REVIEWS, 28 May 2018
This text was published in May 2018 in the Yale Journal of International Law. Professor Onuma’s text is the best comprehensive treatment of international law, and additionally raises crucial questions about the legitimating impact of a transcivilizational approach, which implies dewesternization as international law up to this point evolved as an instrument for regulating relations among Western sovereign states and exerting hegemonic control over the non-Western members of international society. An indispensable book.
International Law in a Transcivilizational World, by Onuma Yasuaki, Cambridge University Press, 2017
A Transivilizational Perspective?
Professor Onuma Yasuaki, long considered among the most eminent of international law scholars of our time, has made a clarion call in recent years for what he calls “a transcivilizational approach” to the study and appreciation of international law. Onuma san[*]is judicious in balancing the contributions of international law to a more humane world order against its limitations in regulating behavior from the perspective of peace, sustainability, and equity or justice. What Onuma san has given us in the book under review is a magisterial treatise that provides the best available pedagogic foundation currently available for the study of international law as a discipline. Although clearly written, it is demanding because of its jurisprudential sophistication, historically grounded doctrinal assessments, and comprehensive treatment of the major legal issues on the current global policy agenda.
A few years ago, in an apparent effort to reinforce his Japanese identity, Onuma san wrote to friends and colleagues, requesting that they address him as “Onuma (or Onuma) san” in accord with Japanese protocol, and even if closely associated, refrain from the Western habit of calling friends by their first names, that is, “Yasuaki.” I suspect that this outstanding scholarly contribution is also an outgrowth of such a maturing of Onuma san’s psycho-political consciousness, resting on an insistence that the future legitimacy and effectiveness of international law will depend on whether it can overcome what Onuma san calls its West-centric bias and orientation.
For many years I worked rather closely with another leading, now deceased, Japanese scholar, Yoshikazu Sakamoto, in a multi-civilizational project, the World Order Models Project. What makes this reference relevant is that Sakamoto’s preoccupation, alone among the dozen or so participating scholars from around the world representing a wide range of legal traditions and policy priorities, was focused on “identity” as the prime world order challenge of the late twentieth-century post-colonial world. It makes me wonder now whether there is something about Japanese cultural sensitivity in the period since the end of World War II that seeks to find a distinctive path into the “lifeworld” (Habermas) that is authentically faithful to the Japanese national circumstance, yet (i) maintains its intellectual and emotional distance from the United States/Europe and China and (ii) possesses the transnational tools and accompanying outlook needed to solve the challenges facing what Onuma san calls “humankind,” which seems an apparent move in the direction of feminist political correctness, scrapping the more familiar terminology of “mankind.”
Onuma san appears somewhat anguished, not only by a keen awareness of the inherent “impossibility” of achieving a genuine transcivilizatonal approach, given the dominance of Euro-American civilization in the evolution of international law and world order, but also by his own intellectual formation. In his words, “I am just one of many modern persons whose intellectual personality has been constructed by modern European civilization.” He adds, “I am a hybrid being, only part of which is an Asian or Japanese” (p. 7). In another passage Onuma san, almost in a confessional idiom writes, “We are all children of Grotius, Kant and Marx, and therefore ‘Europeans’ in the figurative sense”(p. 13).
He does modify this assertion by the observation that “contemporary members of humankind are also children of Buddha, Confucius, Mohammad, and many other non-Western thinkers.” (p. 13). I really do have some doubts about this unsubstantiated claim, which would seem to suggest that we are all, to some extent, transcivilizational without even realizing it. As a sympathetic reader, I find these non-Western influences hard to find either in Onuma san’s treatment of international law or in my own thinking about comparable issues. To be sure, there is presently a disposition toward humane solutions of global problems and the encouragement of peaceful approaches to international disputes and conflict situations, but such views seem similarly rooted in Western humanist traditions of thought and not necessarily a reflection the influence of non-Western philosophical wisdom.
One feature of Onuma san’s approach that cuts across the grain of typical international law theorizing is his insistence on understanding present reality by adopting a historical approach to international legal doctrine and norms. Onuma san lets us know rather starkly that he has “learned far more from modern European works published from the sixteenth century to the early twentieth century than from post-World War II theories” (p. 13). He does not engage directly with contemporary international law theorizing in the course of his seven-hundred-plus page book, which is somewhat puzzling, since Onuma san’s perspective focuses on the impact of recent events, especially the collapse of European colonialism, followed by the international participation and economic growth of the non-West, especially of Asian countries. Onuma san strongly believes that these altered material conditions in the character of international relations must make some fundamental adjustments to the nature of international law if it is to gain the global legitimacy required to be effective (p. 53).
Such a concern seems particularly timely in view of the helplessness of the international order to bring peace and stability to the Middle East or to overcome the legal nihilism of a new crop of political leaders, highlighted by the lawlessness of the Trump presidency.
Reflecting personally on such concerns, I realize that I am less hybrid than Onuma san, although I completely agree with his aspirational insistence on transcivilizational authenticity for both historical and practical reasons. I suspect that I am less hybrid because my Western embeddedness takes for granted questions of identity and perspective, which has led my critical energies to express themselves as an internal critic of Western civilization. I am sure that this non-self-consciousness, when it comes to civilizational identity, also follows from the way international law is studied in the United States and Europe, employing an ahistorical jurisprudence rooted in Western values and universalizing pretensions, as well as resting on similar conceptions of the international political context. Although I have been a critic of the way Western policymakers continue to manipulate international law to rationalize a belligerent foreign policy, I have not thought of these dangerous shortcomings as projections of civilizational values but rather as a matter of indulging an insatiable geopolitical appetite.
Turning to substance, Onuma san’s treatment of international law is convincingly grounded in the sociopolitical realities of our time, making it hard to dissent from the lessons he draws. Onuma san places stress on the fact that ninety percent of the world’s peoples are non-Western, and that power relations are changing in ways that favor Asia and diminish the political and economic dominance of the West on a materiallevel. Yet—and here is where Onuma san’s call for change in approach and content becomes most relevant—he anticipates (in a rather complex and somewhat confusing manner) that there will be a continued dominance of Western ideationalinfluence, which he believes will persist deep into the twenty-first century, even in the likely event that China becomes the world’s largest economy. Whether Onuma’s prediction will hold in the event that Trump’s policy of relinquishing global leadership persists is quite uncertain.
Conceptualizing International Law
Onuma san is very clear about how he understands basic issues bearing on the nature and effectiveness of international law. He blames what he calls “domestic model thinking” for a frequent underestimation of the effectiveness and importance of international law to the maintenance of an orderly world. In effect, the weak institutionalization of authority and lack of enforcement capabilities overlook the degree to which State actors and a variety of non-State actors benefit from a stable normative environment that encourages compliance, reliability, and moderation. Onuma san makes the frequently overlooked point that violations of domestic law are common without drawing into question the reality of the legal order. We must learn to evaluate international law in relation to the specific functions it performs given its State-centric modes of operation.
Unlike domestic law, international law is less focused on regulating behavior than in a series of other undertakings that Onuma san enumerates as “prescriptive, adjudicative, justificatory, legitimating, communicative, rule declaratory, and constructive (or constitutive)” (pp. 30, 585). These functions have more to do with the conduct of statecraft, civic activism, and policy planning than they do with governmental adherence to rules. In this vein, Onuma san is critical of the parallel tendency of international jurists to emphasize adjudication in their presentation of the field. This emphasis exaggerates the relevance that tribunals and judicial decisions have to the diverse modes by which international law fulfills its various functions.
Not surprisingly, Onuma san credits this more existentially-grounded appreciation of international law to his work outside the classroom and library, mentioning specifically his work as “a human rights activist and as an advisor to a member of the Japanese cabinet” (p. 8). In effect, Onuma san wants us to understand that it is in these non-judicial settings of advocacy and advising that the guidelines associated with international law often make their most significant contribution. What Onuma san proposes for the study of international law is a less academically oriented understanding and more of a practitioners’viewpoint.
Again I am struck by the tensions between Onuma san’s erudition and reliance on political philosophy (especially, Hobbes, Kant, Machiavelli, Karl Schmitt, even Marx), as well as early modern juridical works (especially, Grotius), which stand in contrast to his experiential unbookish insistence on comprehending the scope and functioning of international law by contact with the doingrather than by parsing the nuances of doctrineas enunciated by the judges of the International Court of Justice or the elaborate pontifications of leading jurists. In a similar spirit, Onuma san downplays the constraining role of international law, particularly relating to the behavior of major States, insisting that if a legal system works well, disputes are generally avoided, and behavioral guidelines are invisibly respected as a matter of course or to satisfy national interests.
Another feature of Onuma san’s approach is the avoidance of idealism and legalism in his assessment of what to expect with respect to the links between international law and justice: “[T]he work of international law is in an irrational world where voices seeking justice are often ignored. It is sad to recognize such a reality, but one should not escape from it” (p. 28). In this spirit, which seems more in keeping with a variety of skeptical twentieth-century European thinkers than with a manifestation of non-Western thinking, Onuma san describes himself as “a pessimist in approach” whose advice is “to doubt everything, including one’s own sense, intuitions, premises, and understandings, based on his or her past study and experience”(pp. 28-29).
There are many thoughtful reflections offered by Onuma san as to the development of international law over time—and particularly the emergence of the territorially-oriented European system of sovereign states and its globalization in the past several decades. This transformation of international law reflects both the success of the anti-colonial movement—the greatest pushback ever experienced by the West as a global system—and the essential acceptance of this European way of organizing international relations by the newly independent States of Asia and Africa. This erosion and extension of Euro-centricism has made international law “less imperialistic, racist, male-centric” and hence more globally legitimate (p. 85). At the same time, there is much more to be done in the ideational sphere to attain Onuma san’s transcivilizational goals. He is acutely aware that most writings on international law continue to be reflections predominantly of the Western mentality. This civilizational provincialism will not be overcome until “global discursive space” exhibits a greater responsiveness to the civilizational outlook of the new demographic and normative balances that are heavily weighted in favor of non-Western peoples.
Onuma san’s views here do encourage greater self-reflection and self-criticism by those of us who are representative of the West, and this is good. In some ironic sense, for this reason I find Onuma san’s treatise potentially more valuable for Western readers than for others. I suspect that the Asian scholarly community, especially after twenty years of anti-Western critiques asserting the relevance of “Asian values,” needs no coaching by Onuma san as to the desirability of a transcivilizational perspective.
I also find that some confusion surrounds the post-Cold geopoliticalappropriation of human rights, narrowly understood in the West as civil and political rights and invoked as a pretext for military interventions in such non-Western countries as Afghanistan, Iraq, and Libya. In other words, in the post-colonial and post-Cold War world, the West has sought to retain its global role by claiming the high moral ground, creating an entitlement to override non-intervention and self-determination norms that are given priority by most non-Western states.
This development raises two relevant concerns. First, the West claims that the human rights discourse is transcivilizational in character, by its linkage of rights to the generic quality of being “human,” even though its formulations are beholden to Western liberalism. Secondly, the relevance of the continued Westernized dominance of force projection, a salient material reality largely under the aegis of the United States, seems not sufficiently appreciated by Onuma san in his long final chapter on the strenuous efforts of international law—as set forth most authoritatively in the UN Charter—to restrict recourse by States to force. It would appear that this central feature of the global security system raises some serious unanswered questions about the materialdecline of the West. We still live in a world where all debates and practice pertaining to intervention continue to be discussions about whether the West should intervene in the non-West, and never the reverse.
A Concluding Assessment
There are thoughtful and analytically rigorous chapters on the main themes of international law, each of which warrants extensive comments beyond the limits of this review. In general, rather than a transcivilizational view, what I find more consistently present is an interpretation of the substance of international law from a global perspective that privileges the humaninterest, yet is restrained by Onuma san’s form of pessimistic realism that is sensitive to the primacy of a State-centric world order that rests on the interaction of egoistic nationalinterests.
To illustrate the accelerating pace of history, Onuma san’s treatise was published before the world was gripped by a populist backlash in politics that has reversed prior democratizing trends. This has produced a surge of chauvinistic nationalisms and a series of elected leaders with autocratic governing styles in some of the world’s most influential countries, including Russia, India, Japan, Brazil, Turkey, and the United States. In addition, the worst nuclear crises in fifty years have threatened catastrophe on the Korean Peninsula as well as in the Middle East with respect to Iran. Beyond this, the Trump presidency has deprived the world of leadership with respect to major issues requiring global cooperation, such as climate change, global migration and treatment of refugees, and famine conditions in several countries. These issues call for what might be considered a meta-civilizational approach that addresses current global challenges on the basis of shared human interests. In my view, Onuma san provides the outlook and understanding that would encourage such enlightened behavior, but it is only presented as a sub-text and is perhaps overshadowed by the less substantiated claim that this treatise provides a transnationalized approach to international law traditions that still prevail under the ideationalhegemony of the West despite its partial loss of materialistleverage due to the rise of the non-West.
Despite my quibbles here and there, this is a great book that deserves study by all those concerned about the past, present, and future of international law. Every serious student of the subject can hardly get along without meeting the various challenges posed and interpretations offered by Onuma san in the course of this all-encompassing treatise.
Onuma makes a stirring final appeal that is worth pondering: “International law is an indispensable meansfor people to realize the material and spiritual well-being of humanity. As such, people should constantly press national governments, international organizations, and other subjects to respect and abide by it” (p. 666). I find this kind of profession of faith in the importance of international law to be a compelling conclusion, including its unexplained yet resonant reference to “spiritual well-being.” This may be the most indispensable element of all!
Elsewhere, Onuma san suggests that his intellectual personality was also formed by Buddhist and Confucian thought operating on an “unconscious level” (p. 7). I am puzzled by what is meant in this regard with respect to the concrete pattern of opinions and judgments offered in the course of this most comprehensive study of international law.
Perhaps, as a gesture to a transcivilizational approach, Onuma san concludes this line of thought with the following quotation of Confucius: “[I]t should be a pleasure to learn and review constantly and repeatedly” (p. 29). I read such advice as not an expression of pessimism or wisdom from the East but, on the contrary, the near-universal view that learning should be a satisfying lifelong activity that allows ideas and opinions to remain alive so long as they do not become dogma.
This persistence of Western dominance in the security domain does not alter my belief that the unlearned lesson of the Vietnam War is the declining capacity of Western military superiority to control the political outcomes in non-Western contexts. For discussion, see Revisiting the Vietnam War: The Views and Interpretations of Richard Falk (Stefan Andersson ed., 2017).
Richard Falk is a member of the TRANSCEND Network, an international relations scholar, professor emeritus of international law at Princeton University, author, co-author or editor of 40 books, and a speaker and activist on world affairs. In 2008, the United Nations Human Rights Council (UNHRC) appointed Falk to a six-year term as a United Nations Special Rapporteur on “the situation of human rights in the Palestinian territories occupied since 1967.” Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies, and since 2005 chaired the Board of the Nuclear Age Peace Foundation. His most recent book is Achieving Human Rights (2009).
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