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Asia-Pacific

Comparing U.S. Strategies in Constructing Cybernorms with China

by Duncan Hollis

I’ve got a new draft article up on SSRN (you can download it here) entitled China and the U.S. Strategic Construction of Cybernorms: the Process is the Product.  It was written for a really great inter-disciplinary workshop held at Stanford Law School earlier this Spring by the Hoover Institution’s National Security, Technology and Law Working Group (which is chaired by Ben Wittes and Jack Goldsmith). The article will be published shortly in Aegis, the Hoover Institution’s Paper Series with some cross-linking on Lawfare (Hoover already has one of the Workshop’s other papers posted – a great piece by by Adam Segal on Chinese Cyber Diplomacy).

In the meantime, here’s my abstract:

This paper explores the role norms—shared expectations about appropriate behavior within a given community—play in advancing U.S. interests in changing Chinese behavior in cyberspace. It focuses on two recent normative achievements: (1) the U.N. Group of Governmental Experts’ consensus that international law applies in cyberspace; and (2) the U.S.-China understanding that neither State would pursue cyber-espionage for commercial advantages. To date, both agreements have been studied largely in terms of their contents – on what they say.

In contrast, this paper undertakes a broader, process-based analysis of U.S. efforts to generate cybernorms. It compares and contrasts the two projects by examining (a) their respective normative ingredients (i.e., the type of desired behavior, the identity of the group subject to the norm, the source of the norm’s propriety, and the extent of any shared expectations); (b) where the norm promotion occurred (i.e., grafted onto an existing institution or deployed in a newly established process); and (c) the choice of mechanisms—incentives, persuasion, socialization—by which the United States sought to develop and evolve each norm. Doing so reveals a diverse range of choices that offers a new lens for analyzing and assessing how cybernorms may emerge (or change) in a global, dynamic and pluralistic environment. As such, this paper provides a framework for strategizing about the potential risks and rewards of pursuing different normative processes, whether in U.S. efforts to impact China’s behavior in cyberspace or vice-versa. States and scholars would thus do well to assess current and future efforts to construct cybernorms with China and other States by looking at not just one, but all the aspects of normative processes.

As always, comments and feedback are most welcome.

Taiwan’s Constitutional Court Rules in Favor of Same-Sex Marriage, and Cites U.S. Supreme Court (But Not For Law)

by Julian Ku

Grand Justices of the Constitutional Court, Judiciary Yuan, Republic of China – Taiwan

In a first for Asia, Taiwan’s Constitutional Court ruled today (with two dissents) that Taiwanese law limiting marriage to a man and a woman violated the Republic of China’s constitutional guarantee of “equality before the law.” (Taiwan is home to the exiled Republic of China government, and its constitution is an amended version of one adopted on Mainland China back in 1946).
I don’t claim to be an expert on the Taiwan-ROC Constitution.*  I also haven’t read the decision very carefully, and do not purport to offer any deep analysis of the decision here.  But to build off Anthea’s great post from Monday, I will note that the decision (in Chinese here)  cites the U.S. Supreme Court’s decision in Obergefell v. Hodges.**  But it doesn’t cite Obergefell’s legal analysis on the relationship between same-sex marriage and equality, which actually is quite on point.  Rather, the Taiwan court cites Obergefell in footnote 1 as one of several sources for the proposition that sexual orientation is an immutable characteristic. (In a somewhat ironic note, the decision also cite findings of the World Health Organization, whose governing body just recently excluded Taiwan from participating as an observer).

I think there are many good reasons to cite, or not cite, foreign court decisions when interpreting a domestic constitution. I can see the Taiwan-ROC Constitutional Court, which is still a relatively new institution, wanting to cite foreign authority to bolster the legitimacy of its decision.  But I can also see that the Court would want to make this decision as domestic as possible to ward off the very substantial domestic criticisms that are already being made of the results of this decision.  The Taiwan-ROC Court made a reasonable choice to cite the U.S. Supreme Court in a limited and non-legal way.  I don’t fault it (or the U.S. Supreme Court) for avoiding foreign and international legal authority.  No doubt there was a jurisprudential influence from the U.S. and other jurisdictions in this decision, but I wonder if it was in any way decisive.

There are, of course, international relations implications from this decision.  Taiwan, under the current sort-of-anti-China governing party, is carving an international image for itself as a socially progressive haven in a relatively socially conservative Asia.  This can’t hurt Taiwan as it continues to seek ways to maintain its separate identity from China in the eyes of U.S. and European elites. The mainland has a similar “equality before the law” provision in Article 33 of its Constitution as the one that is the main basis for the Taiwan court decision, but I wouldn’t count on any action on that front in the near future.

*But I did have noodles in Taipei with a member of the Taiwan Constitutional Court not two weeks ago and he gave me no clues about this pending decision.

**My original post actually got this wrong, claiming there was no citation at all. Sorry for the confusion. But my larger point stands.

America’s Hubris, Cambodia Version

by Kevin Jon Heller

It is difficult to overstate the horrors the US inflicted on Cambodia from the air during the Vietnam War: 230,000 sorties involving 113,000 different sites; 500,000 tonnes of bombs, as much as the US dropped in the entire Pacific theatre during WW II; at least 50,000, and probably closer to 150,000, innocent civilians killed. Even worse, that bombing campaign, along with the US-backed coup against Prince Sihanouk in 1970, is widely credited with helping bring Pol Pot and the Khmer Rouge to power, and we know how that turned out — at least 1.7 million Cambodians murdered, an auto-genocide of epic proportions.

The US has never apologized for its actions in Cambodia. President Obama didn’t even mention the Vietnam War when he became the first President to visit Cambodia in 2012. The Trump administration, however, is not afraid to discuss Vietnam. On the contrary, it is currently very interested in discussing US actions during the war — to demand that Cambodia pay back $500 million it owes the US for providing support to Lon Nol’s unpopular regime:

The debt started out as a US$274 million loan mostly for food supplies to the then US-backed Lon Nol government but has almost doubled over the years as Cambodia refused to enter into a re-payment program.

William Heidt, the US’s ambassador in Phnom Penh, said Cambodia’s failure to pay back the debt puts it in league with Sudan, Somalia and Zimbabwe.

“To me, Cambodia does not look like a country that should be in arrears…buildings coming up all over the city, foreign investment coming in, government revenue is rapidly rising,” Mr Heidt was quoted as saying by the Cambodia Daily.

“I’m saying it is in Cambodia’s interest not to look to the past, but to look at how to solve this because it’s important to Cambodia’s future,” he said, adding that the US has never seriously considered cancelling the debt.

Look forward, not backward. Where have we heard that before?

I have little doubt that Cambodia’s debt to the US is valid under international law. But that does not mean the US has the moral right to demand payment — much less to compare Cambodia to debt scofflaws like Zimbabwe. (How much does the US owe the UN right now? It was almost $3 billion at the end of 2015.) As James Pringle, Reuters bureau chief in Ho Chi Minh city during the Vietnam War, recently wrote in the Cambodia Daily, “Cambodia does not owe even a brass farthing to the U.S. for help in destroying its people, its wild animals, its rice fields and forest cover.”

But what do I know? Perhaps Donald Trump needs the $500 million to finance the US’s current bombing campaigns in Iraq, Libya, Somalia, Syria, Yemen, Pakistan, and Afghanistan.

Or to build the wall between the US and Mexico.

ICC Communication About Australia’s Mistreatment of Refugees

by Kevin Jon Heller

As has been widely reported, 17 international-law scholars — including yours truly — recently submitted a 105-page communication to the Office of the Prosecutor alleging that Australia’s treatment of refugees involves the commission of multiple crimes against humanity, including imprisonment, torture, deportation, and persecution. The communication is a tremendous piece of work, prepared in large part by the Global Legal Action Network (GLAN) and Stanford Law School’s International Human Rights and Conflict Resolution Clinic.

Peter Dutton, Australia’s Minister for Immigration and Border Protection, has described our efforts as a “wacky cause.” Nothing could be further from the truth. The communication is serious, sober, analytic, and comprehensive. I think it establishes far more than a “reasonable basis” to believe that Australian government officials and officials of the corporations that run the prison camps on Manus Island and Nauru have committed crimes against humanity. Here is (most of) the executive summary…

Event: Australia, Refugees, and International Criminal Law (February 13)

by Kevin Jon Heller

I want to call readers’ attention to what should be — despite my participation — a fantastic event at City Law School the week after next. Here is the info:

City, University of London: The Refugee Crisis and International Criminal Law: Are Australian Agents and Corporate Actors Committing Crimes Against Humanity?

City Law School invites you to a panel discussion of international criminal law aspects of the refugee crisis, with a focus on the Australian detention facilities. The discussion will follow the announcement and launch of a new major initiative by the Stanford International Human Rights Clinic and the Global Legal Action Network (GLAN).

Refugees and asylum seekers are currently under attack in many developed countries, including in European states, the US, and Australia. International criminal law has developed around the need for international institutions to intervene on behalf of the most vulnerable populations, when states are unwilling or unable to do so. Can international criminal prosecution help counter the current encroachment upon refugee rights? Currently, the most flagrant examples of such encroachment are Australian practices, which have also served as a model for migration restrictionists around the world. Our focus will be on the treatment of refugees in Nauru and Manus Island by Australian officials and agents, including corporate actors. At issue, however, are not only legal questions. As important are contemporary political conditions, in which the international criminal court is under sustained critique for a seeming bias against African leaders; and in which Western governments and populist movements are proposing new policies that violate refugee rights. Does the concept of Crimes against Humanity accurately capture the conditions of detention and practices of mass deportations? And, if there are international crimes committed, are these grave enough for the International Criminal Court to investigate? Can and should International Criminal Law shift its focus from instances of spectacular or radical evil to the normalised and ‘banal’ violence waged by Western states as a consequence of the structures of global inequality?

Speakers: Ms Diala Shamas, Supervising Attorney and Lecturer, Stanford Law School International Human Rights and Conflict Resolution Clinic; Dr Cathryn Costello, Andrew W. Mellon Associate Professor in International Human Rights and Refugee Law, fellow of St Antony’s College, University of Oxford; Professor Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London; Dr Ioannis KalpouzosLecturer in Law, City Law School, City, University of London; Legal Action Committee, Global Legal Action Network; Dr Itamar Mann, Senior Lecturer in Law, University of Haifa; Legal Action Committee, Global Legal Action Network; Ms Anna Shea, Researcher and Legal Advisor, Refugee and Migrant Rights, Amnesty International.

The event takes place on Monday 13 February 2017 at 18:00 at City, University of London, College Building, St John Street, EC1V 4PB – Room AG21. The event will be followed by a wine reception. Attendance is free. You may sign up here.

Hope to see some OJ readers there!

International Law in the Asian Century: Conclusion to Opinio Juris and EJIL:Talk! Mini-Symposium

by Simon Chesterman

[Simon Chesterman is Dean of the National University of Singapore Faculty of Law. He is also Editor of the Asian Journal of International Law and Secretary-General of the Asian Society of International Law. Educated in Melbourne, Beijing, Amsterdam, and Oxford, Simon’s teaching experience includes periods at Melbourne, Oxford, Columbia, Sciences Po, and New York University.]

An academic learns most through errors and omissions. Far better to be criticized in text than footnoted in passing — both, of course, are preferable to being ignored. I am therefore enormously grateful that such esteemed scholars and practitioners were willing to take part in this joint Opinio Juris and EJIL:Talk! symposium and offer their responses to arguments put forward in my article for the current issue of EJIL, giving me and other readers refinements and additions that will enrich the larger conversation of which this symposium is a part.

The six commentators raise many issues, which I will address under three broad headings of power, history, and method. Each also brings to their paper a certain optimism or pessimism about what the future may hold, something to which I will return at the end.

1. Power

Judge Xue Hanqin puts at the forefront an argument about which I may have been too delicate. Asian states are not wary of delegating sovereignty because they are “ambivalent” about international law, she writes, but “because they do not believe that international law as … advocated and practiced would protect their fundamental rights and interests.” Similarly, regional integration is not primarily a matter of law, but of policy. The relative absence of regional institutions in Asia is not simply due to diversity and the other factors highlighted in the article; rather, it is attributable to geopolitical divisions within the region and in its various relations with other great powers.

This echoes a point made by Professor Eyal Benvenisti, who proposes that regional cooperation may be driven by external pressure as much as internal cohesion. The presence of an outside rival, for example, can encourage greater integration as the Soviet Union did for Europe and the United States did for Latin America. No such rival drove regional integration in Asia, though at the sub-regional level ASEAN has clearly been shaped by the ten member states’ relations with larger countries in East and South Asia as well as by their own identification as Southeast Asian.

Professor Antony Anghie also makes an important point about power in his historical survey. The Asian states that fought for the New International Economic Order (NIEO), he argues, had a vision but no power; by contrast, the Asian states that have power today lack any comparable alternative vision. Professor B.S. Chimni similarly suggests that the lack of a regional organization in Asia may be attributed to the fact that no Asian state has had the combination of material capability and legitimacy necessary to lead the formation of such an entity.

These observations about power go beyond the standard challenge to international law of its claim to being “law”. They recall far older critiques of the rule of law even in its domestic context: that it reifies power relations and thus is naturally embraced by whoever benefits most from the system. (It does and it is.) Nevertheless, as even the Marxist historian E.P. Thompson recognized, the rule of law remains an “unqualified human good” for its ability, nonetheless, to impose effective inhibitions upon power and defend against power’s all-intrusive claims.

So it is, I would contend, at the international level. Smaller states (like Singapore) are naturally most enthusiastic about the rule of law, but even larger ones (like China) are progressively seeing that it is in their enlightened self-interest to embrace such a world order, much as the United States did following the conclusion of the Second World War — a moment when its relative power was, arguably, at its greatest.

2. History

Turning to history, Professor Anghie rightly notes the incompleteness of my account of the achievements and failures of Asian states in their efforts to engage with international law. I concede that I do not do this rich history justice — though blame surely lies also with EJIL’s word limit. Some of this deficiency will be remedied in a forthcoming Handbook of International Law in Asia and the Pacific that I am editing for Oxford University Press together with Judge Hisashi Owada and Professor Ben Saul (and to which Professor Anghie is contributing a chapter).

As Judge Jin-Hyun Paik emphasizes, that history continues. It would be a mistake, for example, to assume that Asian states’ attitudes towards international law are static. As he shows in his own survey of international adjudication, those attitudes are clearly evolving. From relative non-engagement with the Permanent Court of International Justice, the movement has been from infrequent respondents to occasional applicants before the International Court of Justice and other tribunals, with important recent instances of Asian states consenting to litigate sovereignty disputes. Though Asian states remain the least likely to accept compulsory jurisdiction or appear in international tribunals, he demonstrates that the willingness to do both is increasing.

3. Method

The article attempts to downplay any grand claims about “Asia” and “international law” that might be inferred from the title. Nevertheless, such work is intended to be examined for its method as well as its conclusions.

Professor Chimni rightly warns of the dangers of cultural essentialism, geographical determinism, and materialist reductionism. (He generously gives me a pass on a fourth pitfall of orientalism.) His point that Asian states’ economic interactions play an important role in constructing their world view is well taken. He also emphasizes that reluctance to sign onto a given international regime need not imply opposition to its objectives, giving the example of Asian states’ treatment of millions of refugees.

Professor Robert McCorquodale queries the use of “Asia” as a category, in particular the relative absence of the Pacific and the Middle East from my analysis. Judge Paik also stresses the diversity of Asia, highlighting in particular the relative openness of East Asia to international cooperation. These are fair observations and the attitudes of the various sub-regions of Asia would bear further study. (For my own views on Southeast Asia, see this recent work on ASEAN.) Professor McCorquodale also suggests that the role of non-state actors might be a fertile line of inquiry — particularly the role played by business entities, given the relative willingness of Asian states to accept binding agreements in the area of trade and investment.

At a more fundamental level, Judge Xue queries whether the premise of the article — that Asian states benefit most from a world ordered by law — is properly made out. Claiming that the economic success of Asian states is due to international law and institutions may be a bit “self-conscious of the discipline”. She is surely correct that internal as well as external factors were responsible, but I would still argue that international law was necessary if not sufficient for the prosperity and stability that Asia now enjoys.

4. Futures

Judge Xue concludes that, while Asia should not be expected to carry on the role of “rule-taker”, there is some way to go before it becomes a meaningful “rule-maker”. In particular, she questions my declinist account of the United States, writing that it “is and will continue to be the dominant Power in the region.” On the issue of whether international law will become more representative and more democratic, she proposes that this challenge needs to be directed at the West as much as at the East.

On this last point, Professor Benvenisti suggests that President-elect Trump (who takes office shortly after this post goes live), embraces a conservative view of international law that is consistent with the Five Principles embraced by China and India for half a century, recently reaffirmed in the joint declaration by Russia and China. I suspect he is correct, but President Trump has routinely contradicted previously articulated positions and I am wary of joining the ranks of those who predicted what he would do and failed.

Though it is often invoked, there is no Chinese curse that means: “May you live in interesting times”. Provenance notwithstanding, there is no doubt that the coming years will be interesting. It is my hope that my article and this symposium will encourage greater analysis of how power is shaped by law and vice-versa, how history influences the present, and how research can better prepare us for whatever the future may bring.

Thank you, once again, to the organizers of this symposium and to Judges Xue and Paik, and Professors Anghie, Benvenisti, Chimni, and McCorquodale for taking the time to offer their thoughtful and thought-provoking responses. This is clearly not the end of this conversation, or even the beginning of the end. But it is, perhaps, the end of the beginning.

An Asian Perspective

by Xue Hanqin

[Judge Xue Hanqin is a judge on the International Court of Justice. This post is part of a joint Opinio Juris/EJIL:Talk! symposium. For the latest symposium post on EJIL:Talk!, click here.]

The rise of the new economies, particularly those in Asia, has caused considerable apprehension in the West. The concern is not just about shift of wealth to the East, but more about their increasing balancing power and influence in international affairs. It is against this background that the topic of Asia’s attitude towards international law has attracted relatively wide attention.

Professor Chesterman starts his article with a “paradox” as a basic proposition of his analysis, namely, while Asia enjoys most the benefits of the security and economic dividends secured by international law and institutions, it has the least participation and representation in international treaties and structures; Asian States in general are not willing to delegate sovereignty; far fewer of them have accepted the compulsory jurisdiction of the International Court of Justice and the Statute of the International Criminal Court. Above all, Asia has the least prospect for regional integration. Before proceeding to consider the reasons he has outlined, it is worthwhile to address this proposition first.

Undisputedly, in the past decades Asia has witnessed the fastest growth of economic development in the world, with China and India in the lead. But to credit Asia’s development to international law and institutions may be a bit self-conscious of the discipline. As is well known, the driving forces for Asia’s economic development come from both internally and externally. At the regional level, economic reforms in China and India and the economic integration process of ASEAN are among the decisive factors that ensure the world the widest possible access to the Asia’s markets and the best possible investment and labor conditions. Internationally, economic globalization in the wake of the Cold-War not only provides more opportunities for international cooperation with the developed countries, but also lends a propitious international environment for the promotion of regional cooperation. However, international trade and investment based on international rules and agreements can never be a one-way street; rights and obligations always go hand in hand. Faster growth does not mean more benefit from the system. Economically speaking, the majority of Asian States are recipients of foreign investment. On what basis can we claim that international law provides better protection to these countries than it does to foreign investors?

The implication of the paradox is that Asia so far has been a free-rider, taking advantage of the existing rules and institutions that were formed and maintained by the West. If not for the security guarantee underwritten by the Western States, particularly the United States, Asia would not have been able to long enjoy a peaceful and stable environment for economic development. Notwithstanding its underlying tone of encouraging Asia to be active in international law and institutions, the message, unfortunately, could be easily misunderstood by the listener, a point to be addressed later.

On the reasons for the current state of affairs of international law in Asia, Professor Chesterman’s survey is succinct and perceptive. With regard to Asia’s historical experience of international law, a few words should be added. Historically, Asia was subjected to an entirely different world order by force. China, India and Japan, the three major Asian nations, reacted to the change in different ways. Apart from what they each experienced in international law in the past, their attitude to international law today is still largely dictated by where they are positioned in the contemporary world order. Authoritarian or liberal, the type of national political system does not determine how a State treats international law; it is only relevant when ideology and international law are tangled.

It is true that, compared with other regions, Asia is not so active in international law and institutions. However, the data and statistics listed in Professor Chesterman’s article are largely taken through the lenses of the Western institutions. Their selection of the legal institutions and treaties, by itself, demonstrates their ideological preference. Legally speaking, Asian States’ “under-participation” in these regimes and treaties cannot be characterized as “being wary” of international law because, by virtue of the provisions of each legal instrument concerned, States have the right to opt out of them if they consider that they are not yet ready to take part. In the EU’s practice, the purpose to impose such participation as a condition for new membership is primarily to promote the basic values of the EU. Given its historical origin, international law is understandably embraced in these values.

Asia’s inability to promote regional integration is often attributed to its diversity. Indeed, Asia is very diverse in terms of culture, tradition, and religion. However, such diversity may not be the main, and crucial, reason for Asia’s failure to establish any comparable regional institutions as the ones in Europe, Africa and Latin-America. Geopolitical division of the region that reflects the world order lies at the heart of the matter. The loose structures of the regional institutions in Asia, to a large extent, bear the attributes of the region, as well as its relations with the outside Powers.

Regional grouping may inspire common aspirations and regional identity of States, but integration is not a matter of law, but policy. Notwithstanding its impact on the rule of law, regional integration, first and foremost, serves in a collective manner the interests of the sovereign members. Take Brexit, for example. Although some may not like the decision to leave the EU, Britain has not been perceived due to that choice as becoming wary of international law . While a regional grouping may enhance the collective voices and influence of its member states in international law and institutions at the global level, membership in a regional organization is not a necessary element to assess one’s participation in international law.

Asia’s growth, and particularly the growth of China and India, is unprecedented in human history. The West’s apprehension shows that such growth may likely produce substantive effect on the existing geopolitical structures, and hence its legal institutions and constructs. From a “rule-taker” to a “rule-maker,” Asia only seems to be asking what is justified for itself, if democracy has any real meaning at all in international relations. But that is not at issue. What is at issue is where this “substantive effect” would lead.

Asia’s attitude to international law, if deemed ambivalent, is deeply rooted in its history. As is rightly pointed out, that only offers a partial explanation. More relevant is the contemporary practice of international law, particularly of the Western world. Asian States are more sensitive of delegating sovereignty, not because they are ambivalent of international law, but because they do not believe that international law as thus advocated and practiced would protect their fundamental rights and interests. In many a case, their under-participation is not a matter of willingness, but capacity to influence. To be a meaningful rule-maker, Asia still has a long way to go.

The tone may sound a bit cynical when it says that as the existing Powers, particularly the U.S., may no longer be able to underwrite for the security guarantee of the Asia-Pacific region and that Asian States must undertake their own responsibility for the region. The United States is and will continue to be the dominant Power in the region. There is no doubt about it. Whether the region will remain peaceful and stable very much depends on its policy and on its adherence to the principles of international law that it has committed itself, particularly with China. The future of international law and institutions very much depends on the cooperation of these major players, on the mutual understanding of the East and the West. To take away Asia’s “ambivalence,” the current practice of international law and institutions first needs to be reviewed. For a more representative and democratic legal system, the focus perhaps is not on the East, but the West. In that sense, we can say “it takes two to a tango.”

Asia, International Law and International Institutions: A Comment

by B.S. Chimni

[B.S. Chimni is Professor of International Law at Jawaharlal Nehru University, New Delhi.This post is part of a joint Opinio Juris/EJIL:Talk! symposium. For the latest symposium post on EJIL:Talk!, click here.]

In the current issue of European Journal of International Law Professor Simon Chesterman has written an important essay on the Asian approach to international law and international institutions, addressing in particular the subject of its under-representation and under-participation. He has also explored therein the possible convergence of the Asian view of international law and institutions with that of other regions of the world.  In what follows a few general reflections are offered on these themes.

In considering the question of a distinctive Asian approach to international law and institutions it is important to avoid above all the three pitfalls of cultural essentialism, geographical determinism, and materialist reductionism. On the cultural plane Asia represents a complex configuration of diverse and multiple cultures and untold interpretations of it. It is also shaped by millennia of interaction with other geographical regions of the world, lending and borrowing ideas. In fact the very idea of “Asia” is a product of that relationship. Therefore it would be erroneous to argue that cultural or geographical factors by themselves shape the attitudes of Asian States. The Asian approach is also mediated by deep material structures that include global capitalism and the sovereign state system. It has been especially impacted by colonialism whose lasting contribution includes the embrace of Westphalian logic and the transformation of the legal systems of many Asian nations. The political ecology of the times, constituted by historical developments like the October Revolution and the Cold War, have had their own role to play in shaping the response of Asian nations to international law and institutions. Besides these factors the national interests of individual Asian nations, determined by a range of internal factors, have a direct bearing on the question.  In view of these complexities Professor Chesterman has wisely attempted to strike a balance between offering cultural, material, geographical, and historical explanations for understanding the state of representation and participation of Asia in international law and institutions. However, while he does well to avoid ‘the risk of gross generalizations’ and to accept that ‘states choose whether to participate in particular international regimes for a wide variety of reasons’ the range of factors indicated could have received more consideration.

A growing international relations literature is today grappling with the question whether there is a distinctive Asian approach to world politics. These can be sampled in collections like International Relations of Asia and the Oxford Handbook of the International Relations of Asia. This literature raises among other things the question whether standard western international relations theories allow us to capture the essential features of the Asian approach to international relations. For instance, does the realist approach help us explain Asian international relations? Or can a combination of realist and constructivist approaches, with the latter placing emphasis on ideational factors, help produce a viable explanation of Asian international relations? Or is a uniquely Asian theory needed to explain its international relations? I believe that this international relations literature can be productively mined to deepen thinking on the Asian lack of engagement with international law and international institutions.

Be that as it may, in attempting to understand the relative under engagement of Asia with international law Professor Chesterman rightly recognizes that the signing of treaties is a crude measure of its commitment to progressive normative developments and international rule of law. A good example is the Asian approach to the legal status and rights of refugees. While Asia has hosted millions of refugees only few Asian states (Afghanistan, Cambodia, China, Japan, Philippines, Korea, and Japan) have ratified the 1951 UN Convention on Status of Refugees. A whole range of historical, material and cultural factors possibly account for Asian nations refusing to become party to the 1951 Convention even as they have shown willingness to respect the status and rights of refugees. These factors may be worth studying in a bid to understand and explain the Asian approach to international law. It may also help to identify the reasons for the lack of a regional human rights convention on the lines that have been adopted in Africa, Europe, and Latin America.

What however explains the absence of a regional organization in Asia? The factors of diversity, plurality, and power disparities in the region have been aptly viewed by Professor Chesterman as crucial in this regard. There is however the historical factor as well. As Jawaharlal Nehru observed at the Asian relations Conference (1947), “a notable consequence” of the European domination of Asia was the isolation of its nations from one another. Consequently, the Bandung Communique (1955) called upon countries to ‘the acquisition of knowledge of each other’s country, mutual cultural exchange, and exchange of information’. Subsequently, the Cold War created its own divides. Amitav Acharya, a leading international relations expert on the Asian region and regionalism, offers another explanation (.pdf). He speaks of the decoupling of material capability and legitimacy among leading Asian nations as an important reason for absence of a regional organization. Thus, Japan has the capability to lead the way but lacks legitimacy for having been a colonial power. China on the other hand lacks legitimacy because of the absence of internal democracy. India has legitimacy but not as yet the material wherewithal to lead the region.

In understanding the converging approach of the Asian region to international law and institutions it may be useful to turn to the history of the development of capitalism in the region.  It is the development of capitalism, be it in the form of market socialism or neo-liberal capitalism, which explains why major powers like China, India or Indonesia, are today committed to the extant liberal international legal order. The increasing number of free trade agreements (FTAs) signed in the region, albeit with different elements, is a pointer in this direction. The Trans-Pacific Partnership Agreement (TPP), for the present rejected by U.S President-elect Donald Trump, and the Regional Comprehensive Economic Partnership (RCEP) also manifest the greater acceptance of the liberal order. Leading Asian powers also have faith, as John Ikenberry of Princeton University notes in his writings, that the liberal international system can be incrementally reformed to address their concerns (John Ikenberry, ‘The Future of the Liberal World Order: Internationalism after America’, Foreign Affairs, May-June 2011, pp.56-68).  In short, the increasing convergence is a function of the trajectory of development of capitalism in Asia in the era of accelerated globalization. This factor deserves more attention.

In projecting the possibilities of convergence it may also be worthwhile to pay attention to cultural factors like the creation of national and international societies of international law in Asia. The national societies of international law (for example in India, Japan, Korea and Philippines) have existed for decades. Recent years have also seen the founding of international societies like the Development of International Law in Asia (1989) and the Asian Society of International Law (2007) to promote international law in the region. These developments are to be read in conjunction with the view that Asian practices have contributed to the evolution and development of modern international law. The relevant historical practices are documented in the writings of scholars like C.H. Alexandrowicz and R.P. Anand and in the judgments of, among others, Judge Christopher Weeramantry. The use from colonial times of western textbooks to impart international law has also socialized diplomats and scholars into sharing its current liberal worldview.

All in all Professor Chesterman has made a significant beginning in understanding and explaining the Asian approach to international law and international institutions. It is hoped that others will join, debate, and enrich his contribution.

Comment on Simon Chesterman, `Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures’

by Antony Anghie

[Antony Anghie, National University of Singapore. Tony Anghie has written on various aspects of globalization, human rights, and the history and theory of international law. He is a member of the TWAIL network of scholars. This post is part of a joint Opinio Juris/EJIL:Talk! symposium. For the latest symposium post on EJIL:Talk!, click here.]

Simon Chesterman’s article displays a customary rigor and thoughtfulness. As I understand it, Simon’s broad argument is that Asian states have not engaged with the international system as much as their counterparts in other regions-Latin America and Africa, for instance. Simon views this situation as anomalous suggesting that Asia has `arguably’ benefitted the most from the current international order-of which international law is a part-and yet remains reluctant to participate fully in the system. The question then arises of whether Asia will be engage more deeply as its power increases, and whether such engagement will lead to a different sort of world order. He concludes that international law will remain much the same.

This is a rich and far reaching article and I can comment on only a few aspects of the many issues it raises. I agree in large part with Simon’s historical analysis; but I think he glosses over important aspects of that history which help us understand how Asian states did attempt to engage with international law, and why that experience led to a failure which further estranged them from a system of international law about which they always felt ambivalent. Simon assesses Asian engagement with international law principally in two ways. First, by the extent to which Asian states have signed on to various treaties and regimes(such as the ICJ, the ICC, international human rights treaties); and second, by the extent of legal integration within Asia itself. ASEAN for instance, is far less `legalized’ than corresponding regional organizations What he mentions but glosses over in one sentence at footnote 102 (perhaps ironically, a generous reference to my own work) is my concern here: the “Third way”-the efforts Asian states made to develop an anti-colonial internationalism and use it as a basis for changing international law-an initiative that began at Bandung in 1955 and extended through the Non-Aligned Movement to the New International Economic Order (NIEO).

Asian states realized that they were excluded by the new UN system from any meaningful decision making power. (See R.P. Anand, `The Formation of International Organizations and India: A Historical Study’, Leiden Journal of International Law 23 (2010) pp. 5-21. ) Concerned about this predicament, various Asian states held conferences, in Delhi 1947 and Colombo 1954 to explore Asia’s role in the emerging world order. These were preludes to Bandung in 1955. (Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds.) Bandung, Global History and International Law: Critical Pasts and Pending Futures (CUP forthcoming))

I agree with Simon that the Bandung communique and its version of sovereignty expressed in the “Five Principles” reflects norms that are found in the UN Charter. This is entirely understandable, however, given Asia’s experience under colonialism that Simon covers well in his article, the effect of which was to deride and subordinate any other version of sovereignty. Sovereignty after all was indispensable for participation in the system. Most importantly, however, the Asian states at Bandung, rather than simply accepting wholesale a Western international law, or acting in a suitably modest “regional” manner, attempted to forge a global movement, with states from Africa that, in time, evolved into the Non-Aligned Movement that represented the vast majority of countries in the world. This was an internationalism based on the powerfully felt needs of the time by the vast majority of the world’s states engaged in an anti-colonial campaign and attempting to assert their sovereignty, ensure their security and promote development. This contrasted with an internationalism based on liberal abstractions-regarding the state, society, personhood itself-that presented themselves as universal and that animated the normative claims of a Western international order that was still based on power relations now unassailably entrenched in the UN system. Most significantly, Asian states had an agenda that was directed very explicitly at reforming the international legal system. The organization that was to become the Asian-African Legal Consultative Organization (AALCO), still functioning actively and based in New Delhi, was established after Bandung to achieve this task.

The third world states-Asian, African, Latin American-launched the NIEO, a massive campaign to change international law. This attempted to establish, among other changes, a different regime of international trade and investment, and of the law of the sea and the resources of the deep sea bed. It is difficult now to imagine that the UNCTAD version of trade was a real rival to the GATT in the 1960s. The NIEO was immediately denounced by Western lawyers and states as unrealistic and anarchical. The battle for international law was a bitter one and the Third World lost. The point then is that Asian states, together with their African and Latin American allies, attempted to do what Simon argues they must do, which is assume greater responsibility for global governance. At the risk of generalizing, disillusion and wariness set in again as a result of the failure of the NIEO. Asian states had ignored the hard lessons of nineteenth century colonialism in the dazzle of independence, lured by the false promise of international law; and resolved not to be fooled again. In more recent time the blatant hypocrisy of the United States and United Kingdom in claiming to promote accountability and human rights in Asia and other parts of the world after the illegal war they waged in Iraq, only confirmed this vision of an unequal and power driven international law.

Asian states, then, failed in their efforts to create a different world order. Equally, however, their efforts to participate more fully in existing structures of governance have been regularly thwarted. Simon points out that, given its size and power, Asia is under-represented in international institutions. He does not really elaborate on why this is the case, and indeed seems oddly coy about this issue, even in his conclusion where he almost seems to suggest that it is Asian reticence that has led to this situation; he refers to Asia’s under-participation and under-representation as being due to historical factors and also to “the diversity of power dynamics of the continent as well as the absence of push factors to bring about change.” This is odd given, again, the many ongoing, if unsuccessful, battles waged by Asian states to win more say in the international system. Simon mentions India’s campaign to gain a seat in the Security Council almost in passing. China’s creation of the Asian Infrastructure Bank was surely influenced by the frustration it felt as its efforts to play a larger role in the global economic system through the established institutions, the IMF and the World Bank were blocked and delayed.( See The Economist, `The infrastructure of power’, June 30th 2016.) In a different context, Asia’s economic success has been remarkable. Some Asian states at least have used international law strategically and successfully. Indeed, Asian states may have succeeded despite and not because of international law. But Japan’s efforts to question neo-liberal economics and the orthodoxies of the Bank and the IMF in explaining and understanding the so called ”East Asian miracle” were also frustrated, diffused and diminished, as scholars such as Alice Amsden point out. (Alice Amsden, `Why Isn’t the Whole World Experimenting with the East Asian Model to Develop?: Review of The East Asian Miracle’, World Development Report, Vol. 22 No. 4 pp. 627-633, 1994.)

In conclusion, my argument is that Simon, in glossing over these aspects of the Asian experience, fails to recognize the ways in which Asia has attempted to influence international law. Perhaps more broadly, in overlooking the power struggles that have caused this marginalization of Asia, Simon adopts a rather sanguine view of international law and its openness to change which is somewhat strange given that in other respects his approach is so keenly aware of power politics.

My second point is to agree with Simon that it is unlikely that the “rise of Asia” will witness a major shift in international law. Rather, convergence will be likely. For me, this is simply because the largest Asian states which are in the best position to propose new initiatives, are unlikely to do so; it is surely no coincidence that much of Simon’s more detailed analysis focuses on the great powers of Asia: China and, to a lesser extent, India. A different sort of analysis would have emerged if the focus had been on the jurisprudence of Judge Weeramantry (for example, on his separate opinion in Gabcikovo-Nagymaros Project (Hungary/Slovakia) (.pdf)) or on non-state actors in Asia. (For example, see Balakrishnan Rajagopal, `The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India’, Leiden Journal of International Law 18(2005) pp. 345-387 and Prabhakar Singh, `Indian International Law: From a Colonized Apologist to Subaltern Protagonist’, Leiden Journal of International Law, vol 23 (1), March 2010, pp. 79-103.)

History suggest that states that wield great power develop imperial tendencies. International law as it is currently configured readily lends itself to economic- and hence political- domination, and India and China, founded in many ways on ancient Empires, are now in a position to deploy for their own purposes those instruments of which they had previously been victims. The major difference between China and the United States of course is that when the former engages in economic relations with smaller states it does not claim to further a specific model of governance, of rights, of political institutions that are universal in character. Its use of economic mechanisms to expand its influence is likely to be even more effective as a result, as Asian states struggle to achieve development and now turn to China increasingly as a vehicle of growth. It is now China that is eager to enter into investment and trade agreements as Simon points out. In many respects, further, a sort of reversal has taken place: it is Western states, especially after 9/11, that have converged towards Asian ideas regarding sovereignty and security. It is Western international lawyers who have very capably and expertly provided additional and helpful justifications for expanded violence in the form of drone attacks and broad concepts of self-defense (see, for example, Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors’, 106 American Journal of International Law 1) that may in time prove useful to rising Asian states. And a Trump presidency could mean that the illiberal attitudes usually associated with authoritarian Asian states – having to do with sovereignty, nationalism, protectionism, indifference to human rights-will be the driving forces of US foreign policy. In their unassailably assured efforts to create a liberal world order, the United States and Europe misunderstood or overlooked developments not only in Afghanistan and Libya, but their own heartlands.

For Simon, the NIEO was too “radical” to succeed; the emergence of Asia as a real power, however, is in his view, unlikely to bring about major changes to the system. The Asia which fought for the NIEO had a vision but no power; some Asian states in the present have power but no distinctive vision. If this is indeed the case, the tragedy inherent in the situation must surely be appreciated. The broad conclusion appears to be that those who acquire power simply seek to preserve the system that enables and legitimizes its exercise. The theme is a familiar one: as Asia’s own history, the rise of Japan, suggests, it is only by making war, by becoming imperial, that a state becomes civilized, a proper Great Power. The cycle repeats, the difference perhaps being that rising Asian states will attempt to marry their imperial compulsions with the rhetoric of Third World solidarity, Bandung principles and non-intervention. Simon has written a fine piece exploring large themes and raising many challenging questions that will surely provoke more research.

Asia’s Ambivalence About International Law & Institutions: Introduction to Opinio Juris and EJIL:Talk! Mini-Symposium

by Simon Chesterman

[Simon Chesterman is Dean of the National University of Singapore Faculty of Law. He is also Editor of the Asian Journal of International Law and Secretary-General of the Asian Society of International Law. Educated in Melbourne, Beijing, Amsterdam, and Oxford, Simon’s teaching experience includes periods at Melbourne, Oxford, Columbia, Sciences Po, and New York University.]

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.

* * *

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.

Symposium on Asia and International Law

by Chris Borgen

The forthcoming issue of the European Journal of International Law will feature an article by Professor Simon Chesterman, the Dean of the National University of Singapore’s Faculty of Law, entitled Asia’s Ambivalence About International Law and Institutions: Past, Present and Futures. This week, Opinio Juris and EJILTalk will hold a joint symposium on the two blogs on Professor Chesterman’s article.

The article’s abstract explains:

Asian states are the least likely of any regional grouping to be party to most international obligations or to have representation reflecting their number and size in international organizations. That is despite the fact that Asian states have arguably benefited most from the security and economic dividends provided by international law and institutions. This article explores the reasons for Asia’s under-participation and under-representation. The first part traces the history of Asia’s engagement with international law. The second part assesses Asia’s current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant and how it might be explained. The third part considers possible future developments based on three different scenarios, referred to here as status quo, divergence and convergence. Convergence is held to be the most likely future, indicating adaptation on the part of Asian states as well as on the part of the international legal order.

The symposium will begin on Monday with an opening post by Professor Chesterman, followed by posts on Opinio Juris by Professor Tony Anghie of the National University of Singapore and on EJILTalk by Professor Eyal Benvenisti of Cambridge University.  On Tuesday, Opinio Juris will have commentary by Professor B.S. Chimni of Jawaharlal Nehru University and EJILTalk will have a piece by Professor Robert McCorquodale of the University of Nottingham and the Director of the British Institute of International and Comparative Law.   Wednesday will have observations and reactions on Opinio Juris by Judge Xue Hanqin  of the International Court of Justice and on EJILTalk by Judge Paik Jin-Hyun of the International Tribunal for the Law of the Sea. Finally, there will be a closing post pn both blogs by Professor Chesterman on Thursday.

We hope you will join us on both blogs for the discussion.

Addressing the Urban Future

by Chris Borgen

Urbanization is our present and it is our future. Between the recently completed UN Habitat III conference in Quito, Ecuador, and Iraqi Special Operations entering Mosul, starting what may be a complex urban battle, we face constant reminders that  much of the world’s population now lives in cities. How we protect rights, foster development, interact with the environment, organize politically, and fight wars is increasingly an urban story.

Consider the bleak picture of megacities and the future of combat in this leaked Pentagon video (at the link and also embedded above). Some key take-aways from the video:

  • By 2030 60% of world’s population will be in cities. Most of the urban growth will be in the developing world.
  • Illicit networks will fill the gaps left by overextended and undercapitalized governments.
  • Growth will magnify the increasing economic separation between rich and poor, even thought they may be in close proximity. Uneven growth means that slums and shantytowns will rapidly expand alongside ever increasing levels of prosperity.
  • Moreover, religious and ethnic tensions will be a defining element of these urban environments
  • Megacities are complex systems where people and structures are compressed together in ways that defy both our understanding of city planning and military doctrines.
  • Living habitats will extend from the high-rise to the ground level cottage to subterranean labyrinths, each defined by its own social code and rule of law.
  • Social structures will also be stressed. Criminal networks will offer opportunity for the growing class of unemployed  and will be part of the nervous system of non-nation state, unaligned, individuals and organizations that live and work in the shadow of national rule.
  • There will be increasing complexity of human targeting as proportionally smaller number of adversaries mix with an increasingly large population of citizens.
  • The interactions of governmental failure, illicit economies,  economic growth and spreading poverty, informal networks, environmental degradation, and other factors leads to an environment of convergence hidden within the enormous scale and complexity of megacities, which become the source of adversaries and hybrid threats.
  • Classic military strategy counsels either (a) avoiding the cities or establishing a cordon to wait out the adversary  or (b) draining the swamp of non-combatants and then engaging the adversary in high-intensity conflict. But megacities are too large to isolate or cordon in their entirety.  The U.S. military will need to operate within the urban environment and current counterinsurgency  doctrine is  inadequate to address the sheer scale of megacities
  • “This is the world of our future. It is one we are not prepared to effectively operate within and it is unavoidable.”

According to FoxtrotAlpha, this video was produced for a course at the Joint Special Operations University on “Advanced Special Operations Combating Terrorism,” it is focused on urbanization from the perspective of military planning. A 2010 issue of the International Committee of the Red Cross’s journal was devoted to humanitarian law and conflict in built-up urban areas. The ICRC also had recommendations for the UN’s Habitat III conference that just ended.

The topics covered, though, are very much the province of law and lawyers, including the needs of the urban poor, the operations of criminal networks, environmental degradation and climate change, the law of armed conflict and targeting in built-up areas, informal rulemaking in communities (“order without law”), informal markets and economies,  and the role of non-state actors, to name only some of the topics that crop up. While this video is (understandably) focused on the implications on combat operations, what I also see is the need for sustained  engagement in the protection of human rights, the distribution of public goods, the fostering of inter-communal dispute resolution, and the spurring of bottom-up economic development in megacities.

The video emphasizes that the future is urban. But, as the writer William Gibson has said, “The future is already here; it’s just not very evenly distributed.”