International Law and the Rise of Asia
The judgment by the International Court of Justice earlier this month on a border dispute between Thailand and Cambodia demonstrated the importance of international law to Asia. But how important is Asia to international law?
Asian countries are significantly under-represented in the institutions of global governance. Historically, the countries of the region have also played an undersized role in the creation and enforcement of international law. As Asia’s political and economic clout has increased, this under-representation has become more apparent.
Coincidentally, the court judgment regarding the sovereignty over the area around Preah Vihear Temple was released three days before the fourth biennial conference of the Asian Society of International Law. Established at a meeting at the National University of Singapore in 2007, where its Secretariat is based, the Society promotes education and research as well as encouraging respect for international law across the region and beyond.
The theme of this year’s conference, held in New Delhi, was “New Horizons”. But participants spent as much time looking backwards as they did forwards. This was important, because although there is great optimism regarding what has become known as the Asian century and the peaceful rise of Asian powers, it is hard to understand the present unless one understands the past.
In the context of international law, that past has led to deep wariness about a legal regime that, among other things, provided a veneer of legitimacy for colonialism, the unequal treaties with China, and the post-war trials in Japan.
Not all of the past was negative. The 1955 Bandung Conference was a landmark step towards regional cooperation, laying the foundations for sub-regional accords such as Asean and the South Asian Association for Regional Co-operation (SAARC). And the United Nations ultimately became a vehicle for decolonisation and protection of natural resources of states.
But the view that international law primarily reflects Western interests continues. This was most prominently on display during the “Asian values” debates of the 1990s, in which countries like Singapore and Malaysia rejected even the possibility of external criticism of human rights.
Ongoing suspicion of the International Criminal Court, as well as newer doctrines promoted by the UN such as the Responsibility to Protect (R2P), reflect similar concerns that international law will be used against the interests of states that only recently achieved the full benefits of sovereignty. Aimed at preventing crimes such as genocide, R2P holds states responsible for the protection and security of their populations.
Fears of meddling by international institutions, however, are overblown. Asia is an outlier with regard to the International Criminal Court, for example. Almost three-quarters of the rest of the world have ratified the Rome Statute. In Asia, only one-third of countries have done so. Nor is this suspicion limited to areas such as human rights. Asian countries are also the least likely to have accepted the jurisdiction of the International Court of Justice or to have joined the World Trade Organisation.
It is true, however, that the institutions of world order are not exactly aligned to Asian interests.
My colleague Kishore Mahbubani has long argued against the domination of international institutions by the West. It is unsustainable, for example, that leadership of the international financial institutions – the World Bank and the International Monetary Fund – should be reserved for the United States and Europe respectively. The legitimacy of the UN Security Council is also diminished by having only one permanent member from Asia (and none from Africa or Latin America).
No Coherent Response
Yet if Asia were to get more seats at the table, as Professor Mahbubani and others have argued, what would “Asia” say?
There is no prospect of a coherent “Asian” response. Apart from the size and diversity of the continent, it appears to be in the interests of many countries to promote subregional bodies such as Asean, SAARC, and the Shanghai Cooperation Organisation, in which those countries have a louder and more distinct voice than they would in a pan-regional organisation.
But there is no question that Asian countries – and Asians more generally – can and must play major roles in addressing global challenges. These range from climate change to reform of the global financial architecture, and from human rights to the new frontiers of cyberspace.
In such areas, there is demand and space for new ideas but also, perhaps, for new ways of speaking.
An “Asian” Way?
Some would argue that the “Asian way” of policymaking offers a positive alternative to the gunboat diplomacy that has sometimes characterised Western engagement in international affairs. Generalising greatly, the positive aspects of an “Asian” approach include respect for diversity, consensus-building over conflict, and pragmatic approaches instead of lofty principles. (It was Singapore, for example, that brokered a key compromise that made it possible to adopt the Rome Statute creating the International Criminal Court.)
Any such account must, however, also acknowledge negative aspects of the “Asian way”. Elaborate consultation and conflict avoidance can sometimes delay or prevent agreement entirely. A superficial consensus may mask the real politics at work.
Perhaps the most refreshing part of the Asian Society of International Law’s conference in Delhi was the breadth and depth of the papers presented by younger scholars and practitioners from across the region and beyond. In addition to three full days of panels covering the whole spectrum of international law, the organisers received so many proposals from students that an additional day was added solely for student papers.
Areas for Improvement
There is, however, still a long way to go in translating theory to practice. Three areas for improvement stand out.
First, the lawyers who actually practice international law at the highest level are largely limited to Europeans and Americans, plus a few Australians. When Singapore and Malaysia litigated the Pedra Branca case, for example, Singaporean and Malaysian lawyers played important roles. But the majority of the arguments before the International Court of Justice were presented by lawyers from Western countries.
Secondly, respect for international institutions in Asia continues to be inconsistent. Saudi Arabia, which is part of the Asia Pacific Group at the UN, recently made history by successfully campaigning to be elected to a rotating seat on the Security Council – only to renounce that seat in protest at the Council’s inability to have an impact on the Syrian conflict. (Within a few weeks, however, Saudi Arabia took up a seat on the Human Rights Council, prompting a new round of protests from Western states and NGOs.)
Thirdly, and more generally, the willingness of Asian states to resolve disputes in accordance with the law remains uncertain. The role that law will play in addressing the many claims to the South China Sea is an open question, for example, with China strenuously opposing “internationalisation” of the dispute.
Preah Vihear Test Case
An interesting test will be what happens in the dispute between Thailand and Cambodia. This month’s judgment was a “clarification” of an earlier decision concerning competing claims to the Temple of Preah Vihear, which in 1962 was found to be on Cambodian territory.
The recent decision was an elegant example of international law as a form of mediation. The 37 page judgment carefully resolved the narrow dispute before it, but gently pushed back the larger question of territorial delimitation outside the temple grounds for the two parties to resolve themselves. Since the next biennial meeting of the Asian Society of International Law will take place in Bangkok in 2015, the Preah Vihear Temple dispute will be a case that many members will be following with interest.
The conference demonstrated the enthusiasm and creativity of scholars and practitioners from Asia as well as those working on topics relevant to the region. A more prominent role for Asia and Asians in international law in future will depend in part on the growing political influence of Asian countries. One hopes, however, that an even greater influence will be the quality and the effectiveness of their ideas.
The writer is Dean of the National University of Singapore Faculty of Law and Secretary-General of the Asian Society of International Law. A version of this article appeared in the Straits Times on Saturday, 23 November 2013.