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

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.

As Chesterman notes, if the Asian states share common ground, it is the international-law-wary Five Principles of Peaceful Coexistence that include “mutual respect for each other’s territorial integrity and sovereignty” and “mutual non-interference in each other’s internal affairs.” Chesterman offers the important assessment that these principles might offer the grounding for “a substantive impact of the rise of Asian powers” which he interprets as “embody[ing] a very traditional notion of sovereignty.” But this, for Chesterman, is only a “fairly modest” challenge to “the modern international legal order.”

The Five Principles of Peaceful Coexistence were first enunciated during in 1954 by China and India and at the time reflected the Cold War era sensitivities of key but still under-developed third world countries. As such, Chesterman is right to suggest that they could serve as the lowest common denominator for a diverse but increasingly powerful continent. But whether that common denominator could encourage international cooperation is a different question altogether that Chesterman rightly leaves open. It is significant that the same Five Principles were made centre stage in the June 2016 joint “Declaration of the Russian Federation and the People’s Republic of China on the Promotion of International Law.” While this declaration might be taken to reflect the contemporary Asian vision for international law, it is invoked by these two powers as an alternative to the Western one by offering a vision for an old-new global rule of law international law that eschews among others:

“any interference by States in the internal affairs of other States with the aim of forging change of legitimate governments [and] extraterritorial application of national law by States not in conformity with international law.”

All indications suggest that the new US Administration led by President Trump will subscribe to these principles. The Asian Century might then coalesce around a common vision of international law, but one that is less likely to deepen international cooperation, embrace democratic accountability in global governance or commit to protecting human rights and promoting global welfare.

Regardless of previous and contemporary weariness among Asian states toward international law, it is inevitable that reliance by Asian governments on the tools and institutions of international law will increase in ways that reflect their changing needs and capabilities. The prospects for the future are not necessarily dim for constituencies in and outside Asia. It was ultimately China’s joining the US in their joint endorsement of the Paris climate change agreement that led to its adoption. In the context of water management, China has been moving from the position of an aloof upper riparian to that of an engaged neighbor. As Particia Wouter noted, while in 1997 China voted against the adoption of the UN Convention on the Law of the Non-navigational Uses of International Watercourses, it recently sought to address its heavy reliance on its diminishing water resources by engaging with its riparian neighbors on the basis of:

“dialogue, consultation and peaceful negotiations,… crafted around the notion of restricted territorial sovereignty – a view that has been expressed both in legal scholarship and confirmed in foreign policy statements under China’s new leadership.”

As examples Wouter refers to the Sino-Kazakhstan Joint Declaration on Further Deepening Comprehensive Strategic Partnership, and to a memorandum of understanding between the respective Chinese and Indian Ministries of Water Resources concerning the “Strengthening Cooperation on Trans-border Rivers,” both concluded in 2013. In that MoU and also in the China-India Joint Statement, India recognized its “deep appreciation” for China’s commitment, as the upper riparian, to make available data on and emergency management of the trans-border rivers. The two sides also agreed “to further strengthen cooperation and … work together on provision of flood-season hydrological data and emergency management.” Ruby Moynihan and Bjørn-Oliver Magsig note that “few experts would have considered it possible for China and India to ever agree on sharing information regarding the state of their glaciers” and regard that MoU as a “trust-building” measure that “is a valid step towards a more regional approach to freshwater interaction.”

Chesterman’s piece was completed in January 2016, and as we all know, 2016 was not just any other year. In January 2016 Chesterman thought that “the likelihood of a radically different approach to global governance seems low,” although he acknowledged that “the traditional view of sovereignty espoused by many Asian states may slow the expansion of human rights and other norms, although it does not look set to reverse them completely.” Let us hope that Chesterman is correct in this prediction.