International law forming part of natural law is universal in nature and tends to resolve disputes among states and regulate their behavior in accordance with internationally accepted legal standards. International law does not have a sovereign or any particular authority, whose command is followed, instead it follows the will and consciousness of the concerned states. Thus, every state should have representation and participation in the formulation of the regulations and laws. However, international law seems to be greatly influenced by European outlook and a product of European traditions. The international law, further, seems as a weapon for colonialism, promoting universality and equality among the nations through the conquest of non-European nations as colonies by the Europeans. They also believed that Africans and Asians are intellectually inferior beings of non-civilized nations and imposition of colonial rule upon them is justified. As a result, Asian and African countries are not given opportunity to present themselves in the international domain and become an active participant. This has been a long drawn discussion since centuries but has recently gained mileage again, when in June 2020, it was announced that cases before International Tribunal for Law of the Seas (ITLOS) will be heard in Singapore as well. This is the first time any international public judicial organ will heard outside the western and European countries, paving the way towards greater participation of Asian countries.
WHY ASIAN NATIONS UNDER- REPRESENTED
Asian civilization like various other civilizations was a complex constitution of multiple culture and numerous interpretations of it with certain internal differentiations, yet integrated. But, the ramification of western colonization was ubiquitous and influenced the social, political and cultural domain in the Asian Countries, thus, resulting in ‘ the isolation of countries of Asia from one another’. In order to overcome this isolation, Pan -Asianism was stressed upon and various organizations were established such as SAARC, ASEAN, SCO etc. and these are all sub-regional organizations formed with certain specific purposes.
The establishment of such organizations promotes interests of many countries, but these countries have louder and more significant voice in these organizations than they would have in pan-regional organization. The absence of a pan-regional organization in Asia like Europe Union in Europe, African Union in Africa, leads to lack of regional coherence and collective representation at international stature.
Asian nations adopts a cautious approach in submitting the jurisdiction regarding their disputes to the international judicial organs. This is substantiated by the facts that only eight Asian states have agreed to the compulsory jurisdiction of International Court of Justice, accounting for just 15 % of the Asia-Pacific group within the United Nations. Whereas, 30% of Eastern European Nations, 39% of Latin American and Caribbean States, 41% of African nations and 69% of Western European and other groups. Of 53 Asia-pacific nations, only 15 nations have appeared before the ICJ because most of the disputes among the Asian nations are bilateral and multilateral disputes, which cannot be resolved through third party adjudication such as Jammu and Kashmir dispute, border dispute between India and China and islands dispute in South China Sea. In the dispute of South China Sea, despite the efforts by Philippines to submit the dispute, China vehemently opposed and thus avoiding the resolution by third party. The reason behind such an attitude is the unequal treaties with China and post-war trials in Japan.
Along with lesser submission of disputes to international judicial organs by Asian nations, they are also reluctant to enter into international treaties and conventions. For instance, South Asian nations has been host to large of number of refugees but only 5 nations acceded to 1951 UN Convention on the Status of Refugees. Such methodology of Asian nation can be explained both materially and culturally. Materially, unlike the African nations which looked this convention as protection against colonialism, particularly, apartheid regime in South Africa but Asian nations does not find this convention as the cause of decolonization. Culturally speaking, Asian nations had a long tradition of providing protection to the refugees having threat to their lives, thus, in order to abide by the traditions there exists no need to have any law or regulation.
Further, there exists certain practical impediments in the representation of Asian nations, the most prominent is – geography. It accrues a lot of costs in order to carry all the required agents and delegations from Asia to Hamburg or Hague. Thus, there must exists certain judicial organs in Asia as well such as the announced in Singapore of ITLOS. Such creation of offices of international organizations in Asian nations will help creating impression that international law is no longer wholly centered at western or European cultures.
ASIAN APPROACH TO INTERNATIONAL LAW
The Asian nations having a different thinking towards the international law has been challenged by Professor Mahubani, who questions that even if more seats are given to the Asian continent, then what would “Asia” say? They believe there is no prospect of coherent “Asian” response. Although, this does not falls true. This has been suggested by view points presented over time regarding the Asian way of thinking, as Jawaharlal Nehru noted that in Asia truth prevails over power politics. Asian people have a better understanding of inner problems of mind and spirit, thus are in a better position to understand their neighbors in Asia then those states who have an outright separate cultural heritage. The emphasis on truth by Nehru is not inconspicuous, instead it indicates toward the principled conduct in international relations. Similarly, Non-aligned Movement opposed power politics as sanctioned by realist theories.
In addition to this, the propagation of idea of non-violence is also inspired by the Asian way of thinking because from Buddha to Gandhi belonging to the Asian culture and heritage imparted this thinking in the Asian civilization. Influenced by this, Nehru, while addressing the UNGA meeting taught that “it was not good enough to have a good objective, that it was equally important that the means of attaining those objectives were good; means were also as important as ends”. This has been imbibed in the soul of Asian civilizations, as various others are also inspired by such thinking, for instance, Nelson Mandela and Martin Luther King, thus, making these principle even part of post-colonial era. This idea of non-violence is an pre-requisite fir maintaining a shared and just world order.
The idea of inclusive cosmopolitanism has been a significant element of Asian region. The attempts were never made to transform the world into a metropolitan center, even though there exist no concept of borders in the Sanskrit cosmopolitan. Instead, they believe every center is reproducible whether it is golden Mount Meru or river Ganga and were transported everywhere. In consequence of this, in tenth-century people living in Ankor or Java could easily identify themselves with the people living in Karnataka as those living in “an Indian world” and in some overseas extension of India. However, under international law there is no recognition of stateless individuals and are not even entitled to any rights and claims unless they are not identified by any nation as citizens.
The Asian way of thinking believes in “lack of universality” and are context-sensitive but the existing international law forms a uniform platform for all nations irrespective of their economic, social and cultural development. The international organizations set same targets for all nations without taking into consideration the resources available to them, creating stress upon them. there exists another contrast in the Asian way of thinking and existing international laws, in which they focus more on the rights of the individuals as global citizens but overlook their duties as global citizens. This is what has been the ideology of Gandhi with respect to the balance between rights and duties and he even opposed 1948 Universal Declaration of Human Rights but got enacted after his death. These are the ways in which Asian approach towards international law can be explained.
Asia, being the largest continent in the world should have reasonable participation and representation in the establishing the world order and international law. The Asian approach and thinking towards the international law should be duly recognized and formed part of the existing international law domain. With the decolonization and development in the Asian region, the need for recognition of Asian approach is further emphasized.
- (Sornarajah, 2001)
Maharashtra National Law University, Nagpur