-centric system of world ordering’. ⁹³ A necessary review of modern Chinese history and a response to such ambiguous comments must be made for clarification.

Therefore, Part IV turns to the historical changes in the Chinese attitude towards the international law from the mid-nineteenth century to the present day in the twenty-first century, including the clarification of the Chinese position on the South China Sea. It intents to answer whether China wants to resort to ‘the idea of Sino-centric system of world ordering’, which seems to be part of Professor Onuma's transcivilizational perspective of international law related to the contemporary issues, but is no more than the response to his comments.

The term of ‘international law’ did not appear in any Chinese official documents or literature before the First Opium War. In 1839, Lin Zexu (Liu Tse-hsu, 1785–1850) served as the Special Imperial Commissioner of Qing Dynasty to deal with the issues of ‘foreign opium’. ⁹⁴ According to the historical record of the Qing Dynasty, Lin Zexu ordered to translate some passages of E. de Vattel's Le Droit des gens (1758, the Law of Nations or the Principles of Natural Law) entitled Geguo Luli (the Illustrations of Law in Different Nations) for foreign affairs. Wei Yuan (1749–1857), a famous scholar of Qing Dynasty, edited a multi-volumes of book Haiguo Tuzhi in 1847, which including a translation of some passages from Vattel's Le Droit des gens. ⁹⁵ It was the first use of Chinese words with the essential meanings of international law.

It is generally acknowledged that Martin's translation of Wheaton's Elements of International Law under the title Wangguo Gongfa was published in 1864 as the first systematic introduction of modern international law into China. ⁹⁶ It was the time for China to face the unprecedented challenges from European expansion and colonization or semi-colonization.

As Judge Owada Hisashi, the first President of the Asian Society of International Law, said that in many cases, the European expansion ‘took the form of colonial domination, to which many of the Asian nations fell victim. Thus, the Philippines became a colony of the Spaniards; Indonesia was also colonized by the Dutch; India, Malaya, and Burma came under British rule; and Indochina fell under French domination. China also became a target of the colonial appetite.’ ⁹⁷ It is true.

The history demonstrates that China had to know what the international law was in the late Qing Dynasty. Actually, it was the negative aspect of international law for the Europeans. As colonization expanded to Asia, China held an unwilling attitude towards it from the very beginning of her encounter with such international law. Taking the first unequal treaty——Treaty of Nanjing of 1842——as an example, according to its provisions, China was required to pay Britain a large indemnity, cede Hong Kong Island to the British, and increase number of treaty ports where the British could trade and reside from one (Canton) to five including Shanghai. ⁹⁸ More unequal treaties were followed, including the Treaty of Maguan (Shimonoseki) of 1895.

Chinese attitude towards international law was changed by the WWII, which began when the Japanese invaded Manchuria in 1931. China's fight against the Japanese invasion was supported by the states of the Anti-Axis powers Coalition. China was invited to participate in the Moscow Conference with the United States, the United Kingdom and the Soviet Union, which issued the Declaration of Four Nations on General Security (Moscow Declaration) on 30 October 1943. ⁹⁹ The Moscow Declaration expressly declared that a general international organization would be ‘based on the principle of the sovereign equality of all peace-loving states’. ¹⁰⁰ It reflected the positive aspect of general international law, as Hans Kelsen had commented that ‘the solution of the problem of a durable peace can be sought only within the framework of international law——that is to say, by an organization’. ¹⁰¹ China actively involved in the drafting of the UN Charter by two contributions: the Tentative Chinese Proposals for a General International Organization submitted to the Dumbarton Oaks Conversation ¹⁰² and the Chinese Proposals on Dumbarton Oaks Proposals for the UN Conference on behalf of four sponsoring nations. ¹⁰³

The People's Republic of China (PRC, China) was established on 1 October 1949 with a Proclamation of the PRC Central Government by Chairman Mao Zedong (Mao Tse-tung) who declared that ‘the said government is the only legitimate government representing all peoples of the PRC. The said government is willing to establish the diplomatic relations with any foreign governments who are willing to comply with the principles of equality, mutual benefits and mutual respect of territorial sovereignty.’ ¹⁰⁴ It was the attitude of the PRC towards the international law under the UN Charter after the change of its previous central government even though the PRC ‘as the only legitimate representatives of China to the United Nations’ restored its seat in the UN on 25 October 1971. ¹⁰⁵

China wants to coexist peacefully with any foreign countries. That is the basic attitude towards the contemporary international law. ¹⁰⁶ In June of 1954, China jointly enunciated the Five Principles of Coexistence (the Five Principles) with India and Myanmar, i.e., (i) mutual respect for each other's territorial integrity and sovereignty, (ii) mutual non-aggression, (iii) mutual non-interference in each other's internal affairs, (iv) equality and cooperation for mutual benefit, and (v) peaceful co-existence. ¹⁰⁷ The Five Principles were constitutionalized in China as the basic foreign policy. The preamble of the PRC Constitution adopted on 20 September 1954 included a statement that ‘China is holding the policy to establish and develop the diplomatic relations with any countries in accordance with the principles of equality, mutual benefits, mutual respect the sovereignty and territorial integrity.’ ¹⁰⁸ It was also subsequently incorporated in the Ten Principles of Bandung at the historical Asian-African Conference in 1955, ¹⁰⁹ and the UN

Declaration on Principles of International Law in 1970. ¹¹⁰

China has developed into the second-largest economy in the world, especially after implementing the open-door policy since later 1970s. However, China continues its foreign policy based on the Five Principles. In addition, China put forward the idea of peaceful rise ‘as a part of its role in fostering peace and development of the world’ ¹¹¹ and promotes the building a human community with a shared future ‘which essentially derived from the contemporary international law.’ ¹¹² Meanwhile, China put forward the Belt and Road Initiative as international public goods to promote win-win cooperation. ¹¹³

The historical review above could be a basis to clarify Professor Onuma's ambiguous comments on China's attitude towards the contemporary international law. He said that:

After having become the second largest economic power in the early twenty-first century, China has been making strong claims, some of which seem to be difficult to legitimize under current international law. The claim over the area within what China calls ‘nine-dash (or dotted) lines’ in the South China Sea is an example. … Has China begun to seek to revise the current West-centric international legal order by resorting to the idea of Sino-centric system of world ordering, which prevailed in East Asia during the pre-modern period? Chinese dynasties were so prominent and influential for a long time and Sino-centric is deeply rooted in the Chinese mind. ¹¹⁴

Arguably, in the opinion of Professor Onuma, China has risen economically and is seeking to revive a Sino-centric world. It is a misunderstanding of Chinese development. It might be traced back the year of 1974 when the Chinese leader Deng Xiaoping addressed the Sixth Special Session of the UN General Assembly on Chinese foreign policy. It was a historical event after restoration of China's seat for the PRC as the only legitimate representatives of China to the UN. Mr. Deng reaffirmed the Five Principles and emphasized that ‘China is a developing country belonging the third world. China has no intention to be a superpower and seek the hegemony in the world.’ ¹¹⁵ After a half century passed, it remains unchanged nowadays as the Chinese government declares that ‘China has actively advanced world multipolarity and democracy in international relations, unequivocally opposed hegemonism and power politics, and worked to make the international order more just and equitable.’ ¹¹⁶

Referring to the particular issue of the South China Sea, China has the territorial sovereignty over the islands within the nine-dash (or dotted) lines. It is widely recognized that the dotted lines were drawn in an official map by the Chinese government in 1947 when all territories stolen by Japan from the China, including the South China Sea islands, were restored to China after the WWII.

The Ministry of Interior of Chinese government published the Location Map of the South China Sea Islands with eleven ‘dotted line’ started at the land boundary between China and Vietnam to the coast area of eastern Taiwan. The map included a list of 172 geographical names, in both Chinese and English, for the islands in the South China Sea. ¹¹⁷

There were no disputes arising between China and any foreign countries when China claimed territorial sovereignty over the islands within the dotted lines in the South China Sea. It is irrelevant to ‘the idea of Sino-centric system of world ordering’ as Professor Onuma comments.

The evolutionary construction of Chinese civilization shows that the inclusive Chinese civilization was resulted from the historical evolution with the Han majority and 55 minorities living in the Chinese territories including Taiwan and the South China Sea islands. The Chinese sovereignty over the South China Sea islands is fully consistent with the current international law. Some principles and rules of international law might be drawn from the international adjudication. For example, the Island of Palmas Case ruled that ‘The title of discovery, … under the most favorable and most extensive interpretation, exist only as an inchoate title, as a claim to establish sovereignty by effective occupation. An inchoate title however cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. The title of contiguity, understood as a basis of territorial sovereignty, has no foundation in international law.’ ¹¹⁸

It may be controversial as to who discovered the South China Sea islands, which depends on historical evidences of the capability to reach those islands in ancient time and to carry out the occupation effectively. However, it is indisputable that Chinese claim of sovereignty over those islands in 1947 was not challenged by any foreign countries until 1970s.

It must be noted that ‘the land dominates the sea’ as a rule of international law ¹¹⁹ shall be applicable to settle any disputes of maritime boundaries between China and any foreign countries in the South China Sea. In 2006, China made a reservation on the disputes settlement under the UN Convention on the Law of the Sea: ‘The Government of the People's Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.’ ¹²⁰ It excludes any judicial or arbitral jurisdiction over the disputes of territory, maritime boundary with China as a party. China prefers bilateral negotiation to settle those disputes with any foreign countries under the Article 33 of the UN Charter, which provides that ‘the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.’ ¹²¹ Overall, the Chinese position on the South China Sea reflects its positive attitude towards the contemporary international law.

V. Conclusion

The transcivilizational perspective of international law appears to advocate for diversified civilizations and to criticize the Eurocentric domination of international law. However, the core of the argument depends on the significance of the 1895 event as the landmark ‘in the establishment of international society as a global society and the birth of international law as the law of such international society’. ¹²² It implies that the 1895 event contributed positively to promote an intercivilizational legal system globally. In fact, it was the negative turning point for Japan as it followed European colonization in Asia and finally entered the WWII. Judge Owada said that ‘It cannot be denied that this attempt on the part of Japan led her later into disillusionment and eventually into a blind alley which contributed to the subsequent course of history of Japan with tragic results.’ ¹²³ It was tragic not only for Japanese but also for Asian peoples and humanity as a whole. Considering the necessity to reflect on the historical lesson, this article makes a critical analysis. It has focused on three issues underlying Professor Onuma's misinterpretation of the 1895 event, with the following conclusions.

First, it traces back the historical evolution of the Chinese civilization from ancient times to the later nineteenth century. During the pre-Qin Dynasty period (3000–221 B.C.), Chinese civilization was emerged from the central area of Yellow River valley and developed into a unified state with a central government, a multinationals society, and a unique culture of ‘Hundred of Schools’ including Confucianism as the philosophy of domestic governance regarding the vertical relation between the king or emperor and subjects. There was no Sinocentric tribute system in Qin Dynasty. The first tribute was payed by Korea (Gao-juli) as a local county of the Eastern Han Dynasty. After the late Tang Dynasty, Korea (Gao-li) had a tributary relation with China because of the 2000-year historical linkage, but Japan did not have such a relation. It is noted that the practice of ‘tribute’ also probably originated from commercial contacts due to the ancient Silk Road and gradually acquired cultural and political significance after Han Dynasty.

By the Treaty of Maguan or Shimonoseki of 1895, Korea had to end its traditional relation with China. Subsequently, the Japanese colonization was implemented. There was no so-called Sinocentric tribute system in East Asia as Professor Onuma argued with a single model of bilateral relation between Korea and China. The 1895 event was not the birth of international law in the sense of intercivilization, but the first step of Japanese colonization in Asia, just as European colonization already occurred in Asia and other areas of the world.

Secondly, it distinguishes two aspects of the modern international law that originated on European continent: the positive one, based on Grotius’ theory of international law and the Peace of Westphalia under the principle of sovereign equality, and the negative one, created by Victoria's justification of European colonization in the New World with the Eurocentrism.

The UN was established by the Alliance of states against the Axis powers more than eighty years ago on behalf of humanity as a whole for justice. The UN Charter provides the basic principle of equal sovereignty. The international law of the post-WWII era was developed from the Grotius tradition and the Westphalia model. It is not reasonable to ignore the merits of positive aspect of the modern international law while criticizing the Eurocentric colonization. The intercivilizational perspective of international law does not make such distinction. Assuming the 1895 event ended the Sinocentric tribute system in East Asia with the significance of internationally established law of nations, it disregards the positive aspect of Grotius tradition on international law from the very beginning with the principle of sovereign equality not only for the intercourse of European nations but also for the non-European nations, at least for the nations in the Southeast Asia when the Dutch wanted to do business with them in early seventeenth century as Mare Liberum argued for. This omission might be one of reasons why Professor Onuma mistakes the 1895 event, which began with ‘the subsequent course of history of Japan with tragic results’. ¹²⁴

Thirdly, Chinese attitude towards international law has changed fundamentally since China became one of the four sponsoring nations to establish the UN. China had to know what the international law was before the First Opium War (1839–1842). It was the negative aspect of Eurocentric international law with colonization. China had to accepted many unequal treaties resulted in foreign aggression until the WWII, in which China's fight against the Japanese invasion was part of the global Alliance of states against the Axis powers. China actively participated in the drafting of the UN Charter based on the principle of sovereign equality. China respects contemporary international law under the UN Charter, even though the PRC, as the only legitimate representatives of China to the UN, restored its seat in 1971. China's attitude towards contemporary international law has been mostly reflected by its foreign policy of the Five Principles since early 1950s and reaffirmed by its idea to build a human community with a shared future more recently. China has no intention to revive a ‘Sino-centric world’ as Professor Onuma notes. The Chinese position on the South China Sea stands firmly with the general international law. It includes the Cairo Declaration on restoration of ‘the territories Japan has stolen from the Chinese’. After the WWII, China published the location map of the islands within the dotted line of the South China Sea, indicating that those islands are Chinese territory. Any disputes related to maritime boundary shall be settled in accordance with the customary rule—‘the land dominates the sea’—through peaceful means, including bilateral negotiation under the Article 33 of the UN Charter. It is not a claim - contrary to what Onuma argues notes - that would ‘be difficult to legitimize under current international law.’ ¹²⁵