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

[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 30<sup>th</sup> 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.