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Asia-Pacific

Implications of the Rohingya Argument for Libya and Syria (and Jordan)

by Kevin Jon Heller

In my previous post, I offered three cautionary thoughts about the OTP’s decision to ask the Pre-Trial Division to hold that the ICC has jurisdiction over Myanmar’s deportation of the Rohingya to Bangladesh. In this post, I want to offer a few thoughts on what a successful outcome would mean for refugee crises elsewhere — particularly in Libya and Syria.

We can start with the relatively easy case: Libya. Because of UNSC Res. 1970, the ICC has jurisdiction over any international crime committed on the territory of Libya from 2011 onwards. If the OTP’s theory of deportation is correct, it would be able to prosecute both (1) deportations from Libya committed by the Libyan government and armed forces, and (2) deportations into Libya from neighbouring states that are not members of the ICC — namely, Egypt, Sudan, and Algeria. Fatou Bensouda has already signalled interest in prosecuting “migrant-related crimes” committed by Libyans in Libya. A positive outcome to the OTP’s request in the Rohingya situation would make it possible for her to prosecute Egyptian, Sudanese, and Algerian nationals as well.

The more interesting case is Syria, given that Syria is not a member of the ICC and there is little chance the Security Council will refer the situation in Syria to the Court anytime soon. There are two scenarios worth discussing here: (1) deportations by the Syrian government or by various Syrian rebel groups into a neighbouring state; and (2) deportations by the Syrian government or by various Syrian rebel groups onto the high seas.

Going in reverse order, the ICC would have no jurisdiction over any deportation from Syria onto the high seas. There are two possible situations here: where the deported civilians drown on the high seas, and where the deported civilians make it to an ICC member-state such as Italy or Germany. In the first (profoundly sad) situation, no essential element of deportation (or of any other international crime) would have taken place on the the territory of a state party. And in the second situation, the civilians would not have been deported “directly” into the territory of a member-state — they would have been directly deported onto the high seas and only “indirectly” deported into the territory of a state party. Deportation’s “essential element” of crossing an international border would thus have taken place in Syria and on the high seas — not on the territory of a member state. This is the importance of the OTP’s repeated insistence in its request (see paras. 4, 13, and 28) that only direct deportations activate the Court’s jurisdiction.

In the second scenario, where the civilians are directly deported into a neighbouring state’s territory, a positive outcome to the OTP’s request in the Rohingya situation would mean that the ICC would have jurisdiction over any deportation from Syria into the territory of a state party. There is, in fact, only one ICC member-state that borders Syria: Jordan. Jordan would be a particularly attractive application of the OTP’s theory of deportation, given that more than 650,000 Syrians are currently taking refuge there — almost exactly the same number as the Rohingya in Bangladesh. (Though not all of the Syrian refugees in Jordan have been the victim of deportation.)

I wonder, though, what Jordan would think of the OTP opening an investigation into deportations from Syria into Jordan. Presumably, that situation would not be limited to deportations, but would also include Jordan’s own treatment of Syrian refugees. (A more tailored situation would be immediately seen for what it was — a sop to Jordan.) As Human Rights Watch has ably documented, Jordan has been summarily returning hundreds of Syrian refugees back to Syria each month, a clear violation of international law. Those actions very likely qualify as the crime against humanity of persecution, especially when Jordanian authorities specifically target for expulsion a national group such as Palestinians. So it is not difficult to imagine the OTP bringing a case involving Jordan’s expulsions as part of an investigation into Syrian deportations. Indeed, the OTP would likely find it much easier to prosecute the expulsions, given that Jordan is not only obligated to cooperate with the ICC but has long been one of its most vocal supporters. Ironically, then, an investigation into Syrian deportations might mean that a Jordanian ends up in the dock before a Syrian!

NOTE: I don’t think the Jordan prosecution I discuss above is likely to happen. I’m just teasing out the possible implications of the ICC having jurisdiction over deportations from non-member states to member-states.

Three Cautionary Thoughts on the OTP’s Rohingya Request

by Kevin Jon Heller

Major news out of the ICC today: the OTP has formally asked the Pre-Trial Division to determine whether the Court has jurisdiction over the deportation of the Rohingya from Myanmar to Bangladesh. Here is the introduction of the OTP’s brief:

1. The Prosecution seeks a ruling on a question of jurisdiction: whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

2. Consistent and credible public reports reviewed by the Prosecution indicate that since August 2017 more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh. The UN High Commissioner for Human Rights has described the Rohingya crisis as “a textbook example of ethnic cleansing”, and according to the UN Special Envoy for human rights in Myanmar, it potentially bears the “hallmarks of a genocide”. The coercive acts relevant to the deportations occurred on the territory of a State which is not a party to the Rome Statute (Myanmar). However, the Prosecution considers that the Court may nonetheless exercise jurisdiction under article 12(2)(a) of the Statute because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).

3. Given these exceptional circumstances and the nature of this legal issue, the Prosecutor has exercised her independent discretion under articles 19(3) and 42 to seek a ruling on the question from the Pre-Trial Chamber. This will assist in her further deliberations concerning any preliminary examination she may independently undertake, including in the event an ICC State Party decides to refer the matter to the Court under articles 13(a) and 14.

This is one of the best OTP briefs I have ever read. It is rigorous, learned, and exceptionally sophisticated in its use of comparative materials. It is also far more persuasive than I expected it to be, particularly concerning the idea that the ICC has jurisdiction over a crime as long as one of its elements took place on the territory of a state party. I don’t know who wrote the brief — it names only Fatou Bensouda and James Stewart, the Deputy Prosecutor — but he or she needs to be promoted immediately.

I do, however, want to raise three concerns about the brief.

First, it is very important to understand how limited any ICC investigation into the Rohingya situation would be. There is a reason that the OTP is asking the Pre-Trial Division to offer its opinion only on deportation: no other war crime or crime against humanity necessarily involves conduct that crosses an international border. So even if the Pre-Trial Division agrees with the OTP about deportation, the Court will still not have jurisdiction over the many other crimes committed against the Rohingya. Not genocide. Not murder. Not sexual violence. Those acts have taken place solely on the territory of Myanmar.

Second, and relatedly, there is the question of situational gravity. Should the OTP investigate the Rohingya situation if it can only charge perpetrators with deportation as a crime against humanity and/or as a war crime? There is no legal reason it cannot, but imagine if the Commander-in-Chief of the Myanmar Army ended up in the dock at the ICC. Would the Rohingya be satisfied if he was not charged with genocide or murder or sexual violence? Would Human Rights Watch or the International Commission of Jurists? Deportation is a serious crime, but it doesn’t inherently involve physical violence. And it’s unquestionably not the most serious crime committed by the Myanmar military and government. So I genuinely wonder whether an OPT investigation into deportation and deportation alone would be worth it.

Third, although I find much of the brief convincing, I am not completely sold on the OTP’s argument that “an essential legal element of the crime — crossing an international border — occurred on the territory of a State which is a party to the Rome Statute.” The argument assumes that it is not possible to distinguish between crossing an international border and being on the territory of the state on the other side. But is that correct? Can we really not view crossing an international border and being on the territory of the state on the other side as two spatially distinct acts?

Although it does not directly answer the question, there is at least one situation in which civilians can cross an international border without being on the territory of another state — when they are deported to the high seas. The OTP acknowledges as much in its brief. Here is footnote 32:

As a matter of law, however, it is not necessary to prove entry to another State, but merely that the victim has been ejected from the originating State—as such, a victim may potentially be deported to the high seas. What is crucial is that the international border, de jure or de facto, of the originating State is crossed. Hence, customary international law has emphasised consideration of the kinds of borders that might suffice: see e.g. Stakić AJ, para. 300; Đorđević AJ, paras. 533-536; Prlić TJ, Vol. I, para. 47; Popović TJ, para. 892.

The first sentence of the footnote seems important — and complicating. If deportation does not actually require proof of “entry to another State,” only the crossing of an international border, how can we say that an “essential element” of deportation was committed in State Y simply because civilians happened to enter there after crossing an international border? Either entry to another state is an essential element of deportation or it is not — and the high seas example seems to point toward “not.”

This argument does not hold, of course, if an international border is somehow dual territory: the territory of State X and the territory of State Y; the territory of State X and the high seas. An international border cannot be the territory of just the State into which the civilians enter, because that would mean, irrationally, that the border’s spatial location would change depending on which State — X or Y — was doing the deporting. But if an international border is dual territory, the OTP’s theory works: crossing an international border “between” the two states would take place on the territory of both State X and State Y.

There are, in short, two possibilities. The first is to assume that an international border is part of the territory of both of the states it divides. The second is to assume that an international border is part of the territory of neither of the states it divides. The first possibility means that the OTP is correct: the ICC has jurisdiction over the deportation of the Rohingya, because at least one “essential element” of deportation — crossing an international border — took place on the territory of a state party, Bangladesh. The second possibility means that the OTP is wrong: the ICC does not have jurisdiction over the deportation of the Rohingya, because no “essential element” of deportation took place on the territory of a state party, Bangladesh. The essential elements took place either in Myanmar or somewhere that does not qualify as either Myanmar’s territory or Bangladesh’s territory.

To be honest, I have no idea which possibility is correct. I simply do not know enough about the legal status of international borders. I just think the OTP’s assumption that the Rohingya crossing the border into Bangladesh necessarily means that an essential element of deportation took place in Bangladesh is less obvious than it might first appear.

I’m really glad I’m not a member of the Pre-Trial Division right now.

No, There Is No International Legal Basis for the “Bloody Nose” Strategy

by Kevin Jon Heller

At Lawfare yesterday, two law professors at West Point defended the US’s right to attack North Korea if it tests another nuclear weapon or fires another missile into Japanese waters:

North Korea is extraordinarily close to becoming a . This very real possibility has reportedly resulted in the United States debating a limited military strike dubbed the “bloody nose” strategy. In effect,  would allow for a timely and proportional response against North Korean sites in the event of another nuclear test or missile launch. For , such a strike might include using force to target a North Korean missile site or a military base. The hope would be that such a strike would “” and “illustrate the high price the regime could pay for its behavior” without “igniting an all-out-war on the Korean Peninsula.”

In the authors’ view, “[t]here is a strong argument such a strike would be lawful” either as collective self-defense of Japan or as individual self-defense by the US.

I disagree.

The fundamental problem is that “another nuclear test or missile launch” would not qualify as an armed attack sufficient to give rise to the right of either collective or individual self-defense. The authors make no attempt to explain how another nuclear test would be an armed attack — which is not surprising, given that previous tests have all been on North Korean territory (with terrible consequences for North Koreans). And here is their argument concerning another conventional missile launch:

More difficult is determining whether North Korea’s current behavior justifies the limited military strike proposed in the “bloody nose” strategy. Consider, for example, another North Korean test in which it launches an unarmed missile into Japanese sovereign territory. Arguably, a test rocket without armed explosives is merely a delivery system, not a “weapon.” On the other hand, such a rocket is capable of causing “” and thus could be construed as a “weapon.” According to the and the , a “[b]ombardment by the armed forces of a State against the territory of another State, or the use of any weapons by a State against the territory of another State” is an act of aggression. Such a North Korean missile launch would seem to fall within this definition and could  as an armed attack.

On the contrary, such an interpretation would not be reasonable — even if we accept the idea that an unarmed missile is a weapon. Tom Ruys has carefully analysed state practice concerning when a de minimis attack qualifies as an armed attack for purposes of self-defense. Here is his conclusion (p. 155; emphasis mine):

In the end, customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.

The attack that the authors imagine — an unarmed missile fired into Japan’s territorial sea — is precisely the kind of attack that is not “capable of resulting in destruction of property or loss of lives.” That attack thus cannot give rise to the right of self-defense. Indeed, even the source that the authors cite, Karl Zemanek’s entry “Armed Attack” in the Max Planck Encyclopedia of International Law, rejects their insistence that an unarmed missile fired into Japan’s territorial sea could “reasonably be interpreted as an armed attack.” Here is what Zemanek says about de minimis attacks (emphasis mine):

In sum, it is submitted that regardless of the dispute over degrees in the use of force, or over the quantifiability of victims and damage, or over harmful intentions, an armed attack even when it consists of a single incident, which leads to a considerable loss of life and extensive destruction of property, is of sufficient gravity to be considered an ‘armed attack’ in the sense of Art. 51 UN Charter.

The authors’ claim that the US would be entitled to act in “collective self-defense” in response to an “armed attack” in the form of an unarmed missile fired into Japan’s territorial waters is also problematic. Here is their argument:

The 1960  of Mutual Cooperation and Security between the United States and Japan states “[e]ach Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.” This treaty may provide a basis for the United States’ to engage in a limited retaliatory strike. One could argue that, pursuant to the 1986  out of the International Court of Justice (ICJ), the United States would have to obtain Japan’s affirmative consent before engaging in a strike against North Korea in collective self-defense. However, Article 51 certainly does not refer to any such prerequisite, and the ICJ’s conclusion in Nicaragua is . On a more practical note, it is highly unlikely  a collective self-defense strike by the United States.

It is not clear why the authors believe that Japan would not need need to specifically consent to “collective self-defense.” There are two possible interpretations of their argument: (1) the Treaty of Mutual Cooperation automatically provides the US with the consent it needs to “defend” Japan in case of an armed attack; (2) collective self-defense never requires the consent of the attacked state. The authors’ criticism of the Nicaragua judgment implies that they take position (2). As Ruys explains, however, state practice — from Jordan in 1958 to South Vietnam in 1965 to the Soviet invasion of Afghanistan in 1980 — indicates that collective self-defense is lawful only when the state with the right of individual self-defense requests it (pp. 88-89):

This brings us to the third and decisive reason why the conception of collective ‘defence of the other’, endorsed by the ICJ and a majority of legal scholars, holds the upper hand over the ‘defence of the self’ approach: customary practice provides virtually no support either for the requirement that a proximity relationship should exist, or for the idea that collective self-defence may be exercised absent the approval of the actual victim State. On the contrary, practice convincingly shows that a State which is the subject of an attack has a legal right to ask for military assistance.

[snip]

In sum, in each case, what was deemed crucial was whether the actual victim State had a right of individual self-defence, and whether it approved of the actions of the assisting State. Of course, the assisting State will most often have some sort of interest in responding to the victim’s request; States seldom engage in military action out of pure altruism. Yet, practice makes clear that a proximate relationship is not a legal criterion; only the victim State’s approval is.

The stronger argument, then, is that the Treaty of Mutual Cooperation would automatically provide the necessary consent for US to engage in “collective self-defense.” Aurel Sari raised this possibility on Twitter last night. I am not convinced that the Treaty eliminates the need for Japan’s consent to armed force being used on its behalf. In particular, Art. IV provides that “[t]he Parties will consult together… at the request of either Party, whenever the security of Japan or international peace and security in the Far East is threatened,” which seems to contemplate acts of self-defense being undertaken only with the specific agreement of both Japan and the US. But Aurel’s argument must still be taken seriously, and it provides the only coherent basis for the authors’ position on collective self-defense.

(As an aside, I find very unconvincing the author’s casual assertion that “it is highly unlikely  a collective self-defense strike by the United States.” On the contrary, I think Japan would be quite likely to oppose the US responding to a unarmed missile attack by using force — even relatively restrained force — directly against North Korea. A North Korean response would be more likely to target Japan than the US. So Japan would have every incentive not to consent to “collective self-defense” in such a situation.)

Finally, I find very unconvincing the author’s insistence that the US is close to having an individual right of self-defense against North Korea:

Even without another missile targeting Japan, the United States could arguably rely on its own Article 51 individual right of self-defense to justify a “bloody nose” strike. While somewhat controversial, the United States interprets the individual right of self-defense to allow for a preemptive-but-proportional  when the need to do so is . In other words, if the United States determines North Korea’s behavior indicates a forthcoming attack it can act in self-defense before absorbing the first blow.

North Korea’s recent activities help support a preemptive self-defense argument. Despite extensive efforts by the international community, including through , and , North Korea continues to defiantly test powerful nuclear weapons and launch ballistic missiles. Furthermore, it has gone to great lengths to conceal its nuclear testing program by creating underground facilities and intricate . This behavior, coupled with North Korea’s pattern of  and  against the United States and other nations, makes a preemptive use of force seem more and more . As the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.

There is no question that the US would have the right to act in self-defense to prevent an imminent attack by North Korea — anticipatory self-defense. But the authors seem to adopt an understanding of self-defence’s necessity requirement that goes well beyond the traditional Caroline standard of imminence, according to which the need to act must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” They specifically argue for preemptive self-defense, a term that the US traditionally uses to describe self-defense against attacks that are not imminent.(The Bush doctrine is an example.) And they invoke the “last opportunity to act” test, which is not necessarily inconsistent with anticipatory self-defense, but can easily be interpreted to allow for preemptive self-defense, as Adil Haque nicely explains here.

If the authors are endorsing a view of self-defense that does not require an imminent attack, their position is clearly wrong. Here is Ruys again (pp. 336-38):

[T]here can be no doubt that even among States adhering to the “counter-restrictionist” view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation “Iraqi Freedom” avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of “preventive self-defence.” Likewise, the French politique de defense unequivocally “rejects… the notion of preventive self-defence.”

What is more, even the “traditional” adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to “In Larger Freedom” was rather cautious: it simply “[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack.” Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence “in the event of both actual and imminent attacks.” As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: “It is… the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote.”…

[W]e may therefore conclude that the trend in State practice has been broadly similar to that in legal doctrine: support for anticipatory self-defence has increased, but has by and large restricted this concept to imminent threats.

By contrast, if the authors believe that an imminent attack is required but want to define “imminent” to include the “last opportunity to act” test,” they are not necessarily arguing for an unlawful version of self-defense. It depends on how broadly they interpret “last opportunity to act.” An acceptably narrow definition of the test does, however, seem inconsistent with the authors’ insistence that “[a]s the North Korean threat increases and non-military measures are exhausted, it becomes reasonable to believe that the last opportunity for the United States to act is fast approaching.” To begin with, although there is certainly cause for concern, North Korea does not seem particularly close to having the technology necessary to attack the US mainland with a nuclear missile. Moreover — and more importantly — despite its belligerence and bluster, there is little evidence that North Korea actually wants to attack the US, much less intends to do so as soon as possible. North Korea has long had the ability to launch a conventional attack against numerous US installations overseas — and probably now has the ability to reach the US mainland with a conventional missile. Yet no such attack has ever taken place.

Is it possible that, at some point, the US will have the legal right to attack North Korea in self-defense? Absolutely. But that time is not now — even if North Korea fires another unarmed missile into Japanese territorial waters. And there is little reason to believe that the “last opportunity for the United States to act is fast approaching.” Any argument at present for the “bloody nose” strategy, therefore, is both legally unsound and profoundly counterproductive.

This Is Why People Think the ICC Is Unfairly Targeting Africa

by Kevin Jon Heller

Snapshot of two days in the life of the ICC.

On Tuesday, the ICC issued a new arrest warrant in the Libya situation — for Mahmoud al-Werfalli, a commander in the so-called Libyan National Army (LNA), which defected from the Libyan army during the revolution and is currently vying for power with the UN-backed Government of National Accord (GNA). The arrest warrant represents a new phase in the ICC’s completely unsuccessful investigation in Libya, as it is the first to focus on events that happened after the revolution. There is no reason to believe, however, that the warrant for al-Werfalli will be any more successful than the ones for Gaddafi and al-Senussi: the LNA has already made clear they will not surrender him to the ICC, and the GNA has zero prospect at present of capturing him.

On Wednesday, Rodrigo Duterte, the President of the Philippines, instructed his police to shoot human-rights activists who are “obstructing justice” by investigating his war against (alleged) drug dealers. That war has involved at least 7,000 extrajudicial killings in the past 13 months and has featured Duterte openly admitting not only that he has ordered the extrajudicial kilings, but that he has personally committed themHuman-rights groups and even a Philippine senator have called for the ICC to open an investigation into the situation.

There seems to be little question that al-Werfalli is guilty of ordering and participating in more than two dozen summary executions of captured soldiers — remarkably, there is video to that effect. But al-Werfalli is one military commander among hundreds responsible for horrific crimes in Libya. Duterte, by contrast, is the President of one of the only states in Southeast Asia that has ratified the Rome Statute. Even if he never ended up in the ICC’s dock, a formal investigation of the situation that he has almost single-handedly created in the Philippines would do more to deter the commission of international crimes than 500 arrest warrants for thugs like al-Werfalli. Yet despite issuing a strong statement making clear that the Court has jurisdiction over the situation and could prosecute individuals responsible for international crimes, there is no indication that the OTP has seriously contemplated opening a formal investigation in the Philippines.

The ICC fiddles in Benghazi while Manila burns. And yet the ICC claims not to understand why so many people think it’s obsessed with Africa.

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.