AWA: Academic Writing at Auckland

 I  Introduction

Compared to other regions in the world, there is a very evident lack of participation on behalf of Asia in the International Court of Justice (ICJ). Of the fifty-three states belonging to Asia, only Cambodia, India, Japan, Pakistan and the Philippines have accepted the compulsory jurisdiction of the ICJ.[1] Altogether, there have been only fifteen disputes involving Asian states which have been referred to the Court’s adjudication.[2] This is especially pronounced in the case of the countries of East Asia: for instance, China and Japan have never taken a case to the ICJ, even though both have judges sitting on the Court.[3] In contrast, the South Asian and Southeast Asian nations of India, Pakistan, Cambodia, Indonesia, Malaysia, Singapore, and Thailand have all brought disputes before the Court.

This paper will explore and attempt to explain this reluctance on behalf of China and Japan to engage with the ICJ. It will first present the history of international law and the ICJ in an Asian context, then draw upon these historical factors and argue that it is the Western influence on international law and indigenous cultural features which ensure that Chinese and Japanese involvement in the Court presently remains limited. Each area will be analysed first by focusing on Asia to provide a general framework and then continue with China and Japan.

Next, this paper will conduct a regional analysis by contrasting East Asia’s non-engagement of the ICJ with South Asia and Southeast Asia’s very active involvement in ICJ to identify further relevant issues. It will discuss how colonisation, regional differences and differing views on the ICJ are the critical issues which emerge. In fact, how China, Japan and the other Asian states view the model of dispute resolution represented by the ICJ as Western is the central theme throughout this paper.

Finally, this paper will tie all four areas of analysis together and confirm the importance of the roles they play regarding the refusal of East Asia to become involved with the ICJ. By doing so, the paper will also map out and explain the underlying tensions which restrain meaningful interaction, as well as provide recommendations to help address any concerns and facilitate a greater understanding of the ICJ.

 

II  History, International Law and the ICJ   

History is perhaps the overarching factor for explaining China and Japan’s refusal to appear before the ICJ. The story behind how they and the other Asian states were incorporated into the international legal system and their experiences within it are rich sources of information, setting the scene for many of their attitudes and responses towards the Western model of dispute resolution represented by the ICJ.

A   Asia

1 From the 19th Century to the United Nations

Before the establishment of the United Nations in 1945, the role of Asia as a whole in the development of international law was severely limited. As the pre-World War I international system emerged during the 19th Century, there were few independent Asian states which could call themselves fully sovereign members with the ability to interact with the international community. This was because most of Asia had become colonised as a direct result of Western imperialism and ascendance to global political domination.[4] Although China and Japan escaped this fate, they were still compelled to abide by Western legal norms and their involvement in the international legal scene was considerably marginalised as well.

Much of this can be attributed to the Eurocentric or Western character of international law. As the nascent international legal system grew under the guidance of the European states in the years preceding the 19th Century, these countries came to view the very construct of international law itself as their exclusive domain, one that was built upon Western civilisation, customs and treaties.[5] Essentially, what this meant was that only those states which satisfied the criteria of being a “civilised state” in Western terms could enjoy the privilege of full legal participation. This belief embodied itself in the self-styled Family of Nations, an elite club of “civilised states” which the Western states alone controlled admittance to.[6] As the Industrial Revolution propelled Europe to far surpass Asia, it was in their opinion that such a backward region clearly lacked the necessary requirements to secure admittance and be treated accordingly as “civilised states.”[7] This paved the way for colonisation, and as part of the process, previous long-standing entities such as the Indian Mogul Empire, the Maratha State, the Kingdoms of Burma and Ceylon and other independent Southeast Asian states ceased to exist.[8]

With colonisation bringing the full force of this Western-created international legal system into Asia and with next to no-one to represent the Asian region in international law, it is not surprising why there was a lack of Asian participation in the international legal process around this time. For instance, at both Hague Peace Conferences only China, Japan and Siam were present, with their appearances being largely sinecures.[9] This was even so when the Conferences dealt with issues of great legal consequences for the Asian region stemming from the effects of the 1905 Russo-Japanese War. Not only did the Conferences lead to the creation of the first international conventions aimed at regulating the conduct of war, it also established the Permanent Court of Arbitration, a body whose direct relevance to Japan in particular will be shown throughout this paper.[10]

In addition, only China, Japan, India, Afghanistan and Siam became members of the League of Nations, and only they were signatories to the Statute of the Permanent Court of International Justice when it was created in 1922.[11] Up until it was replaced by the ICJ, only three cases involving Asian states were brought before the Permanent Court of International Justice.[12] Hence, it was clear that for a very long time, colonialism and Western domination restricted the Asian region in its abilities to make a mark in international law and ensured its total compliance.  

2 United Nations to end of Cold War

It was during the Cold War that Asia became more involved with international law. Notwithstanding its perceived Western bias, the Asian states accepted its more fundamental principles without any hesitation, in part because the established maxims of international law were useful in protecting their sovereignty against further Western domination.[13] After World War II and the break-up of the old European colonial empires, many new Asian states emerged as independent sovereign entities on the international stage for the first time.[14] All joined the United Nations (UN), a positive contrast from the years when China and India were the only Asian states present at the UN’s inception and where a mere eight Asian states were involved in drawing up the UN Charter.[15] This act of joining also simultaneously made the Asian states parties to the Statute of the ICJ.[16]

Asia had no significant role to play in the formation and early years of the United Nations, nor did it legally carry much weight in the organisation itself.[17] Due to the Chinese Civil War and the tense political tussle over whether the Republic of China (ROC) or People’s Republic of China (PRC) was the “true” China, it took until 1971 for the PRC-controlled mainland China to gain representation on the Security Council. Although the Southeast Asian nations came together to form the Association of Southeast Asian Nations (ASEAN) in 1967, there was no overall pan-Asian regional organisation nor regional legal mechanism to resolve disputes and differences. For example, deep divisions existed within Asia such as those between India and Pakistan as well as Thailand and Cambodia inhibiting Asian contributions to the development of international law in the United Nations.[18] This had the knock-on effect whereby Asian states were very reluctant to take their disputes before the ICJ for independent adjudication.

Hence, even though the Asian states form one of the largest groups in the United Nations, this weight of numbers belies the fact that their involvement and contribution to the development of international law remained minimal. In spite of this, it must be noted that Asian states did begin to appear before the Court, including the seminal case of Temple of Preah Vihear (Cambodia v Thailand) in 1959. Never before were two Asian countries prepared to settle a fiercely contested dispute over key territory not through force of arms, but by utilising the dispute resolution capabilities of the ICJ. Together, Cambodia and Thailand set a critical precedent that would come to be followed by other Asian states. Furthermore, Syatauw disagrees with the majority opinion and argued that from another point of view, the Asian states did in fact make some valuable contributions to international law. Through their own actions and experiences, they promoted decolonisation, self-determination, neutrality and peaceful coexistence, legal concepts which were crucial in an era of superpower rivalry and which were of great relevance and importance to countries of the developing world.[19]

3 Contemporary times 

In the last two decades, this situation has changed dramatically. Not only has Asia risen from its relative powerlessness, the Asian states have also correspondingly become much more involved in international law. For example, Asian states were at the forefront of the Manila Declaration on the Peaceful Settlement of Disputes adopted by the UN General Assembly.[20] Additionally, what began slowly with the appearance of the first Asian state before the ICJ in Right of Passage over Indian Territory (Portugal v India) and capitalised on by Temple of Preah Vihear has developed a genuine life of its own.[21] Effectively, Asian states have in recent times been actively engaging with international law and chosen to submit their disputes to international adjudication, exemplified by cases such as Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) in 1998 and Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore) in 2003, both of which dealt with Southeast Asian territorial disputes.

This goes to show that Asian states have made progress in accepting international law and discarded previously held fears of Western bias within international law and the ICJ. Two major factors can be credited towards this change: first, the collapse of the Soviet Union and the end of the Cold War removed much of the ideological problems plaguing international law which made it highly unappealing to Asian states caught between the capitalist West and communist East.[22] Second, the Asian region experienced impressive economic growth across the region, giving it the confidence to appear on the world stage and opportunities to become skilled in international law.[23] Indeed, such has been the dynamic growth of the Asian region that it has spurred remarks that just as the Westphalian order emerged from Europe, an “Eastphalian” order has the potential to emerge from Asia. In particular, as China and India become important world powers, there is the possibility that Asia will one day come to influence and shape international law much like the West did before it.[24]

However, the Asian states still face several challenges before that day comes. Most importantly, they have yet to overcome their position of inferiority in relation to the Western states when dictating terms of international law. With regards to international law-making, Asian contributions cannot be said to have assumed greater meaningful roles. The Asian states are also too passive and constantly on the legal defensive. Their claims of so-called “Asian values” in defence of their human and environmental rights records have only heightened divisions with international law.[25] Moreover, the significance and appreciation of international law in Asian culture can be illustrated by the fact that it was only very recently that a region-wide society of international law was established.[26]

B   China

1 The Opium Wars and China’s incorporation into international law

For a long time, China operated by very different notions of international law and was isolated from the Western version which was steadily evolving in Europe. By virtue of its position as the Middle Kingdom, it was the supreme state whereby all other states routinely paid tribute as subordinates.[27] China’s official entrance onto the international legal scene is generally held to also be the beginning of what it calls the “Century of Humiliation”: as the spectre of Western imperialism entered Asia in the 19th Century, China’s first real attempt at utilising Western international law would have dire consequences with the onset of the First Opium War. The cause of this conflict related to British refusal to stop the importation of opium and Chinese attempts to halt the trade.[28] When the ruling Qing Dynasty resorted to international law by declaring opium to be a contraband narcotic liable to confiscation, Great Britain took this to be a threat to the laws guaranteeing free trade and responded by using force, easily defeating China’s outdated forces.[29]  

Defeat compelled China to abide by the West’s international legal rules, brought China fully into the international legal system and paved the way for the establishment of extraterritoriality and the first of the “unequal treaties,” the Treaty of Nanking in 1842.[30] Further pivotal events in Chinese history such as the Second Opium War, Taiping Rebellion and Boxer Rebellion allowed other Western countries like France, Russia and America to follow the British precedent, resulting in even more “unequal treaties.”[31] Even Japan, the sole Asian state to have successfully westernised itself during the Meiji Restoration, imposed its own “unequal treaty,” the Treaty of Shimonoseki, on China after its victory in the Sino-Japanese War of 1894.[32] These treaties would last for more than 100 years and have an enormous influence on Chinese perceptions of international law: now, China would truly understand its purpose, its power, how it functioned and who was using it, a lasting legacy of its subjugation through the international legal system. 

Unsurprisingly, China’s forced incorporation into international law gave it the impetus to begin studying and engaging an international system which it had long stubbornly refused to be a part of. Without much choice, it accepted the Western way of doing things and recognised that international law could be used to gain an insight into Western thinking and negotiate with Western countries.[33] To that end, China hired Western legal advisors, as well as sending scholars abroad to study and widely circulating translations of legal works such as Wheaton’s Elements of International Law.[34] Towards the final years of the Qing Dynasty, China even participated in international summits such as the Hague Peace Conferences.[35] However, conservative elements within the ruling Qing Dynasty ensured that China never fully engaged and adopted international law as well as it could have. At the Hague Peace Conferences, it was noted that all China was willing to do was to “sadly [shake] its head and [prefer] not to see”.[36]

2 From the Republic of China to the People’s Republic of China

The successful Xinhai Revolution of 1911 brought an end to the Imperial Chinese system and replaced it with the ROC, the first modern Chinese state in the international legal sense. Continuing the tentative steps taken beforehand towards greater involvement in international law, China joined the League of Nations, making it one of only five Asian states to do so.[37] Like other victims of imperialism and colonialism, it too found itself subject to the League’s attempts at promoting development within China.[38] As mentioned before, China also had the distinction of bringing one of the three cases concerning Asian states before the Permanent Court of International Justice, which was Denunciation of the Treaty of November 2nd, 1865, between China and Belgium. Although this case was part of its efforts to get rid of the “unequal treaties” of the 19th Century, it was settled in the end between the parties themselves and not by the Court.[39] 

 

This encouraging participation in the international legal process carried on after World War II when the United Nations was created. As part of the victorious Allies, China became one of the five permanent members of the United Nations Security Council and even accepted the compulsory jurisdiction of the ICJ and submitted written submissions to its initial two Advisory Opinions.[40] Unfortunately, internal turmoil caused China’s interaction with international law to become much more complicated when victory for the Communists in the Chinese Civil War lead to the exile of the ROC to Taiwan and the establishment of the People’s Republic of China in 1949. Another modern Chinese state, its adoption of Marxism-Leninism as state ideology depicted international law as a Western system to be viewed suspiciously. Involvement in international law was also heavily disrupted and even suspended by the chaos of the Cultural Revolution. During this time, it cancelled China’s previous recognition of the ICJ’s jurisdiction and banned all study of international law until the 1980s.[41]

Things began to change when the PRC wrested the Chinese seat in the Security Council away from the ROC in 1971.[42] Now a member of the most important international organisation in international law, China could for the first time wield substantial influence in international legal affairs. It no longer had to worry that international organisations could use their Western-biased interpretations of international law against it.[43] China also realised that international law could be used to safeguard its state sovereignty and avoid repeating the mistakes of the past.[44] Additionally, the significance of Deng Xiaoping’s reforms cannot be overstated. With the opening of China that began in 1978, China became much more receptive of international legal norms. It came to regard the role of international law as fundamental to its overall development and a useful device to integrate itself into the international community.[45] Yet these positive developments this still did not translate into the truly groundbreaking situation whereby China brought a case before the ICJ.

3 China and international law today

In the 30 years that have passed since Deng’s reforms, China can be said to finally be a real influential player in international law. As globalisation has seen the emergence of truly international issues such as climate change, trade and environmental protection, so too has China’s reception grown towards favourably engaging international law. In today’s increasingly complex and interconnected world, it views international law as an important tool to protect its national interests and exercises influence on the international legal scene to make sure its positions are known.[46] Its power was vividly demonstrated in 2009 where it was due to Chinese efforts and objections that the Copenhagen Summit ground to a halt and failed to produce a legally binding climate change agreement to reduce greenhouse gas emissions.[47] Additionally, the statistics are a testament to the strength of China’s present involvement in international law: whereas in the past it had only been a member of 20 international organisations and a state party to 30 treaties, China now proudly claims that number has increased to over 130 international organisations and 300 treaties respectively.[48]

Furthermore in its engagement of international law, China has actually been making substantive contributions to the body of law itself, a task it had never done before. It is argued that China’s most visible and significant contribution has been its stubborn protection of state sovereignty.[49] Alarmed at the gradual weakening of the state as the primary unit in international law, China has been aggressively pushing back and placing emphasis on privileges which states should enjoy, in particular being free from outside interference in its domestic affairs and able to resolve international disputes peacefully.[50] This has been most evident when clashes arise between state sovereignty and international human rights law. Thus, China’s support of cultural relativism and the supremacy of sovereignty in the human rights debate have proved to be very powerful indeed, winning it support especially amongst the African countries and contributing to their resistance against Western international legal norms.[51] 

Unfortunately, China has continually refused to accept the ICJ’s compulsory jurisdiction and shunned it as an important international legal forum. However, lately there have been optimistic signs that this is slowly changing. Many Chinese international legal scholars have now acknowledged the importance of the ICJ as an option for resolving disputes peacefully and urged China to not completely close itself from it.[52] Additionally, the present Chinese Judge on the ICJ, Judge Hanqin, had the distinction of being the only person to date to appear before the Court and participate in oral arguments on behalf of China. This was as counsel in the 2009 Advisory Opinion of Accordance with international law of the unilateral declaration of independence in respect of Kosovo.[53] Whilst this Opinion concerned the validity of Kosovo’s unilateral declaration of independence and did not directly affect China itself, it did mark the first time that the country took part in proceedings in the ICJ.[54] Likewise, most recently in 2010, another barrier was broken when China participated for the first time in advisory proceedings before the International Tribunal for the Law of the Sea.[55]  

C   Japan

1 1853, the Meiji Restoration and Japan’s incorporation into international law

 

The development of Japan’s relationship with international law has always gone along the lines of absorbing foreign legal concepts and then combining them with domestic law to produce something wholly indigenous. Prior to contact with the West, Japan acknowledged that it was subordinate to China as the Middle Kingdom and accordingly paid tribute. Its formal incorporation into the Western international legal community began with the arrival of US Commodore Perry in 1853.[56] This act ended centuries of self-isolation under the policy of sakoku by which Japan closed itself off from the world.[57] By forcibly opening up Japan and compelling it to sign the unequal Convention of Kanagawa, Perry paved the way for other Western imperial powers such as Great Britain, France and Russia to force “unequal treaties” onto Japan. These treaties opened port cities, created extraterritoriality, and granted unilateral most favoured nation status to the Western states.[58] Such an experience proved so humiliating that they brought about the downfall of the ruling Tokugawa regime and lead to the start of the Meiji Restoration.[59]

The Meiji government knew that it was at a crossroads: Japan had to change or it would suffer the fate of China following its defeat in the Opium Wars. To that end, it determined that in order to fight Western exploitation and expansionism, it had to learn from the West and transform itself in their image. Thus, under the aegis of the slogan fukoku kyōhei or “enrich the country, strengthen the military”, Japan entered into a period of extensive and rapid industrialisation and modernisation. In legal terms, it set about learning the unknown foreign laws justifying Western incursions as fast as possible to protect itself. Hence, Japan became proficient in the Western legal tradition, absorbing French and German law to create a distinct hybrid of Prussian government, French legal structures and Confucian tradition.[60] This can be also understood by referring to another slogan wakon yosai or “techniques from the West, spirit from Japan.”[61] In turn, such a legal system was used by Japan to abrogate all unequal treaties and regain its sovereignty.

The results of Japan’s drive to become westernised were most impressive. Within the span of little over 40 years, Japan had vaulted into the ranks of the leading powers and become fully adept at wielding the tools of international law. Its position as the dominant Asian power was confirmed when, as mentioned before, it too could impose the unequal Treaty of Shimonoseki on China. Furthermore, it was accepted as a “civilised state” into the hitherto exclusively Western Family of Nations with victory in the Russo-Japanese War.[62] Yet, at the Hague Peace Conferences, the West was still very reluctant to accommodate a newly assertive and confident Japan. Needless to say, this did not satisfy Japan at all, as it wanted to be recognised as a country on par with the West. Its involvement with the newly created Permanent Court of Arbitration also ended badly when it lost the Japanese House Tax case, a case which it believed it had been cheated out of winning and one which will be explored in depth later on.[63] Hence, in the course of Japan’s early interaction with international law, what had begun with humiliation and assimilation would lead onto defiance and ultimately open confrontation.[64]

2 Imperial Japan, post-war Japan and international law

Having attained its goal of reaching the level of the West, it seemed only natural that the next step for Japan to take was to emulate Western imperialism and colonisation to further prove itself. The hierarchical nature of “civilised” and “uncivilised” states within the international legal system was noted with great interest by Japan.[65] Witnessing Western missions to “civilise” those deemed to be “uncivilised,” it too believed that it had the right and duty to do the same to its Asian neighbours. Since international law lay behind the rational for colonisation, then Japan’s actions would surely be confirmation of its status as a member of the “civilised” nations. This started with victory in the Sino-Japanese War of 1894 and would reach its zenith as the Japanese Empire.[66]

Japan also engaged international law to moderate its relationship with the Western states and protect its interests. For example, Japan joined the League of Nations following World War I and as stated previously appeared before the Permanent Court of International Justice in The S.S. “Wimbledon” and Interpretation of the Memel Convention cases.[67] It acted as one of five plaintiffs in the first case condemning Germany’s refusal to allow passage to the British ship the SS Wimbledon through the Kiel Canal in peace time.[68] In the second case, it was mandated by the Treaty of Versailles as a Principle Allied Power to assist in the resolution of the status of the Memel Territory, a territory administered by the League of Nations in East Prussia.[69]

However, the outlawing of force by the League changed the fundamental mechanics of international law and saw Japan become increasingly isolated due to its excesses in subduing China. Constrained by the very system it had worked so hard to master and become a part of, Japan responded by leaving the League and shortly thereafter descended into the abyss.[70]

Japan’s defeat in World War II gave way to recognition of a new international legal system. Again, like the Meiji government before it, Japan’s postwar government adopted foreign legal concepts into its own legal framework, this time from American law.[71] With its subsequent resurrection and newfound commitment to maintaining world peace, Japan also became much more closely involved in the development of international law. One major area of Japanese engagement has been in treaty law. This is because it sees treaties as the main way to deal with contentious international issues, so much so that Japan is now a state party to more than 700.[72] Additionally, in the realm of multilateral treaty-making, Japan was heavily involved in the creation of the Vienna Convention on the Law of Treaties. Many of its submissions were included in the final version including Article 66, which dealt with how the ICJ should act in the event a treaty came into conflict with a jus cogens norm of international law.[73]

Another area of active Japanese involvement has been in the development of the law of the sea. For instance, it made substantive contributions to and was a driving force behind the Geneva Conferences on the Law of the Sea and also at the Third UN Conference on the Law of the Seas.[74] Furthermore, in accordance with its avowal to resolve its international disputes peacefully, Japan became one of the very few Asian states to accept the compulsory jurisdiction of the ICJ when it did so in 1958.[75] Even more remarkable for an Asian state was the fact that Japan actually offered to submit three cases to the Court so that it could mediate its disputes with Australia, New Zealand and South Korea.[76] In the first case, Australia wanted to force Japanese pearl shell fishing fleets off the Arafura Sea through the application of the continental sea shelf principle, while in the second New Zealand attempted to exclude Japanese fishing fleets from a fishery zone.[77] The third concerned competing Japanese and Korean claims to the territory of Takeshima Island.[78] Unfortunately, none of these disputes ever went to the ICJ due to the refusal of the other parties, hence ensuring that Japan remained with the greater number of Asian states to not have appeared before the Court. 

3 Japan and international law today

However, in the present day Japan’s influence and involvement in international law cannot be said to be as great as it was before. For all its supposed clout in international law, Japan has still yet to attain that confirmation of true importance and status, which is a permanent seat on the UN Security Council. Such a failure throws into sharp relief its very obvious suitability as a possible candidate for the Security Council and impressive record of engagement with the UN: among Japan’s many achievements, it is the second largest contributor to the UN’s regular budget following America, a strong advocate for much-needed reform of the Security Council and an active participant in UN activities across the board.[79]

A noticeable feature of Japan’s recent engagement with international law is the fact that it has been on the receiving end in its various disputes and seen its interests challenged. More and more, Japan has found itself in the firing line and seeing the international legal system being used against it. Hence, parallels can be drawn between Japan’s experiences in contemporary times and its initiation into international law back in 1853. For a country that had enthusiastically embraced and pushed the development of international law in the past few decades, it is surprising to see that Japan is the one being taken by other countries to face the punitive measures of international law and not the other way around. Perhaps in recognition of these developments, Japan has revised its acceptance of the ICJ’s compulsory jurisdiction. On 9 July 2007, it substituted a new declaration over the 1958 version which restricted the Court's jurisdiction to after September 15th 1958. Many see this as an attempt to pre-empt claims for the plight of Korean comfort women in World War II, another area where Japan has been severely critisised.[80]

By far the most contentious disputes which Japan has with other states concern its fishery industries. For example in the Southern Bluefin Tuna cases, the International Tribunal for the Law of the Sea found in favour of Australia and New Zealand and held that Japan should immediately cease conducting an experimental fishing programme.[81] Of a higher profile have been Japan’s struggles in the area of whaling. Japan’s stubborn insistence to continue whaling despite the moratorium on the activity has generated long running clashes with Australia, New Zealand and non-governmental organisations such as Greenpeace and Sea Shepherd. Japan claims in defence that its whaling programme is justified as scientific research under Article VIII of the International Convention for the Regulation of Whaling.[82] This has come to a head in 2010 when Australia made good on its promise to take Japan before the ICJ, beginning the case of Whaling in the Antarctic (Australia v Japan). Even its actions in the wake of the Fukushima nuclear meltdown this year have been called a violation of international law due to disposal of radioactive water into the sea.[83] It is contended that Japan has violated the non-dumping provisions of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, as well as the obligation to alert other nations under the provisions of the Convention on Early Notification of a Nuclear Accident.[84]

 

III  Western Influence, International Law and the ICJ

From analysing history, it can be shown that one of the attitudes which China, Japan and the other Asian states had to international law and the ICJ was that they were exclusive products of the West. This meant not only were the international legal system and the ICJ liable to being influenced by Western ideals, the model of dispute resolution offered by the ICJ was also likely to follow a uniquely Western and therefore unreliable approach.

A   Asia

There is a commonly held perception by Asian states that international law is an entirely Western-made construct.[85] Any merits of equality and justice supposedly at the foundations of international law were in the views of the Asian states undone by Western imperialism and colonisation.[86] Hence, the position which most Asian states have reached in more recent times is that while they may have come to accept the more fundamental principles of international law, this acceptance is still tainted with discontent and skepticism over the effectiveness and direction of international law.[87] As mentioned before, this view that international law was the exclusive realm of the West was further amplified by the effects of the Cold War. In effect, international law was regarded as Western ideology.[88] Obviously, this became both unpalatable and unacceptable to Asian states, who found themselves within the communist East and non-aligned countries. Although this reason has disappeared with the end of the Cold War, it contributed to and preserved lasting impressions of international law as a system that is biased towards the West.

With this in mind, the question must be posed: to what degree are Asian attitudes towards international law reflected in its relationship with the ICJ? Extrapolating the anti-Western mentality onto the ICJ would mean that the Asian states hold that the ICJ is a Western-backed organisation which pursues Western interests. This contention can be tested by observing how often the Asian states use the Court, accepted the Court’s compulsory jurisdiction through Article 36(2) of the Statute of the ICJ and actually complied with its decisions. The results are not very encouraging and support the argument. As shown before, Asian engagement with the ICJ has only just begun to pick up, while a mere five states have accepted the Court’s compulsory jurisdiction. Compliance has also been slow in coming: for example, when the decision in Temple of Preah Vihear was handed down, Thailand reacted violently and took time to respect the judgment.[89]

Moreover, a study performed by Posner and De Figueiredo on ICJ shows there is evidence that corroborates Asian fears about bias within the Court. They have found that judges tended to favour the states who appointed them and whose level of development was the same as the state which the judges were from.[90] This would seem to confirm Asian suspicions that a judge from a Western country would support a Western country should it come before the Court. Yet conversely, they found that judges did not always favour states featuring similar political and cultural systems like the state which they were from.[91] On this count at least, claims of Western bias are unfounded. Nonetheless, what remains true is that the perception of international law being Western-leaning continues to be a powerful factor which keeps Asian involvement with the ICJ small and limited.

B   China

 

Like the rest of Asia, China’s historic position on the receiving end of Western aggression and imperialism has left it in no doubt as to who wields the most influence in the international legal system. This has been especially amplified in the case of China: Western imperialism, the diminishing of its status as the leading power of Asia and its experience of unequal treaties and extraterritoriality have left a profoundly deep legacy of ambivalence towards international law. This came to the fore during the Cold War, where China believed that both the West and the Soviet Union used their respective interpretations of international law for the purposes of maintaining global American-Soviet hegemony.[92] As a result, China views international law warily and zealously guards its state sovereignty, independence and self-reliance. [93] Above all else, state sovereignty is something not open to compromise or negotiation.

Concurrent with this is the fact that China views international law as virtually inseparable from international politics. For all of international law’s well-meaning fundamental principles, in the end they are but merely factors to be weighed in calculating the balance of power against rivals like the West. As such, China engages and conforms to international law where it suits and aligns with its interests, but will willingly expend and ignore it when the very opposite occurs.[94] All this translates well into explaining Chinese reluctance to engage the ICJ. As a legal forum which threatens its state sovereignty and one that is subject to great power competition, there is little motivation for China to take the ICJ seriously. Rather, it has opted to focus its attention on increasing its involvement in international law through international organisations, treaties and conventions where Chinese interests would be better well served.

In keeping with China’s explicitly realist view of international law, Posner and Yoo offer two persuasive reasons why China does not take any dispute before the ICJ. The first is that were China to take a case to the ICJ, it would be at the mercy of 14 nationals of other states.[95] Bearing in mind the weight which China places on state sovereignty, this would be tantamount to China submitting its interests before a panel of foreigners to decide and potentially veto. This fear is a common one among Asian countries and grounded in the ICJ’s past of being stacked with Western judges. Indeed, China has accused the ICJ of imperialist excess and abuse before in cases such as Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania) and Anglo-Iranian Oil Co. (United Kingdom v Iran).[96] The second reason is related to China’s rise to global pre-eminence. As a rising power, it will seek to change the status quo and create a new international legal order, but this is directly opposed by the ICJ which by its very nature enforces the Western-created status quo.[97] While this may be all true, it should be noted that Posner and Yoo do play up the political aspects of China’s rise too much, a move that potentially overshadows the real positive steps taken by China with respect to the ICJ that this paper has shown.

C   Japan

Japan has its own reasons to suspect the influence of the West in international law, due to the fact it avoided the worst effects of Western imperialism and expansionism. They are beliefs which are more subtle but nevertheless adhere to the overall Asian region’s perception that international law is slanted in favour of the West. The Japanese Judge and current President of the ICJ Hisashi Owada argues that much of Japan’s ambivalence towards international law can be attributed to the legacy of the Japanese House Tax case.[98] This case took place in the context of Meiji Japan’s fight against the “unequal treaties” and concerned the country’s attempts to levy taxes on Western nationals living in Yokohama following revisions of the old treaties and the abolishment of extraterritoriality.[99] As Great Britain, France and Germany regarded this as a violation of the revised treaties, Japan decided to submit the dispute before the Permanent Court of Arbitration to settle.[100] That it lost in the end hit the country very hard: indeed, its rulers believed that because Japan was fully schooled in the principles of international law and the law was on its side, this could not have possibly happened. Owada surmises that the loss in the Japanese House Tax case spawned two major repercussions which had an “immeasurable negative impact” on Japan’s willingness to engage in international adjudication of any kind.[101]

First, the case confirmed Japan’s underlying suspicions that despite all that it had achieved in catching up with the West, it was still not viewed as their equal.[102] Thus, the loss was evidence that the West was out to trick Japan and work against its interests. As it believed that the West was inherently racist, international law would be the means to dominate Japan.[103] Secondly, Japan concluded that its loss in the case was proof that the international legal order created by the West was not based on any real notions of natural justice, but was merely a series of highly technical rules used and manipulated by the West to protect Western interests and maintain Western advantages.[104] This meant that Japan’s disappointment was amplified because it had been so sure that it had mastered these rules and yet still failed to achieve success. This served as further confirmation that international law could not be fully relied upon to provide adequate protection of its interests.

Hence, even though Japan has tacitly embraced and observed international law, it has always long maintained its doubts about the merits of international adjudication. Indeed, such was the impact of the Japanese House Tax case that it was 100 years until the Southern Bluefin Tuna cases before Japan was prepared to appear before an international arbitration panel.[105] Furthermore, the observations given by Owada are highly applicable as ever, as Japan is very much still loath to submit its interests to be judged by others on an international panel, be it the ICJ or something else. For example, in disputes over Japan’s whaling activities, the country stubbornly refuses to yield. It believes that attacks on its whaling practices constitute a challenge towards its sovereignty and is cultural imperialism.[106] As such, like the Japan of old, the Japan of today continues to harbour deep mistrust about international law and will not appear before the ICJ, even if one its nationals is the Court’s President.

 

IV  Cultural Heritage, International Law and the ICJ

 

Aside from Western influence on international law and the ICJ, the other major barrier to greater Chinese and Japanese involvement in the ICJ can be attributed to their cultural attitudes to dispute resolution. Because the ICJ is based on a Western model of dispute resolution, it embodies the Western legal tradition’s focus on the individual, public litigation and lack of “shame”, concepts which clash heavily with what China, Japan and other Asian states believe.

A   Asia

Whenever a dispute arises, Asian culture emphasises that it should be worked out through a process of reconciliation which satisfies both parties, instead of through a black and white law that explicitly distinguishes between winners and losers.[107] This domestic belief has been transposed onto the international legal scene: that is why adjudication by a body such as the ICJ and the idea of a dispute settlement that is binding runs counter to this premise. Although this attitude has seen improvement with the Pulau Ligitan and Pedra Branca cases, the Asian states have long preferred to resolve differences peacefully through direct bilateral negotiations unperturbed by outside interference.[108] This feeling has been reinforced by the historical factor of imperialism and colonialism, an experience which has made them very sensitive about their territorial sovereignty.[109]

When the rare opportunity does arise for outside adjudication to be invoked to resolve disputes peacefully in Asia, it has to be culturally approved and acceptable. One such method is through mediation. This allows both parties to come out of a dispute in a win-win situation by calling upon a trusted leader to adjudicate without either side “losing face.”[110] This notion of “keeping face” is especially central to Asian concepts of self-respect and honour. An example of mediation in action was when the Free Aceh Movement accepted a settlement with Indonesia in 2005 after years of struggling for independence. By appealing to the expertise of Martti Ahtisaari, a former President of Finland, an agreeable settlement was worked out which satisfied both sides and remarkably ended 30 years of fighting.[111]

Thus, cultural beliefs weigh heavily on why most Asian states have been reluctant to go before the ICJ to resolve differences. In their minds, there is no need to pursue the particular mode of peaceful dispute resolution represented by the ICJ when they already have alternate methods available in international law which are culturally acceptable. For instance, when compared with the option of conciliation, a binding dispute settlement by the ICJ would be unattractive when they could instead opt for a form of dispute resolution which does not result in a clear winner but allows both sides to reach an agreement.[112] By not taking disputes to the ICJ and dealing directly with the other parties, the Asian states are also able to avoid any negative effects on their interests which might stem from an ICJ decision.[113] However, this is not to say that other non- Asian states are not without their particular cultural preferences, or that Asian states are more culturally sensitive when it comes to dispute resolution. All that is being argued is that it in the Asian context at least, Asia’s specific cultural heritage remains a very persuasive factor which restrains the region’s willingness and ability to appear before the ICJ.

B   China

Building on from more generic Asian culture, China’s core cultural features impeding greater involvement in the ICJ are Confucianism, guanxi, and “face saving.” Firstly, the significance of Confucianism to the Chinese state cannot be understated. Long the philosophical underpinning of China, it was briefly abandoned during the initial years of the PRC but has undergone a significant revival in recent decades and remains relevant as ever in understanding Chinese attitudes towards international law.[114] Confucianism’s legal incarnation is known as li and can be roughly equated to the Western concept of natural law. Briefly, its key characteristic is that it urges individuals to regulate their behaviour in accordance with natural morality to create a harmonious and stable social order.[115] Li’s counterpart is fa, which works along the same lines as Western positivist law. In the Chinese historical context, fa has only ever been used to punish and never to protect one’s civil rights.[116] 

This Confucian pre-occupation with social order in turn informs how China likes to pursue alternate methods of peaceful dispute resolution outside of the ICJ. As such, the overwhelming emphasis placed by li on maintaining order has made China more inclined to resolve its differences by dialogue rather than by adjudication.[117] That is why it prefers the informal methods of consultation, mediation and conciliation as opposed to some formal external mechanism like the ICJ with the capacity to induce confusion and disorder. In fact, Confucianism holds that it would be wrong to diverge from the natural order of li and subject oneself to the shamefulness of legal adjudication under fa, as it would be a confession that one has failed to live up to the expected standards of society.[118] Such attitudes have lead to the coining of several colourful Chinese proverbs to put this point across: it is said that ‘‘in death avoid hell, in life avoid the law courts’’ and ‘‘to enter a court of law is to enter a tiger’s mouth.’’[119]

Secondly, arising out of Confucianism is the notion of guanxi, commonly translated as “friendship” or “connections.” This is very important in understanding Chinese attitudes to dispute resolution. It stresses the value of connections and personal relationships, making it imperative to know very clearly who one is dealing with.[120] In the face of a panel of unknown foreign judges, it is little wonder that China feels uncomfortable with relying on independent actors in the ICJ to look after its interests. Thirdly, China is obsessed with the idea of “face saving.” Like other Asian cultures, it believes that honour, self-respect and the need to avoid embarrassment to one’s own reputation are paramount and must be maintained at all costs.[121] The perennial fear of an ICJ judgment against it would constitute a setback which China could never possibly accept.

C   Japan

Japan’s cultural heritage also echo general Asian cultural traits concerning dispute resolution and can explain its reluctance to engage the ICJ. More so than even China, it is the heavy influence of Confucianism which represents the greatest cultural barrier preventing Japan from appearing before the ICJ. Centuries of exposure to Chinese culture ensured that Confucianism became firmly entrenched within the Japanese psyche and given paramount primacy: hence, the afore-mentioned Chinese li is known as giri in Japan, which is often translated as meaning a universal obligation of thanks or loyalty.[122] Giri manifests legally itself as the traditional values which are inherent within the Japanese legal system and in the overwhelming domestic preference for conciliation over adjudication when it comes to resolving disputes.[123] This has remained the case despite the era of immense Western legal influence spanning from the Meiji Restoration through to the American occupation of Japan after World War II.[124]

The act of conciliation places emphasis on preserving harmony and avoiding the debilitating effects of conflict, reiterating the Confucian liking for maintaining societal order. That is why within Japan, any form of judicial adjudication remains highly suspect. Thus, the act of appearing before a court to judge the merits of a dispute is regarded as very shameful because it violates the dictates of girininjo or rules of behaviour: to sue another would create much disharmony and be akin to extortion, as well as bring dishonour upon one’s name and family.[125] Additionally, Japan’s well-documented social hierarchy is another product of Confucianism which restricts the ability of courts to facilitate dispute resolution. Japanese social structure is constructed in such a way that individuals refrain from pursuing disputes should these be against their deemed superiors, as this would once again disrupt social order and destroy harmony.[126]

Consequently, the fear of popular disapproval, the possibility of shaming the victim and the desire to settle through conciliation and apology play a huge role in determining how Japan likes to operate legally and greatly restrict the amount of litigation within Japan, with most disputes never reaching the courts. This extends to the highest judicial levels as the Japanese Supreme Court itself rarely uses its powers of judicial review, as it is afraid of causing disorder.[127] Such cultural traits are all directly translatable to Japan’s relationship with the ICJ on the international stage and can explain Japan’s lack of greater involvement with it. Furthermore, these cultural factors ensure that Japan is very conservative when it comes to responding to international law. It will adapt concrete norms of international law but will limit itself to concentrating solely on interpreting and applying them.[128] Such a tendency for passive observance is simply one more cultural trait which illustrates why there is little impetus for Japan to take a case before the ICJ.

IV East Asia, South Asia, Southeast Asia and the ICJ

Having analysed history, Western influence and cultural beliefs as key reasons behind China and Japan’s reluctance to appear before the ICJ, there must be further factors which are perhaps particular to the East Asian region. This is because other Asian states are willing to take disputes to the ICJ to settle, despite the fact it stands for a Western model of dispute resolution. These can be identified by comparing and contrasting China and Japan’s positions as East Asian nations with various nations of South Asia and Southeast Asia.

                       

A   South Asian and Southeast Asian involvement with the ICJ

1 India and Pakistan

In a stark contrast to East Asia, the nations of South Asia have been very prolific in their involvement with the ICJ, chief among them India and Pakistan. As mentioned before, India had the distinction of being the pioneering Asian state to first appear before the ICJ in Right of Passage over Indian Territory (Portugal v India). Moreover, between them India and Pakistan have decided to take a credible number of 3 disputes before the ICJ to settle: indeed, the cases of Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan), Trial of Pakistani Prisoners of War (Pakistan v India) and Aerial Incident of 10 August 1999 (Pakistan v India) also have the distinction of covering a myriad of different types of disputes. However, it must be noted that the disputes which India and Pakistan do bring to the Court fail to touch on disputes of a territorial matter. Hence, any move to bring long-standing fundamental questions of ownership such as that over the Kashmir region before the ICJ appears to be out of the question.

2 Cambodia, Thailand, Indonesia, Malaysia and Singapore

 

Likewise, the nations of Southeast Asia highlight East Asian indifference towards the ICJ and can be said to also be active in using the Court as a means to settle disputes between them. Unlike India and Pakistan, territorial disputes form the core of Southeast Asian cases which come before the ICJ. As mentioned before, it was Cambodia and Thailand who brought the important case of Temple of Preah Vihear to be decided by the Court. This set an important precedent for Asian nations to follow and really kick-started substantive Asian engagement with the ICJ. These two countries demonstrated to other Asian states that it was really possible for a dispute over key territory to be resolved by international adjudication. Indeed, both nations have also very recently applied for an interpretation of the initial decision in Preah Vihear following years of tension stemming from non-compliance with the initial judgment.[129]

Territorial disputes also consume the attention which Singapore, Malaysia and Indonesia give to the ICJ, resulting in the cases of Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) and Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore). What is significant about these three nations is the fact that none of them have accepted the compulsory jurisdiction of the ICJ, yet they still choose to go to the Court to settle their disputes. Joining them very soon is the Philippines, who are preparing to bring a territorial dispute with Malaysia to the ICJ.[130] However, such Southeast Asian acquiescence to the ICJ is still not yet completely certain or guaranteed. For instance, in