Locating TWAIL Scholarship in China

Abstract

This paper opens a scholarly discourse about Chinese scholars’ engagement with TWAIL (Third World Approach to International Law). This paper shows that Chinese international law scholars and TWAIL align in their resistance to Eurocentrism in international law, while they differ in their attitude towards whether to refrain from “national allegories” and criticize international law as a state-centric invention. A state-centric approach means that mainstream Chinese international lawyers tend to adopt a pragmatic attitude towards international law, employing it as a strategic weapon. During the course of this inquiry, this paper also observes a critical strand in Chinese academics – mostly outside of the international law discipline, and within the disciplines of history and philosophy – that is dedicated to redeeming China's subjectivity and history, which may be useful to understand Chinese critical spirit.

China and the Third World have been in close alliance since the decolonization period. This close alliance is manifested in several aspects. First, China was one of the founding countries of the Bandung Conference – “a symbolic birthplace of TWAIL”.¹ Second, the core force of the Third World countries – the Non-aligned Movement (NAM)² – supported Communist China in retrieving its seat at the United Nations (UN), resulting in a long and consistent espousal by China for the Third World wave in the international arena.³ Due to these historical affinities, the first generation of Chinese international law scholars, which included Wang Tieya, contributed substantially to non-Western and Third World approaches to international law.

Some of these affinities stretch to the present in forums where diplomatic rhetoric still uses a “Third World-ist” language.⁴ Because of the close alliance with the Third World countries, the Group of 77 (G77) and China were called a “Club of One” within the UN, which advocated for the interests of developing countries.⁵ However, and despite their political alliance and historical affinities, current mainstream Chinese scholars in international law seem to show a disinterest in TWAIL (Third World Approach to International Law) scholarship. This phenomenon is worth pondering, especially given that some arguments of TWAIL might have instrumental value for China's official position in international law.

Having this question in mind, I intend to open a scholarly discourse in this paper about the relationship between Chinese scholars and TWAIL. The objective is to understand whether there is really a lack of engagement, and to redeem some TWAIL scholarship and the like in China if there is any during different periods of time. This paper is arranged as follows: Section I identifies what TWAIL is, focusing on its history, current development, and some critical features. Section II sets out the close identification between Chinese international legal scholarship with Third World scholarship in the decolonization period, in particular the Chinese contribution to TWAIL. Section III explores whether there are still “TWAILers” and kindred scholarship in China, particularly after the Cold War. Section IV provides some concluding remarks.

As I will explain in this paper, there is a duality of engagement with international law by Chinese scholars – of resistance and pragmatism – arguably characterizing the Chinese approach to international law where there appears to be some, if declining, association with TWAIL. I borrow here the characterization of Luis Eslava and Sundhya Pahuja about TWAIL scholarship – “between resistance and reform: TWAIL and the universality of international law” – to depict this conflictual relationship between Chinese mainstream scholars and international law. I argue that Chinese international law scholars and TWAIL align in their resistance to Eurocentrism in international law, while they differ in their attitudes towards whether to resign from “national allegories”⁶ and criticize international law as a state-centric invention. The state-centric approach means that mainstream Chinese jurists tend to adopt a pragmatic attitude towards international law, using international law as a strategic weapon “inherited from the culture at which the struggle is directed” and choosing to live within the “imperialist hegemonic structures” of international law that favours great powers.⁷ The instrumental use of international law, a sort of pragmatism in the Chinese philosophy of international law, also limits its critical purchase.

I. What is TWAIL?

Identifying TWAIL is becoming increasingly complicated. In its early period TWAIL may have only been concerned with international law scholars from the Third World whose interventions were to deconstruct the colonial legacies of international law and to engage with the decolonizing efforts.⁸ Yet, when the concept of the Third World is no longer bound by the geographical South and the stringent criteria of developing countries, some people in the developed North that are excluded socially and economically may also fall into the realm of the Third World.⁹ This territorial imprecision may extend to the identification of TWAIL scholars. Scholars from the North who are defending the South and the marginalized groups often find resonance with each other under the TWAIL label.¹⁰ These specificities of TWAIL somehow delinked nationality from scholarly association.

TWAIL, in many authors’ descriptions, is also evolutionary. Antony Anghie and B.S. Chimni defined two generations of TWAIL: “TWAIL I” and “TWAIL II”. TWAIL I refers to the scholarship produced by the post-colonial international legal actors (including “international lawyers, political actors and intellectuals from the South who had long grappled with the vicissitudes and complexities of the international legal order”).¹¹ TWAIL II inherited certain aspects from TWAIL I but departed from it significantly in the sense of dealing with “the vestiges of ‘formal’ empire and expanding multi-dimensional forms of ‘informal imperialism’.”¹² It was also during the first TWAIL meeting in Harvard in 1997 that a group of TWAILers traced, in retrospect, the contributions of TWAIL I: James Thuo Gathii said it was a contributionist generation.¹³ But TWAIL II and the generations beyond were expected to depart from the totalizing tendencies of these “national allegories” while at the same time remaining alive to its historical roots of colonialism and imperialism. Balakrishnan Rajagopal proposed that decentering the Third World from its geographical moorings of the “nation” and reimagining it as a counter-hegemonic discursive tool would allow us to interrogate the various ways in which power was used.¹⁴

Even though TWAIL scholars have also been criticized for lacking a “coherent and distinctive ‘Third World approach’”,¹⁵ there is a key concept running through TWAIL thinking – a critical engagement with imperialism. According to Michael Fakhri, in an interview, a TWAIL way of thinking is that “you cannot understand international law without understanding imperialism”.¹⁶ It was admitted that there would be differences in the understandings of imperialism, but TWAILers tend to pay more attention to “the way that international law's foundations were grounded in the justification of imperialism and its acquisitive aims”.¹⁷ Despite the imperialistic tendencies of international law, TWAIL scholars seem to share some faith in international law in that it can provide a new future. As Anghie and others did, adopting a critical methodology within the boundaries of the legal body sometimes allowed TWAIL scholars to speak, interact, and act within the law.¹⁸ This approach provides intellectual space for TWAIL to constantly challenge the imperialistic structure of international law while holding the belief that international law can still provide emancipatory potentials for building an international society with egalitarian values.

Whether to become a TWAILer is a question of self-identification in a contingent and historically situated way.¹⁹ To self-identify is to align with the vision provided by a group of TWAIL scholars in the discursive language of critiquing power and knowledge production, unpacking ideology and speaking for the subaltern. “The common legacy of subordination— regardless of physical boundaries and specific geographic spaces constitutes a unifying and self-identifying factor for TWAIL scholars, regardless of whether the chorus of their voices blends harmoniously.”²⁰ Self-identification, hence, becomes the distinctive characteristic for TWAIL scholars who were not necessarily born or educated in a Third World country, but spoke the language of TWAIL to diverge and to resist. However, one has to admit that many who similarly shared the concerns about the Eurocentrism of international law may choose not to self-identify as a TWAILer for a variety of reasons. For instance, Gathii argued that even though Jose Alvarez was critical of some TWAILers’ views for being nihilistic, “Alvarez's own work has contained many TWAIL-like themes, and has often been as critical of certain liberal approaches to international law just as TWAIL scholarship has been.”²¹

In these considerations, if we have to generalize the features of TWAIL – a reductionist process which is not an optimal way of providing nuances²² – there are at least three central features arising from the scholarship. First of all, TWAIL can be divided into different generations: from TWAIL I to TWAIL II and beyond.²³ Second, TWAILers commit to interrogating the Eurocentrism, imperialism, and colonial vestiges in international law (both formal colonial and neocolonialism). By decolonizing the material realities of the peoples of the Global South, the Third Worlders aspire to build new and alternative legal futures. Third, an important pillar of TWAIL is self-identification and community building for sharing friendship, experiences, and comrades.²⁴ As Gathii said:

this diversity of influences in TWAIL scholarship occurs because unlike certain critical intellectual movements, it is not characterized by leading figures producing works that set the parameters and boundaries of inquiry. Rather, TWAIL, as alluded to above, has a fluid architecture of many different individuals who mix, reuse and re-combine various TWAIL and non-TWAIL ideas and themes. Within this network, no one individual, or set of individuals has direct control of TWAIL scholarly production. As a result, there is no full knowledge of all the parts, or even anything remotely suggesting control.²⁵

Thus, the fluid and open structure of TWAIL allows more scholars to join and resist the imperialistic structure of international law.²⁶

It is also with regard to these characteristics of TWAIL that I open this exploration of TWAILers in China. This paper, therefore, does not take self-identification as the only feature of TWAIL scholarship, but engages with the substance more closely to see whether there are TWAILers and the like in China in different periods of time.

II. Chinese TWAIL-ERS in the postcolonial period (1945–1989)

As mentioned earlier, mainstream Chinese scholars were historically adamant promoters of Third World scholarship during the decolonization period. The historical intimacy as allies and companions between China and the Third World countries rendered the indispensable affinity for the Chinese epistemic group to capacitate themselves with Third World sensibilities to criticize and resist the unfair imposition and Western domination in the current international system of norms and ordering.

In 1948, one of the leading figures of the Chinese Communist Party, Liu Shaoqi, gave a speech on “Internationalism and Nationalism”, stating that “[c]ommunists must be the staunchest, most reliable and most able leaders in the movement for national liberation and independence of all oppressed nations … [they] certainly cannot conduct aggression on any other nation or oppress national minorities within the country”.²⁷ Under this banner of national liberation, the first generation of Chinese international law scholars – precursors such as Wang Tieya, Zhou Gengsheng, Li Haopei, Chen Tiqiang, and many others – were the unyielding fighters that spoke for the vulnerable newly independent countries in international legal scholarship.²⁸

Most prominently, in 1983, Wang Tieya wrote an important piece entitled “the Third World and International Law” in a collection of the papers of the most important scholars in international law in its time to provide opinions on international law. In that paper he asked:

how is it possible that such a complicated and diverse hodgepodge of countries can be lumped under a single heading? It is possible because these countries have a similar history—one of suffering oppression, exploitation and humiliation; because they share a common experience—one of undergoing bitter struggles to rid themselves of colonial rule in order to gain independence and freedom; because they find themselves in identical quagmires today: they are all treated as political lightweights, have undeveloped economies, and are technologically backward. Their similar histories, similar present problems, and similar aspirations are what make these nations the Third World and a new force to be reckoned with.²⁹

At the end of that paper Wang also encouraged Chinese international lawyers to give heed to the Third World studies in international law against the backdrop of the increasing impact of Third World countries in international relations.³⁰ Similar critiques against imperialism and colonialism were shared by many other Chinese international lawyers. For instance, in a memoir about Zhou Gengsheng, it was said that Zhou had a strong aversion to the imperialism embedded in Western international legal textbooks in light of European history of diplomacy and politics.³¹ Zhou also placed emphasis on developing a Chinese academic system of international law, distinct from the European and Western systems.³²

On the topic of unequal treaties, a great number of Chinese scholars have made contributions to the legal scholarship. The analysis of Unequal Treaties by Anne Peters in the Max Planck Encyclopedia showed how Chinese experiences were predominant in this debate.³³ Peters recognized that the issue of unequal treaties became part of Chinese identity and the common heritage of Chinese scholarship for a long period.³⁴ For instance, Zhou Gengsheng's manuscript on International Law and Ten Lectures on Unequal Treaties addressed important viewpoints on subaltern states. Zhou strongly criticized unequal treaties as a result of imperialism and defined the origin of unequal treaties as a trade-facilitated tool used by European states against Eastern states (including Turkey, Persia, Korea, China, Siam, etc.).³⁵ In the 1990 Hague Academy Collected Course, Wang Tieya also harshly criticized the Western-imposed unequal treaty regime, which had been used to justify and condone the West's rule over China for more than a century.

They brought to China international law which applied among themselves, but they did not apply it to China, or they applied only those principles and rules which they could make use of in their activities of oppression and exploitation. One thing they insisted on was the sanctity of the unequal treaties. For them, the main role of international law was to guarantee and supplement the execution of unequal treaties.³⁶

It was against this imposition of unequal treaties that this generation of Third World international legal scholars vigorously defended the principles of sovereignty and sovereign equality.³⁷ As Wang explained, “[t]he newly established States are also most attached to the concept [of sovereignty] as they are extremely sensitive to any infringement of their newly acquired independence and sovereignty”.³⁸ According to Wang, China placed emphasis on sovereignty since this prize was earned after extensive battles to regain its lost sovereignty.³⁹

By sticking to the formal legal validity of these foundational norms, socialist and Third World critiques constructively imbued the “epistemic determinacy and a meaningfully counter-hegemonic character” into the interpretation of international law.⁴⁰ This was demonstrated by the way Chinese academia developed the topic of non-intervention. In a 1950 paper by Chen Tiqiang titled “Who is Undermining International Law?” Chen argued that the imperialist approach in the Korea War should be condemned on the basis of the UN Charter's prohibition of aggression and intervention.⁴¹ In a later paper published in 1956 on the China's Peoples’ Daily – one of the main media outlets in China – Chen placed emphasis on the principle of non-intervention during civil strife.⁴² Chen said that:

the principles of international law stipulate that the government of a country has the obligation not to allow the area under its administration to be turned into a base to conduct hostile activities against the government of a foreign country with which it is at peace.⁴³

Chen made this point within an intention to warn off the British government for harbouring a Taiwanese fighter jet in a Hong Kong airport during the civil strife between the mainland and Taiwan.

In 1960, Yi Xin also wrote on the issue of non-intervention, stating that:

Bourgeois international law, therefore, provides for ‘intervention in default of right’ and other pretexts for imperialism, namely, intervention can be carried out in ‘self-defence’ or in the interest of the ‘balance of power’ and intervention can be based on so-called ‘humanitarianism’.⁴⁴

Yi Xin said that no matter how high-sounding these grounds for intervention were, they were only pretexts “used by strong capitalist countries for engaging in foreign expansion”.⁴⁵ “So-called ‘humanitarian intervention’ is designed to spread a beautiful carpet over another road of imperialist intervention in the internal affairs of other countries.”⁴⁶ Therefore, a great many Chinese international law scholars upheld the principle of non-intervention in light of the five principles of peaceful coexistence – a concept raised at the Bandung Conference and also in the Joint Statement of the Premiers of China and India.⁴⁷ Zhou Gengsheng elaborated on the principles of peaceful coexistence, in which he cautioned against seeing non-intervention mechanically because “the imperialists use the good slogan of ‘non-intervention’ to connive at aggression which in fact constitutes indirect intervention”.⁴⁸ He raised the example of the Spanish Civil War in 1936 where a group of Western countries proposed the “nonintervention agreement” and a “nonintervention committee”, which caused the Spanish Republican government to be finally overthrown by the Fascist faction.⁴⁹

In a paper published in the China's Peoples’ Daily, Chiang Yang criticized the universalism in American jurisprudence and the “so-called ‘world legal order’”. He insisted that:

the poverty and backwardness of the people of the colonies, semicolonies and various countries in Asia, Africa and Latin America are the results of a long period of barbarous plunder and oppression by imperialism, especially American imperialism…. The only way for them to get rid of such a situation is to rise in revolution and uproot the colonial rule of imperialism.⁵⁰

He considered that “the ‘universalism’ theory of the American reactionary jurists was an ideological weapon preserved for struggles in Asia, Africa, and Latin America”.⁵¹ Yang criticized the idea of the “world state” promoted by Philip Jessup because the purpose of this “world state” was to implement Western universalism, which would eventually deny the right of revolution from the governments and peoples of various states.⁵² These criticisms of particularized Western universalism echoed what James Gathii had argued: “Third World positions exist in opposition to, and as a limit on, the triumphal universalism of the liberal/conservative consensus in international law.”⁵³

An important premise of Chinese scholars in this period was that “imperialist big powers may impose their will on the international community and thus influence the enactment of international law.”⁵⁴ Yet some Chinese scholars assumed a less radical approach and did not reject the possibility of international law being interpreted to the advantage of the Third World. They believed that international law had “its own objective rules of development which cannot be diverted by will of imperialist big powers and the development of international law cannot be separated from the [objective] rules of the development of the international community”.⁵⁵ Chen Tiqiang's doctoral thesis, completed at Oxford, on the issue of recognition, also suggested that:

the higher purpose of international law was to offer protection against the encroachment of the rights of weaker states: ‘non-recognition does not give the foreign State the right to treat the unrecognised Power as if it were beyond the pale of international law’.⁵⁶

Hence:

[The] constitutive view that the international community is in the nature of a closed club, to which new entities can only be admitted through recognition, is itself erroneous. It is certainly untrue today that any portion of humanity can be treated as beyond the protection of international law.⁵⁷

The rebellion against exclusion and faith in international law to bring recognition and justice were marked in some Chinese scholarship in this period.

On the sources of international law, many Chinese scholars in the postcolonial period argued that only treaties and customs could be considered sources of international law.⁵⁸ Only resolutions adopted by the UN General Assembly that were of a normative character relating to the rights and obligations of states, interpretations of the UN Charter, fundamental principles of international law, or declarations of existing international law might be capable of constituting a subsidiary source of international law.⁵⁹ Liu Ding, the Dean of International Law Faculty of Renmin University in the 1980s, asserted that:

according to international law, an international organization does not have legislative power and the resolutions it passes generally do not have binding force upon its members… However, resolutions of international organizations of significant importance, which are consistent with generally recognized guiding principles of international law, do possess legal validity and should be considered as a source of international law. The Declaration on the Establishment of A New International Economic Order and its Programme of Action adopted by the Sixth Special Session of the General Assembly of the United Nations on May 1, 1974, and the Charter of Economic Rights and Duties of States adopted by the Twenty-Ninth Session of the General Assembly of the United Nations on December 12, 1974, which confirm the permanent sovereignty over natural resources of states, sovereign equality of all states, the undeniable rights of all states to participate equally in resolving world economic problems and other principles, should have the validity of international law.⁶⁰

Liu’s attention to the New International Economic Order and the Charter of Economic Rights and Duties, which also established the epistemological foundation for the discipline of International Economic Law in China, was remarkable – in the sense of recognizing the economic sovereignty of states.⁶¹ The importance attributed to the unanimously, or almost unanimously, adopted General Assembly Declarative resolutions as a possible formal source of international law was well discussed in Li Haopei's paper on jus cogens. In that paper he showed great support for including these kinds of resolutions as part of formal international law and for the increasing Third World influence in the General Assembly. His paper, first published in Chinese in the Chinese Yearbook of International Law (1982),⁶² was translated into English in the collection of Selected Articles from the Chinese Yearbook of International Law in 1983.⁶³

In general, Chinese scholars do not accept general principles of law derived from domestic law and awards of international tribunals as the sources of international law. Zhu Lisun, in his textbook on Public International Law (Guoji Gongfa) published in 1985, wrote:

first, in reality there are only two legal systems, i.e., municipal law and international law, and there exists neither an abstract law nor a legal system above the municipal law and international law. Therefore, there will be no general principles of law in abstract. Second, the general principles of law advocated by Western legal scholars are municipal law principles. However, since international law and municipal law are two different legal systems, the principles of municipal law cannot be applied to international law.⁶⁴

Chen Tiqiang also explained in 1984 that:

when the Western powers appeared on the Chinese scene, they brought with them this system of international law. But though they applied among themselves the whole system of international law, they applied to China only those portions which authorized and legitimatized the plundering, exploitation and oppression of colonial peoples.⁶⁵

Citing the classification of humanities by James Lorimer and the five classes provided by Oppenheim, which hierarchized states according to civilization levels, Chen expressly unveiled how the “humiliation suffered by China was due principally to the imperialist policy of the Great Powers and the incompetence [of China]” and how international law could do nothing to change the semi-colonial degradation of China, which more served as an accomplice to these hegemonic ambitions through the absurd civilization levels labelled by these distinguished international law scholars.⁶⁶

These passages of international legal literature by Chinese scholars cursorily encapsulated how Chinese legal scholars in the post-colonial period enriched the Third World voices in international law, challenging imperialism and colonialism. Yet, after the 1980s, especially after the Soviet Union dissolved and China entered the market economy, this anti-imperialist voice faded away in the international legal literature. A changing pattern emerged, as the next Section will unpack.

III. The Engagement of Chinese scholars with TWAIL in the post-cold war period (1990 ’TIL now)

As stated earlier, the TWAIL approach we discuss today was a moniker coined at the Harvard Conference in 1997. It retrospectively traced the work of international legal scholars such as Georges Abi-Saab, Mohammed Bedjaoui, Christopher Weeramantry, and Fouad Ammoun.⁶⁷ Yet, as Anghie and Chimni have identified, there was an evolution from TWAIL I to TWAIL II. An important difference between TWAIL I and TWAIL II was a further critique of the postcolonial nation-state – as a result of Western-imposed international law – and an interest in the violence of the nation-state at home as well.⁶⁸ It is worth noting that this important piece by Anghie and Chimni – which was cited by various scholars in identifying the TWAIL movement – was published in the Chinese Journal of International Law, whose editors-in-chief at that time were Wang Tieya and Yee Sienho.

In line with this thread, in 2003 Wang and Yee have edited a collection of essays in memory of Li Haopei in International Law in the Post-Cold War World. In this collection, many themes were in light of TWAIL, such as “general principles of law regarding the protection of minorities” by Theo Van Boven, “the concept of war crimes” by George Abi-Sabb, “the sovereign equality principle in the 21st century” by Gao Feng, and a rereading of opinio juris by Bin Cheng, etc. For instance, Bin Cheng, by highlighting the status of opinio juris in the making of customs, had made known the theory of “instant custom” in the area of space law – that every state exercises complete and exclusive sovereignty over the airspace above its territory, which was quickly recognized. His doctrinal analysis in that regard was also an important addition to the Third World voices.⁶⁹ The creation of “instant custom” was, according to some authors, “a way to properly respond to the critique by Third World writers that traditional CIL [customary international law] which crystalized the status quo that could only be challenged by a slow and difficult process.”⁷⁰ It is noted from the TWAIL perspective that some of these approaches to revolutionary customs explicitly consider the position of Third World states.⁷¹

In the same collection of essays, there was some scholarship from a realistic approach – or to put it in more concrete terms, the New Haven school. Wang Guiguo's paper on the Chinese perspective of sovereignty in the period of globalization was a representation of the New Haven school. Wang Guiguo, a student of Michael Reisman and a disciple of the New Haven school,⁷² explained in his chapter why China adhered to an absolute approach to sovereign immunity on the bases of sovereign equality and non-interference. On the one hand, he understood why China stuck fast to the concept of sovereignty, as many Third World countries did in the decolonization period, where they demanded equal footing. On the other hand, he considered a shifting role of China in joining the world economic institutions for its own benefits, which required China to make a compromise to the principle of sovereignty. He noted that:

China needed technology and capital and that the membership of the IMF and World Bank group would not only bring badly needed hard currency to the country but would also help build confidence in foreign investors interested in doing business in China.⁷³

Yee Sienho's own chapter in this collection also showed the development in the understanding of international law since the establishment of the UN. He recognized the importance of Third World states in the Cold War period where international law was about coexistence and cooperation. Yet he proposed that international law had entered a new age of “co-progressiveness” after the Cold War, in that there was more inclusive and egalitarian participation in international law making and that the rule of law and human rights law remoralized international law.⁷⁴ These observations – made with optimism and hopefulness about international law – were somehow different from the voices expressed in the 1997 Harvard Conference or the later conferences on TWAIL, which were more critical of international law continuously being a product of imperialism and neocolonialism. Yee and some other scholars appeared more optimistic, holding that international law entered a new stage of cooperation and co-progressiveness.

In the post-Cold War period, Chinese scholars appeared to adopt fewer anti-imperialist tones in describing international law, focusing more on the scientific, technical, and universal aspects of international law. Wang Tieya's speech at the UN General Assembly on the universal approach to the teaching of international law was one representation. Having admitted that modern international law was a result of Eurocentrism, Wang showed that in non-Western places there were rules analogous to European international law. He believed that the differences between the non-West and the West in terms of different cultural and historical heritage and different social and political systems could “yield even more fruitful results” because international law has developed from “subordination to coordination and then to cooperation”.⁷⁵ Wang considered that:

Article 9 of the Statute of the International Court of Justice provides that ‘in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured’ … The implementation of the aforementioned provision makes the Court a real world court. In the same sense, when international law itself represents the main forms of civilization and of the principal legal systems of the world, it becomes universal.⁷⁶

In the same speech, Wang also quoted Judge Bedjaoui's edited work, International Law: Achievements and Prospects, with a collection of fifty authors “selected on the basis of broad geographical coverage”. Wang believed that such work could facilitate a universal approach to the teaching of international law and the national ethnocentric approach should be discarded.⁷⁷ Bedjaoui also steadfastly espoused the education of international law to reduce fanaticism of war and to create solidarity among all humans.⁷⁸ Yet, the unswerving support for universalism – a spirit also enshrined in the writings of RP Anand – was also criticized for catering to the Western international legal scholars.⁷⁹ Anand, along with the likes of other Third World scholars, was dedicated to the recovery of the “lost histories of the new post-colonial states without rejecting international law”.⁸⁰ Antony Anghie argued that Anand “adopted, on the whole, a conciliatory position: the aim was to reform international law rather than dispense with it”.⁸¹ Anand also represented the particularistic universalism of non-European international law.⁸² Even though Anand's work was not so much appreciated in China because of his criticism of the Tibet issue,⁸³ Anand's approach of “particularistic universalism”⁸⁴ was shared by many legal minds in the post-colonial world, such as Mohammed Bedjaoui, Wang Tieya, and C. H. Alexandrowicz.⁸⁵

In a book edited by Anand in 1972, Upendra Baxi contributed a chapter which represented another end of the spectrum of opinion on internationalism. Baxi's internationalism was very different from the one held by Anand and Jawaharlal Nehru. Baxi attacked the nationalism in Indian international legal scholarship for taking intellectual decolonization too far. Unlike Anand, who focused on state and sovereignty, Baxi took a people-centric approach and found international law to be a construct from below.⁸⁶ Baxi's approach was appreciated in a wider fashion by today's TWAIL scholars as we see in the work of Gathii, Chimni, and Rajagopal.⁸⁷ By contrast, in Chinese international legal scholarship international law remains and continues to remain state-centric. Scholars of international law, even when they are looking at issues of human rights, tend to focus only on collective human rights, such as the right to self-determination.⁸⁸ For instance, Bai Guimei, an eminent human rights scholar at Peking University, published a series of papers about collective human rights in the Chinese Yearbook of International Law. In her articulation, external self-determination – an entitlement exclusive to colonized territory and people under subordination – is a well-recognized right based on UN resolutions. In the meantime, the more controversial right to internal self-determination, according to Bai, denoted self-governance without external interference and equal rights to participate in political decisions rather than a special right for minorities within a state. Her interpretation was grounded on the doctrines of Western scholars such as Antonio Cassese, Thomas Franck, and Gregory H. Fox.⁸⁹ Other than promoting the right to self-determination, starting from 1990, Bai was also dedicated to articulating a group of “new generation of human rights” – which are mostly collective rights and social/economic rights – such as the right to development, the right to environment, the right to peace, the right to food, the right to natural resources, and the right to humanitarian aid.⁹⁰ It was in this category of collective rights that Bai articulated the shared concerns of Third World countries and scholarship.⁹¹ Finding a “non-Western theory of universal human rights” based on the Oriental/Chinese culture was one of the key tasks of human rights education in China.⁹²

It was also in this post-Cold War period that China stepped into a new era of market economy, which had arguably eliminated the biggest ideological obstacle to China's international law development.⁹³ The South Tour speech by the Chinese statesman, Deng Xiaoping, in 1992, minimized the ideological differences between capitalism and socialism as China used a more pragmatic approach to seize the chances in world economic development. Meanwhile, China also shifted from being a marginalized outsider that purely criticized and challenged the international legal system dominated by the West, to a recipient and participant of the contemporary international legal system.⁹⁴ Since 1992, the major goal of China's development has been to get to the centre of the decision-making process in the international legal system as a stakeholder.⁹⁵ In the post-Cold War period, pragmatism became a more prominent approach.⁹⁶ The old generation of scholars who were used to assuming a resistant tone in international law, such as Wang Tieya, Li Haopei, and Ni Zhengyu, participated less in research work. The new generation of international law scholars became the central pillar in analyzing international legal issues. These international law scholars mostly graduated from Peking University and Wuhan University, under the education of the old generation of international legal scholars.⁹⁷ Since 2001, the discussions in international law became more policy-oriented, particularly influenced by the Sino-US relationship.⁹⁸ Chinese scholars started to introduce the New Haven school into Chinese academia.⁹⁹ Some scholars identified with the New Haven school (with its complicated, technical, and contextualized process), for this school combined foreign policy purposes and international law values.¹⁰⁰ In general, an instrumental approach to international law can be seen in Chinese scholarship.¹⁰¹ The instrumental approach predominated Chinese legal academia, while critical approaches like TWAIL or feminism had little influence. For instance, He Zhipeng and Gao Yue contended that TWAIL and feminism were value-loaded perspectives without a comprehensive overview of international law.¹⁰²

Be that as it may, TWAIL and critical scholarship have gained some momentum in the past decade, largely influenced by international developments.¹⁰³ In a recent piece published in 2022, the international law theorist, He Zhipeng, appeared to take a different approach, acknowledging the importance of critical studies based on theories and practices.¹⁰⁴ He Zhipeng also grounded a need of understanding the plurality of human rights from a historical and social dimension by referring to the theories of Makau Mutua.¹⁰⁵ In a piece published in 2009, Li Hongfeng, a scholar who graduated from Wuhan University, introduced TWAIL scholarship to the Chinese audience for the first time.¹⁰⁶ Yet his brief introduction did not capture the complexity of TWAIL and did not pay attention to the growing people-centric approach and the critique towards neocolonialism. Among recent Chinese critical work, Wei Leijie's piece on the lack of subjectivity in China's international law studies was notable. He criticized the over-emphasis on the legitimacy of the current international legal system among some Chinese scholars, which included being too trusting in the legality of international adjudication and the lack of interest in international legal theories, such as critical legal studies, post-colonialism, and TWAIL. He noted that both legal histories and TWAIL shared the view that international law is a politicized narrative. He also argued that mainstream authors in international law had intentionally overlooked TWAIL, but he pointed out that a deconstructive approach such as TWAIL could reveal the internal controversies of international law, which should be valuable in correcting the over-emphasis on positivism in Chinese international legal research.¹⁰⁷

Notably, Peking University provided an important environment for the development of critical legal studies in China. Over the past years, Peking University invited Antony Anghie, David Kennedy, Anne Orford, Martti Koskenniemi, Frédéric Mégret, and a group of critical scholars to deliver lectures. Anghie's lecture in 2018, for instance, discussed “TWAIL in a Changing World Order”.¹⁰⁸ Li Ming, an eminent international legal scholar at Peking University, noted the paucity in furnishing alternative ways of thinking about international law among Chinese legal scholars and teachers, which he believed was one of the reasons why TWAIL studies had been impoverished in China over the years.¹⁰⁹ Chen Yifeng, also based at Peking University, and a faculty member of the Harvard University Institute for Global Law and Policy programme, was probably one of the few scholars who contributed to an international TWAIL scholarly project, as embodied in his chapter in Bandung, Global History and International Law, reviewing China's engagement in Bandung.¹¹⁰ His doctoral thesis on the principle of non-intervention criticized Western humanitarian interventionism under the banner of human rights and democracy in the post-Cold War period.¹¹¹ His recent work on global health law showed how the colonialist approach, which prioritized external supervision and state responsibility, is still present in today's global health governance.¹¹² He urged for a shift in mindset and for greater focus on the importance of international collaboration and capacity building for developing countries.¹¹³ Lai Junnan, also a graduate of legal history at Peking University, and currently based at Fudan University, wrote substantially on the colonialized history of China in the nineteenth century, which echoed the studies of Antony Anghie and C. H. Alexandrowicz.¹¹⁴ Lai argued that the “unpoliticized” narrative of international law and the positivism prevalent in the nineteenth century were complicit in the imperialist expansion into Oriental countries. In a different paper, Lai revealed how the Chinese intellectual community, at a critical juncture in the Late Qing Dynasty, was deeply troubled by the question of whether to accept international law, and these intellectuals’ bifurcated attitudes to international law epitomized continuous dialectics between a Western-imposed international law symbolized as “civilization” and the sovereign inequality in actual international relations.¹¹⁵

A group of scholars are strongly interested in the nineteenth century history of international law in China. For some, Henry Wheaton is a critical figure for disseminating the discourse of “civilization”, which was used to convert non-Christian states by promising them rights endowed by international law to Christian states.¹¹⁶ In a similar vein, in a paper published in the European Journal of International Law in 2016, by international relations scholar Yin Zhiguang,¹¹⁷ Yin discussed how European international law had acquired universality in late-nineteenth century China through the translation of Western writings into Chinese, such as those by Henry Wheaton, as well as other legal documents on international law. Yin pointed out that “the clashes between China and the European colonial powers by nature were disputes between the jurisdictions”, and the failure of China in this jurisdictional rivalry was due to an imposition of Eurocentric international law and universalism.¹¹⁸ Here, Yin's view echoed Sundhya Pahuja in her paper of “Laws of Encounter”, in which she redescribed international law as rival jurisdictions. She claimed that state making was an actualization of jurisdiction through the universalization of sovereignty.¹¹⁹ Lydia He Liu, a well-established scholar of comparative literature and East Asian studies at Columbia University and Tsinghua University, also paid great interest to the translation of Henry Wheaton's work into Chinese.¹²⁰ She conceived the translation of international law in the nineteenth century as an important pillar for the construction of universal values, which served as part of the colonial expansion. She argued that the translator of Wheaton's book, W. A. P. Martin, had a Christianizing mission and was strongly nationalistic because Martin chose Wheaton rather than other European Scholars (such as Vattel) to translate.¹²¹ Moreover, she showed that Martin's translation provided an important justification for the Western violations of international law by resorting to force in the Opium War.¹²²

The reflections on empires and imperialism preoccupied various disciplines of international studies about China.¹²³ Lydia Liu's work, The Clash of Empires: The Invention of China in Modern World Making, has a sustained focus on sovereign thinking, which allowed her to interweave disparate strands of research on international law, semiotics, imperial gift exchange, missionary translations, grammar books, and colonial photography.¹²⁴ For instance, she pinpointed that the British had rejected the use of the written Chinese character yi (夷) after the Opium War in the Anglo-Chinese Treaty of Tianjin, because the British believed that the use of that character was intended to insult foreigners. Liu importantly pointed out that the rejection of yi was actually a self-suspicion of the British in reinforcing sovereign thinking in China or, as Derrida would say, “those who inspire fear frighten themselves, they conjure the very specter they represent. The conjuration is in mourning for itself and turns its own force against itself.”¹²⁵ Liu thus highlighted the self-suspicion of the British “within the imperial unconscious with regard to the mystified location of the ‘barbarian’ and its relationship to the sovereign self”.¹²⁶ Meanwhile, in the book, Liu also cited C. H. Alexandrowicz concerning the conversion of Asian states to “positivism of the European brand”, pointing out how internationalists tended to privilege the positivity of sovereign rights, with a lack of attention to the interesting processes of conjurations – a process of battling the ghost of the other within the self.¹²⁷

The colonial history of China continued to be an important focus among Chinese scholars, though not necessarily only international legal scholars. In addition to this focus, two other important features characterize Chinese scholars’ quest for global issues: one is more central to international law, which is the adherence to the identification of developing country; the other is more related to philosophy and history, which builds on the concept of Tianxia (all under heaven) as an alternative to the European nation-state domination. On the one hand, the identification of developing states refers mostly to an economic status that many other Third World countries were also fighting for. In this regard, the positioning of the developing states that China spoke for – either the non-aligned states or G77 – as one club also provides scholars with more legal groundings to articulate the economic injustice and inequality engendered by imperialism. On the other hand, the rediscovery of Tianxia – as a provincialized concept that stands differently from the nation-state concept – could resonate with TWAIL in a way that challenges the nation-state concept.

The identification – “developing country” – with direct legal consequences in trade laws (special and differentiated treatment) and environment agreements (common but differentiated responsibilities) became a favoured one in Chinese scholarship vis-à-vis the term “Third World”.¹²⁸ For instance, on the topics of international economic law, Chinese scholars rely on the position of developing countries to criticize how the rules of the World Trade Organization (WTO) and investment laws are biased against developing countries.¹²⁹ For instance, Wang Guiguo wrote:

although globalization has led to the possibility of cross-retaliation, which is seen to equip weak and developing countries with measures against the big and strong, at the same time, and also because of globalization, they are unable to employ these measures. On the whole, it is still the weak and small countries which are disadvantaged.¹³⁰

Chinese scholars tend to stress economic sovereignty, arguing that economic sovereignty encompasses permanent and complete sovereignty over natural resources, wealth, and all other economic activities (as well as the right of nationalization and confiscation).¹³¹ This approach was similarly shared by many Third World countries.¹³² Despite the tide of economic globalization starting from the 1990s, Chinese scholars still insisted on the concept of sovereignty to promote economic development and actual justice in economic relations. The right to development was already considered an important right in China's corpus in the 1990s.¹³³ The stance of developing countries was also linked to Bedjaoui's elaboration of the non-aligned movement; i.e. that developing and non-alignment can be assimilated into the same ideological vector of the Third World, in the sense that underdevelopment was a result of imperialism.¹³⁴ It is also this “relative disadvantage experienced by Third World countries” that allows these countries to demand a response “in normative terms, as an intolerable situation”.¹³⁵

Meanwhile, some Chinese scholars (mostly not in the field of international law) started to pay attention to the concept of Tianxia from the mid-1990s in order to understand the relationship between sovereignty and human rights.¹³⁶ The worldview of Tianxia – a concept connoted in the Pre-Qin period, literally means “all under heaven”. An important connotation of Tianxia was that “the world is for all” and “all are brothers within the Four Seas”.¹³⁷ This episteme has become an important episteme for scholars to envisage global governance after the age of nationalism or, in Jurgen Habermas's words, “a post-national constellation”.¹³⁸ This approach was to assume a forward-looking perspective and look for a creative response to new global challenges by (re)excavating Chinese traditions.¹³⁹ Some Chinese scholars conceived that this concept of “Tianxia” could be a capacious concept, going beyond national boundaries in the world by opening up new principles of global order out of Confucian traditions.¹⁴⁰ This Tianxia approach was thus reconfigured as something different from European universalism and expansive nationalism.¹⁴¹ This strand of scholars, therefore, tried to combine the universal values of globalization as “substance” (ti) and China's own experience as “practical use” (yong).¹⁴² This was considered a new Tianxiaism, which is something of a Chinese cosmopolitanism.¹⁴³ Yet the meaning of Tianxia can really cut both ways.¹⁴⁴ Some criticized the concept of Tianxia, arguing that:

Tianxiaism in essence plays the role as a ‘shadow’ of domestic absolutism and autocracy on foreign affairs, which totally neglects ordinary citizens’ basic human rights and the benefits of civilians in neighbouring countries, only enhancing the privilege and the pride of the ruling class.¹⁴⁵

Nevertheless, the popularity of searching for an alternative as a new “Tianxiaism” in Chinese scholarship, according to the historian Ge Zhaoguang, was largely due to a reflection on the Western universal values and colonialism across a global range. That is also why critical studies (such as Orientalism by Edward Said and Empire by Michael Hardt and Antonio Negri) acquired an increasing audience in China. Ge argued that “these critical studies on globalization, modernity and world order, reactivated the sentiments of ‘our one hundred years of humiliation’, the tidal critiques on modernity, and the ambition to rebuild a Tianxia”.¹⁴⁶

In connection, Teemu Ruskola's work, Legal Orientalism: China, the United States and Modern Law, shared a similar purpose with Said's Orientalism, which provoked many discussions in China.¹⁴⁷ A group of Chinese scholars spoke highly of this book, as seen in its Chinese translation in 2016, with a great many eminent scholars endorsing the book on its cover.¹⁴⁸ Ruskola elaborated on how the European tradition of philosophical prejudices about Chinese law developed into a distinctively American ideology of empire, influential to this day. Ruskola's work, similar to Said's, was an elaboration of American legal orientalism (which characterized China as a lawless society) as a practice of imperialism. But Ruskola's views received criticisms from some Chinese scholars.¹⁴⁹ Some argued that an over-valourization of imperial history among Chinese scholarship failed to recognize that China's transformation into a nation-state deeply modified international law as well.¹⁵⁰ Lu Nan, for instance, believed that China's pragmatic approach – taking international law as a weapon against oppression and domination in decision-making – was an appropriate approach that speaks to both China's concerns and global demands.¹⁵¹ At the end of the book, Ruskola alluded to the possibility that China could shift from Legal Orientalism to Oriental Legalism, which would allow China to acquire more discursive power in the making of international rules of law. This possibility was considered as a great chance for China to create its distinct position from Occidental discourses – either as an evolving Chinese universalism or as an Oriental legalism.¹⁵² Ruskola postulated that “if law can resignify China, we must be prepared to accept that China can also Sinify law”.¹⁵³ The same as the concept of Tianxia, this concept of Oriental legalism could cut both ways, with one way pointing towards a certain imperialistic universalism. The question, therefore, lies in how to keep this imperialistic potential at bay, a question that many Chinese intellectuals are dedicated to answering. As Anne Orford rightfully pointed out:

a number of influential Chinese legal and philosophical scholars including Jiang Shigong, Wang Hui, and Liu Xiaofeng have begun to draw on the work of Halford Mackinder and on Carl Schmitt's Großraum thinking to shape possible interpretations of China's role in resisting US imperialism through constituting new forms of spatial order […] In these accounts, we get a sense of what a Großraum with Chinese characteristics might look like—one in which China will deliver a new regional order that ends American hegemony in Asia, draws inspiration from Confucian culture, Hegelian philosophy, and international communism, and represents those people who live in Third World states.¹⁵⁴

IV. Concluding remarks

Overall, this paper aims to understand how close or far Chinese scholars are to the TWAIL tide; on which opinions they are associated; and on which opinions they are dissociated. At a prima facie level this paper first notices that Chinese scholarship in international law in recent years has had very few engagements with TWAIL scholarship, probably vice versa. This paper starts an inquiry on this observation. It shows that in the post-colonial period Chinese scholarship has greatly contributed to the development of TWAIL I.¹⁵⁵ Chinese TWAIL scholars, such as Wang Tieya, Chen Tiqiang, and Zhou Gengsheng were looking to prove that China was a civilized nation-state. They were revolutionary and they deeply believed that colonial forms could be repurposed and that colonial history was a thing of the past. In the post-Cold War period, this tight relationship appeared to weaken due to Chinese international legal experts’ taking a more pragmatic approach to international law – which makes their study appear to be less critical than that of the TWAIL II generation.¹⁵⁶ Yet, outside of the discipline of international law, a group of Chinese scholars in philosophy, history, and international relations contributed more to the thinking of post-modernity; alternatives to Western universalism; and reflections on colonial histories. This observation to some extent echoes the comments of the Chinese ICJ Judge, Xue Hanqin, on Anghie and Chimni's paper about TWAIL: “China's position to a large extent stands in line with the first generation, while it also shares in many an aspect the views of the second generation on the contemporary issues of international law.”¹⁵⁷ The views shared with the second generation of TWAIL were a continuous critique of Eurocentrism and their interest in history, but the divergences probably lay largely in whether to hold a post-colonial critique of states and sovereignty as an invention of international law as well as an interest in the violence of nation-states at home.

However, it is also worth noting that during this process of rediscovery, where I follow the division of TWAIL I and TWAIL II to understand the engagement with TWAIL by Chinese academics, I also find an uneasiness in following strictly this division that TWAIL II is inevitably more critical than TWAIL I. Being critical is a contextualized activity. I share here Christopher Gevers’ discussion of the limitations of the classifications of TWAIL I and TWAIL II. Gevers elaborated on how a critical strand in TWAIL II, in the African context, led Oji Umozurike to weaken his critical disposition over time (in terms of Umozurike's conservative shift and closer alliance with T. O. Elias’ traditional strand).¹⁵⁸ Gevers eloquently showed how intellectual contexts and global/personal politics have dissimilarly influenced the choices of the so-called traditional/critical TWAILers.¹⁵⁹ In light of this contestation of the critical TWAIL division, I also rediscovered some critical voices in Chinese scholarship in law and other disciplines in recent years. These voices may stand more in line with TWAIL I in the sense of setting out how pre-colonial Chinese empires have contributed to the development of international intercourse or have acted as a reflection on colonial history. Nevertheless, these voices are critical in themselves if read in a contextualized manner. There was a sense of insecurity among Chinese scholars about the absence of “subjectivity and history” to the Chinese character and her community. To rephrase Chinua Achebe's efforts: to restore the elements “to the African character and his or her community”.¹⁶⁰ Many Chinese scholars are still in a process of searching for subjectivity for China in international law.¹⁶¹

The New Leftist public intellectual, Wang Hui, and his critique of modernity is remarkable in this regard as a reflection of Westernized modernity and universality in the post-modern period. He argued that to reflect and resist does not mean a simple negation, nor does it mean a return to an atavistic legal nationalism. Rather, it was to use a genealogical approach to unpack the complex relations between modernity and society, problematize the historical narratives of multiple centrisms, and reveal the dilemma of modern society.¹⁶² The purpose is to jump out of the monolithic narrative of modernization, globalization, and legalization. On this point, Wang Hui's views resonated to some extent with Boaventura de Sousa Santos’ critique of globalization.¹⁶³ Santos’ characterization of “insurgent cosmopolitanism” imagines a progressive coalition that assumes the role of a resisting force against hegemony, making this coalition distinct from Western cosmopolitanism. De Sousa Santos identifies insurgent cosmopolitanism as “the aspiration by oppressed groups to organize their resistance on the same scale and through the same type of coalitions used by the oppressors to victimize them, that is, the global scale and local/global coalitions.”¹⁶⁴ Yet, de Sousa Santos insightfully points out the weakness of “insurgent cosmopolitanism”: it demands constant self-reflection because such a coalition “can later come to assume hegemonic characteristics, even running the risk of becoming converted into globalized localisms”.¹⁶⁵ Therefore, understanding the complexity of Chinese scholars’ struggles and the significance placed on history by Chinese scholars¹⁶⁶ would also help us further understand the insurgent-cosmopolitan and non-hegemonic aspirations of these elites to position (and reposition) China's approach to international law. But the key to this process, as de Sousa Santos would say, is to keep the reflexivity ongoing. I believe that future TWAILers in China should be motivated by that and should continue with that reflexivity. A more concrete idea to develop TWAIL scholarship in China is to engage more critically with the power relations in international law, including self-reflexivity, and speak for the subaltern peoples and groups.