Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures

Abstract

of Paper It is a paradox of the current international order that Asia — the most populous and economically dynamic region on the planet — arguably benefits most from the security and economic dividends provided by international law and institutions and yet is the wariest about embracing those rules and structures. Asian states are the least likely of any regional grouping to be party to most international obligations or have representation reflecting their number and size in international organizations. There is no regional framework comparable to the African Union, the Organisation of American States, or the European Union; in the United Nations, the Asia-Pacific Group of 53 states rarely adopts common positions on issues and discusses only candidacies for international posts. Such subregional groupings that exist within Asia have tended to coalesce around narrowly shared national interests rather than shared identity or aspirations. In part this is due to the diversity of the continent. Indeed, the very concept of “Asia” derives from a term used in Ancient Greece rather than any indigenous political or historic roots. Today, regional cohesion is complicated by the need to accommodate the great power interests of India, China, and Japan. But the limited nature of regional bodies is also consistent with a general wariness of delegating sovereignty. Asian countries, for example, have by far the lowest rate of acceptance of the compulsory jurisdiction of the International Court of Justice (ICJ) and membership of the International Criminal Court (ICC); they are also least likely to have signed conventions such as the International Covenant on Civil and Political Rights (ICCPR) or the International Covenant on Economic, Social and Cultural Rights (ICESCR), or to have joined the World Trade Organisation (WTO). The proportion of Asian states that are contracting parties of the International Centre for Settlement of Investment Disputes (ICSID) is also the lowest of any region — though on that they are tied with Latin America. This paper explores the reasons for Asia’s under-representation and under-participation in international law and institutions. Part I traces the history of Asia’s engagement with international law and institutions. Part II assesses Asia’s current engagement with international law and institutions, examining whether its under-representation and under-participation is in fact a problem. Finally, Part III attempts to project possible future scenarios based on three different scenarios. These are referred to here as status quo, divergence, and convergence. Brief Biography of Author Simon Chesterman is Dean and Professor of Law at the National University of Singapore Faculty of Law.