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New frontiers in international law: The Asian paradox

Just over three hundred years ago, William Pitt Amherst arrived in China as Britain’s putative ambassador. A quarter century after his predecessor, Lord Macartney, had refused to kowtow to the Emperor, Amherst also made clear that he would not prostrate himself in the manner demanded by Chinese custom. Macartney at least met the Emperor; Amherst went home without even an audience.

The new frontier that China presented remained closed until it was opened by force of arms, solemnized in treaties denounced by China as unequal and marking the beginning of a century of humiliation. In other parts of Asia, international law facilitated and legitimized the colonial enterprise to expand international law and commerce to other frontiers. There were exceptions, to be sure, such as the relative acceptance of Japan as a near-equal. This appears to have been linked to its capacity to coerce other “uncivilized” states. As one Japanese diplomat was said to have observed in the early twentieth century to a European counterpart: “We show ourselves at least your equals in scientific butchery, and at once we are admitted to your council tables as civilized men.

Today, it is seen as a paradox of the 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 to have representation reflecting their number and size in international organizations. There is no regional framework comparable to the African Union, the Organization 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 sub-regional groupings that exist within Asia have tended to coalesce around narrowly shared national interests rather than a shared identity or aspirations.

Great Wall of China by MemoryCatcher. CC0 Public Domain by Pixabay.
Great Wall of China by MemoryCatcher. CC0 Public Domain by Pixabay.

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. Regional cohesion is further 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 Organization (WTO). The proportion of Asian states that are contracting parties to 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.

Asia’s history offers a partial explanation of the current situation, but ongoing ambivalence towards international law and institutions can also be attributed the absence of “push” factors driving greater integration or organization.

There is some evidence that this is changing, but breathless talk of a new “Eastphalian” order seems overblown. Though the status quo appears unsustainable, the major powers of Asia have made clear that their preference is for evolution rather than revolution. China’s claims in the South China Sea and the establishment of the Asian Infrastructure Investment Bank (AIIB) might suggest a desire to set up new, parallel regimes — yet closer inspection reveals that China’s claims are more traditional than first feared, and that the AIIB is clearly modeled on other international financial institutions (though with China garnering similar special privileges to the US and Europe in the World Bank and the International Monetary Fund respectively).

Asia’s rise is not, therefore, a “new frontier” in the strict sense of either word. Yet the growing importance of Asian states is suggesting the need for systemic change because the most populous and (soon) powerful region on the planet currently has the least stake in it.

Featured image credit: The Reception, by James Gillray. Public Domain via Wikimedia Commons.

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