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International Juridical Forms and Legal Subjectivity: A History of the Subject in Southeast Asia from the Anglo-Dutch Treaty of 1824 to the ASEAN Charter

Published online by Cambridge University Press:  03 November 2021

Jose Duke BAGULAYA*
Affiliation:
Faculty of Law, The University of Hong Kong, Hong Kong SAR
*
Corresponding author: email: [email protected]

Abstract

Using Michel Foucault's concept of modes of objectification, this paper argues that treaties, declarations, and agreements constitute international juridical forms that transform human beings into legal subjects. It retraces the objectification of “natives” in nineteenth-century colonial treaties that made human beings accessories to territories and transformed them into colonial subjects. This legal construct, the paper contends, was rendered unstable in the UN era when treaties re-objectified the “natives” into “peoples”, thereby allowing colonial subjects to re-subjectify themselves into actors and re-describe themselves with an adjective, a nationality. The paper then brings the history to the twenty-first century and posits that ASEAN is now objectifying new trans-national subjects that are ontologically connected to the regional economy. This history of legal subjectivity reveals not only the power of international juridical forms as a mode of objectification, but also the trajectory of subject formation in Southeast Asia under the ASEAN Charter.

Type
Article
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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23 Ibid.

24 Ibid. It is apparent in the French texts that Foucault uses both “objectivation” and “subjectivation” interchangeably.

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41 Martha NUSSBAUM, “Objectification” (1995) 24 Philosophy and Public Affairs 249 at 257.

42 Ibid., at 257. Nussbaum argues that there can be forms of objectification that are not objectionable. In the same manner, objectification may give the subject certain rights. It goes without saying that rights can empower subjects.

43 In his lecture, Foucault writes that “I have sought to study … the way a human being turns him or herself into a subject”: See Foucault, supra note 18 at 327. This mode of self-subjectification can be found in his works: Foucault, The History of Sexuality, supra note 25; and FOUCAULT, Michel, The Hermeneutics of the Subject (New York: Picador, 2005)CrossRefGoogle Scholar. Since Foucault does not distinguish between objectivation and subjectivation, he considers this as one of the modes of objectification, too.

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48 Other words include “subject races”, “dependencies”, and “authority”. Edward SAID, Culture and Imperialism (New York: Vintage, 1993) at 9; Benedict ANDERSON, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 1991) at 122. The word “native” meant a “common inferiority” without regard to the class or ethnolinguistic group.

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53 The Dutch Fisheries Law allowed the “natives” to fish in these maritime districts and prohibited some other races from doing the same. Butcher and Elson, supra note 50 at 20.

54 Bravo, supra note 52 at 14.

55 Foucault, supra note 20 at 56.

56 The Dutch state allowed the Dutch East India Co's charter to lapse in 1800 and the British Crown abolished the monopoly of the British East India Co., See PHILLIPS, Andrew and SHARMAN, J.C., Outsourcing Empire: How Company-States Made the Modern World (Princeton, NJ: Princeton University Press, 2020)CrossRefGoogle Scholar.

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58 Appendix in Harry J. MARKS, The First Contest for Singapore, 1819–1824 (Dordrecht: Springer, 2014) at 253.

59 Ibid., at 254. This provision negates the usual “discriminatory clauses” in the treaties of European powers with “Native States”. See also C.H. ALEXANDROWICZ, “The Discriminatory Clause in South Asian Treaties in the Seventeenth and Eighteenth Centuries” in C.H. ALEXANDROWICZ, The Law of Nations in Global History (Oxford: Oxford University Press, 2017), 140 at 143.

60 Marks, supra note 58 at 255.

61 The word “ceded” presumes that they have ownership of such territories.

62 Art. XV of the Anglo-Dutch Treaty; Marks, supra note 58 at 256.

63 Marks, supra note 58 at 258.

64 Ibid., at 258.

65 Ibid., at 261.

66 Ibid., at 261.

67 Ibid., at 262.

68 See Rush, supra note 49 at 29; Timothy BROOK, Michael van Walt van PRAAG, and Miek BOLTJES, eds., Sacred Mandates: Asian International Relations since Chinggis Khan (Chicago, IL: University of Chicago Press, 2018) at 15, 19–20, 64.

69 Matthew CRAVEN, “What Happened to Unequal Treaties? The Continuities of Informal Empire” (2005) 74 Nordic Journal of International Law 335 at 346–7. Craven argues that cultural difference was treated as “backwardness”, leading to the idea of tutelage, of civilizing the “native powers”.

70 Marks, supra note 58 at 261.

71 Quoted in Craven and Parfitt, supra note 6 at 191.

72 Ibid., at 191.

73 Ibid., at 186.

74 Antony ANGHIE, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005) at 59. On the exclusivity of the “family of nations” as part of the ideology of colonialism, see Harald KLEINSCHMIDT, “The Family of Nations as an Element of the Ideology of Colonialism” (2016) 18 Journal of the History of International Law 278 at 290.

75 Anghie, supra note 74 at 100.

76 In French colonies, the city space was divided into a native sector and European sector, the colonized and the colonist. See Fanon, supra note 51 at 3–4.

77 Anghie, supra note 74 at 76, 82.

78 Rush, supra note 49 at 59–65. Only Siam skilfully survived the onslaught.

79 Spanish colonization had largely left untouched the Sultanate of Sulu. In 1837, they ratified a “Capitulaciones de paz, protección y comercio” where the parties agreed mutual military assistance and commerce: “Capitulaciones de paz, protección y comercio” Gazette of Madrid (1837), online: Gaceta de Madrid <https://www.boe.es/datos/pdfs/BOE//1837/1075/A00001-00001.pdf>. In the end, Spain subjugated Sulu in 1878 and required the Sultan and Datus to sign a “Sumicion a Espana” where they declared the “indisputable Sovereignty of Spain over the Jolo archipelago and its dependencies” (Art. I): “Sumicion a Espana” Government of Spain (1878), online: Gobierno de España <http://pares.mcu.es/ParesBusquedas20/catalogo/show/1338973 >.

80 This expresses the germ of the civilizing mission that would finally be codified in art. 6 of the Berlin Convention. See Anghie, supra note 74 at 97.

81 One Rajah was quoted to this effect: “Who is there possessed of authority to hand me and my countrymen, like so many cattle, over to the Dutch … If the English are tired of us; let them go away. But I deny their right to hand us over to the Dutch.” Nonetheless, this condition does not mean “natives” were slaves. See chapter V of G.F. DAVIDSON, Trade and Travel in the Far East (London: Madden and Malcolm, 1846), online: Project Gutenberg <http://www.gutenberg.org/cache/epub/27014/pg27014.txt>.

82 Read in conjunction with colonial domestic laws and practices discussed above, the “native” subject is both collective and individualized subjects, a product of totalizing and individualizing power.

83 Treaty of Peace Between the United States and Spain, 10 December 1898, online: Yale Law School Lillian Goldman Law Library <https://avalon.law.yale.edu/19th_century/sp1898.asp> [Treaty of Paris].

84 Ibid.

85 Anghie, supra note 74 at 91. Felipe Agoncillo, the representative of the Philippine Revolutionary Government in Paris, wrote an official protest dated 12 December 1898 stating that the Paris Peace Commission's resolutions: “[C]annot be accepted as obligatory by my Government, since the Commission has neither heard, nor in any wise admitted to its deliberations, the Filipino nation, who held an unquestionable right to intervene in them, in relation to what might affect their future.” See appendix B in Esteban A. de OCAMPO and Alfredo B. SAULO, First Filipino Diplomat: Felipe Agoncillo, 1859–1941 (Manila: National Historical Institute, 1977) at 275.

86 The remaining Spanish troops inside the walled city of Manila surrendered to American troops after a token battle. The charade saved the Spanish from a more humiliating surrender to Filipino troops. See Brian McAllister LINN, Guardians of Empire: The US Army and the Pacific, 1902–1940 (Chapel Hill, NC: The University of North Carolina Press, 1997) at 10; See Malolos Constitution of the Philippines, 22 January 1899, online: Official Gazette of the Republic of the Philippines <https://www.officialgazette.gov.ph/constitutions/the-1899-malolos-constitution/>.

87 Andrew PRESTON, American Foreign Relations: A Very Short Introduction (Oxford: Oxford University Press, 2019) at 48–9; Linn, supra note 86 at 11 (noting that early campaigns had taught them that US authority could only be “imposed by conquest” and occupation of the archipelago).

88 The 1987 Philippine Constitution deleted the Treaty of Paris. But this puts the Philippines in an “ambiguous if not embarrassing position”: Joaquin BERNAS, The 1987 Constitution of the Republic of the Philippines: A Commentary (Manila: Rex Publishing, 2003) at 33.

89 Alain BADIOU, “Twenty-Four Notes on the Uses of the Word ‘People’” in Alain BADIOU, Pierre BOURDIEU, Judith BUTLER, Georges DIDI-HUBERMAN, Sadri KHIARI, and Jacques RANCIÈRE, eds., What is a People? (New York: Columbia University Press, 2016), 21 at 23.

90 Dane KENNEDY, Decolonization: A Very Short Introduction (Oxford: Oxford University Press, 2016) at 1.

91 Caroline S. HAU, Necessary Fictions: Philippine Literature and the Nation, 1946–1980 (Quezon City: Ateneo de Manila University Press, 2000) at 287.

92 Rush, supra note 49 at 82.

93 Reid, supra note 12 at 25; Lockard, supra note 12 at 199 (stating that it was “an inspiration to many colonial peoples in Asia”). The tremors also excited Chinese radicals during the Qing Dynasty. As Ou Jijia wrote: “[h]ow can China, big as it is, fear the small, while the Philippines, small as it is, oppose the big (US)?”: cited in Rebecca E. KARL, Staging the World: Chinese Nationalism at the Turn of the Twentieth Century (Durham, NC: Duke University Press, 2002) at 93.

94 Bill BOWRING, “Positivism Versus Self-Determination: The Contradictions of Soviet International Law” in Susan MARKS, ed., International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge University Press, 2008), 133 at 143; see also Craven and Parfitt, supra note 6 at 210.

95 Bowring, supra note 94 at 143.

96 Cited in Bowring, ibid.

97 Ibid., at 159; James SUMMERS, Peoples and International Law: How Nationalism and Self-Determination Shape a Contemporary Law of Nations (Leiden: Martinus Nijhoff, 2007) at 146, 149.

98 Preamble of Universal Declaration of Human Rights, GA Res. 217 (III), UN Doc. A/810 (1948).

99 Cited in Rose Sydney PARFITT, “Newer is Truer: Time, Space and Subjectivity at the Bandung Conference” in Luis ESLAVA, Michael FAKHRI, and Vasuki NESIAH, eds., Bandung, Global History, and International Law: Critical Pasts and Pending Futures (Cambridge: Cambridge University Press, 2017), 49 at 60.

100 Summers, supra note 97 at 194.

101 Ibid., at 193.

102 Christian REUS-SMIT, International Relations: A Very Short Introduction (Oxford: Oxford University Press, 2020) at 91.

103 Budislav VUKAS, “States, Peoples, and Minorities as Subjects of International Law” (1991) 231 Recueil des Cours 483 at 491–2. Vukas suggests that “the people” also have international legal personality. He clarifies that “in order to be a subject of international law it suffices that an entity is a holder of rights and duties under international law. Its procedural capacity to assert such rights is not an indispensable element of legal personality.”

104 Alexander ORAKHELASHVILI, Akehurst's Modern Introduction to International Law, 8th ed. (London: Routledge, 2019) at 373.

105 Ibid., at 373.

106 Ibid.

107 Ibid., at 374.

108 Ibid.

109 Ibid., citing Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514(XV), UN Doc. A/4684 (1960).

110 Foucault, supra note 18 at 327.

111 Fanon, supra note 51 at 2.

112 Vukas, supra note 103.

113 Personality and subjectivity are both achieved. See also Parfitt, supra note 99 at 61. She argues that “the Bandung states presented themselves as quintessential international subjects”. In this section, my emphasis is the subjectivity of the people, not states.

114 See Lockard, supra note 12 at 149; George McT. KAHIN, “Sukarno's Proclamation of Indonesian Independence” (2000) 69 Indonesia 1 at 2.

115 Summers, supra note 97 at 194.

116 Said, supra note 48 at 336.

117 For Badiou, “adjective+people”, however, is now an “inert category of the state”: Badiou, supra note 89 at 24. But the people as a subject, I believe, does not dissolve with the formation of a state; there are three typologies of nationalisms in Reid's work: ethnic nationalism is based on narratives of common descent (Thai, Malaysia, Vietnam, Burma); state nationalism is founded on education promoted by the state (Thai); and anti-imperial nationalism developed from the confrontation between colonizer and colonized (the Philippines and Indonesia). See also Reid, supra note 12 at 25.

118 On the individual level, the subject with an adjective is the citizen, a subject objectivized by constitutional and governmental regulations.

119 Kishore MAHBUBANI and Jeffery SNG, The ASEAN Miracle: A Catalyst for Peace (Singapore: Ridge Books, 2017) at 179.

120 Ian TAYLOR, African Politics: A Very Short Introduction (Oxford: Oxford University Press, 2018) at 110; Rush, supra note 49 at 9. Post-colonial national identity in Southeast Asia, of course, remains contested. Indonesia, the Philippines, and Myanmar face ethnic separatists who have a different idea of national identity. To protect political geo-bodies, national courts would adopt the doctrine of “internal” self-determination to delegitimize secession. See Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain, Decision of 14 October 2008, Supreme Court of the Philippines, [2008] G.R. No. 183591, online: Supreme Court E-Library <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/47263>.

121 On ideas of Asian regionalism, see Baogang HE, Contested Ideas of Regionalism in Asia (London: Routledge, 2017).

122 Ludger KÜHNHARDT, Region-Building: Vol. I: The Global Proliferation of Regional Integration (New York: Berghan Books, 2010) at 13.

123 Carlos CLOSA and Lorenzo CASINI, Comparative Regional Integration: Governance and Legal Models (Cambridge: Cambridge University Press, 2016) at 36–8.

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128 Mahbubani and Sng, supra note 119 at 58. Brunei joined ASEAN earlier in the 1980s.

129 ASEAN's relevance continues to be debated. STUBBS, Richard, “ASEAN Sceptics versus ASEAN Proponents: Evaluating Regional Institutions” (2019) 32 Pacific Review 923CrossRefGoogle Scholar (arguing that Realists are “skeptics” and Constructivists are “proponents”). But see JETSCHKE, Anja and THEINER, Patrick, “Time to Move On! Why the Discussion about ASEAN's Relevance is Outdated” (2020) 33 Pacific Review 593CrossRefGoogle Scholar. Empirical evidence suggests ASEAN's deepening integration: Intra-ASEAN trade from 2004 to 2011 increased from US$260 billion to US$598 billion, and intra-ASEAN FDI from US$0.85 billion in 2000 to US$26.27 billion in 2011 according to data cited in CHANG, Jun Yan, “Essence of Security Communities: Explaining ASEAN” (2016) 16 International Relations of the Asia-Pacific 335 at 349CrossRefGoogle Scholar. The Covid-19 pandemic may, of course, affect this. But the trend of integration is firmly established.

130 ADLER, Emanuel and BARNETT, Michael, “A Framework for the Study of Security Communities” in ADLER, Emanuel and BARNETT, Michael, eds., Security Communities (Cambridge: Cambridge University Press, 1998), 29 at 31–2CrossRefGoogle Scholar.

131 BEDERMAN, David J., “The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel” (1995–1996) 36 Virginia Journal of International Law 275 at 371Google Scholar.

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133 Adler and Barnett, supra note 130 at 43.

134 Preamble of Charter of the Association of Southeast Asian Nations, 20 November 2007 (entered into force 15 December 2008), online: ASEAN <https://asean.org/wp-content/uploads/images/archive/publications/ASEAN-Charter.pdf>.

135 Ibid.

136 Kennedy, supra note 90 at 77.

137 Ruth FIRMEZA, Gera (Manila: Mainstream, 1991) at 1–2, 184.

138 Mahbubani and Sng, supra note 119 at 56.

139 Ibid., at 56–7.

140 Cited in Mahbubani and Sng, ibid., at 57.

141 Ibid., at 179.

142 Ibid.

143 SIEMS, Mathias, Comparative Law, 2nd ed. (Cambridge: Cambridge University Press, 2018) at 280CrossRefGoogle Scholar; Camilleri also defines it as “diverse flows and process … that bind together the constituent entities of any given region”: Joseph A. CAMILLERI, Regionalism in the New Asia-Pacific Order: The Political Economy of the Asia-Pacific Region, vol. II (Cheltenham: Edward Elgar, 2003) at 12.

144 “ASEAN Economic Community Blueprint” ASEAN (2008), online: ASEAN <https://asean.org/wp-content/uploads/2021/08/AECBP_2025r_FINAL.pdf> at 10.

145 “ASEAN Integration Report 2019” ASEAN (October 2019), online: ASEAN <https://asean.org/wp-content/uploads/2021/03/8.-ASEAN-integration-report-2019.pdf> at XV.

146 Treaty on the Functioning of the European Union, 25 March 1957 (entered into force 1 January 1958), art. 45 [TFEU]. WEATHERILL, Stephen, Cases and Materials on EU Law (Oxford: Oxford University Press, 2012) at 359–60CrossRefGoogle Scholar.

147 Weatherill, supra note 146 at 81 (discussing Van Gend en Loos v. Nederlandse Administratie der Belastingen, Judgment of 5 February 1963, Court of Justice of the European Communities, Case 26/62, [1963] ECR 1). Art. 20 of the TFEU constitutes a “Citizenship of the Union” for every person holding the nationality of a Member State.

148 Kühnhardt, supra note 122 at 11; ACHARYA, Amitav, The Quest for Identity: International Relations of Southeast Asia (Singapore: Oxford University Press, 2000)Google Scholar; ACHARYA, Amitav, “Do Norms and Identity Matter? Community and Power in Southeast Asia's Regional Order” (2005) 18 Pacific Review 95 at 104CrossRefGoogle Scholar.

149 For instance, there are now ASEAN registers of engineers and architects, a kind of intergovernmental regulatory commissions for mutual recognition of professions. In 2018, there were 2876 engineers and 475 architects listed. These regulatory bodies are imposing dividing and disciplinary techniques at the international level. See KIKKAWA, Aiko and SUAN, Eric, “Trends and Patterns in Intra-ASEAN Migration” in GENTILE, Elisabetta, ed., Skilled Labor Mobility and Migration: Challenges and Opportunities for the ASEAN Economic Community (Cheltenham: Edward Elgar Publishing, 2019), 1 at 12Google Scholar.

150 What is meant here are enforceable rights and not simply a declaration of rights.