Clarity and Ambivalence: Asia and International Law

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.

Simon’s analysis that the resistance to participation and representation by Asian states in international institutions, may simply be a ‘rational response… they take the benefits of the network of institutions and obligations without submitting themselves to its forms and procedures’. His concern is that this situation is not sustainable and suggests that a ‘convergence’ of approaches may be the way forward.

He also thinks that the Asian views may be consistent, at least in the area of human rights, within a pluralist approach to international law, rather than being a challenge to international law. I agree that global legal pluralism may be an appropriate methodology to consider this apparent diversity of approaches. However, what is missing in the article is an acknowledgement of the role of non-state actors, especially corporations, in the responses of states in the region to international law, which also forms part of this pluralist approach. While he notes the ‘relative acceptability of changes that promote commercial activity’ by Asian states, this cannot be ignored in the sweep of developments in international legal approaches in the region. Indeed, the acceptance by Brunei, Japan, Malaysia, Singapore and Vietnam of the Trans-Pacific Partnership on Trade (although threatened by Donald Trump) is indicative of a willingness to enter relatively restrictive agreements (in terms of state sovereignty) in trade and investment areas. Much of this pressure to agree to such restrictions is pressed by corporations as part of their requirement for an increased rule of law for foreign direct investment. This may also prove to be a factor in any settlement of the South China Sea situation, as corporations want clarity of maritime boundaries for their own investment purposes.

Simon Chesterman has set out a broad and insightful picture of the approaches by key Asian states to international law and international institutions. This is valuable and I hope it encourages the publication of further research which delves into other sub-regions and into specific aspects of international law.