International Law in a Transcivilizational World. By Onuma Yasuaki

International Law in a Transcivilizational World. By Onuma Yasuaki This is no ordinary textbook of international law. If one wants a more detailed traditional treatment of subjects such as the relationship between international and national law, sovereign immunity, the modes of territorial acquisition, supported by meticulous citations from ICJ judgments or other international arbitral awards, one should look elsewhere. However, if one wants to have a ‘subversively constructive’ intellectual journey through the well-known terrains of international law, culminating in a fresh and critical perspective on international law, one should consider reading this book. The author has had a highly distinguished career as a professor of international law at the University of Tokyo and at Meiji University in Japan. As a leading critic of the Eurocentric bias of modern international law, he has produced a substantial oeuvre, the influence of which reaches far beyond the region of his origin, East Asia. In this book, Onuma applies the theoretical insights he introduced in his Hague lectures1 to the traditional topics of international law. Writing a textbook of international law from a perspective that ‘de-centers’ Europe is an exercise in intellectual audacity. The ‘Euro-centricity’ of the discursive space we inhabit is demonstrated by fact that, despite being one of the most indefatigable critics of Euro-centrism in international law, the author confesses in his ‘[a]cknowledgments’ (x) that I, as a Japanese international lawyer, had never thought of the possibility of writing a textbook or treatise of international law to be published by either Cambridge University Press or Oxford University Press. To me, such an undertaking was in the hands of some prominent Western international lawyer. What an awful, stereotyped, West-centric way of thinking! This review is limited to the discussion of Onuma’s poignant critique of various ‘centrisms’ found in the current international law research and practice. Onuma aims to shake up our cognitive complacency by subverting the well-established ideas about modern international law. The key strategy employed for this purpose is to distance oneself from these (uncritically) received ideas by decentering or debunking various ‘centrisms’ firmly embedded in—and, quite often, unconsciously influencing—one’s approach to viewing international law. West-centrism, state-centrism, domestic-law centrism and judicial centrism are the main targets of Onuma’s critique. Of these centrisms, West-centrism (or Euro-centrism) constitutes the leitmotif of the book. De-centering Europe in the study of international law has probably been the objective of Onuma’s lebenswerk. In this book, Onuma conducts a comprehensive and in-depth discussion of what he terms a ‘transcivilizational perspective’. This approach appears to perform at least two functions. First, it defines the status of the West or Europe as one of the ‘civilizations’, not the (only) civilization. Secondly, despite the historical process of the West progressively overwhelming the ‘others’ of Europe, the proper way should be seeing the relations between these civilizations not in a hierarchical, but in a horizontal manner. To attain this goal, the West should liberate itself from the ‘west-and-the-rest’ mindset and open itself up to an intersubjective dialogue. At the same time, the ‘others’ of Europe should articulate their own conceptions of a just international legal order and engage in a conversation with the West. A self-effacing or passive approach to international law on the part of the ‘others’ of the West contributes to the perpetuation of the Euro-centric character of international law. In the absence of any ‘significant other’ claiming for recognition (in Hegelian terms, engaging in a ‘struggle for recognition’), the prevailing international legal system sees no reason to be self-reflective and look beyond the Euro-centric positivist international law. Onuma’s book is a powerful call for such a constructive and mutually constitutive conversation between different cultures and ‘civilizations’. Onuma deftly demonstrates the efficacy of a transcivilizational approach in his discussion of the history of international law. His approach is highly effective in de-centering and relativizing the position and status of the West in the history of international law. The transcivilizational approach puts the seemingly universal validity of modern international law in its proper historical context. Adopting this approach, one can clearly see that the ‘universal’ international law we know today is in its origin, jus publicum europaeum, whose scope of application was limited to Europe and North America prior to the middle of the 19th century. Until that time, the world was in the form of various civilizations co-existing side by side. This insight is instrumental in historicizing current international law. In other words, such a view helps one to understand better that modern international law is very much a product of historical process. According to Onuma, international law is an ‘intersubjective product of humankind’ (55) in permanent evolution. Therefore, the change in power constellations—represented, for example, by the rise of China—may translate into change in international legal norms, a point that is reiterated throughout the book. Onuma also conducts a thorough critique of state-centric tendency in current international law. For instance, in chapter 2 dealing with the question of ‘identification of international law’, the distinction between (the traditional category of) customary international law and general international law is put forth. According to Onuma, while the former category was ‘created based on the state practice and opinio juris of a few powerful Western states’ (163), the latter category is more susceptible to ‘transnational legitimacy’ (164). It is not surprising to see the move away from state-centrism to be in full display in chapter 3, which deals with ‘subjects and participants of international law’. The role of non-state actors’ is also highlighted in chapter 4, which examines ‘responses to violations of international law’ generally known as the law of state responsibility in other textbooks (see in particular, 289–293). The profound change in the status of individual human beings is highlighted through a powerful criticism of the traditional theory of automatic change of nationality in the case of territorial modification (in particular, 350–359). Onuma also tries to bring to light other centrisms that negatively affect one’s understanding of international law, including the closely related domestic model centrism and judicial centrism. Domestic model centrism means our habit of conceptualizing and evaluating international law by the yardstick of (idealized) domestic law. In engaging in international law discourses, people ‘—mostly unconsciously—tend to assume the domestic law of the (modern) state as a frame of reference’ (2). This tendency presents itself most conspicuously when one discusses the question of whether international law is genuinely law (40–44). Closely connected with the domestic model centrism is what Onuma terms judicial centrism. He points out the substantial differences between domestic and international societies. While domestic courts have compulsory jurisdiction and, as a result, addressees of domestic law negotiate ‘under the shadow of the court’, in international society international law cannot function effectively since it lacks a judiciary with mandatory jurisdiction over its members (8). No wonder that according to Onuma ‘the role of the international judiciary as a conflict resolution mechanism is limited and weak’ (252). In assessing the role of the ICJ he directs our attention to the fact that it ‘has settled only an extremely small number of disputes, most of which are concerned with issues of secondary significance among overall international affairs’ (579). While one’s evaluation of the role of the international judiciary (in particular, the ICJ) in conflict resolution may differ, Onuma’s point should nevertheless be properly understood. Adoption of the domestic model thinking in international law prevents one from appreciating that ‘international law plays a significant role as a justificatory, legitimating and communicative tool rather than as adjudicative norms’ (8). This way of viewing international law which is uncritically accepted by most international lawyers has the added disadvantage of reducing international law, which has its own raison d’être, normative foundation and socio-political function, to the lesser self or ‘sub-self’ of domestic law. Given the highly ambitious objective that the author sets himself, it would not be surprising that one is tempted to raise some issues with his book. I will put aside the questions of a rather technical character, such as the general dearth of footnotes and the relative lack of information on the relevant judicial cases. The central question of the book concerns how to define and use the historically and politically charged word ‘civilization’. However, it is difficult to find a clear definition of civilization in the book. The term ‘transcivilizational’ is presented, but not quite defined, as a sort of cognitive attitude or mindset (19). Onuma repeatedly issues warnings against misinterpreting his concept of civilization à la Huntington. He stresses that ‘any substantiation of the notion of civilization, as is typically seen in Samuel Huntington’s argument on the “clash of civilizations”, grossly distorts the realities of living and historic civilizations and cultures’.2 He also emphasizes the importance of ‘reconceptualiz[ing] the notion of civilization as a functional notion’.3 Despite such warnings, disclaimers and clarifications by the author, one ends up having a nagging suspicion that the term ‘civilization’ has a substantive dimension in light of the fact that he conceptualizes and presents the international society of the pre-twentieth century period as a ‘co-existence of regional civilizations’.4 One could also ask whether the structure of the book could be different under the transcivilizational approach to international law. The table of contents indicates that the book follows a fairly standard and traditional mode of presentation, beginning with an introduction, which is then followed by ten chapters dealing with ‘international law in a multi-civilizational world’ (Chapter 1), ‘identification of international law’ (Chapter 2), ‘subjects and participants of international law’ (Chapter 3), ‘responses to violations of international law’ (Chapter 4), ‘spatial and personal ordering of the world’ (Chapter 5), ‘human rights’ (Chapter 6), ‘the global economy and international law’ (Chapter 7), ‘the global environment and international law’ (Chapter 8), ‘conflict resolution (and dispute settlement) and international law’ (Chapter 9) and ‘regulation of force and realization of peace’ (Chapter 10). If the approach put forward in this book under the ambitious and provocative appellation (‘transcivilizational perspective’) were truly a radical one, then one would be excused for expecting a book that reflects a ‘paradigm shift’ in its structure as well. The potential for a radical reconstruction of international law initially suggested by Onuma also seems to be weakened by his adherence to the idea that, despite the rumors of death of sovereign states, the state still remains ‘the most authoritative organization for controlling the fate of humans’ (89). Despite his repeated warnings against the state-centric tendency deeply embedded in contemporary international law, he recognizes ‘the primacy of states’ (192), regards the state as ‘the most legitimate agent with authoritative power’ (193) and subscribes to ‘the primordial significance of a state’ (208). This book has an ambitious (one is tempted to say, an almost impossible) objective of putting modern international law on a new footing that is more inter-subjective, inclusive, multi-centric and polyphonic (when Onuma uses the expression ‘transcivilizational’, he may have all these in mind). In the light of almost absolute superiority of the West, the task is nothing short of ‘Herculean’. It would be a fair statement that Onuma spent his whole academic life struggling to articulate an alternative narrative of international law that would strengthen its normativity and legitimacy by placing international law on a ‘transcivilizational’ (and, as a result, firmer) foundation. Whenever a non-European international lawyer attempts to reconstruct or recalibrate the existing Euro-centric international law, he or she embarks on an oxymoronic or self-contradictory task of attempting to overcome Europe using a European normative language. No one can succeed in this extremely challenging enterprise in a single step. Despite some of the problems I have discussed above, the greatest merit of this book lies in the intellectual audacity it displays in such a powerful and systematic manner. Without such audacity, the goal of extricating ourselves from the epistemic ‘comfort zone’ and reconstructing international law in a communicatively rational way will remain elusive. Footnotes 1 Onuma Yasuaki, A Transcivilizational Perspective on International Law (Martinus Nijhoff Publishers 2010). 2 Ibid, 83. 3 Ibid, 84. 4 Ibid, 289. © The Author(s) 2018. Published by Oxford University Press. Available online at www.bybil.oxfordjournals.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The British Yearbook of International Law Oxford University Press

International Law in a Transcivilizational World. By Onuma Yasuaki

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Oxford University Press
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© The Author(s) 2018. Published by Oxford University Press. Available online at www.bybil.oxfordjournals.org
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0068-2691
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2044-9437
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10.1093/bybil/bry008
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Abstract

This is no ordinary textbook of international law. If one wants a more detailed traditional treatment of subjects such as the relationship between international and national law, sovereign immunity, the modes of territorial acquisition, supported by meticulous citations from ICJ judgments or other international arbitral awards, one should look elsewhere. However, if one wants to have a ‘subversively constructive’ intellectual journey through the well-known terrains of international law, culminating in a fresh and critical perspective on international law, one should consider reading this book. The author has had a highly distinguished career as a professor of international law at the University of Tokyo and at Meiji University in Japan. As a leading critic of the Eurocentric bias of modern international law, he has produced a substantial oeuvre, the influence of which reaches far beyond the region of his origin, East Asia. In this book, Onuma applies the theoretical insights he introduced in his Hague lectures1 to the traditional topics of international law. Writing a textbook of international law from a perspective that ‘de-centers’ Europe is an exercise in intellectual audacity. The ‘Euro-centricity’ of the discursive space we inhabit is demonstrated by fact that, despite being one of the most indefatigable critics of Euro-centrism in international law, the author confesses in his ‘[a]cknowledgments’ (x) that I, as a Japanese international lawyer, had never thought of the possibility of writing a textbook or treatise of international law to be published by either Cambridge University Press or Oxford University Press. To me, such an undertaking was in the hands of some prominent Western international lawyer. What an awful, stereotyped, West-centric way of thinking! This review is limited to the discussion of Onuma’s poignant critique of various ‘centrisms’ found in the current international law research and practice. Onuma aims to shake up our cognitive complacency by subverting the well-established ideas about modern international law. The key strategy employed for this purpose is to distance oneself from these (uncritically) received ideas by decentering or debunking various ‘centrisms’ firmly embedded in—and, quite often, unconsciously influencing—one’s approach to viewing international law. West-centrism, state-centrism, domestic-law centrism and judicial centrism are the main targets of Onuma’s critique. Of these centrisms, West-centrism (or Euro-centrism) constitutes the leitmotif of the book. De-centering Europe in the study of international law has probably been the objective of Onuma’s lebenswerk. In this book, Onuma conducts a comprehensive and in-depth discussion of what he terms a ‘transcivilizational perspective’. This approach appears to perform at least two functions. First, it defines the status of the West or Europe as one of the ‘civilizations’, not the (only) civilization. Secondly, despite the historical process of the West progressively overwhelming the ‘others’ of Europe, the proper way should be seeing the relations between these civilizations not in a hierarchical, but in a horizontal manner. To attain this goal, the West should liberate itself from the ‘west-and-the-rest’ mindset and open itself up to an intersubjective dialogue. At the same time, the ‘others’ of Europe should articulate their own conceptions of a just international legal order and engage in a conversation with the West. A self-effacing or passive approach to international law on the part of the ‘others’ of the West contributes to the perpetuation of the Euro-centric character of international law. In the absence of any ‘significant other’ claiming for recognition (in Hegelian terms, engaging in a ‘struggle for recognition’), the prevailing international legal system sees no reason to be self-reflective and look beyond the Euro-centric positivist international law. Onuma’s book is a powerful call for such a constructive and mutually constitutive conversation between different cultures and ‘civilizations’. Onuma deftly demonstrates the efficacy of a transcivilizational approach in his discussion of the history of international law. His approach is highly effective in de-centering and relativizing the position and status of the West in the history of international law. The transcivilizational approach puts the seemingly universal validity of modern international law in its proper historical context. Adopting this approach, one can clearly see that the ‘universal’ international law we know today is in its origin, jus publicum europaeum, whose scope of application was limited to Europe and North America prior to the middle of the 19th century. Until that time, the world was in the form of various civilizations co-existing side by side. This insight is instrumental in historicizing current international law. In other words, such a view helps one to understand better that modern international law is very much a product of historical process. According to Onuma, international law is an ‘intersubjective product of humankind’ (55) in permanent evolution. Therefore, the change in power constellations—represented, for example, by the rise of China—may translate into change in international legal norms, a point that is reiterated throughout the book. Onuma also conducts a thorough critique of state-centric tendency in current international law. For instance, in chapter 2 dealing with the question of ‘identification of international law’, the distinction between (the traditional category of) customary international law and general international law is put forth. According to Onuma, while the former category was ‘created based on the state practice and opinio juris of a few powerful Western states’ (163), the latter category is more susceptible to ‘transnational legitimacy’ (164). It is not surprising to see the move away from state-centrism to be in full display in chapter 3, which deals with ‘subjects and participants of international law’. The role of non-state actors’ is also highlighted in chapter 4, which examines ‘responses to violations of international law’ generally known as the law of state responsibility in other textbooks (see in particular, 289–293). The profound change in the status of individual human beings is highlighted through a powerful criticism of the traditional theory of automatic change of nationality in the case of territorial modification (in particular, 350–359). Onuma also tries to bring to light other centrisms that negatively affect one’s understanding of international law, including the closely related domestic model centrism and judicial centrism. Domestic model centrism means our habit of conceptualizing and evaluating international law by the yardstick of (idealized) domestic law. In engaging in international law discourses, people ‘—mostly unconsciously—tend to assume the domestic law of the (modern) state as a frame of reference’ (2). This tendency presents itself most conspicuously when one discusses the question of whether international law is genuinely law (40–44). Closely connected with the domestic model centrism is what Onuma terms judicial centrism. He points out the substantial differences between domestic and international societies. While domestic courts have compulsory jurisdiction and, as a result, addressees of domestic law negotiate ‘under the shadow of the court’, in international society international law cannot function effectively since it lacks a judiciary with mandatory jurisdiction over its members (8). No wonder that according to Onuma ‘the role of the international judiciary as a conflict resolution mechanism is limited and weak’ (252). In assessing the role of the ICJ he directs our attention to the fact that it ‘has settled only an extremely small number of disputes, most of which are concerned with issues of secondary significance among overall international affairs’ (579). While one’s evaluation of the role of the international judiciary (in particular, the ICJ) in conflict resolution may differ, Onuma’s point should nevertheless be properly understood. Adoption of the domestic model thinking in international law prevents one from appreciating that ‘international law plays a significant role as a justificatory, legitimating and communicative tool rather than as adjudicative norms’ (8). This way of viewing international law which is uncritically accepted by most international lawyers has the added disadvantage of reducing international law, which has its own raison d’être, normative foundation and socio-political function, to the lesser self or ‘sub-self’ of domestic law. Given the highly ambitious objective that the author sets himself, it would not be surprising that one is tempted to raise some issues with his book. I will put aside the questions of a rather technical character, such as the general dearth of footnotes and the relative lack of information on the relevant judicial cases. The central question of the book concerns how to define and use the historically and politically charged word ‘civilization’. However, it is difficult to find a clear definition of civilization in the book. The term ‘transcivilizational’ is presented, but not quite defined, as a sort of cognitive attitude or mindset (19). Onuma repeatedly issues warnings against misinterpreting his concept of civilization à la Huntington. He stresses that ‘any substantiation of the notion of civilization, as is typically seen in Samuel Huntington’s argument on the “clash of civilizations”, grossly distorts the realities of living and historic civilizations and cultures’.2 He also emphasizes the importance of ‘reconceptualiz[ing] the notion of civilization as a functional notion’.3 Despite such warnings, disclaimers and clarifications by the author, one ends up having a nagging suspicion that the term ‘civilization’ has a substantive dimension in light of the fact that he conceptualizes and presents the international society of the pre-twentieth century period as a ‘co-existence of regional civilizations’.4 One could also ask whether the structure of the book could be different under the transcivilizational approach to international law. The table of contents indicates that the book follows a fairly standard and traditional mode of presentation, beginning with an introduction, which is then followed by ten chapters dealing with ‘international law in a multi-civilizational world’ (Chapter 1), ‘identification of international law’ (Chapter 2), ‘subjects and participants of international law’ (Chapter 3), ‘responses to violations of international law’ (Chapter 4), ‘spatial and personal ordering of the world’ (Chapter 5), ‘human rights’ (Chapter 6), ‘the global economy and international law’ (Chapter 7), ‘the global environment and international law’ (Chapter 8), ‘conflict resolution (and dispute settlement) and international law’ (Chapter 9) and ‘regulation of force and realization of peace’ (Chapter 10). If the approach put forward in this book under the ambitious and provocative appellation (‘transcivilizational perspective’) were truly a radical one, then one would be excused for expecting a book that reflects a ‘paradigm shift’ in its structure as well. The potential for a radical reconstruction of international law initially suggested by Onuma also seems to be weakened by his adherence to the idea that, despite the rumors of death of sovereign states, the state still remains ‘the most authoritative organization for controlling the fate of humans’ (89). Despite his repeated warnings against the state-centric tendency deeply embedded in contemporary international law, he recognizes ‘the primacy of states’ (192), regards the state as ‘the most legitimate agent with authoritative power’ (193) and subscribes to ‘the primordial significance of a state’ (208). This book has an ambitious (one is tempted to say, an almost impossible) objective of putting modern international law on a new footing that is more inter-subjective, inclusive, multi-centric and polyphonic (when Onuma uses the expression ‘transcivilizational’, he may have all these in mind). In the light of almost absolute superiority of the West, the task is nothing short of ‘Herculean’. It would be a fair statement that Onuma spent his whole academic life struggling to articulate an alternative narrative of international law that would strengthen its normativity and legitimacy by placing international law on a ‘transcivilizational’ (and, as a result, firmer) foundation. Whenever a non-European international lawyer attempts to reconstruct or recalibrate the existing Euro-centric international law, he or she embarks on an oxymoronic or self-contradictory task of attempting to overcome Europe using a European normative language. No one can succeed in this extremely challenging enterprise in a single step. Despite some of the problems I have discussed above, the greatest merit of this book lies in the intellectual audacity it displays in such a powerful and systematic manner. Without such audacity, the goal of extricating ourselves from the epistemic ‘comfort zone’ and reconstructing international law in a communicatively rational way will remain elusive. Footnotes 1 Onuma Yasuaki, A Transcivilizational Perspective on International Law (Martinus Nijhoff Publishers 2010). 2 Ibid, 83. 3 Ibid, 84. 4 Ibid, 289. © The Author(s) 2018. Published by Oxford University Press. Available online at www.bybil.oxfordjournals.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

The British Yearbook of International LawOxford University Press

Published: Jun 2, 2018

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