International lawyers in Asia have long felt the need to establish an Asian Society of International Law. The American Society of International Law was founded a century ago in 1906; its European counterpart was established in 2004. In Africa, there is an African Society of International and Comparative Law. Asia, in fact, was the only major region of the world which had no international law society on a region-wide basis.

With Asia now being one of the most important and vibrant regions of the world in international affairs, it has risen as an active and influential player in international relations. This is apparent in fields such as peace and security, international trade and investment, human rights and the environment, as well as many other fields of international activities. There is today an acute need for the nations of Asia, as well as academics and practitioners working in or on Asia, to have their voices heard on these important issues, to contribute to the development of international law on a global basis, and to consolidate the rule of law in various fields of present-day international relations. There is by now ample room for Asia to contribute to the world not only in the economic and political fields, but also in the social, legal, and other intellectual fields.

The theme of the Second Biennial Conference of the Asian Society of International Law—“International Law in a Multi-Polar and Multi-Civilizational World: Asian Perspectives, Challenges, and Contributions”—touched on a number of interesting aspects of international law. Three basic issues arise from this topic. First, how do we evaluate the current state of international law from an Asian perspective? Second, in an increasingly globalized world, why do we need a regional society of international law? And finally, what purposes do we expect this society to serve?

In the post-Cold War era, the most evident change in international legal discourse is the universal assertion of values as the basis to promote the rule of law in international relations. Obviously, values are related, among other things, to culture. Any analytical inquiry into values and law in international relations should therefore begin by tracing the origin and impact of the international legal system. The Asian Society of International Law came into being at a time when international law, both in theory and practice, was increasingly confronted with these new challenges.

International law is developed and implemented today in a complicated, diverse, and changing context. Globalization and integration, fragmentation and decentralization, and bottom-up empowerment are arising simultaneously among highly diverse peoples and civilizations. Most importantly, this period is characterized by rapid and often unforeseen changes with widespread effects. Advances in information technology make possible ever shifting ad hoc coalitions and informal groups and a myriad of individual initiatives.

The resulting kaleidoscopic world faces global problems that affect everyone: climate change, financial crises, health threats, communication disruptions and cyber attacks, ethnic and other conflicts, among many others. These cannot be managed solely by one state or a handful of states, or solely by non-state actors. Some of these problems erupt quickly and are not easily contained. Others, like climate change, have inherently long time-horizons and affect the welfare of future generations. One of the most pressing problems is poverty, with more than 1.4 billion people existing on less than US$1.25 per day in 2008 and another 1.2 billion people on less than US$2.00 per day.1

This kaleidoscopic world both offers opportunities for international law to become more relevant and central and poses significant dangers for its relevance and effectiveness. This article provides an initial analysis of the significance of the kaleidoscopic world for international law.

Feminist analysis in international law began to emerge two decades ago. It has taken many different forms and is now a lively feature of international legal debate. But has it had any effect? And is it worth pursuing? In this short article, I will argue that feminists have been successful in bringing the language of women’s empowerment into international law but less adept at identifying methods to give this language life on the ground.

The formation of the Asian Society of International Law (AsianSIL) leads us to ask the question of whether there are unique features of Asian civilizations (Chinese, Indian, Japanese, etc.) that shape the approach of Asian peoples and states to international law. Does each of the civilizations offer a distinct outlook on international law? What kind of surplus meaning can be generated by a civilizational approach that is, insofar as Asian developing countries are concerned, not already articulated by the Third World approaches to international law (TWAIL)?1 Is any talk of civilizational influences on the approach to international law productive and helpful?

Like the apocryphal elephant defined by the blind men touching different parts of its anatomy, the content of the phrase “human security” varies with its users. In this sense it is rather like the phrase “self-determination”, which is widely employed by and for diverse interests.1 The lack of uniform definition or use stems in both cases not from intrinsic incoherence but from the way in which, from their first appearance, the phrases seemed to challenge the views, values, and interests of the practitioners of traditional diplomacy, powerful actors who then had a choice: resist them absolutely as rogue concepts threatening the very structure of international relations or neuter their revolutionary potential through an interpretation rendering them compatible with, even a reinforcement of, the basic structure of the status quo.

Asian governments tend to be more sensitive about their sovereignty than governments in the contemporary West. Therefore, when differences occur and disputes arise, Asian governments tend to insist that they be resolved through bilateral consultations and negotiations. The reality is that, very often, the differences and disputes remain unresolved after years and even decades of negotiations. When left unresolved, some of these disputes have a tendency to contaminate the bilateral relationship as a whole. This is a great pity, because the disputes may revolve around relatively minor issues compared to the many other areas in which the two countries have convergent interests. Asian governments should therefore consider resolving such disputes by other peaceful means.

What are other modalities for the peaceful resolution of disputes? They are: (i) conciliation; (ii) mediation; (iii) fact-finding; (iv) arbitration; and (v) adjudication.

To suggest that there might be good use for state sovereignty sounds counter-intuitive. After all, at least since the time of the League of Nations, we international lawyers have been critical of sovereignty. We have thought it a narrow, ethnocentric way to think about the relations of human beings. We have rehearsed a moral case against it. Sovereignty, we say, upholds egoistic interests of limited communities against the world at large, providing unlimited opportunities for oppression at home. It is, we sometimes say, “organized hypocrisy”.1 If a country claims that a matter is under its “domestic jurisdiction”, and refers to Article 2(7) of the UN Charter, we are inclined to think of this as an effort by its leaders to hide from well-founded international criticism. From a sociological perspective, we have attacked it because it fails to articulate the economic, environmental, technological, and ideological interdependencies that link humans all across the globe, giving a mistaken description of the reality of human relationships across the world. And from a functional perspective, we have observed its failure to deal with global threats such as climate change, criminality, or terrorism, while obstructing such beneficial projects as furthering free trade and protecting human rights. Therefore, we have wanted to replace it with international or global approaches, working across “artificial” national boundaries in pursuit of objectives that have nothing territorially limited about them.2

The establishment of the Asian Society of International Law (hereinafter “the Society”) may be characterized as symbolizing a fundamental change in history: the transformation from the West-centric world of the twentieth century to the multipolar and multi-civilizational world of the twenty-first. The Society’s establishment suggests the urgent need for those living in this multipolar world—international lawyers in particular—to enhance their ability to appreciate this changing reality and the normative responses to it. The Society could also be an important forum for achieving these aims.

Global society in the twentieth century was dominated by “Western” powers. In the field of international law, it was mainly the governments, media institutions, leaders, non-governmental organizations (NGOs), experts, and international lawyers of the Western nations that constructed, interpreted, maintained, and implemented the international legal order. For a long time, it was the major Western universities and the American Society of International Law (ASIL) that played a leading role in the field of the academic and professional activities of international law.

From around the end of the twentieth century, it became evident that Asian nations had again risen in the global arena. Japan took the lead and has remained the world’s second-largest economy since the late 1970s. Yet it is the resurgence of China and India as world powers that is of fundamental importance from the perspective of human history.

Invited to speak at the opening of the Second Biennial Conference of the Asian Society of International Law, which focused on International Law in a Multi-Polar and Multi-Civilizational World: Asian Perspectives, Challenges, and Contributions, I had to reflect on the specific contributions our regional societies supposedly bring to international law. More specifically, the underlying idea was that of a regional vision or approach to international law which could be more or less rooted in a tradition. I soon realized that our regional societies could be viewed in a rather ambiguous or ambivalent way, since they could be seen as a means of promoting a regional vision as well as a means of enabling people to meet beyond the domestic scope, which is the horizon of most academics, if not practitioners, to share their views on international law at large. The two views are not entirely incompatible but they do not carry exactly the same spirit regarding the purpose of regional societies.

The ambivalence originates in the necessity we feel to justify our own existence. On the one hand, we can be very pragmatic and point out that the regional level, empirically conceived, is a sort of “critical” level to organize events and network. National is not enough any more for most countries. Global is too much. Regional is, let us say, practicable.

This article traces the development of the definition of “investment” under Article 25(1) of the ICSID Convention. It proposes that the definition should act as an outer limit to the usually broad definition of investment (encompassing every kind of asset) in international investment agreements (IIAs). The article discusses the various characteristics (hallmarks) of an investment which should constitute the definition. It argues that the hallmark of “significant contribution to economic development” can be refined to reduce uncertainty while giving effect to the intent of the ICSID contracting states by drawing a distinction between an ordinary commercial transaction and an investment. Recent IIA definitions of investment adopting Salini hallmarks show that states adopt the “every kind of asset” definition of investment in IIAs out of a concern that the form which the investment may take should not be restricted and that states do not necessarily view the Salini hallmarks as unwelcome.

Article 2(2) of the Kyoto Protocol imposes an obligation only on certain developed countries, working through the International Maritime Organisation (IMO), to pursue the reduction of greenhouse gas (GHG) emissions from marine bunker fuels. The IMO recently took the initiative to adopt a new legal instrument for the reduction of ship-generated greenhouse gas emissions. Some developing countries have suggested that the proposed IMO initiative should strictly adhere to Article 2(2) of the Kyoto Protocol and the principle of Common but Differentiated Responsibility (CBDR). Against this backdrop, this article intends to review the extent to which it is possible to propose an international legal instrument for the reduction of GHG emissions from marine bunker fuels which is applicable only to ships from developed countries considering the complex characteristics of the international shipping industry. This article also examines how far this approach is justifiable even within the framework of the CBDR principle.

The conflict between ethical universalism and cultural diversity remains a pre-eminent problem of the present international legal system. International law is in a dilemma. It cannot abstain from adopting some material values as the international community cannot be indifferent to the suppressions of citizens or certain minorities by totalitarian regimes. Yet the international legal system must not become an instrument of Western cultural imperialism by negating any cultural differences. This contribution argues that international law is a framework concept prescribing certain basic values. However, these values are not absolute and must be balanced against competing interests. In this balancing process, states have considerable political discretion. This concept will be exemplified by an analysis of the debate on the existence of a right to democratic governance in international law. It will be shown that even though international law does not require states to be democratic, it nevertheless imposes certain standards of legitimacy.

In April 2008, the Human Rights Commission of Malaysia (SUHAKAM) was informed of the possible downgrading of its “A” status within the UN system, due to its apparent failure to comply with the Paris Principles relating to the status of national human rights institutions. This article explores this threat to downgrade SUHAKAM and the actions which it stimulated on the part of the Malaysian government and SUHAKAM itself. It argues that despite expectations by government and civil society at the time of its establishment, SUHAKAM has directly challenged government on major human rights issues on a number of occasions. At the same time, it has had difficulty persuading government to give effect to its recommendations and has as a consequence drawn strong criticism from civil society for failing to protect human rights that are within the government’s power to rectify.