The Asian Society of International Law: Its Birth and Significance

Abstract

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.

These two nations were the centres of great civilizations for a long period of time. The recent period when they suffered from “underdeveloped” status was an exception in history. Hence, we should talk about the resurgence or return rather than the emergence of China and India.

I have made these arguments since the 1980s. I have also argued that we need to adopt an inter/trans-civilizational perspective in the way we see the world, paying more attention to non-Western people who, although constituting more than eighty percent of humanity, have mostly been ignored in the global discursive space, including international law. Such arguments were at first a lonely voice in the wild. With the changing global realities, however, they were gradually accepted. Asia’s economic progress prompted some Asian states to challenge the West-centric nature of the universalistic discourses predominant in global society. The dissenting voices of certain Asian leaders advocating “Asian values” and “Asian human rights” in the 1990s were one such example.1

The Society was established at a time when a growing number of people recognized the need for adopting an inter/trans-civilizational perspective. It had long been argued by many Asian international lawyers that such an organization was necessary. Yet it had remained a dream until the Society was established. Even when the discussions for the Society’s establishment had begun, many of those involved in the project were sceptical of its realization. Preparatory meetings held from 2004 to 2006 for the establishment of the Society were thus clouded by such doubts and pessimism.

Nonetheless, the Society was established within three short years after the first discussion between its founders. The Inaugural Conference of the Society was held in Singapore from 7 to 9 April 2007, with more than a hundred participants.2 The Second General Conference was held in Tokyo on 1 and 2 August 2009 with about six hundred participants. This conference was an immense success not only in terms of the number of participants coming from all over the world but also in the quality of the presentations.3 The Third General Conference is scheduled to be held in Beijing on 27 and 28 August 2011. Furthermore, the Indian Society of International Law has already expressed its firm intention to hold the Fourth General Conference in 2013.4 The Society’s journal, the Asian Journal of International Law (AsianJIL), will be published twice a year from January 2011.

In this way, the Society, together with its national chapters and in co-operation with other academic and professional organizations in Asia, has helped to facilitate the networking and collaborative opportunities among international lawyers in the region by organizing various types of academic and professional activities on international law. It has provided a platform through which alternative perspectives can be voiced. All pre-existing societies such as the ASIL, the European Society of International Law (ESIL), the International Law Association, the International Bar Association, and the Institut de droit international are more or less West-centric, reflecting the ideational power of the Western nations in the twentieth century. The Society can, and does, contribute to widening global perspectives beyond the existing Western-centrism in international law.

I. A concise history of the society

I have been heavily engaged in the preparation, establishment, and management of the Society right from the start in 2003. It may thus be appropriate for me to share a concise history of the Society in its formative stage, as well as the ideas, ideals, concerns, and perspectives shared by colleagues who helped to establish the Society. This can at least be of some documentary value. Further, I seek to consider the historical meaning of the Society in international legal studies, and more generally, in the twenty-first century world.

A telephone conversation with Judge OWADA Hisashi, incumbent President of the International Court of Justice (ICJ), in late summer 2003 marked the beginning of the story. He told me that he was approached by the leaders of the Foundation for the Development of International Law in Asia (DILA)5 regarding possible support for the DILA’s activities. In response, he suggested that a more ambitious project might better serve the overall purposes of Asian international lawyers. Briefly sharing the conversation he had with them, Judge Owada asked me if I thought an organization such as an Asian society of international law was feasible. If I thought so, and if I was interested in such a project, he would consider working with me on it.

I was surprised. I had known Judge Owada since the 1970s, both professionally and personally. I had not imagined that he was interested in an “Asian international law” as I had always felt he was a “mainstream” international lawyer whose international legal perspectives were influenced by Western thought.

Since I started studying international law in 1970, I have been concerned about the West-centrism in international law. Non-Western people, who constitute more than eighty percent of humanity, have not played a major role in creating, interpreting, maintaining, and modifying the international legal order. I strongly believed that unless we could overcome such narrow perspectives, the overwhelming majority of humanity would continue to feel alienated from the international legal order. Thus, when I gave a paper at the 75th Anniversary Conference of the American Society of International Law in 1981, I criticized the excessively US-centred international legal education in the United States and argued for the need for an inter-civilizational perspective of international law.6 Although I stood firm on this position for decades,7 only a few international lawyers strongly supported my view. Some of my senior Asian international law colleagues, for instance R.P. ANAND, had made similar arguments since the 1950s, but their voices were hardly heard because of the predominance of Western international legal scholarship.

For me, who also had such experiences, Judge Owada’s interest in an Asian forum for international lawyers was a surprise.8 It was, though, a pleasant surprise. After discussing various issues, we agreed to work together. However, as Judge Owada was based in The Hague and did not have the resources to organize the preparatory meetings and set up organizational schemes, I had to build the necessary infrastructure. Fortunately, I was then professor at the University of Tokyo with a number of devoted international lawyers as colleagues. Although they were fully occupied with their own duties, they understood the cause of the project and were willing to sacrifice their time to help me.9 I was also fortunate to have the support of Asian international lawyers who were at the University of Tokyo as visiting professors or visiting scholars.10 They joined the project and worked hard to build up networks for establishing the Society.

Judge Owada and I first discussed this problem with a few international law professors of the University of Tokyo and Professor MIYOSHI Masahiro, one of the general editors of the Asian Yearbook of International Law, on 12 October 2003, and agreed that he and I should approach like-minded leading Asian international lawyers. Judge Owada first approached Professor Tommy KOH, a leading international figure from Singapore. We met him and other Singaporean lawyers, including Professor TAN Cheng Han, Dean of the Law Faculty of the National University of Singapore (NUS) on 12 and 13 July 2004. Diverse ideas were presented on the purposes, nature, membership, organizational structures, and so forth, of the new organization. Negative and even pessimistic views were also presented. Because the meeting was composed only of Japanese and Singaporeans, and because it was a purely informal meeting to share ideas, no formal agreement was achieved. It was agreed only that Japan should host the first multinational preparatory meeting composed of leading Asian international lawyers who could be expected to share the burden of establishing the Society.11

This first preparatory meeting was held at the University of Tokyo on 30 October 2004.12 Leading international lawyers from East, South, and South-East Asia attended the meeting.13 The major achievement of this meeting was a general consensus, albeit a somewhat vague one, reached by major figures of the project as to the direction of the project. First, we wanted to establish a society with universal membership.14 Second, because the purpose of the society should be centred on international law in and/or for Asia, the society should be managed mainly but not exclusively by Asian international lawyers. The society should welcome non-Asians and non-international lawyers as long as they were willing to share the purposes and responsibilities of the society.15 Third, we needed to clarify the proposed society’s relationship with existing institutions with similar purposes and activities.16 Fourth, a number of practical requirements had to be satisfied. They included financial support, an organizational structure, the constitution, and a secretariat for the Society.

After the Tokyo preparatory meeting, Judge Owada and I, who were both expected to play a major role in the project, began to meet a number of international law professors and leading practitioners in Japan and abroad to seek their participation in the project. We particularly emphasized the historical meaning of the establishment of an Asian society of international lawyers, which would be composed not only of scholars but also of practising lawyers. After a series of meetings, many of these international law scholars and practising lawyers agreed to work with us.17 Of particular importance was the active participation of the practising lawyers of top law firms in Japan.18 Not only did they agree to organize study groups composed of scholars and practitioners for various types of common research, they also promised that they would financially support the activities of the Japanese branch of such an Asian society.19

The second preparatory meeting was held in Beijing on 25 March 2005, hosted by Tsinghua University Law School.20 An important issue discussed in Beijing was the relationship between the proposed society of Asian international lawyers and the DILA. Professor KO Swan Sik, a “founding father” of the DILA, was invited to the meeting. He told us that the DILA did not oppose the founding of a society of international lawyers in Asia. Nonetheless, Professor Ko was sceptical about the project based on his past experience. Diverse views were expressed as to his opinion, but the majority of the participants considered that an Asian society of international lawyers should be established. They believed that the society could, and should, play an essential role which could not be played by existing organizations, including the DILA; that is, to provide a central forum with an organizational structure comprising mainly (but not limited to) Asian international lawyers, serving as the centre of their research, educational, and practical activities, and fostering and encouraging Asian perspectives of international law.

After the Beijing meeting, multinational teams were organized and started to work on various matters, the most important of which was to draft a concept paper to serve as the basis for discussions in the third preparatory meeting scheduled for 19 and 20 December 2005 in Seoul.21 At the Seoul meeting, the general agreement reached at the Tokyo and Beijing preparatory meetings was reconfirmed and the unanimous decision was made to work for the concrete establishment of the Society, such as the drafting of the constitution and the establishment of the secretariat. The first task was assigned mainly to the Japanese international lawyers with the assistance of the Korean international lawyers, and the second task was assigned mainly to the Singaporean lawyers.22 By the summer of 2006, the first group had drafted the constitution. Dean Tan had succeeded in persuading his colleagues at NUS to assume responsibility for running the secretariat. The Japanese and Singaporean lawyers then worked hard for the Society and its constitution to be compatible with the laws of Singapore.

The fourth preparatory meeting was held in Bangkok on 25 and 26 July 2006.23 The main objective of this preparatory meeting was the adoption of the constitution and the preparation for the inaugural conference of the Society. However, due to time constraints, the members were compelled to have another preparatory meeting before the Society could be launched. Thus, the fifth preparatory meeting was swiftly organized by the Japanese members in Tokyo on 9 October 2006. In Tokyo, some of the participants wanted to continue the discussion on the constitution. However, major figures, including Judge Owada and myself, were determined to settle all outstanding issues in Tokyo and launch the Society in early 2007. This view was finally approved and it was agreed that the Inaugural Conference would be held in Singapore in April 2007.24 I proposed to establish a small group whose mandate was to prepare a specific plan for the Conference. This proposal was quickly approved, and after the meeting I consulted with Professors Miyoshi, Anghie, LIM Chin Leng, and Furuya, and Dean Tan to start preparations as soon as possible.

The Inaugural Conference and the first General Meeting of the Society were held in Singapore on 7 and 8 April 2007.25 Due to the exigencies of time and despite the hard work, many loose ends were not tied up until the eve of the Conference. From a legalistic viewpoint, there seemed to be many defects in the process of establishing the Society.26 However, we had to establish the Society by all means and carry out the Inaugural Conference successfully. The provisional (self-appointed) Executive Council (EC) meeting acted as an organ with the “pouvoir constituent” and settled all outstanding problems.27

II. Basic ideas and perspectives of the asian society of international law

During the period of preparation to establish the Society, certain ideas—which, in my view, should constitute the basic philosophy of the Society—were discussed in a series of preparatory meetings, and gradually came to be accepted by the participants. These ideas should express the Asian peoples’ desire for fair representation, as their voices had not been sufficiently articulated in the West-centric discursive space of the twentieth century. They must also express a genuine respect for the cultural and civilizational diversity in Asia and in the world. No hegemonic, egocentric, or monolithic idea of any kind of entity—whether it is a nation, Asia, or the world—should be allowed or assumed. Many of these ideas were adopted and expressed in the EC meetings and the Inaugural Conference of April 2007 in Singapore. During the preparation of the Second General Conference to be held in Tokyo in 2009, these ideas were further elaborated by the organizers of the Conference, mainly in the deliberations and discussions in the Research and Planning Committee of the Society (RPC) and the Research Committee of the Japan Chapter (RC). As the chair of the Plenary Session of the Conference on 1 August 2009 in Tokyo, I, who also served as the chair of the RPC and the RC, stated these ideas in the introductory remarks to the Conference. The following is a summary of these basic ideas, as expressed in these remarks.28

International law is the law of global society, applicable to all humanity. Its legitimacy must be recognized by people all over the world, regardless of their nationality, gender, culture, religion, or civilization. Yet the perception of international law differs greatly from people to people, nation to nation, region to region. In the Western world, international law is relatively familiar to people. International law was born in Europe, and has basically been interpreted, administered, and enforced by Western European nations and the United States. Book and journal publications and major international legal discourse have tended to centre on the North Atlantic region.

In Asia, where many nations suffered from colonial rule and unequal treaties, the situation is different. There, international law has been regarded as somewhat alien. Some Western international lawyers talk of international law as “our law”, but assuming international law to be “our law” is totally artificial in Asia. If international law is regarded as alien in Asia, this might mean that it is not perceived as legitimate by the majority of humanity. This should not be so, for more than half of humanity live in Asia. The situation is not only unjust, but also dangerous for a peaceful and well-functioning global order in the twenty-first century. It is widely believed that the power of Asian nations will in time rival that of the Western nations. If international law is alienated from the re-emerging Asian powers of the twenty-first century, including China and India, there may be a danger of the malfunctioning of international law. This state of affairs must be avoided.

Herein lies a critical raison d’être of the Asian Society of International Law. There are a number of transnational societies of international law, including ASIL and ESIL. Yet they are all centred in the West. This is natural because international law societies are part of the global order of their time, and the global order in the last century was West-centric. In the twentieth century, Western powers had hegemony not only in military and economic terms but also in intellectual and ideational terms. A West-centric international law reflected the actual power relations of that age in international society.

The West-centric narrowness of the perspective on international law has worked not only against the legitimate interests of non-Western people; it has also worked against the interests of Western people because it has prevented them from appreciating international law from more multifaceted perspectives. This is a disadvantage for anyone because only by appreciating things in a multifaceted and self-reflective manner can one enrich his or her life spiritually, intellectually, and materially in the long run. Humanity must reconstruct international law so that it can represent the voices of humanity more legitimately, adapting itself to the substantial multipolarization and ideational multi-civilization of the globe. The Society can be a critical locus of such efforts.

Arguing these things does not mean that the Society should be a locus of the so-called “Asian values” that were vocally asserted in the 1990s. The ideological nature of the assertions of “Asian values”, based on a false monolithic concept of Asia and representing only a small portion of the continent, has been fully demonstrated.29 The Society is an academic and professional society, not a political organization. As such, it must adhere to the values of scholarship and professional quality. The most important basis for its activities is a firm commitment to academic and professional excellence. Seeking excellence and liberating ourselves from West-centricity is not just for the sake of “Asians”. It should benefit us all, including Westerners, because liberating ourselves from narrowly defined perspectives is a great value and joy for all humanity.

In order to achieve this critical objective, members of the Society made serious efforts from the preparatory stages to the Inaugural Conference, to the Malaysian Conference of 2008 and other workshops, colloquia, and symposia. In particular, those engaged in preparing for the Tokyo Conference, who worked on these experiences, made elaborate efforts to express these shared ideas in the conference. The RPC and the RC jointly proposed “International Law in a Multi-Polar and Multi-Civilizational World” as the main theme and this was subsequently affirmed by the overwhelming vote of the Society’s Executive Council members.30

The members engaged in organizing the Tokyo Conference were determined that the composition of the plenary and panel sessions should be as multicultural and multi-civilizational as possible. They therefore established a small committee composed of active members of the Society (mainly those in the RPC)31 to select the panellists who had responded to the call for papers and panel proposals. The Tokyo Conference organizers thought that this selection committee should not include a member of the host country (Japan), in order to achieve the highest degree of independence and fairness of the selection process.32

When the organizers requested this committee to select the papers and panel proposals, they asked it to consider, in accordance with the basic philosophy of the Society, the following points. First, the selection must ensure a standard of quality that would enable the Society to compete with ASIL and ESIL. In Asia, nepotism has been considered as a serious disease. This problem must be overcome. The selection must hence be strictly based on the quality of the papers submitted. Second, the selection committee must take into consideration gender, geographical, and age balances, prioritizing female and younger members among those with similar qualifications, in order to counter the bias in favour of seniority and men. Third, among those with similar qualifications, the committee should give favourable consideration to participants coming from abroad. The organizers were of the view that the conference should avoid having too many sessions dominated by local participation, which may have hurt the multicultural and multi-civilizational nature of the conference. Fourth, the panels should highlight the collaborative aspects of our project between academia and practitioners. From the very beginning, the major figures in the Society considered that the Society should include not only academia but also practising lawyers. The Society should be a locus for both categories of international lawyers to exchange views, work together, and promote mutual understanding. Finally, the programme should reflect as much as possible the voices of younger members. Again from the very beginning of the preparation for the establishment of the Society, the encouragement of the younger generation of international lawyers was considered to be one of the primary objectives of the Society.

Overcoming a West-centric narrowness of the perspectives on international law and establishing international legal studies responding to transnational, trans-cultural, and trans-civilizational aspirations and expectations require a long generation of international lawyers. The Society has endeavoured to encourage the younger generation of international lawyers in their work. Therefore, the organizers of the Tokyo Conference provided a subsidy for travel expenses to the younger panellists whose papers demonstrated an exceptionally high quality.

There were other policies adopted at the Inaugural Conference in 2007 and reaffirmed in subsequent conferences, including the Tokyo Conference. First, as referred to earlier, the Society seeks to genuinely respect the diversity of cultures and civilizations. Thus, the Society has followed the name order used in each participant’s culture. For example, the Society expresses the name of the current President as XUE Hanqin in the Chinese order, with the family name first and the given name second. In order to avoid possible misunderstanding, especially for those accustomed to the internationally predominant Western way of expressing the name of a person, the Society has written all family names in upper-case letters. This policy is adopted by this Journal as well.

Second, the Society has sought to encourage free and active exchanges of diverse views regardless of the titles, professions, seniority, and positions of the speakers. The Society has therefore taken the policy of addressing all speakers as “Mr” or “Ms” as much as possible. Except for ceremonial occasions, the Society has sought to encourage all speakers, including plenary speakers and panellists, to address each other as “Mr” and “Ms”, rather than as “Professor”, “Ambassador”, “Judge”, etc. The underlying idea is that the Society is an academic and professional society where people gather as equals. A person’s title is not relevant to academic and professional presentations and discussions. By addressing all speakers as “Mr” or “Ms”, the Society wants all participants to keep in mind this “equality before academism and professionalism”.

Third, the Society uses English as a common language, but this does not mean that the Society endorses the privileged status of English in global society. English, the national language of England, became a global language with the growth in global power of the British Empire and the United States. Today, English is certainly a convenient tool of communication among people with different nationalities and cultural or civilizational backgrounds. However, we all know that there are a number of people whose English proficiency is not great, yet whose ability is outstanding. As an academic and professional society, we want to include and encourage those who may not be so proficient in English yet from whom we must learn. We should be aware of the advantages and disadvantages of those whose native language is English or who can communicate in English, and those who cannot enjoy such privileges. This Society is a locus of learning international law, not a place for listening to those who speak fluent English.

As referred to earlier, these policies are an elaboration of the basic ideas and philosophies of the Society, which were considered, discussed, and adopted by those who played a leading role in establishing the Society. They were basically adopted in the First General Conference held in Singapore and followed in the Second General Conference held in Tokyo. They will be adopted in the future activities of the Society, with necessary modifications, responding to the emerging needs, as necessary.

The Asian Society of International Law is just a young society. Its ideational/intellectual power is definitely very small at present. History tells us that the ideational/intellectual power tends to remain long after the predominant nations’ substantive power declines or decreases.33 Even though the substantive power of the major Western nations in relative terms in global society may decline, the ideational/intellectual power of that group will likely persist. In the field of international law, the ideational/intellectual power of Afro-Asian nations or any other non-Western agents will continue to be much smaller than that of the US and Western European nations and their agents, including academic or professional societies of international law.

Yet the global significance of biological and cultural diversity is firmly recognized in international law. Strengthening “multiculturality” and “multi-civilizationality” is recognized as one of the common public policies of humanity. Moreover, with the increasing economic power of Asian nations, their ideational/intellectual infrastructures—such as universities, libraries, research institutes, publishers, and media institutions—will be strengthened. It is likely that their ideational/intellectual power will steadily increase over the twenty-first century. The Asian Society of International Law can, and should, certainly play a significant role in the overall efforts to enhance the ideational/intellectual power of Asia. And this enhancement of the ideational/intellectual power of Asia, based on the constant self-reflection and exchanges of diverse views held not only by Asians but also by non-Asians, will greatly contribute to a more multifaceted, richer, and deeper understanding of international law and the world by humanity at large.