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Asia and International Law—Common Ground and Regional Diversity

Published online by Cambridge University Press:  20 April 2011

Christian TOMUSCHAT
Christian TOMUSCHAT*
Affiliation:
Humboldt University, Germany
*
[email protected]
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Abstract

From a conceptual viewpoint, the legal universe has found its almost perfect configuration in our time. Almost all of the peoples of the world are members of the United Nations and as such are entitled to co-operate in shaping the direction and content of policies at the global level. Before World War II, and even a considerable time after the horrendous events unleashed by that war, many nations had no say in international matters. They were placed under colonial rule, which meant that their voices were not heard—or heard only through the mediation of the powers that acted as their wards and guardians. That situation of structural discrimination has changed dramatically. All the peoples of the world have reached sovereign statehood and have been admitted to the world forum.

Type
Invited Articles
Information
Asian Journal of International Law , Volume 1 , Issue 2 , 14 June 2011 , pp. 217 - 231
Copyright
Copyright © Asian Journal of International Law 2011

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Footnotes

*

Emeritus Professor, Humboldt University, Berlin, Germany. Originally, this text was to be presented at the First Research Convention of the Japan Chapter of the Asian Society of International Law in Tokyo on 18 April 2010. Unfortunately, because of the eruption of the Icelandic volcano and the ensuing interruption of air traffic in Europe, the author could not attend the meeting.

References

1. This is obviously an optimistic assessment.

2. According to the 2005 World Summit Outcome, GA Res. 60/1, UN Doc. A/RES/60/1 (2005), references to “enemy States” in arts. 53, 77, and 107 of the UN Charter should be deleted.

3. At the United Nations, Turkey participates fully in both the Western European and Others Group (WEOG) and the Asian Group, but for electoral purposes is considered a member of WEOG only.

4. For FIDLER, David P., “The Asian Century: Implications for International Law” (2005) 9 Singapore Year Book of International Law 19 at 25Google Scholar, Asia starts out in the West with India.

5. In the classic treatise by OPPENHEIM, Lassa and LAUTERPACHT, Hersch, International Law, 8th ed., Vol. I (London: Longmans, 1955) at 6Google Scholar, one can read that international law “is in its origin essentially a product of Christian civilization, and began gradually to grow from the second half of the Middle Ages”; see also at 48. Similar statements have been made by GREWE, Wilhelm G., The Epochs of International Law (Berlin; New York: de Gruyter, 2000) at 9−10CrossRefGoogle Scholar; WHEATON, Henry, Elements of International Law with a Sketch of the History of the Subject (Philadelphia: Carey, Lea, and Blanchard, 1836) at 22−32Google Scholar.

6. AGO, Roberto, “Pluralism and the Origins of the International Community” (1977) 3 Italian Yearbook of International Law 3 at 30Google Scholar. See also the condensed observations by NUSSBAUM, Arthur, A Concise History of the Law of Nations, 2nd ed. (New York: Macmillan, 1954) at 60−66Google Scholar.

7. Thus, in the Island of Palmas case, arbitrator Max Huber wrote that since “native princes or chiefs of peoples [are] not recognized as members of the community of nations”, contracts concluded by them with states “are not, in the international law sense, treaties or conventions capable of creating rights and obligations such as may, in international law, arise out of treaties”. See Island of Palmas Case (Netherlands/United States of America), Award of 4 April 1928, [1949] 2 RIAA 829 at 858. For a modern interpretation of the status of pre-colonization governmental structures see the Western Sahara case, Advisory Opinion, [1975] I.C.J. Rep.12 at 38−40, 63−68. See also Case Concerning Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening), [2002] I.C.J. Rep. 303 at 404−407.

8. Japan-United States Treaty of Amity and Friendship, 31 March 1854 (Kanagawa Convention).

9. ONUMA, Yasuaki, “When was the Law of International Society Born? An Inquiry of the History of International Law from an Intercivilizational Perspective” (2000) 2 Journal of the History of International Law 1 at 66Google Scholar.

10. See also ONUMA, Yasuaki, A Transcivilizational Perspective on International Law (Leiden; Boston: Martinus Nijhoff, 2010) at 305−314Google Scholar.

11. Ibid., at 38.

12. KLÜBER, Johann Ludwig, Europäisches Völkerrecht, Vol. 1 (Stuttgart: Cotta'sche Buchhandlung, 1821) at 59Google Scholar.

13. HEFFTER, August Wilhelm, Das Europäische Völkerrecht der Gegenwart (Berlin: Schroeder, 1844) at 11Google Scholar.

14. The German state of Brandenburg-Prussia maintained from 1683 to 1717 the colony of Groß Friedrichsburg in the territory of what is today Ghana.

15. GOZZI, Gustavo, “History of International Law and Western Civilization” (2007) 9 International Community Law Review 353 at 354−365CrossRefGoogle Scholar.

16. Rightly stressed by MANI, V.S., “Centrifugal and Centripetal Tendencies in the International System: Some Reflections” in Ronald St. MACDONALD and Douglas M. JOHNSTON, eds., Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Leiden; Boston: Martinus Nijhoff, 2005), 241 at 245Google Scholar.

17. Sovereignty has kept its de jure and de facto significance to this very day notwithstanding all the ongoing integration processes at the international level. See TANZI, Attila, “Remarks on Sovereignty in the Evolving Constitutional Features of the International Community” in Mahnoush H. ARSANJANI, Jacob Katz COGAN, Robert D. SLOANE, and Siegfried WEISSNER, eds., Looking to the Future: Essays on International Law in Honour of W. Michael Reisman (Leiden; Boston: Martinus Nijhoff, 2011), 299Google Scholar.

18. Charter of the United Nations, 24 October 1945, 1 U.N.T.S. XVI [UN Charter], art. 73(b). See arts. 73–74 more generally.

19. The peoples under colonial domination were not recognized as interlocutors on a level of parity. All the relevant decisions were left to the colonial powers. No deadline for the granting of independent sovereignty was set.

20. Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV), UN Doc. A/4684 (1961).

21. See United Nations, eds., The Work of the International Law Commission, 7th ed., Vol. I (New York: United Nations, 2007) at 33Google Scholar.

22. ABI-SAAB, Georges M., “The Newly Independent States and the Rules of International Law: An Outline” (1962) 8 Howard Law Journal 95 at 103Google Scholar (“the hard won prize of their long struggle for emancipation”). This still applies today. See, for instance, the praise of sovereignty by DUAN, Jielong, “The Concept of the ‘Harmonious World’: An Important Contribution to International Relations” in YEE Sienho and Jacques Yvan MORIN, eds., Multiculturalism and International Law: Essays in Honour of Edward McWhinney (Leiden; Boston: Martinus Nijhoff, 2009), 59 at 61Google Scholar.

23. See comments by CAFLISCH, Lucius, “Unequal Treaties” (1992) 35 German Yearbook of International Law 52 at 70−77Google Scholar.

24. CORTEN, Olivier, “Commentary on Art. 52 VCLT” in Olivier CORTEN and Pierre KLEIN, eds., Les Conventions de Vienne sur le droit des traités, Vol. II (Bruxelles: Bruylant, 2006), 1867 at 1894Google Scholar.

25. But see the review of practice by Caflisch, supra note 23 at 60−67.

26. Taking into account the pitfalls inherent in art. 52 of the Vienna Convention on the Law of Treaties, it has been preferred in recent times to impose the conditions of peace by a resolution of the Security Council, the most important example in point being Resolution 687, UN Doc. S/RES/687 (1991) on Iraq.

27. Of 28 June 1919, reprinted in: GREWE, Wilhelm G., ed., Fontes Historiae Iuris Gentium—Sources Relating to the History of the Law of Nations, Vol. 3/2 (Berlin; New York: Walter de Gruyter, 1992) at 683Google Scholar.

28. TOMUSCHAT, Christian, “The 1871 Peace Treaty between France and Germany and the 1919 Peace Treaty of Versailles” in Randall LESAFFER, ed., Peace Treaties and International Law in European History (Cambridge: Cambridge University Press, 2004), 382 at 383Google Scholar.

29. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397 (entered into force 10 September 1964), arts. 55–75.

30. See, for instance, BROWNLIE, Ian, Principles of Public International Law, 6th ed. (Oxford: Oxford University Press, 2003) at 509Google Scholar.

31. Whereas the radical contestation of the protection of foreign property by the Charter of Economic Rights and Duties of States, GA Res. 3281 (XXIX), UN Doc. A/RES/29/3281 (1974), art. 2(2)(c) found no general international recognition, the compromised formula embodied in Permanent Sovereignty over Natural Resources, GA Res. 1803 (XVII), UN Doc. A/5217 (1962), has provided guidance to international practice.

32. Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo), Judgment of 30 November 2010, online: ICJ 〈www.icj-cij.org〉. (Concluding that the Respondent had not violated any of the pecuniary interests of the Guinean citizen involved, the ICJ had no need to express itself on the guarantee of private assets under general international law.)

33. The de facto existing economic disparity is one of the main criticisms voiced by CHIMNI, B.S., “Third World Approaches to International Law: A Manifesto” (2006) 8 International Community Law Review 3CrossRefGoogle Scholar.

34. See, for instance, KENNEDY, David, “The TWAIL Conference: Keynote Address” (2007) 9 International Community Law Review 333 at 335, 338Google Scholar.

35. MUTUA, Makau, “What is TWAIL?” (2000) 94 American Society of International Law Proceedings 31Google Scholar.

36. Another one of the basic texts has been authored by Chimni, supra note 33. On the history of this movement see MICKELSON, Karin, “Taking Stock of TWAIL Histories” (2008) 10 International Community Law Review 355CrossRefGoogle Scholar.

37. For a persuasive rejection of such criticisms, see KOHEN, Marcelo G., “Commentary on Art. 2(1) UN Charter” in Jean-Pierrre COT, Alain PELLET, and Mathias FORTEAU, eds., La Charte des Nations Unies: Commentaire article par article, 3rd ed. (Paris: Economica, 2005), 399Google Scholar.

38. See comment by TOMUSCHAT, Christian, “Multilateralism in the Age of US Hegemony” in MacDonald and Johnston, eds., supra note 16 at 31−75Google Scholar.

39. See criticism by CHIMNI, B.S., “International Institutions Today: An Imperial Global State in the Making” (2004) 15 European Journal of International Law 1 at 7−9CrossRefGoogle Scholar.

40. See OKAFOR, Obiora Chinedu, “Poverty, Agency and Resistance in the Future of International Law in an African Perspective” in Richard FALK, Jacqueline STEVENS, and Balakrishnan RAJAGOPAL, eds., International Law and the Third World: Reshaping Justice (London; New York: Routledge, 2008), 95Google Scholar.

41. United Nations Millennium Declaration, GA Res. 55/2, UN Doc. A/RES/55/2 (2000).

42. For a sober analysis of the achievements of Third World countries see FIDLER, David P., “Revolt Against or From Within the West? TWAIL, the Developing World and the Future Direction of International Law” (2003) 2 Chinese Journal of International Law 29 at 38−56CrossRefGoogle Scholar.

43. See TOMUSCHAT, Christian, “Word Order Models: A Disputation with B.S. Chimni and Yasuaki Onuma” (2006) 8 International Community Law Review 71CrossRefGoogle Scholar.

44. Adopted by Peaceful Settlement of Disputes Between States, GA Res. 37/10, UN Doc. A/RES/37/10 (1982).

45. The adoption of the Declaration on Territorial Asylum, GA Res. 2312(XXII), 14 December 1967, is largely owed to its efforts.

46. United Nations Convention on Jurisdictional Immunities of States and their Property, GA Res. 59/38, UN Doc A/59/508 (2004).

47. See Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, taken note of by GA Res. 61/36, UN Doc. A/61/PV.64 (2006).

48. An excellent overview is given by OWADA Hisashi, “The Experience of Asia with International Adjudication” (2005) 9 Singapore Year Book of International Law 9.

49. There was an interruption between 1967 and 1985.

50. ANDO, Nisuke, MCWHINNEY, Edward, and WOLFRUM, Rüdiger, eds., Liber Amicorum Judge Shigeru Oda (The Hague: Kluwer Law International, 2002)Google Scholar.

51. I agree with MIRZAEE-YENGEJEH, Saeid, “International Law as a Cultural Perspective: Towards a Convergence of Civilizations” in MacDonald and Johnston, eds., supra note 16 at 191Google Scholar.

52. UN Charter, supra note 18, art. 1(3).

53. Among the most influential members of the Commission on Human Rights were Charles Malik from Lebanon and Hansa Mehta from India.

54. Afghanistan, Burma, China, India, Iran, Iraq, Lebanon, Pakistan, the Philippines, Thailand, Syria, and Turkey. Saudi Arabia abstained from voting.

55. High Commissioner for the Promotion and Protection of All Human Rights, GA Res. 48/141, UN Doc. A/Res/48/141 (1993), para. 3(a).

56. 2005 World Summit Outcome, supra note 2, paras. 119–45.

57. This is the classic realist metaphor first used by Arnold Wolfers. See Arnold Wolfers, Discord and Collaboration: Essays on International Politics (Baltimore: The Johns Hopkins Press, 1962) at 19−24.

58. This seems to be a view widely held by Asian governments, see YEE, Sienho, “The Role of Law in the Formation of Regional Perspectives in Human Rights and Regional Systems for the Protection of Human Rights: The European and Asian Models as Illustration” (2004) 8 Singapore Year Book of International Law 157 at 163Google Scholar. See also observations by ANGHIE, Antony, “The Evolution of International Law: Colonial and Postcolonial Realities” in Richard FALK et al., eds., supra note 40 at 45Google Scholar.

59. International Covenant on Civil and Political Rights, 16 December 1966, GA Res. 2200A (XXI), UN Doc. A/6316 (entered into force 23 March 1976) [ICCPR].

60. Compare Constitution of the People's Republic of China, 4 December 1982, art. 1 and ICCPR, ibid.

61. Unfortunately, when China was reviewed under the UN procedure of Universal Periodic Review in February 2009, it rejected all suggestions to ensure the independence of the judiciary and to take care that lawyers could defend their clients without fear of harassment. On the other hand, it accepted a suggestion by Cuba to “avoid the impunity for people who are qualifying themselves as human rights defenders with the objective of attacking the interests of the state and the people of China”; see Report of the Working Group on the Universal Periodic Review—China, UN Doc. A/HRC/11/25(2009), at para. 114, section 34.

62. For recent studies on the Islamic concept of human rights, see e.g., BADERIN, Mashood A., International Human Rights and Islamic Law (Oxford: Oxford University Press, 2003)Google Scholar; ALAM, Syed Jafar, “Towards a New Discourse: Human Rights in Islam and Vice Versa” (2007) 47 Indian Journal of International Law 257, 262ffGoogle Scholar.

63. In 2009, during the ASEAN Summit, the ASEAN Intergovernmental Commission on Human Rights, or AICHR, was inaugurated and launched in Cha-am, Hua Hin, Thailand. The basic parameters of the AICHR seem to be the human rights as conceived of at the universal level.

64. See e.g., KHAN, Rahmatullah, “Universality of Human Rights” in R.K. DIXIT et al., eds., International Law: Issues and Challenges, Vol. II (New Delhi: Indian Society of International Law, 2010), 315 at 316Google Scholar.

65. Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights, UN Doc. A/CONF.157/PC/59 (1993), para. 8 [Bangkok Declaration]. For a cogent political analysis of this Declaration, see DAVIS, Michael C., “Human Rights in Asia: China and the Bangkok Declaration” (1995−6) 2 Buffalo Journal of International Law 215Google Scholar.

66. 2005 World Summit Outcome, supra note 2, para. 121.

67. Famous is the letter written by Mahatma Gandhi on 25 May 1947 to the then Director-General of UNESCO, Julian Huxley, where he stated: “I learnt from my illiterate but wise mother that all rights to be deserved and preserved came from duty well done.” See UNESCO, Human Rights Teaching, Vol. IV (Paris: UNESCO, 1985) at 4.

68. For a vigorous critique of governmental positions on this issue, see GHAI, Yash, “Human Rights and Governance: The Asia Debate” (1994) 15 Australian Yearbook of International Law 1Google Scholar.

69. A drastic picture of the lack of human rights protections in many Asian countries is given by WAUGHRAY, Annapurna, “Human Rights in South Asia: Abuse and Degradation” (2001) 10 Asian Yearbook of International Law 25Google Scholar.

70. Bangkok Declaration, supra note 65; Vienna Declaration and Programme of Action, World Conference on Human Rights, UN Doc. A/CONF.157/23 (1993) [Vienna Declaration].

71. Khan, supra note 64 at 317, has reported that in Tungana v. His Majesty's Government, the Nepal Supreme Court referred to the Convention on the Elimination of All Forms of Discrimination Against Women when ruling that sexual intercourse without the consent of the partner could amount to rape.

72. TOMUSCHAT, Christian, “Human Rights in a World-Wide Framework: Some Current Issues” (1985) 45 Heidelberg Journal of International Law 547 at 550Google Scholar; TOMUSCHAT, Christian, Human Rights: Between Idealism and Realism, 2nd ed. (Oxford: Oxford University Press, 2008) at 85Google Scholar (rejecting the assumption that human rights is a Western concept).

73. See Onuma, supra note 10 at 432−62.

74. Rightly underlined by Ghai, supra note 68 at 6, 21.

75. ONUMA, Yasuaki, “A Transcivilizational Perspective on Global Legal Order in the Twenty-first Century: A Way to Overcome West-centric and Judiciary-centric Deficits in International Legal Thoughts” in MacDonald and Johnston, eds., supra note 16, 151 at 162Google Scholar.

76. Thus, Fidler, supra note 4 at 19−35 reflects on new governmental structures for Asia in the form of a “Concert of Asia”.