Asian States’ Participation in International Adjudication: Comments

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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 On the other hand, some Asian States still adhere to the unrealistic, outdated notion of sovereignty and refuse to engage with other States.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)).

However, significant changes have taken place to the passive attitude of Asian States over the past two decades. Now Asian states are more willing to resort to international legal approach to the problems or disputes they are involved in. Their confidence in international law and institutions is clearly reflected in the number and nature of disputes that have been submitted to international adjudication in the past two decades or so. During this period, thirteen cases involving Asian States have been submitted to the International Court of Justice (Certain Phosphate Lands in Nauru (Nauru v. Australia), 1992; Aerial Incident of 10 August 1999 (India v. Pakistan), 2000; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), 2001;Sovereignty over Pulau Litigan and Pulau Sipadan (Indonsia/Malyasia), 2002; Sovereignty over Pedra Branca, Middle Rocks and South Ledge (Malaysia/Singapore), 2008; Request for Interpretation of the Judgment in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand), 2011; Whaling in the Antarctic (Australia v. Japan), 2014; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. UK; Marshall Islands v. India; Marshall Islands v. Pakistan), 2016; Certain Iranian Assets (Iran v. USA) (pending)) and another seven cases to the International Tribunal for the Law of the Sea (ITLOS), a specialized court created in 1996 to deal with the law of the sea disputes (Southern Bluefin Tuna cases (New Zealand v. Japan; Australia v. Japan), provisional measures; Case concerning Land Reclamation by Singapore in and Around the Straits of Johor (Malaysia v. Singapore), provisional measures; Hoshinmaru case (Japan v. Russian Federation), prompt release; Tomimaru case (Japan v. Russian Federation), prompt release; Case concerning the Maritime Boundary Delimitation in the Bay of Bengal (Bangladesh/Myanmar), 2012; Enrica Lexie case (Italy v. India), 2015). Several other cases have also been submitted to arbitral tribunals, the latest example of which is the South China Sea Arbitration between Philippines and China.

Apart from the number of the cases, their nature also demands some attention. Among those twenty cases, three cases brought before the ICJ concerned the sovereignty disputes; namely, Sovereignty over Pulau Litigan and Pulau Sipadan between Indonesia and Malaysia, Sovereignty over Pedra Branca, Middle Rocks and South Ledge between Malaysia and Singapore, and Maritime Delimitation and Territorial Questions between Qatar and Bahrain. One case brought before the ITLOS was concerned with maritime boundary delimitation. In fact, the case concerning the maritime boundary delimitation between Bangladesh and Myanmar in the Bay of Bengal was the first East Asian maritime delimitation case that has been submitted to international adjudication. This has been a rather remarkable development, as sovereignty or boundary disputes are considered to be a very sensitive matter and of grave importance, and as the East Asian States were perceived to guard their sovereignty very dearly and not to leave such matters with the third party binding settlement. In addition, disputes concerning the use of force or nuclear disarmament, politically sensitive matters, have also been referred to adjudication.

It is also noteworthy that unlike in the past it was Asian States that instituted the proceedings against mostly non-Asian States. Those cases include: before the ICJ, Certain Phosphate Lands in Nauru (Nauru v. Australia), Oil Platforms (Iran v. USA), Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia), Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Island v. UK), and the latest Certain Iranian Assets (Iran v. USA); before the ITLOS, Tomimaru case (Japan v. Russia) and Hoshinmaru case (Japan v. Russia).

The new activism of Asian States may be understood in the broader context of fundamental changes that have taken place to international relations. The end of the Cold War, globalization and interdependence, and more aggressive pursuit of national interests may have influenced their perspectives on international law and international adjudication. Boosted by the successful economic development and political democratization, many States in Asia are now more confident about themselves and more readily accept the rule of law not only as a guiding principle for domestic governance but also as an important instrument of foreign policy. Many relatively smaller or weaker States now begin to see the utility of international law and adjudication as a means to protect their interests against their bigger or stronger neighbours.

In addition, it should be pointed out that Asian States are no longer outsiders in the international law-making or law-applying process but have become major stakeholders in the international community. While they suffered from inexperience and the lack of expertise in the early periods of their participation in international institutions, many Asian States have now overcome such initial difficulties. Commensurate with their growing economic and political power, they have increased their voice in the international decision-making process and have considerably overcome the suspicion and mistrust they used to hold toward the international legal system.

The supposed cultural factor in explaining the Asian or East Asian reluctance toward international law or adjudication should not be exaggerated. While Confucian cultural legacy, which does not favour the third party binding settlement of disputes on the basis of law, lingers in many parts of Asia, it is almost universal that amicable solution through negotiation or mediation is preferred to, and should thus be sought before, the recourse to adjudication. There is nothing particularly Asian about this general disinclination of adjudication.

What really matters is, therefore, whether Asian States would consider the recourse to international law and adjudication as serving their national interests and helping to preserve their values. The answer to this question in turn depends, to a large extent, on their perception of the law to be applied and the institutions to interpret and apply such law. Given the current level of Asian participation in the law-making and law-applying process, one can be cautiously optimistic about its more active participation in and contribution to international adjudication in the years to come.

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