Skip to main content Accesibility Help
×
×
Home

China, India, and International Law: A Justice Based Vision Between the Romantic and Realist Perceptions

  • Muthucumaraswamy SORNARAJAH (a1) and Jiangyu WANG (a1)
Abstract

This paper aims to build an analytical framework and a research agenda for a study of the potential impact of the rise of China and India on international law. In the light of the possibility that the two states may, together or individually, make changes in international law and shift it from its present Europe-America moorings, this paper attempts to analyze and answer three topics: (1) the common and different stances of China and India on the existing international legal order; (2) the changes China and India have sought to the international status quo; and (3) the contributions that have been or could be brought by China and India to the development of international law and their implications for the future. It proposes an analytical framework in which these questions are viewed through two lenses: the romantic vision and the realist vision.

Copyright
Footnotes
Hide All
*

Muthucumaraswamy Sornarajah is CJ Koh Professor of Law, and Jiangyu Wang is Associate Professor at the Faculty of Law, National University of Singapore. Many ideas in this paper and in our larger research project on China, India, and international law came from our discussions with the students on the course “China, India, and International Law”, which the two authors co-teach at the Faculty of Law, National University of Singapore. The authors would also like to thank Simon Chesterman, Antony Terence Anghie, Su Yu, Zeng Huaqun, Cai Congyan, Chen Huiping, Han Xiuli, and Fang Dong, and two anonymous reviewers for their valuable comments on early drafts. The usual disclaimer applies.

Footnotes
References
Hide All

1. Representative of the many works are: ATHWAL, Amardeep, China-India Relations: Contemporary Dynamics (London/New York: Routledge, 2008) ; LINTNER, Bertil, Great Games East: India, China and the Struggle for Asia’s Most Volatile Frontier (New Haven, CT: Yale University Press, 2015) ; EMMOTT, Bill, Rivals: How the Power Struggle Between China, India and Japan will Shape the Next Ten Years (New York: Mariner Books, 2009) ; FRIEMAN, Edward and GILLEY, Bruce, Asia’s Giants: Comparing China and India (New York: Palgrave Macmillan, 2005) ; OGDEN, Chris, China and India: Asia’s Emergent Great Powers (Cambridge: Polity, 2017) ; KELLY, David A., RAJAN, Ramkishen S., and GOH, Gillian H.L., eds., Managing Globalization: Lessons from China and India (Singapore: World Scientific, 2006) ; HOLSLAG, Jonathan, China and India: Prospects for Peace (New York: Columbia University Press, 2010) ; LAL, Rallie, Understanding China and India: Security Implications for the United States and the World (Westport, CT: Praeger Security International, 2006) ; SHARMA, Shalendra, China and India in the Age of Globalization (Cambridge: Cambridge University Press, 2009) ; SMITH, David, The Dragon and the Elephant: China, India and the New World Order (London: Profile Books, 2009) ; GILBOY, George and HEGINBOTHAM, Eric, Chinese and Indian Strategic Behaviour: Growing Power and Alarm (Cambridge: Cambridge University Press, 2012) ; TELLIS, Ashley J. and MIRSKI, Sean, Crux of Asia: China, India and the Emerging Global Order (Washington, DC: Carnegie Endowment for International Peace, 2013) ; SMITH, Jeff M., Cold Peace: China-India Rivalry in the Twenty-First Century (Lanham, MD: Lexington Books, 2014) ; MANUEL, Anja, This Brave New World: India, China and the United States (New York: Simon & Schuster, 2016) ; DEEPAK, B.R., India and China: Foreign Policy Approaches and Responses (New Delhi: Vij Books India, 2016) ; SEN, Tansen and Gungwu, WANG, India, China, and the World: A Connected History (Lanham, MD: Rawman & Littlefield, 2017) ; MEREDITH, Robyn, The Elephant and the Dragon: The Rise of India and China and What It Means for All of Us (New York: W.W. Norton & Company, 2008) ; and PALIT, Amitendu, China-India Economics: Challenges, Competition and Collaboration (Abingdon: Routledge, 2012) .

2. There are many predictions of such hostility which see China asserting its power to emerge as an important player in the world. See e.g. Graham ALLISON, “The Thucydides Trap: Are China and the US headed for War?” The Atlantic (24 September 2015), online: The Atlantic <https://www.theatlantic.com/international/archive/2015/09/united-states-china-war-thucydides-trap/406756/>.

3. SORNARAJAH, Muthucumaraswamy and WANG, Jiangyu, eds., China, India and the International Economic Order (Cambridge: Cambridge University Press, 2010) .

4. For China, see e.g. COHEN, Jerome and ARDANT, Philippe, China’s Practice of International Law: Some Case Studies (Cambridge, MA: Harvard University Press, 1972) ; Tieya, WANG, “International Law in China: Historical and Contemporary Perspectives” (1990) 221 Recueil de Cours 195 ; LEE, Eric Yong-Joong, China and International Law in the 21st Century: Rising Dragon (Seoul: Yijun Press, 2013) ; XUE, Hanqin, Chinese Contemporary Perspectives on International Law (The Hague: The Hague Academy of International Law, 2012) ; CHAN, Phil C.W., China, State Sovereignty and International Legal Order (Leiden: Brill Nijhoff, 2014) . For India, see PATEL, Bimal, ed., India and International Law (Leiden: Martinus Nijhoff, 2005) , and PATEL, Bimal, ed., India and International Law, vol. 2 (Leiden: Martinus Nijhoff, 2008) .

5. Simon Chesterman has noted the declined significance of the role of states in shaping the structure and future of international law: “Though States remain important actors, the shift to what is perhaps best described as zero-polar order suggests that the great challenge might come not from individual States or groups of States like the BRICS, but to the role of the State as such.” See Simon CHESTERMAN, “International Law and Its Others”, National University of Singapore, Working Paper 2018/004, February 2018. While we recognize the increasingly important role of non-state actors in the development of international law, it is submitted (and elaborated upon through our analysis in the following parts of this paper) that there is still a larger role for states to play in impacting on international relations and bringing changes to the international legal order. As noted by Congyan Cai, the trends in the contemporary development of international law are that, among others, “First, [New Great Powers] are inherently and continuously motivated to share and reshape international law. What people see today may be the start of the process. Secondly, [New Great Powers] are positioned both differently from and similarly to [Old Great Powers] in the process of shaping and reshaping international law.” See Congyan CAI, “New Great Powers and International Law in the 21st Century” (2013) 24 European Journal of International Law 755 at 766.

6. The charge has often been made that international law is Eurocentric. See ANAND, R.P., New States and International Law (Delhi: Vikas Publishing House, 1973) ; ANGHIE, Antony, CHIMNI, Bhupinder, MICKELSON, Karin, and OKAFOR, Obiora C., eds., The Third World and International Order: Law, Politics and Globalization (Leiden: Brill Publishers, 2003) ; ANGHIE, Antony, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005) .

7. See MADDISON, Angus, The World Economy: A Millennial Perspective (Paris: Organisation for Economic Co-operation and Development, 2001) at 263 (suggesting that, in 1820, China’s share of world GDP was 32.9 percent, and India’s share was 16 percent).

8. Chen, LI, “Universalism and Equal Sovereignty as Contested Myths of International Law in the Sino-Western Encounter” (2011) 13 Journal of the History of International Law 75 at 77 (arguing that, in the late Qing dynasty period when China encountered the European powers, “Britain and the other Western empires … were influenced by an originally Eurocentric discourse of civilization, sovereignty, and universalism to claim extraterritoriality and natural-law rights to freely trade, travel, and proselytize in China without allowing the latter the same rights and privileges”).

9. See e.g. SCHELL, Orville and DELURY, John, Wealth and Power: China’s Long March to the Twenty-First Century (New York: Random House, 2013) ; Jeffrey A. BADER, “How Xi Jinping Sees the World … and Why”, Brookings Institution, Asia Working Group Paper, February 2016; Matt SCHIAVENZA, “How Humiliation Drove Modern Chinese History” The Atlantic (25 October 2013), online: The Atlantic <https://www.theatlantic.com/china/archive/2013/10/how-humiliation-drove-modern-chinese-history/280878/>; Jamil ANDERLINI, “China’s View of UK Coloured by ‘Century of Humiliation’” Financial Times (18 October 2015), online: Financial Times <https://www.ft.com/content/3de69ce0-7570-11e5-933d-efcdc3c11c89>.

10. For the persistence of Indian bitterness, see THAROOR, Sashi, The Era of Darkness: British Empire in India (New Delhi: Aleph Book Company, 2017) .

11. ROY, Tirthankar, East India Company: The World’s Most Powerful Corporation (New Delhi: Allen Lane, 2012) .

12. The poem “White Man’s Burden” was written by Kipling in the context of US rule over the Philippines but it is usually taken out of context due to Kipling’s connections with India. It is emblematic of European racism and provides an altruistic justification for imperialism. Both China and India have older claims to civilization.

13. The excesses committed by the British in quelling the mutiny are portrayed in DALRYMPLE, William, The Last Mouhal: The Fall of a Dynasty: Delhi, 1857 (New York: Vintage, 2008) .

14. The standard of civilization was a fictional notion that enabled Europeans to exclude other states from personality to enjoy rights under international law. See generally GONG, Gerrit W., Standard of Civilization and the Entry of Non-European Countries into International Society: The Cases of China, Japan and Siam (Oxford: Oxford University Press, 1981) . See also Anghie, supra note 6, 52–61.

15. CHESTERMAN, Simon, “Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures” (2016) 27 European Journal of International Law 945 at 946–53 .

16. SORNARAJAH, Muthucumaraswamy, Resistance and Change in the International Law on Foreign Investment (Cambridge: Cambridge University Press, 2015) at 22.

17. India and China are members of BRICS, a grouping of newly industrializing states which includes Brazil, Russia, India, China, and South Africa. The group meets periodically to set out its agenda.

18. In earlier phases, as at the Bandung Conference of non-aligned states, India and China played leading roles. For a study of their roles, see ACHARYA, Amitav, East of India, South of China: Sino-Indian Encounters in Southeast Asia (Oxford: Oxford University Press, 2017) .

19. Thus China claims historic title to the islands in the South China Sea. India, which has an interest in the area due to its links with Vietnam, uses freedom of navigation to oppose Chinese dominance in the area. The McMahon line drawn in British times is maintained by India on the basis of rules such as prior discovery and prescription.

20. See WANG, Jiangyu, “Legitimacy, Jurisdiction and Merits in the South China Sea Arbitration: Chinese Perspectives and International Law” (2017) 22 Journal of Chinese Political Science 185 at 201–4 .

21. KOLLER, Peter, “International Law and Global Justice” in Lukas H. MEYER, ed., Legitimacy, Justice and Public International Law (Cambridge: Cambridge University Press, 2009), 186 at 187. See also LINARELLI, John, SALOMAN, Margo, and SORNARAJAH, Muthucumaraswamy, The Misery of International Law (Oxford: Oxford University Press, 2018) .

22. Koller, ibid.

23. Following Peter Koller, principles of justices are understood as “(1) transactional justice applying to exchange relationships; (2) political justice concerning power relations; (3) distributive justice dealing with communal relationships; [and] (4) corrective justice focusing on wrongness relationships”; ibid., at 188. Specifically, transactional justice entails “fair rules and framing conditions which make sure that all participating peoples and nations can derive benefit from them”. It requires avoiding the practice of unilateralism and imperialism as well as sufficient control of multinational companies, ibid.; at 192–3. Political justice concerns the exercise of authorized power and requires “an impartial enforcement of international law and the provision of public goods” to deal with the world’s most severe problems in line with the common interest of all peoples; ibid., at 194. Distributive justice demands that “international economic cooperation is to the benefit of all peoples, in particular the less developed and poor nations”; ibid., at 197. Lastly, corrective justice may serve as “a subsidiary argument to support and supplement the other demands of justice”, but should not be treated with primary importance; ibid., at 197–8.

24. As The Economist has put it:

Globally, the rules-based system that the West set up in the second half of the 20th century brought huge benefits to emerging powers. But it reflects an out-of-date world order, not the current global balance, let alone a future one. China and India should be playing a bigger role in shaping the rules that will govern the 21st century. That requires concessions from the West. But it also requires commitment to a rules-based international order from China and India. A serious effort to solve their own disagreements is a good place to start.

See “Contest of the Century” The Economist (19 August 2010), online: The Economist <https://www.economist.com/node/16846256/print>.

25. “China and India Should Dance with Each Other, Not Fight with Each Other” Xinhua (3 March 2018), online: Xinhua <http://www.xinhuanet.com/politics/2018lh/2018-03/08/c_137024220.htm>. See also Vidhi DOSHI, “China’s Foreign Minister Suggests ‘Chinese Dragon’ and ‘Indian Elephant’ Should Dance, Not Fight” The Washington Post (9 March 2018), online: The Washington Post <https://www.washingtonpost.com/world/asia_pacific/chinas-foreign-minister-suggests-chinese-dragon-and-indian-elephant-should-dance-not-fight/2018/03/09/b27f81ac-2397-11e8-a589-763893265565_story.html?utm_term=.5e6510042c30>.

26. See generally MAY, Reinhard, Law and Society East and West: Dharma, Li and Nomos, Their Contribution to Thought and to Life (Stuttgart: Franz Steiner Verlag, 1985) .

27. A touching illustration is the instruction of the rightful king in the Indian epic The Mahabharata to ask for the kingdom, failing which a town, then village, and resorting to war only upon the refusal of the opponent to cede even a village for the claimant to rule over.

28. See CHEN Tiqiang, “The People’s Republic of China and Public International Law” (1984) 8 Dalhousie Law Journal 3 at 5 (noting “Under the unequal treaties, China was actually deprived of the basic attributes of a sovereign state”).

29. See generally LOZOYA, Jorge A. and BHATTACHAYA, A.K., Asia and the New International Economic Order (Oxford: Pergamon Press, 1981) .

30. Pranab Kumar Mukherjee quoted in MUNI, S.D. and DAS, Suranjan, eds., India and China: The Next Decade (Kolkata: Rupa and Co., 2011), 17 .

31. See the works on China and India cited supra note 1.

32. SINGH, Nagendra, The Theory of Force and Organization of Defence in Indian Constitutional History from Earliest Times (London: Asia Publishing House, 1969) ; SASTRY, K.R.R., “Hinduism and International Law” (1966) 117 Hague Recueil des Cours 503 ; CHACKO, C.J., “India’s Contribution to the Field of International Law Concepts” (1958) 93 Hague Recueil de Cours 121 ; CHATERJEE, Hiralal, International Law and Interstate Relations in Ancient India (Calcutta: Mukhopadhyay, 1958) . Singh BHATIA, Harbans, International Law and Practice in Ancient India (New Delhi: Deep & Deep Publications, 1977) ; JOHNS, Fleur, SKOUTERIS, Thomas, and WERNER, Wouter, “Editor’s Introduction: India and International Law in the Periphery Series” (2010) 23 Leiden Journal of International Law 1 ; Prakash ANAND, Ram, “The Formation of International Organizations and India: A Historical Study” (2010) 23 Leiden Journal of International Law 5 ; CHIMNI, Bhupinder, “International Scholarship in Post-colonial India: Coping with Dualism” (2010) 23 Leiden Journal of International Law 23 .

33. See generally Zhaojie (James LI), LI, “Traditional Chinese World Order” (2002) 1 Chinese Journal of International Law 20 ; DELISLE, Jacques, “China’s Approach to International Law: A Historical Perspective” (2000) 94 Proceedings of the American Society of International Law 267 ; Qizhi, HE, “China and International Law” (1987) 8 Grotiana 37 ; LEE, Eric Yong Joong, China and International Law in the 21st Century: The Rising Dragon (Seoul: Yijun Press, 2013) . In Chinese, see Zewei, YANG, Guojifa Shilun [Study on the History of International Law] (Beijing: Higher Education Press, 2011) . See also Zewei, YANG, “Western International Law and China’s Confucianism in the 19th Century: Collision and Integration” (2011) 13 Journal of the History of International Law 285 .

34. This may be due to new alliances India is forming with the US in seeking to balance Chinese power and China’s more assertive policies. See Harsh V. PANT, “Pivot to the Indo-Pacific” The Hindu (9 November 2017), online: The Hindu <http://www.thehindu.com/opinion/lead/pivot-to-the-indo-pacific/article17932099.ece>.

35. Despite Indian visions being different within India as to the ideal world order, there is cohesion in many areas within these strands; an opposition to imperialism, the pull of sovereignty, resistance to excesses of globalization, and the regulation of the multinational corporations are common themes. See CHIMNI, B.S., “Alternative Visions of Just World Order: Six Tales from India” (2005) 46 Harvard Journal of International Law 389 . Though it is not possible to talk of alternative visions in China except within the Communist Party, there would be agreement on the common strands.

36. For the use of constructivism in the case of China, see MUSHKAT, Rhonda, “China’s Compliance with Public International Law” (2011) 20 Pacific Rim Law and Policy Journal 41 at 57–8 .

37. See KENNEDY, Andrew, The International Ambitions of Mao and Nehru: National Efficacy Beliefs and the Making of Foreign Policy (Cambridge: Cambridge University Press, 2011) . This work is a study of personalities and their impact on the formation of foreign policy.

38. On China and the Bandung Conference, see DIRLIK, Arif, “The Bandung Legacy and the People’s Republic of China in the Perspective of Global Modernity” (2015) 16 Inter-Asia Cultural Studies 615 . On the PRC’s official position on the Bandung Conference, see Ministry of Foreign Affairs of the People’s Republic of China, “The Asian-African Conference”, online: FMPRC <http://www.fmprc.gov.cn/mfa_eng/ziliao_665539/3602_665543/3604_665547/t18044.shtml>.

39. MAXWELL, Neville, India’s China War (New York: Pantheon Books, 1970) . For a recent work, see VERMA, Shiv Kunal, 1962: The War that Wasn’t (New Delhi: Aleph Book Company, 2016) , and LINTNER, Bertil, China’s India War: Collision Course on the Roof of the World (Oxford: Oxford University Press, 2018) .

40. The “Singapore issues” were to formulate a discipline within the WTO on investment, competition, transparency in government procurement, and trade facilitation were beaten back through the dissent of China and India.

41. A criticism is that the Five Principles are no different from the two Westphalian principles of sovereignty and non-interference.

42. “Hu Jintao and Wen Jiabao Exchanged Congratulatory Messages with India’s President and Premier” Xinhua News Wire (28 June 2004).

43. “Carrying Forward the Five Principles of Peaceful Coexistence in the Promotion of Peace and Development”, speech by Premier Wen Jiabao at the Rally Commemorating the 50th Anniversary of the Five Principles of Peaceful Coexistence (28 June 2004), online: FMPRC <http://www.fmprc.gov.cn/eng/topics/seminaronfiveprinciples/t140777.htm>.

44. See CASSESSE, Antonio, Self-determination of Peoples: A Legal Appraisal (Cambridge: Cambridge University Press, 1995) .

45. See WILSON, Dick, Zhou En Lai: A Biography (New York: Viking, 1984) .

46. ACHARYA, Amitav, East of India, South of China: Sino-Indian Encounters in South-east Asia (Oxford: Oxford University Press, 2017) .

47. See CHEN An and CHEN Huiping, “China-India Cooperation, South-South Coalition and the New International Economic Order: Focus on the Doha Round” in Sornarajah and Wang, supra note 3 at 92–131; SAUL, Ben, “China, Natural Resources, Sovereignty and International Law” (2013) 37 Asian Studies Review 196 . Saul deals with the movement away from the earlier attitude of China when China came to search for energy resources. It began adopting a more pragmatic approach. He thinks that China will act the same way the European colonialists acted in the past.

48. China now accepts payment of full compensation for expropriation under its new treaties, moving away from old stances, as it becomes an exporter of capital into the US and Europe.

49. On the rise of China-led international economic institutions including the AIIB and NDB, as well as IMF reform in response to Asian countries’ underrepresentation in its decision-making mechanism, see WANG, Jiangyu, “International Economic Law and Asia” in Simon CHESTERMAN, Hisashi OWADA, and Ben SAUL, eds., Oxford Handbook of International Law in Asia and the Pacific (Oxford: Oxford University Press, 2019, forthcoming) .

50. Wang, ibid. India played a leading role in forming the rules of the development dimension in the world trading system. China appears to be more “obedient” in terms of subscribing to the “free trade” spirit of the WTO and has utilized the rules of the world trading system to maximize its trading power.

51. See Won KIDANE, “China’s Bilateral Investment Treaties with African States in Comparative Context” (2016) 49 Cornell International Law Journal 141 at 144 (stating “China’s position as both a major importer of capital puts it in a serious theoretical dilemma … As a recipient of capital, it has all the incentives of a developing country to be protective; while as an exporter of capital, it has all the incentives to seek the most expansive rights for its nationals”).

52. But, faced with a spate of arbitrations against it, India has now changed its model treaty to permit more defence against state regulatory interference with foreign investment.

53. For instance, the Indian government has made it clear that the 2016 Model BIT of India was to provide “appropriate protection to foreign investors in India … while maintaining a balance between investor’s rights and the government’s obligations”. See RANJAN, Prabhash and ANAND, Pushkar, “The 2016 Model Indian Bilateral Investment Treaty: A Critical Deconstruction” (2017) 38 Northwestern Journal of International Law and Business 1 at 8.

54. China has a vision of dominating this region. See MILLER, Tom, China’s Asian Dream (London: Zed Books, 2017) . It is an area of India’s traditional cultural and other interaction. See COEDES, George, The Indianized States of Southeast Asia (Honolulu: East-West Center Press, 1968) . There are various editions of the translation of this work originally published in French as Les Etats hindouises d’lndochine et d’lndonesie and revised by the author in 1964. Its thesis is that India animates the values of most Southeast Asian states.

55. See Ministry of Foreign Affairs—Brazil, “IBSA—India, Brazil, South Africa Dialogue Forum”, online: ITAMARATY <http://www.itamaraty.gov.br/en/politica-externa/mecanismos-inter-regionais/7495-india-brazil-south-africa-ibsa-dialogue-forum>.

56. BELL, Daniel, The China Model: Political Meritocracy and the Limits of Democracy (Princeton, NJ: Princeton University Press, 2015) .

57. In Vishaka and others v. State of Rajasthan and others (AIR 1997 Supreme Court 3011), the Indian Supreme Court decided that the Convention on Elimination of Discrimination against Women became part of Indian domestic law upon ratification.

58. In 2013, Chinese President Xi Jinping put forward his strategic plans for the land-based “Silk Road Economic Belt” and the ocean-going “21st Century Maritime Silk Road”, collectively known as the “One Belt, One Road” [OBOR] project, though the Chinese government prefers to officially refer to it as the “Belt and Road Initiative [BRI]. As China’s most ambitious foreign policy so far, the BRI aims to, among countries along the two roads, enhance trade and investment facilitation, promote people-to-people relations, develop financial integration, and improve key transportation passageways. Significantly, it involves China underwriting billions of dollars of infrastructure investment in the BRI regions. Reportedly, China is spending roughly US$150bn a year (and has committed over US$1.4trn in total) in building railways, highways, ports, and pipelines in countries along the BRI.

59. The concept of “Chindia” was first coined by Jairam Ramesh, India’s Minister of State for Commerce, in 2004, and has since been used to portray a romantic picture of what can be achieved when China and India put their national strengths together.

60. See e.g. Holslag, supra note 1.

61. See “New Map Shows Arunachal Pradesh as Part of Tibet” India Today (28 June 2014), online: India Today <https://www.indiatoday.in/india/story/china-map-shows-arunachal-pradesh-as-part-of-tibet-198603-2014-06-28>. See also “Could This Map of China Start a War?” Washington Post (27 June 2014), online: Washington Post <https://www.washingtonpost.com/news/worldviews/wp/2014/06/27/could-this-map-of-china-start-a-war/?utm_term=.325f52fc656a>.

62. RAO, K. Krishna, “The Sino-India Boundary Question and International Law” (1962) 11 International and Comparative Law Quarterly 875 at 878–84 .

63. O’DONNELL, Frank, Stabilizing Sino-Indian Security Relations: Managing Strategic Rivalry After Doklam (Washington, DC: Carnegie-Tsinghua Center for Global Policy, 2018) 1 (noting the “Doklam standoff between Chinese and Indian troops in the summer of 2017 coincided with an ongoing deterioration in bilateral relations and accelerated preexisting security dilemma dynamics”).

64. Sharma, supra note 1 at 174.

65. Raffaello PANTUCCI, “How Beijing, Delhi and the China-Pakistan Economic Corridor Could Reshape Global Foreign Policy in Asia” South China Morning Post (11 June 2018), online: South China Morning Post <https://www.scmp.com/news/china/diplomacy-defence/article/2148732/how-beijing-delhi-and-china-pakistan-economic-corridor>.

66. “India’s Nuclear Tests Show Fear of China” Wall Street Journal (15 May 1998), A13.

67. For the Chinese position on India’s nuclear test, see ZHANG, Ming, China’s Changing Nuclear Posture (Washington, DC: Carnegie Endowment for International Peace, 1999) 2530 .

68. See PAUL, T.V., “Chinese-Pakistani Nuclear/Missile Ties and the Balance of Power” (2003) 10 Nonproliferation Review 21 .

69. “China Supports India’s Desire ‘to Play Bigger Role’ in UN Security Council” Daily News & Analysis (17 January 2011), online: Daily News & Analysis <http://www.dnaindia.com/india/report_china-supports-india-s-desire-to-play-bigger-role-in-un-security-council_1495837-all>.

70. See Rory MEDCALF, “Reimagining Asia: From Asia-Pacific to Indo-Pacific” The ASAN Forum (26 June 2015), online: The ASAN Forum <http://www.theasanforum.org>. See also Andrew CARR and Daniel BALDINO, “An Indo-Pacific Norm Entrepreneur? Australia and Defence Diplomacy” (2015) 11 Journal of the Indian Ocean Region 30.

71. Ministry of External Affairs, Government of India, “Joint Statement—United States and India: Prosperity Through Partnership” (27 June 2017), online: MEA <http://mea.gov.in/bilateral-documents.htm?dtl/28560/United_States_and_India_Prosperity_Through_Partnership>.

72. See PAN, Chengxin, “The ‘Indo-Pacific’ and Geopolitical Anxieties about China’s Rise in the Asian Regional Order” (2014) 68 Australian Journal of International Affairs 453 (arguing that “the ‘Indo-Pacific’ is not an innocent or neutral description, but is a manufactured super-region designed to hedge against a perceived Sino-centric regional order”).

73. Information on the NDB can be found at <https://www.ndb.int>.

74. MARTINS, Christiane, “The BRICS Bank: On the Edge of International Economic Law and the New Challenges of Twenty First Century Capitalism” in Rostam J. NEUWITHR, Alexandr SVETLICINII, and Denis De Castro HALIS, eds., The BRICS-Lawyers’ Guide to Global Cooperation (Cambridge: Cambridge University Press, 2017), 200 . Another bank established by China is the Asian Infrastructure Investment Bank.

75. See SORNARAJAH, Muthucumaraswamy, “The Role of the BRICS in International Law in a Multipolar World” in Vai Io LO and Mary HISCOCK, eds., The Rise of the BRICS in the Global Political Economy (Cheltenham: Edward Elgar Publishing, 2014), 288 .

76. This is not unusual. Hegemonic states gave altruistic reasons such as the promotion of the standard of civilization for advancing norms that promoted national interests.

77. On what international relations can offer international law, see generally SLAUGHTER, Anne-Marie, “International Law and International Relations” (2000) 285 Recueil des Cours 9 , and ARMSTRONG, David, FARRELL, Theo, and LAMBERT, Helene, International Law and International Relations, 2nd ed. (Cambridge: Cambridge University Press, 2012) .

78. Saul, supra note 47 at 197.

79. Ibid., at 210 (stating that “China is now far more law-abiding than law breaking, including as regards its defensive territorial claims, and is increasingly enmeshed in thicker global social relations”).

80. “BRICS Leaders Outline Their Path to Stability, Security, Prosperity” Xinhua News Agency (29 March 2012).

81. Simon TISDALL, “Can the Brics Create a New World Order?” The Guardian (29 March 2012), online: The Guardian <https://www.theguardian.com/commentisfree/2012/mar/29/brics-new-world-order>.

82. See e.g. Russel HSIAO, “Hu Calls on Russia to Shape New International Political Order” (2010) 10 Jamestown China Brief 1. See also Jane PERLEZ and Keith BRADSHER, “Xi Jinping Positions China at Center of New Economic Order” New York Times (14 May 2017), online: New York Times <https://www.nytimes.com/2017/05/14/world/asia/xi-jinping-one-belt-one-road-china.html>.

83. IKENBERRY, G. John, “The Future of the Liberal World Order: Internationalism after America” (2011) 90 Foreign Affairs 58 .

84. G. John IKENBERRY, “The Rise of China and the Future of the West. Can the Liberal System Survive?” 87 Foreign Affairs 23 at 30.

85. Ibid.

86. HENKIN, Louis, How Nations Behave, 2nd ed. (New York: Council on Foreign Relations, 1979) 47 .

87. SLAUGHTER, Anne-Marie, “International Law and International Relations” (2000) 285 Recueil des Cours 9 at 33.

88. Ibid., at 30–2.

89. Ibid., at 34.

90. ETZIONI, Amitai, “Changing the Rules”, in the debate “Point of Order: Is China More Westphalian than the West?” (2011) 90 Foreign Affairs 172 .

91. United Nations, “Security Council Approves ‘No-Fly Zone’ Over Libya, Authorizing ‘All Necessary Measures’ to Protect Civilians, by Vote of 10 in Favour with 5 Abstentions” (17 March 2011), online: UN <http://www.un.org/News/Press/docs/2011/sc10200.doc.htm>.

92. See ZHANG, Yongjin, China in International Society since 1949: Alienation and Beyond (Basingstoke: Palgrave Macmillan. 1998) 148 . See also generally, DAVIS, Jonathan E., “From Ideology to Pragmatism: China’s Position on Humanitarian Intervention in the Post-Cold War Era” (2011) 44 Vanderbilt Journal of Transnational Law 217 .

93. The text is available at the website of Ministry of External Affairs of India <http://www.mea.gov.in/bilateral-documents.htm?dtl/7807/Agreement+on+Trade+and+Intercourse+with+Tibet+Region>.

94. “UNSC Resolution on Libya—India’s Explanation of Vote”, Indian Ministry of External Affairs, 18 March 2011 (emphasis added).

95. Madhavi BHASIN, “India’s Decision to Abstain from Vote on Libya’s ‘No-Fly’ Zone” Foreign Policy Blogs (25 March 2011), online: Foreign Policy Blogs <https://foreignpolicyblogs.com/2011/03/25/indias-decision-to-abstain-from-vote-on-libyas-no-fly-zone/>.

96. Quoted in AMSTUTZ, Mark R., International Ethics: Concepts, Theories, and Cases in Global Politics, 2nd ed. (Lanham, MD: Rowman & Littlefield Publishers, 2005) 53 .

97. “China to Launch Two International Commercial Courts” Xinhua News (28 June 2018), online: Xinhua <http://www.xinhuanet.com/english/2018-06/28/c_137287616.htm>.

98. See US Department of Defense, “Secretary of Defense Ash Carter: A Regional Security Architecture Where Everyone Rises”, speech at the IISS Shangri-La Dialogue, Singapore, 30 May 2015, online: DOD <https://www.defense.gov/News/Speeches/Speech-View/Article/606676/iiss-shangri-la-dialogue-a-regional-security-architecture-where-everyone-rises/>.

99. Xiangshan Forum, “Work Together to Improve Regional Security Architecture and Address Common Challenges”, speech by H.E. Liu Zhenmin, Vice Foreign Minister of China, at the First Plenary Session of the 7th Xiangshan Forum, 11 October 2016, online: Xiangshan Forum <http://www.xiangshanforum.cn/artseven/sevenforum/sspeech/fmeeting/201610/1824.html>.

100. Wang, supra note 49.

101. NYE, Joseph S. Jr., Understanding International Conflicts: An Introduction to Theory and History (New York: Pearson Longman, 2005), 207 .

102. Suparna Dutt D’CUNHA, “How China Is Positioning Itself among India’s Top 10 Investors despite Bilateral Differences” Forbes (1 May 2018), online: Forbes <https://www.forbes.com/sites/suparnadutt/2018/05/01/how-china-is-positioning-itself-among-the-top-10-investors-in-india-despite-bilateral-differences/#707c29bc1dac> (noting that China invested US$700m in 2016, which rose to US$2bn in 2017).

103. “A Himalayan Rivalry” The Economist (19 August 2010), online: The Economist <https://www.economist.com/briefing/2010/08/19/a-himalayan-rivalry>.

104. Wang, supra note 4 at 354.

105. James GRIFFITHS, “India, China Agree to ‘Expeditious Disengagement’ of Doklam Border Dispute” CNN (29 August 2017), online: CNN <https://edition.cnn.com/2017/08/28/asia/india-china-brics-doklam/index.html>.

106. Kingling LIU, “How India Became China-led Development Bank’s Main Borrower” South China Morning Post (19 January 2018), online: South China Morning Post <https://www.scmp.com/news/china/diplomacy-defence/article/2129686/how-india-became-china-led-development-banks-main>.

* Muthucumaraswamy Sornarajah is CJ Koh Professor of Law, and Jiangyu Wang is Associate Professor at the Faculty of Law, National University of Singapore. Many ideas in this paper and in our larger research project on China, India, and international law came from our discussions with the students on the course “China, India, and International Law”, which the two authors co-teach at the Faculty of Law, National University of Singapore. The authors would also like to thank Simon Chesterman, Antony Terence Anghie, Su Yu, Zeng Huaqun, Cai Congyan, Chen Huiping, Han Xiuli, and Fang Dong, and two anonymous reviewers for their valuable comments on early drafts. The usual disclaimer applies.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Asian Journal of International Law
  • ISSN: 2044-2513
  • EISSN: 2044-2521
  • URL: /core/journals/asian-journal-of-international-law
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed