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“We’re on the Air!” Michael Flynn, Sergey Kislyak and the Paradoxes of Diplomatic Immunities

by Mohamed Helal

[Dr. Mohamed Helal is an Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University. From 2002-2003 Dr. Helal was a member of the Cabinet of the Secretary-General of the Arab League, and from 2005-2009 he served on the Cabinet of the Minister of Foreign Affairs of Egypt, and served as the Legal Counsel to the Deputy Foreign Minister of Egypt during 2016.]

I’d like to start this blogpost with a story. Weeks into my diplomatic career, my turn came up to serve as the late-night duty officer. This is usually a junior diplomat who stays late into the evening to man-the-fort and to call the senior leadership if you’re the hapless sap misfortunate enough to have a crisis break out on your watch. Luckily, nothing of consequence happened that evening. I did, however, get a call from an Ambassador serving in an important Middle Eastern country. He wanted to know whether we at HQ had received an encrypted cable that his embassy had sent earlier that day. I had not seen the cable, so instead of asking him for its serial number to check if it had been received, I asked: “What’s the cable about?” The Ambassador chuckled and answered: “I can’t tell you that. We’re on the Air!”

It is an open secret that the movements, communications, and conversations of diplomats are monitored by the intelligence services of states to which they are accredited. This universally recognized truth came to glaring light when it was revealed that US intelligence agencies intercepted calls between Russia’s Ambassador to the US Sergey Kislyak and incoming National Security Advisor Lt. Gen. Michael Flynn. During their conversations, it appears that General Flynn assured Ambassador Kislyak that US sanctions against Russia would be relaxed after the inauguration of President Trump. The exposure of these contacts added to the steady drip, drip, drip of reports and rumors about Russia’s role in the 2016 US Presidential Election and the nature of relations between Moscow and the-then Trump campaign and the-now Trump Administration. Naturally, what is now called “The Russian Connection” has unleashed a political maelstrom in Washington. Democrats and the mainstream media are calling for investigations either by Congress or a special prosecutor, Republicans are demanding inquiries into the sources of these leaks, and, operating in his own Kafkaesque alt-reality, a petulant President has tweeted that the whole affair is just Fake News!

Legal and political commentary has evaluated virtually every aspect of this unfolding story. Reporters are asking Who Knew What, and When about Flynn’s conversations with his Russian interlocutor, concerns are being expressed about the competence and effectiveness of the White House Counsel, and even the possibility that General Flynn’s civil rights were violated because his calls were intercepted has been discussed. Conspicuously absent from the conversation, however, is international law. Virtually no one is considering whether tapping Ambassador Kislyak’s calls constituted an internationally wrongful act by the United States.

Spying on Diplomats … Legibus Solutus?

The absence of international law from the conversation is probably attributable to the assumption held by many scholars (here, here, here) that international law has nothing to say about intelligence operations. Spooks, spies, and intelligence agencies, in other words, are claimed to be legibus solutus – operating beyond the pale of international law. Accordingly, it is argued that international law does not prohibit spying on foreign diplomats (here, p. 312-323). While I can see the potential logic of claims that international law does not generally proscribe spying, I am less sympathetic to contentions that international law does not specifically prohibit spying on foreign diplomats by governments to which they are accredited.

This prohibition is enshrined in the Vienna Convention on Diplomatic Relations (VCDR). True, the VCDR does not explicitly prohibit spying on diplomats. It does not, for instance, say: “receiving states shall not to engage in acts of intelligence gathering or surveillance against the heads of missions or diplomatic agents of the sending states.” Nonetheless, the combined effect of Articles 22, 24, 27, and 30 of the VCDR is to prohibit intelligence gathering by receiving states against the diplomats of sending states, if these acts of intelligence gathering compromise the secrecy of diplomatic correspondences, impair the freedom of communication, or encroach on the inviolability of Embassies or diplomatic residences. (For a similar view, see: here, p.196-197).

Moreover, these protections accorded to diplomats are unequivocal. Like the blanket immunity of diplomats from the civil and criminal jurisdiction of receiving states, the VCDR does not admit any limitations or qualifiers on the inviolability of either official diplomatic communications or correspondences, and diplomatic premises. The policy purpose underlying these principles is that secrecy is essential to the conduct of diplomacy. Indeed, Article 3(1)(d) of the VCDR recognizes that one of the functions of diplomats is to report to their governments on the “conditions and developments in the receiving state.” Unless diplomatic agents are permitted to freely execute their functions, and to communicate secretly on these matters with each other and with their governments, diplomats will become nothing but slightly glamorous news reporters.

Has Diplomatic Immunity Against Spying Fallen into Desuetude?

A potential counter-argument is that my reading of the VCDR is merely tedious textualism that does not recognize the ubiquity of spying against diplomats. But that is exactly why I began this blogpost with a story. I, and anyone with experience in this field, understand that diplomats operate under the constant gaze of the intelligence agencies of receiving states. This reality might suggest that even if the VCDR prohibits spying on diplomats, that principle has fallen into desuetude because it is honored more in the breach than in the observance. (On desuetude, see here). This is essentially how the US Government convinced Congress to enact the 1978 Foreign Intelligence Surveillance Act (FISA) despite concerns that it might violate the VCDR (See here, p. 545).

While I recognize the merit of this line of argumentation, ultimately, I find it unconvincing. The notion that repeated violations of an established rule of international law could eventually lead to overturning that rule has been deployed, unsuccessfully, on numerous occasions. For instance, some scholars (here) claim that the prohibition on the use of force in Article 2(4) of the UN Charter has been invalidated due to repeated state practice that breaches that rule. This claim has been thoroughly refuted by the International Court of Justice (ICJ), which opined that what matters is not only whether state practice violates an established rule of international law, but whether states justify their practice on a rule or a right that contradicts the established rule (Nicaragua ¶ 207). In the case of Article 2(4) of the UN Charter, practice that justifies the use of force on the basis of previously existing exceptions to Article 2(4) serves to confirm, not overturn, the rule.

The same can be said about the inviolability of diplomatic correspondences and communications. First, with the possible exception of the position of the US Government during the 1978 debates on the FISA, states have rarely officially claimed a legal right to spy on diplomats. If anything, almost all states either deny allegations of conducting surveillance against foreign diplomats or refuse to comment on these allegations when they surface in news reports or in leaked documents. Second, the fact that states, including the United States and Russia, have vociferously objected whenever their own diplomats were spied on, or when the inviolability of their diplomatic missions was breached, or when their diplomatic communications were compromised confirms the continued validity of the VCDR rules. Third, international condemnation of espionage against United Nations officials and the Permanent Missions of UN member states further evidences widespread opinio juris in support of the prohibition of spying on diplomats. (See Eileen Denza’s authoritative commentary on the VCDR p. 178-188)

Even with the Digital Revolution, which has led many to declare the death of privacy and secrecy, states continue to invoke the protections enshrined in the VCDR. This is probably attributable to two reasons. First, despite the vast technological leaps in electronic surveillance, there are still lots of secrets, including not only raw information, but also analysis and future plans, that are inaccessible and that governments legitimately want to hide. The norms of diplomatic immunity contribute, even if only little compared to counter-intelligence techniques, to protecting these state secrets. Second, the VCDR is an expression of the most vaunted concept in international law: state sovereignty. Encroaching on diplomatic immunity does not only undermine the ability of diplomats to do their jobs, but also affronts the sovereignty and dignity of states. As the ICJ noted in its condemnation of the barbaric assault on the US Embassy in the Tehran Hostages Case: “There is no more fundamental prerequisite for the conduct of relations between States … than the inviolability of diplomatic envoys and embassies.” (¶ 91)

This all leads to the conclusion that intercepting the telephonic, electronic, encrypted, or other communications of the Russian Ambassador, or any other diplomatic agents, accredited to the United States by US intelligence constitutes an internationally wrongful act. Furthermore, as I’m sure Opinio Juris readers are well aware, domestic legislation or administrative orders, such as FISA and Executive Order 12333, which we are told (here) provide the statutory authorization for intelligence gathering against foreign diplomats, may not be invoked to justify a violation of international legal obligations.

Counter-Espionage and the Paradox of Diplomatic Immunity:

On 29 December 2016, in response to reports of Russian interference in the presidential election, President Obama expelled 35 Russian diplomats accredited to the United States on allegations of engaging in espionage. This aspect of the Trump-Russia saga demonstrates another one of those unspoken truths about diplomacy. Almost all countries, including the United States (see here and here), exploit the cover of diplomatic immunity to engage in intelligence gathering, either through HUMINT (Human Intelligence) by spies posing as diplomats, or through SIGINT (Signals Intelligence) by using embassies as listening posts.

It is unquestionable that international law recognizes the right of all states to protect themselves against spying by other states, including by acts of espionage by foreign diplomats. It is equally undisputed that the VCDR prohibits spying by diplomats, and allows receiving states to declare those diplomats who allegedly engage in espionage persona non grata.

Herein lays the paradox. To uncover espionage by foreign diplomats, receiving states will almost always have to subject those diplomats to some form of surveillance, potentially in violation of the VCDR. In other words, while the VCDR prohibits spying by diplomats and requires them to respect the domestic law of the receiving state, the VCDR fails to provide states with the adequate tools with which to enforce that prohibition and to protect against intelligence gathering by diplomats. This, I suspect, is part of the reason why states have tolerated the practice of surveillance of diplomats. States recognize and uphold the general principles of the inviolability and immunity of diplomatic agents, while expecting and tolerating a degree of encroachment on the confidentiality of diplomatic communications as a necessary antidote to the insatiable temptation to practice humanity’s second oldest profession: spying.

Conclusion:

As they have for centuries, diplomats will undoubtedly continue to execute their indispensible functions with the knowledge that their every move is being monitored by the ever-watchful eye of intelligence services. As former French Foreign Minister Bernard Kouchner, a colorful character who added flare to the sometimes drab business of diplomacy, said: “Everyone is listening to everyone else.”

RIP, Sir Nigel Rodley

by Kevin Jon Heller

It is with great sadness that I report the passing of my friend and Doughty Street colleague Sir Nigel Rodley. Cribbing from the statement issued by the International Commission of Jurists, of which Nigel was President:

Elected President of the ICJ in 2012, he was serving his third term as such. He had been first elected to the Commission in 2003 and re-elected in 2008 and 2013. He served as a member of the Executive Committee from 2004-2006.

He was also a Council member of JUSTICE, the British Section of the International Commission of Jurists.

Professor Sir Nigel Rodley was a towering figure in the area of international human rights, playing many roles as an educator, as an academic, as an activist and as an advocate.

He established and expanded the first human rights law department at Amnesty International in the 1970s and 1980s, leading the organization’s work on the development and promotion on international legal standards.

He spent eight years, from 1993 to 2001, as the United Nations’ Special Rapporteur on Torture, visiting dozens of countries and working tenaciously toward the eradication of torture worldwide.

From 2001 to 2016 he served on the UN Human Rights Committee, including a period as it Chairman, where he often served as the intellectual author of the Committee’s most prominent accomplishments.

I’m sure many Opinio Juris readers knew Nigel, someone for whom the expression “towering figure” seems specifically invented. Although our paths had crossed both virtually and physically for a number of years, I did not get to know Nigel particularly well until we went to Beijing together a couple of years ago as part of a Chatham House project entitled “China and the Future of the International Legal Order.” I was fortunate enough to spend a great deal of time with Nigel during that trip, including flying back with him. (Nigel almost missed the trip because he left his wallet in our taxi.) After that, we were fast friends.

You would be hard pressed to find a kinder, more gracious person than Nigel. He will be sorely missed — by me and by anyone else who had the pleasure of knowing him.

Requiescat in pace, Sir Nigel.

Crisis in The Gambia: How Africa is Rewriting Jus ad Bellum

by Mohamed Helal

[Dr. Mohamed Helal is an Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University.]

Academic writing and political commentary on jus ad bellum are overwhelmingly focused on the policies, practices, and positons of major military powers. Countries such as the five Permanent Members of the UN Security Council, and regional pivotal states that have been belligerents in major armed conflicts, such as India and Pakistan, Iran and Iraq, Israel and its Arab neighbors, Turkey, Ethiopia, Indonesia, and a few others, have attracted the most attention in scholarship on the law governing the use of force by states. One region that has received lesser attention is Africa.

This is unfortunate because recent developments in Africa are challenging some of the cardinal principles of jus ad bellum. The unfolding crisis in The Gambia is one example. Adama Barrow, a real estate developer, defeated long-term incumbent Yahya Jammeh in the presidential election held on December 1st, 2016. Unexpectedly for an eccentric Gaddafi-like authoritarian leader, who vowed to rule The Gambia for a billion years and claimed the ability to cure AIDS and infertility, President Jammeh conceded defeat and promised a peaceful transfer of power. However, on December 9th, in an equally surprising volte-face, Jammeh declared that he was rejecting the election results citing what he called “serious and unacceptable abnormalities.”

President Jammeh’s power-grab was roundly condemned by the international community. In addition to the customary criticism and expressions of concern from international and regional organizations, a summit of the leaders of the Economic Community for West African States (ECOWAS) adopted a resolution on December 17th recognizing the results of the December 1st election, pledging to attend the inauguration of President-elect Barrow on January 19th, 2017, and deciding to take “all necessary measures to strictly enforce the results of the 1st December 2016 elections.” The phrase: “all necessary measures,” is universally recognized as international law-speak for the authorization of the use of force.

After mediation efforts failed, ECOWAS issued an ultimatum to President Jammeh: either relinquish power by midnight on January 19th, or ECOWAS will forcefully intervene to install President-elect Barrow. Signaling that it meant business, ECOWAS forces from Senegal and Nigeria were mobilized on the border with The Gambia, and warned that they will intervene if President Jammeh failed to comply with the organizations’ ultimatum. On December 21st, a statement by the President of the Security Council noted that the Council welcomed and was encouraged by the decisions of the ECOWAS summit. Similarly, the African Union Peace and Security Council endorsed the election results and announced that it would not recognize Jammeh as President of The Gambia after January 19th.

As the January 19th deadline elapsed, events kicked into high-gear. Adama Barrow was sworn into office in The Gambia’s Embassy in Dakar, Senegalese forces crossed into The Gambia to enforce the ECOWAS resolution of December 17th, apparently pursuant to a request by-now President Barrow, and the UN Security Council unanimously adopted Resolution 2337, its first for 2017. The resolution, tabled by Senegal, does not authorize the use of force by ECOWAS. Rather, acting under Chapter VI, the Council endorsed the decision of ECOWAS and the AU to recognize Adama Barrow as President, welcomed ECOWAS’ decisions of December 17th, and expressed support for ECOWAS’ commitment to “ensure, by political means first, the respect of the will of the people of The Gambia.” With ECOWAS troops already in his country, on Saturday January 21st President Jammeh left The Gambia, apparently after shipping a number of his luxury cars and pocketing $11 million from the treasury.

The situation in The Gambia and international reactions to the crisis challenge certain aspects of jus ad bellum. Because Opinio Juris readers are probably familiar with the basic contours of jus ad bellum, suffice it to say that the UN Charter establishes a blanket prohibition on both the threat and use of force by states. The Charter does, however, admit two exceptions to this general prohibition: force used in self-defense against an armed attack, and forceful action authorized by the Security Council under Chapter VII of the Charter.

If based on a request by President Barrow, the Senegalese-led ECOWAS intervention beginning on January 19th fits – albeit imperfectly – within the established rules of jus ad bellum. As the International Court of Justice (ICJ) confirmed in the Armed Activities on the Territory of the Congo Case, jus ad bellum permits governments to invite foreign states to militarily intervene on their own territory. In fact, previous ECOWAS interventions, such as in Sierra Leone and Liberia were justified on requests by the governments of those states. The potential trouble with ECOWAS’ ongoing intervention in The Gambia, however, is that it was undertaken pursuant to a request from what is essentially a government-in-exile. In fact, Adama Barrow probably does not even qualify as a government-in-exile, but rather, should be considered a president-in-exile. The right of a president-in-exile, who has never exercised governmental authority or effective control over the territory of the state, to authorize foreign armed intervention is, at best, questionable and unsupported by ample precedent. (See: Intervention by Invitation).

Moreover, the run-up to ECOWAS’ intervention in The Gambia also challenges the prohibition on the threat of the use of force. Ian Brownlie defines a threat of force as “an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government.” Accordingly, the decision of the ECOWAS summit on December 17th, which demanded that President Jammeh relinquish power and authorized the use all necessary measures to enforce the election results, combined with the mobilization of ECOWAS forces in the weeks before January 19th, constitutes a threat of force. As the ICJ opined in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the test of the legality of threats of force is: “if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal.” The problem here is that enforcing election results or installing a democratically elected leader into office are not legitimate grounds for the use of force according to jus ad bellum. Despite attempts by a few governments and some scholars to advocate the so-called doctrine of pro-democratic intervention, which permits the resort to force to promote democratic government or prevent illegitimate takeovers of power, the overwhelming opinion is that this practice violates the UN Charter. Interestingly, however, the UN Security Council appears to have endorsed this threat of force by ECOWAS against President Jammeh. As aforementioned, the Presidential Statement of December 21st welcomed the actions of ECOWAS, and Resolution 2337, while falling short of authorizing the use of force and expressing its preference for the use of political means to settle the conflict, welcomed the decisions of the ECOWAS summit.

The chain of events and outcomes of a single conflict probably do not suffice to fundamentally alter rules as foundational to the international legal order as the prohibitions on the threat and use of force. The ongoing crisis in The Gambia does, however, pose some difficult legal questions and challenges certain aspects of jus ad bellum. Moreover, ECOWAS’ willingness and preparedness to threaten and use force to promote democracy is only one example of African practice that challenges the traditional rules of jus ad bellum. Another interesting development in Africa that has attracted limited academic attention (See here) is the ability of the African Union to authorize armed intervention to prevent genocide, war crimes, and crimes against humanity. This right, enshrined in Article 4(h) of the AU Constitutive Act, is essentially an African version of the Responsibility to Protect. What is notable, however, is that the African Union is not required to seek Security Council authorization before approving such an intervention. This directly challenges Article 52 of the Charter, which obliges regional arrangements to acquire Security Council authorization before engaging in enforcement action.

As Jeremy Levitt noted, “most policymakers, international lawyers, and legal academics outside of the continent consider African states to be objects rather than subjects of international law … The geopolitical, Eurocentric, and linear bias in Western legal academia, among others, is truly unfortunate.” Events in The Gambia and other developments in Africa suggest that African practice in jus ad bellum, and indeed in all fields of international law, deserves greater scholarly and policy attention.

GOP Wants the US to Leave the United Nations

by Kevin Jon Heller

Finally, a Republican bill we can all get behind! The American Sovereignty Restoration Act of 2017:

A bill was introduced to the House of Representatives in early January that, among other things, calls for the United States to withdraw from the United Nations. Sponsored by Senator Mike Rogers, the American Sovereignty Restoration Act (aka H.R. 193) had been previously introduced by the Alabama senator to no avail back in 2015 (then H.R. 1205), when he cited reasons ranging from spending waste to enabling an intercontinental “dictators’ club,” which sounds like a manuscript Ann M. Martin decided to leave in her desk drawer.

I believe in sovereignty — and in restoring it when it is lost. So I support the bill. And no more UN membership, of course, means no more permanent veto for the US. So no more holding peacekeeping missions hostage whenever the international community doesn’t let the US play by its own rules. No more US propping up its own preferred dictators while criticising the preferred dictators of others. No more US protecting Israel from the consequences of its actions. Sounds pretty good!

Does anyone know how to introduce similar bills in the Duma and the NPC? I hear Russia and China are suffering a sovereignty deficit, as well.

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.

Identifying the Language of Peace: Developing the Practical and Theoretical Framework of Peace-Making

by Marc Weller, Tiina Pajuste, Mark Retter, Jake Rylatt and Andrea Varga

[Marc Weller is Professor of International Law and International Constitutional Studies in the University of Cambridge. He is the  Principal Investigator of the Legal Tools for Peace-Making Project, drawing on extensive experience in international high-level negotiations in Cote d’Ivoire, Egypt, Libya, the Darfur crisis, Yemen, Somalia and, most recently, Syria. Tiina Pajuste is a Lecturer in Law at Tallinn University, and former researcher on the Legal Tools for Peace-Making project. She has continued to contribute to the Legal Tools for Peace-Making project since taking up her current post. Mark Retter, Jake Rylatt and Andrea Varga are researchers working on the Legal Tools for Peace-Making project, based at the Lauterpacht Centre for International Law, University of Cambridge. The authors, in collaboration with the United Nations Department for Political Affairs and PASTPRESENTFUTURE, developed the Language of Peace research tool that forms the basis for this post.]

This post was originally published on EJIL: Talk, and is cross-posted with the kind permission of the editors.

In a year which saw an unprecedented number of people displaced by violent conflict, and peace processes suffering setback after setback, from the repeated ceasefire violations reported in Yemen to the difficult process of bridging differences in Syria, faith in peace-making appears to be at its lowest. But when faced with the devastating impact of conflicts around the world, there can be no question of the need to redouble the efforts directed at achieving negotiated peace; as illustrated by the case of Colombia, peace is attainable even in the most entrenched of conflicts. In most cases, redoubling efforts requires going back to the drawing board, reframing issues and suggesting different approaches in order to create novel solutions to seemingly intractable problems. In such cases, the ability to draw on the practice of previous agreements drafted in similar situations may prove invaluable to the process; but without a consolidated and issue-based digest of such previous practice, this means having to spend days combing through possibly hundreds of documents (often on very short notice) each time, while there is still a chance of missing at least some of the relevant results.

Furthermore, identifying the range of options utilised in previous practice is only the first step; the negotiating parties must then consider whether these approaches comply with, or appear to depart from, international law. This in itself can be a cause of great controversy within peace-making processes: for instance, is it legal for peace agreements to grant blanket amnesties, including to (suspected) war criminals? Such controversies, as well as the ever-growing attention to concepts such as lex pacificatoria and jus post bellum, highlight the need to clarify the underlying relationship between peace and international law in specific areas.

It is in response to these concerns that the Language of Peace research tool – launched at the UN Secretariat in New York on Tuesday, 6 December 2016 – was developed, allowing instant search capability across the provisions of around 1,000 peace agreements, categorized according to the issues they address, from negotiating agendas through human rights to power-sharing arrangements. This post identifies two areas in which Language of Peace seeks to contribute to the development of international peace-making.

The Research Gap in Peace-Making: The Origins of Language of Peace

Before Language of Peace, those involved in peace-making processes had no consolidated, analytical digest of peace agreement practice. Beyond valuable personal experience, mediators were almost invariably required to research settlement options afresh each time a dispute arose. Depending on the range of issues to be covered in the prospective peace agreement, from a simple ceasefire to a comprehensive peace settlement, collating and analysing the burgeoning previous practice could be extremely time-consuming. Language of Peace eliminates this repetitive and tedious research by providing a search tool through which past solutions and options adopted in the provisions of previous peace agreements can be accessed within seconds.

In order to ensure that it addresses the needs arising in the field, Language of Peace – part of the Legal Tools for Peace-Making Project at the University of Cambridge – was developed in collaboration with the UN Department of Political Affairs, incorporating feedback received over the course of several months from the Mediation Support Unit and its Standby Team of experts, as well as from the Project’s own practitioner and academic advisory boards, which includes members from the EU and the OAS.

Through this innovative tool, users can search according to 226 issues, organised under 26 main issue headings, and refine their search according to a number of filters such as signatories, region, date range and conflict type. Additionally, the tool contains a word search function which allows users to search by word or phrase as an alternative to the issue area search, or as a method of further refining existing searches. Search results can subsequently be bookmarked and exported in either PDF or DOCX format. Furthermore, in order to provide information about the broader context of provisions on a particular issue, and as part of the Cambridge-UN collaboration, Language of Peace is linked to the UN Peacemaker database, which contains full text PDF documents of the agreements.

Language of Peace also addresses the difficulties presently faced by non-state parties to peace negotiations. Specifically, it alleviates the imbalance of power inherent in negotiations between non-state actors and central governments, arising from the fact that the former lacks the extensive administrative apparatus at the disposal of the latter. The search tool provides non-state actors with ready access to past practice, enabling them to articulate their grievances in a negotiable form. Through analysis of such practice, parties can propose constructive approaches and options to find common ground on contested issues, which can assist them to move beyond deadlocks arising from emotive assertions and counter-assertions. Language of Peace can therefore help to transform or reframe negotiations by equipping all parties with an open-access tool containing decades of peace agreement practice.

Bridging Theory and Practice in International Peace-Making: The Use of Language of Peace in Academia

Language of Peace has also been developed with an eye to enhancing academic research at the intersection of law, practice and policy in international peace-making. From a legal perspective, Language of Peace presents the practice which underpins and cuts across theoretical debates on jus post bellum and lex pacficatoria, offering potential to identify where international law potentially conflicts with, and/or influences, peace-making processes. Additionally, the research tool can be viewed as an access point into a rich deposit of potential customary practice, raising questions about the international legal status of obligations contained within peace agreements. Going beyond the discipline of law, Language of Peace captures valuable source material for inter-disciplinary research comparing the approaches taken in peace agreements with their subsequent implementation.

From Language of Peace to Legal Tools for Peace-Making

Beyond its status as a standalone tool which aims to contribute to the theoretical and practical development of international peace-making, Language of Peace is part of the broader Legal Tools for Peace-Making project. The project team is also working on 26 case studies corresponding to the main issue areas identified in Language of Peace. The case studies analyse the approaches taken in previous peace processes, identifiable within source material generated by Language of Peace, against the backdrop of international law. By doing so, they aim to identify the range of options available to parties on a particular issue by reference to international legal obligations, while also considering the extent to which peace agreement practice complies with or diverges from international law. By the conclusion of the Legal Tools for Peace-Making project, the case studies will become available online, and aim to be a valuable resource for mediators and a starting point for further academic research on the influence of international law and customary practice of peace-making.

Alongside the case studies, the scope and functionalities of Language of Peace will continue to be developed and refined; we would be delighted to receive feedback at legaltoolsproject [at] lcil [dot] cam [dot] ac [dot] uk.

Making Libya an ICC Priority Situation: Fake Promises to a Difficult Customer?

by Alexandre Skander Galand

[Alexandre Skander Galand is a Newton Postdoctoral Researcher at the Center for Global Public Law, Koç University.]

Exactly one week before the annual meeting of the Assembly of States Parties (ASP) to the Rome Statute, Fatou Bensouda, Prosecutor of the International Criminal Court (ICC), was before the Security Council (SC) presenting her Twelfth report on the situation in Libya pursuant to resolution 1970 (.pdf). As the ASP’s 2016 annual meeting was probably the most important one since the Statute’s entry into force, recent coverage in academic circles has missed the ICC Office of the Prosecutor (OTP) unsuccessful try to bargain with the SC.

In the wake of the recent withdrawals of South Africa, Burundi and Gambia from the Rome Statute, it is obvious that a need for a new strategy is necessary for the Court to remain a relevant – and alive – institution. At the SC 7806th meeting (.pdf), 9 November 2016, the OTP made clear that it was ready to be flexible in its prosecutorial discretion over which crimes to investigate if this could please the SC. Indeed, the OTP offered to exercise its jurisdictional power against two of the most prominent threats to the P-5 world order, i.e. the Islamic State (aka ISIS, ISIL, or Daesh) and the migrant crisis. However, this commodity came at a price: the SC needs to finance and ensure the security of the Court’s staff.

In return for a more comprehensive framework for OTP to operate in Libya, Bensouda pledged to make Libya a priority situation for next year. Three actions were thus summed up. First, it announced that it intends to apply for new warrants of arrest under seal. Second, it will undertake new investigations and consider bring charges for crimes committed by the Islamic State. Third, it will study the feasibility of opening an investigation into alleged criminal acts against refugees and migrants in Libya. In this post, I will tackle the last two issues. I will argue that current crimes committed in Libyan territory are on the verge of falling outside ICC’s jurisdiction.

Crimes currently committed in Libya by the Islamic State

The OTP asserted that her new investigations will consider recent and current instances of alleged crimes committed by the Islamic State. This new focus received a positive feedback from many SC members; in particular the UK, France, Egypt, Ukraine and Venezuela. The Islamic State and other terrorist groups have been active in Libya for a certain period. Already on 12 May 2005, the OTP had declared before the SC (.pdf), that her office “considers that ICC jurisdiction over Libya prima facie extends to such alleged crimes” perpetrated by the Islamic State.

One may question, however, whether crimes currently committed in Libya do still fall within the jurisdiction of the Court. Libya is not a State party to the Rome Statute. The ICC jurisdiction over Libya emerges from SC resolution 1970, adopted on 26 February 2011, under Chapter VII of the UN Charter. In order to invoke its Chapter VII powers to trigger the Court’s jurisdiction under Article 13 (b) Rome Statute, the SC had to, according to Article 39 UN Charter, find that the situation in Libya constituted a threat to international peace and security. In my opinion, the threat noted in SC resolution 1970 constitutes the legal basis and the contextual framework on which the ICC’s jurisdiction over Libya is premised.

The threat to international peace and security, back in February 2011, were crimes committed by Gaddafi’s regime against popular protests and demonstrations taking place in several Libyan cities – as the preamble of the referral indicates. After the referral, the Libyan situation spiraled into an armed conflict between Gaddafi’s and rebels’ forces, accompanied by a NATO intervention. Since then, the Gaddafi regime has fallen and Libya has been into a civil war where security and control by the Libyan authorities have not been achieved. While forces claiming to be associated with the Islamic State have seized this chaos to control part of the Libyan territories, we are very far from the situation that constituted a threat to international peace and security back in February 2011.

In Decision on the Prosecutor’s Application for a Warrant of Arrest against Mbarushimana (.pdf), Pre-Trial Chamber I stated that the ICC can exercise its jurisdiction over repeated times as long as the crimes “are sufficiently linked to the situation of crisis referred to the Court as ongoing at the time of the referral.” True, the situation concerning the Islamic State in Libya has been declared by the SC to constitute a threat to international peace and security. However, the initial threat noted in SC resolution 1970 is neither mentioned in the meetings nor in the resolutions condemning the Islamic State’s criminal acts in Libya. Indeed, the situation has changed.

For how long will the ICC jurisdiction extend over the territory of Libya? Like for other trigger mechanisms foreseen by the Statute, a SC referral to the ICC, does not entitle the Court to exercise jurisdiction over a situation ad infinitum. While SC resolution 1970 refers the situation in the Libyan Arab Jamahiriya since 15 February 2011, it does not set an end date. Since the referral does not specify for how long the jurisdiction of the Court ought to or may be exercised, it is left to the discretion of the Court. As I argued elsewhere, to capture within the same situation crimes committed by entirely different actors in a different context than the one initially constituting the situation of crisis at the time of the referral is an overstretch of the ICC jurisdiction over Libya.

Crimes currently committed in Libya against migrants

A further type of crimes the OTP announced it will examine in Libya is crimes committed against migrants, refugees and asylum seekers. One may recall that Gambia in the weeks preceding its official notification of withdrawal (.pdf) said it had been trying unsuccessfully to push the Court to punish the European Union (EU) for the death of thousand of African refugees to reach its shore. The OTP partly responds to this by saying that it will “continue to study the feasibility of opening an investigation into alleged criminal acts against refugees and migrants in Libya.” While I doubt that it will find evidences that the EU is committing these crimes on Libyan territory, this new focus on crimes against African migrants passing through Libya pleased the Angolan representative to the SC, who stated ‘In that regard, we consider the ICC to be highly important in Libya.’

For the same reasons as for crimes currently committed by the Islamic State, one might express doubts about the Court jurisdiction over crimes against migrants in Libya. Although such crimes could indeed fit within the jurisdiction ratione materiae of the Court (e.g. crimes against humanity of enslavement), I am unsure that the context in which they are currently committed in Libya is sufficiently linked to the original situation referred by SC resolution 1970.

As the OTP says it in its report, many serious crimes are committed in Libya, ”both conflict and migrant related.” However, one has to acknowledge that on a prima facie basis the migrant related crimes currently committed in Libya do neither involve actors active in 2011 nor are they part of the context that was ongoing at the time of the original situation.

To be sure, I am not arguing that the ICC does not have jurisdiction over any current crimes committed in Libya. Crimes committed by Libyan armed militias and the Presidency Council’s forces are indeed part of the post-Gaddafi transition. Furthermore, both the Islamic State’s crimes and crimes against migrants may be defined as symptoms of Libya’s lack of unified and effective security institutions. Thus, it may be claimed that this security vacuum ultimately results from the threat to international peace and security SC resolution 1970 aimed to repress.

However, it seems to me that a second referral of the situation in Libya would be appropriate for the ICC jurisdiction to be (safely) legally grounded. As an example for the need of a second referral, one may take the case of the Central African Republic (CAR). In December 2004, CAR then-president, François Bozizé, referred (.pdf) to the OTP a situation where “des crimes contre l’humanité et des crimes de guerre relevant de la competence de la Court ont été commis sur toute l’étendue du territoire de la République Centre Africaine à compter du 1er juillet 2002.” The conflict ongoing at the time of the referral was between Bozizé’s forces and the CAR former president from who he had overthrown power through a coup, Ange-Félix Patassé, who was backed by Jean-Pierre Bemba’s (.pdf) then-rebel army. The first CAR referral did not contain an end date, nonetheless the OTP limited its jurisdictional framework over crimes committed between 2002-2003. In May 2014, the transitional government of the CAR – Bozizé had been ousted by Séléka forces in 2013 – sent a second referral to the Court with respect to “la situation qui prévaut sur le territoire de la République Centrafricaine depuis le 1er août 2012”. While one may have argued that CAR II is a continuation of CAR I, it was deemed in this case, that the incidents of 2013-2014 was a situation separate from the one referred by the Central African authorities in December 2004.

The solution to all these jurisdictional conundrums would simply be that Libya ratifies the Rome Statute. If Libya ratifies the Rome Statute, it could refer to the Court the new situation involving war crimes and crimes humanity committed in Libya since the fall of Ghaddafi’s regime. Or, if Libya does not refer under Article 13(a), the OTP could initiate an investigation proprio motu. On the other hand, if Libya does not ratify the Rome Statute, the OTP should try to convince the SC to make a new referral of the current situation in Libya. This would ensure that its jurisdiction over the Islamic State and crimes committed against migrants is not based on a perceptibly faulty legal basis. With Russia’s declared hostility to the Court, the latter option seems implausible.

While the OTP announced its willingness – despite clear legal basis to do so – to prosecute crimes that were in the SC current agenda, no resolution on financing and security for ICC’s staff was adopted at the end of the SC 7806th meeting (.pdf). If Libya becomes a State party to the Rome Statute, it would allow the OTP to gets out of its bad bargain with the SC. And, in contrast with the SC, Libya will at least contribute to the Court budget.