The Asian Century and the Future of International Law

The Asian Century and the Future of International Law

by Aristyo Rizka Darmawan

There is no better moment for Asia to contribute to the development of international law than today. With its sustained economic growth, political stability, and large populations, Asia will be the driver of much development in the twenty-first century, including the evolution of international law.

Until recently, Asia has been largely absent in such international legal discussions, in part because of its long history of colonization. Instead, the prevailing legal order has been created predominantly by the West and Global North.

In his numerous works on the history of international law, Professor Martti Koskenniemi —one of the great modern scholars in this area—explains how the Western civilization has shaped the international legal order through the formulation of treaty law among european country, customary international law and general principles of law recognized by civilized nations (the three main sources of international law). One example on how the west formulate the international law is through the terminology of Article 38 of the International Court of Justice’s Statute—“The General Principles of Law Recognized by Civilized Nations”— which simply begs the question of who are the civilized nations in today's context.

The decolonization period in the 1950s and 1960s dramatically reconstituted the structure of the international order. The newly independent states quickly gained membership of multilateral organizations, such as the United Nations, and began to help shape a new international order. For instance, the Declaration for the Establishment of a New International Economic Order, adopted by the UN General Assembly in 1974, symbolized the renaissance of the Global South.

Recently, many commentators have argued that the twenty-first century will be dominated by Asia. China is expected to surpass the United States as the world’s largest economy by 2030.  Similarly, India will overtake Japan, Germany, the United Kingdom, and France to become number three globally. This trend will almost inevitably contribute to the development of international law.

For instance, China is now the second-largest financial contributor to UN peacekeeping activities (behind only the United States), with roughly 2,500 personnel deployed in ongoing missions. The growing presence of Chinese peacekeeping might contribute to the law on the use of force given that many Chinese infrastructure projects are situated in fragile states, the law of armed conflict.

Kishore Mahbubani, former Dean and Professor at the Lee Kuan Yew School of Public Policy, in his latest book—Has the West Lost It?—questions the sustainability of Western dominance. He argues that for most of the past millennium, world civilization has been directed by China and India. It has only been for the past two hundred years that Europe and North America have taken on this role, largely because of colonization. This, Mahbubani contends, is an aberration, and like all aberrations will eventually come to an end.

Relatedly, in the introduction to their book, Limits of International Law, Jack Goldsmith and Eric Posner argue that international law merely reflects the interests of states. Consequently, states with strong economic and political capacity are better able to shape the international order. Therefore, the rise of Asia’s economic, political and military capability in the coming years will surely contribute to the evolution of international law.

Most of the academic scholarship in the field is still dominated by western scholars. As Professor Anthea Roberts shows in her book, Is International Law International?, much of the literature is produced by European and North American lawyers. English remains the undisputed lingua franca of legal journals. In contrast, little scholarship is produced in the Global South, especially by Asian academics. As a result, most of the discourse in international law cases is still approached from a western perspective.

Scholarship is crucial in the development of international law, as it often becomes the subsidiary source for judges in determining cases. Therefore, more high-quality academic publications by Asian legal scholars are essential in order to ensure that there will be more Asian norms being incorporated into international legal practice. With more Asian scholars studying in Europe and the U.S., it will help contribute to a better understanding and increase the global impact of works by the continent’s scholars. Influential textbooks from Asia have the potential to be very important in shaping views on pressing international legal issues such as the South China Sea and the recent trade wars.

One of the main challenges for Asia in its compliance with international legal norms is the South China Sea disputes. International law is at the heart of the debate. Most of the Asian countries who are involved in the disputes have shown good faith in complying with international standards by trying to use the legal institutions to resolve the disagreement. Only China has voiced opposition to the tribunal ruling.

One of the positive takeaways from the dispute is how most of the concerned states have sought to solve the conflict in a civilized manner and have tried to avoid exacerbating tensions. Currently, ASEAN and China are trying to draft a code of conduct to manage the dispute and avoid unnecessary tension in the region.

With its rapid economic growth, greater political stability and strong military capacity, Asia in the twenty-first century has a great opportunity to shape the future of international law. However, despite these strong foundations, it remains to be seen if Asia can fulfill its potential. By shaping international law’s evolution, Asian countries will surely benefit and can use it as a tool to emphasize their interest in economic development as well as political stability in the international arena.

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Aristyo Rizka Darmawan is an LL.M in international law student at the Fletcher School of Law and Diplomacy, Tufts University. His research interest sits at the intersection of public international law, law and development, third world approach of international law, and global governance.

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