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For at least three decades, it has been quite common in the United States to talk of the coming of the Asian century. Since the publication in 1979 of Ezra Vogel's Japan as Number One, (1) Americans have been fascinated with the rise of Japan and then China, and the corresponding reports of the decline of the United States. This psychology may have intensified with the 2008-09 financial crisis and the understanding that China is now playing a central role in assuring global financial, and thereby political, stability. Notwithstanding some Orientalist hyperbole, there is no doubt that Asia has been, and will continue to be, a region of rising power, responsible for an increasing share of world output, innovation, and power, even as the United States declines in relative terms.
What will the rise of Asia mean for global governance? Oddly, I believe that any "Eastphalian" world order will mean a return to Westphalia, at least as modern international lawyers understand the term. Drawing its name from the 1648 treaties ending the Thirty Years' War and the Eighty Years' War, Westphalia stands for principles of mutual noninterference, an emphasis on sovereignty, and formal equality of states. Eastphalia, should it materialize, will emphasize similar structures, putting an end to the brief interlude of European universalism and global constitutionalism that intensified after the Second World War. (2)
Universalism has driven the great development of the human rights movement and the establishment of an infrastructure of global institutions. Global constitutionalism has inspired increasingly numerous attempts to reach into policy realms previously considered within the domestic jurisdiction of a state and, in the European case, a shift to supermajority rather than unanimity as a basis of intergovernmental decision-making. But Asian countries have not been leaders in either of these movements. Instead, they have reacted cautiously and have emphasized the traditional concerns of sovereignty and noninterference. There is little sign that this approach will change radically, even as economic and political power continues to shift to the proverbial East.
It is often argued that the European Union is somehow the future of global governance. (3) As Slaughter and Burke-White put it, "The Treaty of Westphalia ... has given way to the Treaty of Rome." European nations embody the Kantian "democratic peace," having replaced the battlefield with a marketplace. Europe, we are told, has given up the retrograde nation-state ideology in favor of a technocratic super-state of ever-widening scope. The strong implication is that where Europe goes, the world will follow, once sufficiently enlightened. This claim seems incompatible with Asian economic trajectories and the recent history of internationalism in the Asian region. Only if Asia's political preferences and infant regional institutions magically transformed into mirrors of Europe would we expect an Asia-centered economic order to converge with the European model of politics and law. This outcome seems highly unlikely, as this essay will argue.
At the same time, an Eastphalian revival of supposedly outdated notions of sovereignty has the potential to further the never-realized promise of Westphalia--a reduction in international conflict. As has long been recognized, the liberal international order has interventionist tendencies that may, in fact, be conflict generating. This tendency is particularly true under the universalist vision associated with the United States. Asian respect for sovereignty may, thus, lead to a reduction in international conflict, even though it bodes poorly for international critiques of human rights practices in authoritarian states.
To be sure, there is no guarantee that an Eastphalian order will emerge. In the latter part of this essay, I consider the probability of an Eastphalian order arising, and find it unlikely. Even if Asia dominates the world economically, the presence of other powers and the non-universalist tradition of Asian international relations mean that Asian preferences with respect to the structures of international interaction will not necessarily dominate. It is also possible that Asian preferences, as exhibited in the behavior of states, may converge with those of European internationalists. In my view, however, the most likely scenario for international law and order in the twenty-first century is neither a complete "Eastphalian" return to Westphalia nor a universalistic, transgovernmental dialogue of the type championed by Professor Slaughter. Instead, the likely outcome is a complex struggle in which universalism coexists with a continuing emphasis on sovereignty, with Asian nations weighing on the latter side for the most part.
I. The Eulogies for Westphalia and the Rise of Asia
A. The Rise and Fall of Westphalia
The conventional story of modern international law begins with the Peace of Westphalia, in which warring European princes collectively created international order out of the primordial deep. In a large-scale diplomatic conference, these princes ended the Thirty Years' War in the Holy Roman Empire and the Eighty Years' War between Spain and the Netherlands. The series of treaties they concluded provided a framework in which states could agree to disagree, thereby resolving seemingly interminable conflicts over religion that had divided Europe since the Protestant Reformation. Westphalia is usually seen as standing for the principle of sovereignty, in which each prince could choose the religion of his jurisdiction, guaranteeing minority Christian sects the right to practice their own faith. (5)
Westphalia's sovereignty principle has several components. First, states are formally equal. Each sovereign is the highest authority in its own jurisdiction, unable to judge other sovereigns, and, thus, is obligated to deal with other sovereigns as equals. Second, sovereignty is internally and externally directed. Each state is free to choose its own mode of governance, and that choice is entitled to respect and noninterference from other states. Third, states are the primary actors in the international system, and it is on their consent that international order rests. These principles formed the basis of the international political, economic, and legal system for the subsequent three centuries.
It must be made clear at the outset that Westphalia hardly ushered in the era of global peace that its architects imagined. Europe continued to engage in wars of great brutality and scope. Even when not at war at home, European nations engaged in a race of conquest that transformed the globe and displaced alternative systems of international relations that were as conceptually developed as that of Europe. Eventually, decolonization led to the export of the model of the territorial nation- state, but this development generated a new series of conflicts between, and especially within, new states as various groups sought to consolidate authority. It is not too much to say that Westphalia stood for peace in theory and war in practice. Perhaps, for this reason, Westphalian ideas began to erode in the twentieth century.
It is a commonplace notion that Westphalian sovereignty has been diminished by the post-war system of the United Nations and its associated human rights instruments that purport to make domestic treatment of citizens a matter of international concern. For the first time, the international system as a whole identified human rights as a central goal of global institutions. (8) Led by the United States, liberal internationalism involved opening up states to outside scrutiny. But, the U.N. Charter itself reflected a split. While the Charter emphasized human rights, article 2(7) contained a Westphalian caveat: "Nothing contained in the present Charter …