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International Law in the Asian Century: Conclusion to Opinio Juris and EJIL:Talk! Mini-Symposium

Published on January 19, 2017        Author: 

Editor’s Note: This post is the final part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. We thank all of those who have contributed to  this symposium.

An academic learns most through errors and omissions. Far better to be criticized in text than footnoted in passing — both, of course, are preferable to being ignored. I am therefore enormously grateful that such esteemed scholars and practitioners were willing to take part in this join Opinio Juris and EJIL:Talk! symposium and offer their responses to arguments put forward in my article for the current issue of EJIL, giving me and other readers refinements and additions that will enrich the larger conversation of which this symposium is a part.

The six commentators raise many issues, which I will address under three broad headings of power, history, and method. Each also brings to their paper a certain optimism or pessimism about what the future may hold, something to which I will return at the end.

1      Power

Judge Xue Hanqin puts at the forefront an argument about which I may have been too delicate. Asian states are not wary of delegating sovereignty because they are “ambivalent” about international law, she writes, but “because they do not believe that international law as … advocated and practiced would protect their fundamental rights and interests.” Similarly, regional integration is not primarily a matter of law, but of policy. The relative absence of regional institutions in Asia is not simply due to diversity and the other factors highlighted in the article; rather, it is attributable to geopolitical divisions within the region and in its various relations with other great powers.

This echoes a point made by Professor Eyal Benvenisti, who proposes that regional cooperation may be driven by external pressure as much as internal cohesion. The presence of an outside rival, for example, can encourage greater integration as the Soviet Union did for Europe and the United States did for Latin America. No such rival drove regional integration in Asia, though at the sub-regional level ASEAN has clearly been shaped by the ten member states’ relations with larger countries in East and South Asia as well as by their own identification as Southeast Asian. Read the rest of this entry…

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Asian States’ Participation in International Adjudication: Comments

Published on January 18, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting on Monday, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

Asia is a vast region and encompasses more States and a larger population than any other region in the world. Asia also presents historical, linguistic, cultural, and religious diversity, as well as wide-ranging stages of political evolution and economic development. Asia indeed defies an easy definition. It is therefore difficult to speak, in a general term, of Asia with respect to any subject. International law and institutions are no exception. There is a wide variation in Asian States’ engagement with international law and institutions. For example, many States in East Asia are actively participate in various international regimes and attach great importance to international cooperation. On the other hand, some Asian States still adhere to the unrealistic, outdated notion of sovereignty and refuse to engage with other States. It should also be pointed out that Asian States’ attitudes towards international law and institutions are not static but evolving. In this comment, I will confine myself to Asian States’ participation in international adjudication, which may be considered one of the most revealing yardsticks to measure their attitudes toward international law and institutions.

Much has been said about the Asian States’ passivity towards international law and institutions. Various explanations have been given for such reticence, ranging from the Asian culture and tradition which prefer virtue and harmony to law and adjudication to the prevailing distrust of the law and institutions which were essentially a product of the Western civilization (and thus perceived to be biased in favour of the West) and in whose creation and developments Asian states did not play significant roles.

At least in terms of the number of disputes submitted to international adjudication and their political and legal context, it would be difficult to characterize the attitude of Asian States toward international law and adjudication as positive. For example, there had been only three cases involving Asian states that had been referred to the Permanent Court of International Justice during its entire period of activities (S.S. Wimbledon, 1923; Denunciation of the Treaty of 2 November 1865 between China and Belgium, 1928; Interpretation of the Statute of the Memel Territory, 1932). The picture was not much different in the subsequent early period of the International Court of Justice (ICJ), during which many Asian States obtained independence mostly from the Western colonial powers. Iran was the first Asian State to appear before the ICJ in 1952 in the Anglo-Iranian Oil Co. case but Iran was taken to the Court by the United Kingdom. The Court eventually found that it lacked jurisdiction to entertain the dispute. Then India was the next Asian State to appear before the Court in the case concerning Right of Passage over Indian Territory in 1955. However, India was also taken to the Court by Portugal. In 1959, Cambodia instituted the proceedings against Thailand in the Temple of Preah Vihear case, and that was the first case involving the two Asian States before the ICJ. Subsequently in the 1970s, India and Pakistan were involved in the two cases before the Court (Appeal Relating to the Jurisdiction of the ICAO (India v. Pakistan), 1972; Case concerning Trial of Pakistani Prisoners of War (Pakistan v. India), 1973). In the 1980s, Iran was involved in two disputes with the United States before the ICJ. However, those instances were rather exceptions than the rules (US Dipolmatic and Consular Staff in Teheran (USA v. Iran), 1980; Aerial Incident of 3 July 1988 (Iran v. USA), 1989-1996 (discontinuance)).

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Clarity and Ambivalence: Asia and International Law

Published on January 17, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting yesterday, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

One of the important developments in international law in the past few decades has been the increased understanding of approaches to it that do not arise from Western industrialised states. The work of scholars such as Anthony Angie, Lauri Mälksoo, Sundhya Pahuja, Balakrishnan Rajagopal, and others have been important in this regard. Therefore, the article by Simon Chesterman on ‘Asia’s Ambivalence about International Law and International Institutions: Past, Present and Future’ in the EJIL  is a timely engagement with an important aspect of this understanding.

Simon establishes the main issues very well and clearly. A combination of colonialism, treaty-making, recognition and armed conflict is shown to have created an ambivalence by key Asian states towards international law and international institutions. He offers a helpful and nuanced analysis without creating a false dichotomy between ‘Western’ and ‘Asian’ views. It is a pity that his article must have been finalised before 25 June 2016 when the Presidents of Russia and China adopted a common Declaration on the Promotion of International Law. This Declaration has been seen as being a rejection of a view that these two states have a problematic relationship with international law and an assertion of an approach based on state sovereignty and non-intervention, as well showing broader differences on the international constitutional order: see here.

My main hesitation about this valuable article is the definition of ‘Asia’. Simon defines it as being ‘the 53 members of the Asia-Pacific Group at the UN’. However, he ignores the Pacific members (such as Fiji and Papua New Guinea) of this grouping and the Middle Eastern members (such as Iraq, Lebanon and Saudi Arabia), which together comprise nearly 45% of this group. This calls into question some of his reliance on figures and tables about Asia-Pacific participation in international institutions. For example, in the Pacific sub-region, some of the reluctance to ratify treaties and engage in international institutions may be due to their own institutional and human capacity. It would also have been interesting to learn more about the approaches of Singapore and Malaysia, which are economic powers in the region, and have appeared to take a very formalist approach to international law. Read the rest of this entry…

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Will the Asian Vision of International Law become Dominant in 2017?

Published on January 16, 2017        Author: 

Editor’s Note: This post forms part of a symposium being run by EJIL:Talk! and Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Starting today, the two blogs are publishing a number of posts discussing the article, and we thank all of those who have contributed to  this symposium.

Professor Chesterman explores the reasons for the relative under-participation and under-representation of Asian states as a group (what he refers to as Asia) in international lawmaking and in international institutions. Chesterman acknowledges the difficulty in referring to Asia as a group, due to the diversity of the continent. “Indeed,” he adds, “the very concept of ‘Asia’ derives from a term used in Ancient Greece rather than any indigenous political or historic roots.” Diversity is not only cultural or political, but also grounded in different interests, especially given the “great power interests of China, India and Japan” and perhaps also Russia, another crucial Asian player.

Chesterman notes as perhaps another factor for Asian skepticism of international law the previous negative experiences with international law that was used to justify colonial rule and to impose or victors’ justice and Western standards. It is an interesting and ultimately indeterminable question whether it is the history of Western dominated international law that continues to undermine the legitimacy of international law and institutions and suppress regional cooperation in Asia. Perhaps of greater weight are the internally-inflicted refutations and violations of international law by some Asian states in their dealings with other Asian states, which began with Japan’s invasions and occupations before and during World War II and continued by others in different parts of this vast and varied continent, and which are still festering. But arguably of more immediate concern are the contemporary challenges, both from the outside – the perception of Western capture of international law and its use, as Lauri Mälksoo notes, “as an hegemonic tool of the West,” and, again, by Asian countries challenging each other’s vision of international law.

Chesterman is aware of the need to have some common grounds to spark regional cooperation. Often the commonality would be an outside rival, such as the Soviet Union for Western Europe, or the US for Latin America. Asia has had the West as a formidable outside rival whose “divide and rule” strategy cleverly exploited the great disparities among Asian states which left little room for collective resistance. Another common ground that could spark regional cooperation has been internal, such as the shared need to bind future majorities to human rights standards, epitomized by the European move to secure regional protection of human rights. Most Asian states thought they could suppress domestic challenges without the aid of international institutions.

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Asia’s Ambivalence About International Law & Institutions: Introduction to Opinio Juris and EJIL:Talk! mini-symposium

Published on January 16, 2017        Author: 

A decade after moving from New York to Singapore, I began work on this article in the hope of understanding what seemed to me a paradox. Well into the much-vaunted “Asian century”, the states of this region arguably benefit most from the security and economic dividends of a world ordered by international law and institutions — and yet those same states are the least likely to subscribe to such norms or participate in the bodies they create. Regionally, there is no counterpart to the continent-wide organizations in Europe, Africa, or the Americas; individually, Asian states are most reluctant to sign onto most international regimes and underrepresented in the entities that govern them.

The article opens with a brief history of Asia’s engagement with international law. The focus is on three aspects that continue to have resonance today and contribute to the wariness of international law and institutions. First and foremost is the experience of colonialism by India and many other countries across the continent: for centuries international law helped justify foreign rule, later establishing arbitrary standards of “civilization” that were required in order to gain meaningful independence. Secondly, and more specific to China, the unequal treaties of the nineteenth century and the failure to recognize the Communist government in Beijing for much of the twentieth encouraged a perception that international law is primarily an instrument of political power. Thirdly, and of particular relevance to Japan, the trials that followed the Second World War left a legacy of suspicion that international criminal law only deals selectively with alleged misconduct — leaving unresolved many of the larger political challenges of that conflict, with ongoing ramifications today.

It should not be surprising, therefore, that some Asian states take the position that international law is of questionable legitimacy, can be used for instrumental purposes, and is necessarily selective in its application. Read the rest of this entry…

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Joint Symposium with Opinio Juris: Simon Chesterman’s ‘Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures’

Published on January 16, 2017        Author: 

This week we will be jointly hosting a symposium with Opinio Juris in relation to Simon Chesterman’s article “Asia’s Ambivalence About International Law & Institutions: Past, Present, and Futures“, which is available here in draft form, the final version appearing later this month in EJIL. Chesterman is Dean of the National University of Singapore Faculty of Law. He is also Editor of the Asian Journal of International Law and Secretary-General of the Asian Society of International Law.

Today, both blogs will feature an opening post by Simon Chesterman. We will then host a post by Eyal Benvenisti, which will be followed by a post on Opinio Juris by Tony Anghie. On Tuesday, EJIL:Talk! will feature a contribution by Robert McCorquodale and Opinio Juris will feature B.S. Chimni‘s thoughts. This will be followed on Wednesday with articles by Judge Jin-Hyun Paik (EJIL:Talk!) and Judge Xue Hanqin (Opinio Juris). Finally, on Thursday, Simon Chesterman’s closing remarks will feature on both blogs.

We thank all of those who have contributed to this fascinating symposium.

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Most Read Posts 2016

Published on January 1, 2017        Author: 

Happy New Year to all EJIL:Talk readers! In many ways, 2016 was a remarkable year for international law. It is hard to pick a standout event or development but perhaps 2016 will be remembered as the year when international lawyers began to think seriously, across the board, about the legal processes relating to how states exit from international commitments. It is probably fair to say that international lawyers have spent far more time thinking about the processes by which international law obligations are imposed on states and other actors than on the processes by which those international law commitments might cease to be binding.  The UK’s Brexit referendum of June 2016 means we now have to think about how the UK unwinds from its membership of the EU. The notices of withdrawal from the ICC Statute by South Africa, Burundi, and the Gambia also raise questions about treaty withdrawal. Then the election in the US of Donald Trump raises the prospect of US withdrawal from a range of treaties dealing with climate change, trade and the Iranian nuclear deal. All of this might suggest that research into issues relating to treaty withdrawal would constitute a profitable research agenda for 2017! All of these were covered on this blog in 2016 but clearly there will be more to say.

I would like to thank all of our readers but also all of those who wrote posts on EJIL:Talk! in 2016! Below is a list of the posts that were most read in 2016. Some of these posts were written in earlier years.

20) After Trump: China and Russia move from norm-takers to shapers of the international legal order, Anne Peters (2016)

19) Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups, Marc Weller (2015)

18) A Plea Against the Abusive Invocation of Self-Defence as a Response to Terrorism, Olivier Corten (2016)

17) Grand Chamber Judgment in Al-Dulimi v. Switzerland, Marko Milanovic (2016)

16) Russia and China Challenge the Western Hegemony in the Interpretation of International Law, Lauri Mälksoo (2016)

15) Turkey’s Derogation from the ECHR – What to Expect?, Martin Scheinin (2016)

14) On My Way Out – Advice to Young Scholars II: Career Strategy and the Publication Trap, Joseph Weiler (2016)

13) Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum, Marko Milanovic (2010)

12) The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?, Dapo Akande (2016)

11) ICTY Convicts Radovan Karadzic, Marko Milanovic (2016)

10) European Court Decides Al-Skeini and Al-Jedda, Marko Milanovic (2011) Read the rest of this entry…

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Readings 2016: On the Fringes of International Law

Published on December 30, 2016        Author: 

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members. Today we have André Nollkaempe’s selection.

The five titles on my 2016 list of books relate to international law in very different ways. What they have in common is that they are not so much concerned with the substance of international law, but rather with questions relating to its emergence and the practical implications of international law. Sometimes books that hardly use the language of international law can be most illuminating for international lawyers.

Peter Wadhams, A Farewell to Ice. A Report from the Arctic (Allen Lane, 2016)

Peter Wadhams’ A Farewell to Ice masterfully shows how the liberties of international law impact on climate change and result in a thinning and retreating of polar ice with scary speed and consequences. Wadhams, a polar researcher in Cambridge, notes that ‘we have created an ocean where there was once an ice sheet’ and that this is ‘[m]an’s first major achievement in reshaping the face of his planet’. Wadhams pictures a particularly glooming scenario for 2035, when the Arctic seabeds – permafrost from the last ice age – will melt and release massive methane plumes that are over 20 times more effective in raising global temperature than all the CO2 we have focused on. The book sketches powerful images of floods, fires, droughts, storms, and inundation of low-lying areas –with dramatic consequences for human habitation and lives. While international law has facilitated and legitimized the policies leading to these consequences, Wadhams vests some hope in international law; he sees the Paris Agreement as a sign of common will to act. Yet, much more is needed to avert the gloomy consequences of climate change – mainly research and investment in new technologies (wind, wave, solar, tidal and nuclear energy) need to be incentivized. Post-US elections this is not a happy reading, but one that is needed to compel us to action.
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Readings 2016: On Politics and Ethics and Love

Published on December 29, 2016        Author: 

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members. Today we have Jan Klabbers’ selection.

Alice Kaplan, The Collaborator: The Trial and Execution of Robert Brasillach (The University of Chicago Press, 2000)

Aristotle already knew that people are political animals. Yet, he also realized that people are ethical beings, and for him, there was no necessary conflict between the two: the ethically flourishing person was one who was intensely and seriously political. In our days, however, that understanding has all but disappeared, with much political debate collapsing into partisan positions where it is considered more important to keep the ranks closed and emerge victorious over opponents than doing the right thing or somehow finding a decent compromise. Whether on debates within Britain on membership of the EU, whether in US presidential elections, or whether in discussions in the ‘comments’ section on EJIL: Talk!, political debate is rarely genuine these days.

This is one reason why the story of Robert Brasillach is so interesting, and it is told extremely well in Alice Kaplan’s The Collaborator. Brasillach was a young French novelist, strongly drawn to Nazism before and during World War II, and seriously collaborating with the Nazis – so much so, that he would urge them not to forget to send children to the gas chambers as well. Not surprisingly, after the war he was prosecuted and found guilty of collaboration, and sentenced to death. At this point some people started a campaign to commute the death sentence and, again not surprisingly, many on the political left in post-war French refused to sign up. Read the rest of this entry…

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Readings 2016: The Odds Are There to Beat

Published on December 27, 2016        Author: 

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.  Today we have Jean d’Aspremont’s selection.

Every year, when we as Editors of EJIL conduct the retrospective (and somewhat introspective) exercise of looking back at the books we have read over the previous 12 months, I always find myself bewildered by the imbalance between the rather modest amount of books I have perused and the huge number of articles I have thoroughly digested. It seems that, in my own practice of consuming legal scholarship, the number of pages of legal literature I read in scholarly books is not commensurate with the substantially higher number of pages of journal articles. Although I am short of empirical data relating to such patterns of behaviour, I surmise that this may be a widespread reading practice among international lawyers. My feeling is that international lawyers read articles – not to mention blog posts and tweets – by the hundreds while seriously reading only a dozen books every year. This disproportion is not alleviated by the fact, already highlighted by Sarah Nouwen last year that we actually read very few books cover to cover.

This imbalance warrants some attention as I do not think that international lawyers’ substantially higher consumption of article-based legal scholarship over book-based literature can be explained solely by size. After all, many books nowadays are rather thin – which, in some respects, is a good thing! – and many articles, especially in the Anglo-American tradition, are rather lengthy – which, in some other respects, is regrettable. I also suspect that the imbalance between books and articles in the reading practice of international lawyers has not always been so great. I would guess that there were times when the legal literature read by international lawyers was more or less evenly spread between books and journal articles, not to mention the pre-periodical era when scholarship was exclusively found in books. Read the rest of this entry…

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Filed under: Editorials, EJIL