Opinio Juris and EJIL:Talk! Symposium
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.
Part two assesses Asia’s current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant. It is, but history offers at best a partial explanation of the current situation. Ongoing ambivalence towards international law and institutions can also be attributed to the diversity of the continent, power disparities among its member states, and the absence of “push” factors driving greater integration or organization.
Finally, part three attempts to project possible future developments based on three different scenarios. These are referred to as status quo, divergence, and convergence. The article argues that the status quo — in which the most populous and (increasingly) powerful region on the planet has the least stake in its rules and governance structures — is unsustainable. A crucial element of that argument is that the rise of Asia is today complemented by the decline of the West, in particular a decline in the willingness and the ability of the United States to play its role as both a shining “city upon a hill“ and an enforcer of global norms.
Arguments about Asia’s rise and America’s decline are hardly new. Yet the current assertiveness of the Chinese government with respect to its perceived interests in the South China Sea — including the recent deployment of its only aircraft carrier — may herald a strategic inflection in international relations, with inevitable consequences for the form and the content of international law. Still more striking was the victory of a wildcard candidate in the US presidential election who campaigned on an explicit message of American decline and neo-isolationism, peppered with anti-establishment and illiberal rhetoric, who takes office at the end of this week on 20 January 2017. (The European analogue is, of course, the existential crisis of a plurality of the British public voting to express their own ambivalence about international law and institutions.)
A more nuanced example may be found in the Chinese white paper released last week (11 January 2017) on Asia-Pacific Security Cooperation. The paper reiterates China’s commitment to the Five Principles of Peaceful Coexistence, but also draws a distinction between large states and small ones. Major countries, the white paper notes, should treat the strategic intentions of others “in an objective and rational manner”; small and medium-sized countries, for their part, are enjoined to avoid “tak[ing] sides among big countries.” On the broader question of international law, the paper states that “[i]nternational and regional rules should be discussed, formulated and observed by all countries concerned, rather than being dictated by any particular country. Rules of individual countries should not automatically become ‘international rules,’ still less should individual countries be allowed to violate the lawful rights and interests of others under the pretext of ‘rule of law.’”
With regard to the South China Sea issue, China reaffirms in the white paper its commitment to the UN Convention on the Law of the Sea (UNCLOS), but states that disputes over territories and maritime rights should be resolved through “respect[ing] historical facts and seek[ing] a peaceful solution through negotiation and consultation”. Interestingly, the document makes no reference to the infamous nine-dash line, though it does state that China has “indisputable sovereignty over the Nansha [Spratly] Islands and their adjacent waters”. Any effort to “internationalize and judicialize” the South China Sea issue, the paper goes on to say, will “only make it harder to resolve the issue, and endanger regional peace and stability.”
Such developments are, I think, broadly consistent with the argument put forward in my article. The rise of Asia in general and China in particular will see changes in the form and the content of international law — the white paper refers multiple times to a “new model of international relations” — but this will be an adaptation of existing norms and structures to a new reality rather than a rejection of those norms and structures. Evolution, then, rather than revolution.
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Academic writing generally seeks to take the long view. If there is a virtue to a profession sometimes said to exist in an ivory tower, it is that one hopes to offer some perspective beyond what is in the current news cycle — a respite from the relentless presentism of the “new”. I can therefore take no credit for the fact that well after my piece for the current EJIL was completed — and even after this generous symposium had been prepared by Opinio Juris and EJIL:Talk! — there would be such a confluence of genuine news events that resonate with arguments put forward in the article. It is a sad coda that the symposium also follows soon after the passing of one of the truly great international lawyers from Asia — Christopher Weeramantry, a Sri Lankan scholar who served as Vice President of the International Court of Justice.
The full article is available here in draft form, the final version appearing later this month in EJIL. I am enormously grateful to the convenors of this symposium and the distinguished jurists who have agreed to participate. I look forward to their responses, from which I know I will learn much.
Simon Chesterman, 16 January 2017
This is the opening entry in a mini-symposium generously co-hosted on Opinio Juris and EJIL:Talk!, with posts by Professor Tony Anghie of the National University of Singapore, Professor Eyal Benvenisti of Cambridge University, Professor B.S. Chimni of Jawaharlal Nehru University, Professor Robert McCorquodale of the University of Nottingham and the British Institute of International and Comparative Law, Judge Xue Hanqin of the International Court of Justice, and Judge Paik Jin-Hyun of the International Tribunal for the Law of the Sea.
Many thanks to Chris Borgen, Marko Milanovic, Mary Guest, and their colleagues for curating the symposium.