The International Law of Co-progressiveness and the Co-progressiveness of Civilizations

Sienho Yee

A paper by Sienho Yee (China), Professor, Wuhan University, Institute of International Law, delivered at the 10th Rhodes Forum

At the end of his 1996 book, The Clash of Civilizations and the Remaking of World Order, Samuel Huntington, said that “The futures of both peace and Civilization depend on understanding and cooperation among the political, spiritual, and intellectual leaders of the world’s major civilizations.” I have a hunch that just understanding and cooperation may not be enough to ensure a good future for us. It is possible that we may understand each other quite well, and we may cooperate, but our different perspectives may remain, get entrenched, and become irreconcilable. The step taken from irreconcilable differences is pivotal. It can help us to assure a good future for us, if that step is taken with a bent for progressiveness, within the framework of the international law of co-progressiveness. Here I will highlight the features of this framework and then explore the role of civilizations within the framework.

International law of co-progressiveness

After the end of the Cold War, there were some efforts to character the nature of international society and international law. Just as there are many ways of seeing the world, there are many ways of seeing international law. In a paper published in 2001, I chose to focus on and highlight the spirit of international law at a particular moment or period of time, as that spirit is exhibited in the component parts of the system: its subjects, its formation, its content and its enforcement and other aspects. The leitmotiv of international law was co-existence at the height of the Cold War, co-operation during the period of détente and is now co-progressiveness in the post-Cold War era. As there was no pre-existing word that followed perfectly from co-existence and co-operation, I had to coin the phrase “co-progressiveness”. By the world of co-progressiveness is meant a society that is all encompassing (hence “co”), preoccupied with advancements in moral and ethical terms more than in other respects and having human flourishing as its ultimate goal (hence “progressiveness”). Of course, the leitmotiv in each period is not the only theme audible to us: in co-existence there was co-operation; co-existence was the background note to co-operation; and co-existence and co-operation are the background notes to co-progressiveness.

The international law of co-existence was propounded most beautifully by the distinguished Russian scholar, Prof. Tunkin. That law treats primarily States as its subjects. Its formation depends primarily on the customary international law formation process. Its content concerns itself mostly with the separate existence—and the resulting co-existence—of States. Its enforcement depends on the separate, uncoordinated action by the States such as counter-measures.

The international law of co-operation begins to include more subjects and/or participants such as individuals, at least for some purposes. Its formation is also helped by a great variety of non-traditional forms of law such as gentlemen’s agreements and declarations, or soft law, etc. Its content primarily concerns itself with promoting détente and cooperation between States and with mutual benefit. The cooperative spirit made it possible for several grand concepts to be formulated during the period of détente. Its enforcement is often characterized by a sort of “membership” sanction so that the community simply excludes a non-performing State from the community and therefore the benefits deriving from membership.

The international law of co-progressiveness is even more inclusive. It is all encompassing as far as its subjects and/or participants are concerned, so that individuals and even non-governmental organizations have become such subjects and/or participants, if not yet to the full extent. Its formation is improved by the participation of these new players and the innovative resort to the resolutions of the UN Security Council for the establishment of international criminal tribunals, etc. Its content is preoccupied with advancements in moral and ethical terms more than in other respects and having, as its ultimate goal, human flourishing to the fullest extent, so that each individual is able and willing to realize his or her own worthwhile pursuit. This is reflected in the various further concretization of the grand norms and the conclusion of the large numbers of agreements. The enforcement of the law takes center-stage and is characterized more and more by a sort of “image sanction” by which the States and the international community resort to the public shaming of a violator of the law, in order to induce it to come back to the road of law compliance. The ultimate goal of this law, just like that of any society, is human flourishing. By human flourishing is meant the situation where an individual lives his or her life driven by a worthy project, goal or value. This orientation moved me to be dissatisfied with the normal ideas of negative liberty, or collective liberty. I proposed that we considered the role of “induced liberty”, in the sense that efforts to seek meaning do not result from any innate quality of the atomic individual, but are induced by the community, its culture and history and that without the State the individual would not have thought about many choices. From this perspective, strong States are essential to human flourishing.

Of course, the picture of the international law of co-progressiveness was not completely blemish-free. There are still a lot of problems in the various parts of the system, but the overall tenor of this law is co-progressiveness. As a result of these blemishes or problems, when I was working on the coining of phrases, I was content with the calmer phrase of “progressiveness”, as compared to other phrases such as “liberalness” or “democracy”.

Role of Civilizations in this framework

Within the framework of international law as described above, where can we fit civilizations? What role can civilizations play?

1. As an actor or subject of international relations and law

One possibility would be for a civilization to occupy the same place as a State and plays the same role. However, this possibility probably will not work. As we know, States as the main subjects of international law are special because they are the organizing units of the world. The world is too big, in order to make sense of it and to manage it, we have to divide it up in some manageable units. By historical accident, States are now those units. Civilizations, as we can observe currently, cannot be those units. First of all, usually civilizations imagine themselves as being a kind of universality or capable of being universal. As such, a civilization is not an organizing unit, but is a whole world in itself. Secondly, civilizations do not have a spatial dimension, which is necessary for becoming an organizing unit of the world. Thirdly, the existing example of the Holy See acting as a subject of international law shows how difficult it is for a “civilization” to be such a subject. When the Holy See was taken to court in the USA as such a subject, one argument that the Holy See made in order to get off the hook is that the local churches and priests are responsible.  

2.   As a special participant in the system and promoter of the co-progressiveness of international society

A second possibility would be for a civilization to take the place as a special subject or participant in the system, similar to that of an NGO, and plays a special role so as to promote certain positions, hoping to influence the decision-making of the main subjects of international law. In this role, a civilization may have a strong impact in many fields and may become a strong special promoter of the co-progressiveness of international society, and human flourishing.

Making the Promoter Role Effective

As a strong special promoter of the co-progressiveness of international society, a civilization will have to struggle with some problems in order for that role to be effective.

First of all, a civilization has itself to be a progressive one. If not, then that civilization may run the risk of being considered not practicing what it preaches and its effectiveness will suffer substantially. How a civilization becomes progressive is a difficult question. Usually, it is internally driven. Internally driven progress also lasts long. Of course, it can also be externally induced, just as personal liberty can be. Worse yet, it can also be externally coerced. How such a situation is evaluated, I will leave for another day.

Secondly, a civilization must be able to manage its inter-civilizational relations with others in a satisfactory manner so that all civilizations become co-progressive. Of course, this is the most difficult question and there is no silver bullet to solve this problem. Assuming that between civilizations there should never be any malice or intentional harm and that all inclusiveness is a virtue, I offer additional three tools here: (1) a “two-men mindedness” attitude when taking action; (2) a Thomas Henry Sanderson lens when perceiving a disadvantage; and (3) benign competition. I will explain these one by one.

The “two-men mindedness” attitude

This attitude was given a chance to find a place in the Universal Declaration on Human Rights, but did not make it there because of, probably, the Tower of Babel. Mary Ann Glendon related this to us in her book on the drafting of the Universal Declaration. During the drafting process, the working group added to René Cassin’s draft preamble the sentence that “All men are brothers. Being endowed with reason and members of one family, they are free and equal in dignity and rights.” Then, the Confucianist that participated in the drafting, Mr. P.C. Chang:

suggested that besides naming “reason” as an essential human attribute, the article ought to include another concept. What he had in mind, he said, was a Chinese word that in literal translation meant “two-man mindedness” but which might be expressed in English as “sympathy,” or “consciousness of one’s fellow men”. The word was ren (仁), a composite of the characters for “man” (人) and “two” (二).

A word emblematic of an entire worldview and way of life, ren has no precise counterpart in English. To Cassin, it would surely have evoked Rousseau’s notion of compassion, but that word, too, fell short of the mark. Chang’s suggestion was accepted, but his idea was rendered awkwardly by adding the words “and conscience” after “reason”. (That unhappy word choice not only obscured Chang’s meaning, but gave “conscience” a far from obvious sense, quite different from its normal usage in phrases such as “freedom of conscience.”).

If individuals adopt such an attitude, probably there would not have been those insulting cartoons or movies and the aftermath. If a civilization adopts such an attitude, there would be fewer occasions for tension or worse.

The Thomas Henry Sanderson lens

When the British Empire was presented with challenger and any advantage for the challenger was considered a disadvantage for the Empire. Mr. Crowe, a career Foreign Office official, wrote the famous Crowe memorandum, perceiving a titanic struggle between the two, and counseling hard-nosed containment. However, that view was challenged by Mr. Thomas Henry Sanderson, another Foreign Office official. He wrote:

“It has sometimes seemed to me, to a foreigner reading our press the British Empire must appear in the light of some huge giant sprawling over the globe, with gouty fingers and toes stretching in every direction, which cannot be approached without eliciting a scream.”

The essence of Sander’s lens is that things are not necessarily so bad, and taking a more relaxed attitude may help to put things in perspective.

Benign competition

Clash of civilizations is something we should try our hardest to avoid; benign competition, however, may be something beneficial to all the civilizations. This may serve as an external inducement towards co-progressiveness. In reality of life, such benign competition is also unavoidable, as much as we may try not to see it.

How such competition can be done or even promoted is a tough question, particularly if we accept that each civilization is of equal worth. From such a point of departure, civilizations probably should not compete on the any alleged criteria of intrinsic worth.

Previously I considered the issue of inter-State competition, I argued that from the starting point of equality of States—the irreducible minimum being equal juridical status in terms of dignity and position and territorial integrity and political independence—and under the basic condition of respecting the irreducible minimum of sovereign equality of States, a State that has managed to become strong legitimately on a set of difference arguments is a strong State. A State is a great State if it has legitimately become a strong State and has achieved the big power status, and has paid due respect to the value of, and shouldered, with substantial success, the hefty responsibility towards, the international system. A State is a “leader State” if it has respected the value of, and shouldered, with success, substantial responsibility toward, the international system, has not only been making good faith efforts or even exemplary efforts to comply with the existing legitimate rules, but also, more importantly, has helped to formulate or refine a proper vision of the international system and to build it up so that the flourishing of humanity can be achieved to the greatest extent possible.

Obviously this framework cannot be applied straightforwardly to inter-civilizational competition, but probably we can do a dépeçage by taking respect for State territorial integrity and political independence and contribution to the international system and to human flourishing as the criteria for benign competition between civilizations. This way, we can avoid making a judgment on the inherent worth of a civilization but can make an assessment on the basis of what it does in international relations.

Final remarks

These are my remarks more or less on an impressionistic basis. I do hope however they can provoke some further consideration of the issues dealt with. Furthermore, I hope that each civilization and all main civilizations as a whole may improve its organizational operatus to study and promote the co-progressiveness of civilizations and of international society as a whole, in addition to holding dialogues. For example, there are so many academies in the world, why not one for civilizations? There is a Security Council, why not a “Civilizational Council”? This Forum perhaps could take some steps in this direction, now that the 10th anniversary is being celebrated.