Asia & International Law
So vast is the continent we call Asia, so varied its physical and climatic features, and consequently so diverse the characteristics of its some 3 billion inhabitants, that the name should be understood more as a term of geography than one that is definitive in any cultural or political sense. For the Assyrians, conquerors of Mesopotamia some 30 centuries ago, the lands to the east were Asu, and those to the west, Ereb. Perhaps these names were the origins of what have come down to our own day through Greek and Latin approximations of Asia and Europe. It is doubtful if, before the rise of Greece and Rome had carried the term ‘Asia’ and its derivatives eastward, any peoples of the region actually called or thought themselves “Asian”, or considered the adjective as implying anything approaching a sense of identity or cohesion.
Asia’s western boundary is thought to run southward along the eastern foot of the Ural Mountains, to turn approximately southwestward thereafter to the northern shore of the Caspian Sea, and from there to run generally southwestward to the Caucasus Mountains which form the boundary until the Black Sea is reached. The Mediterranean coast is then the continent’s limit, which thereafter runs south across the isthmus of Suez and along the coast of the Arabian Peninsula. Although the Pacific Ocean forms a natural boundary of the continental landmass to the east, the island arc which includes Japan, the Philippines and Indonesia, as well as many smaller archipelagos and island States, are an integral part of Asia.
For some 4 millenia of human history countries in Asia led the world in science, technology, the arts and social organization. For our purpose we may recall here the influence of such works as the Code of Hamurabi, the Books of Moses, the Laws of Manu and Confucius’ plan for a Grand Union of Chinese States, on the origins and development of law, including that system which we now call “international law”. In more recent times Asia, as the birthplace of all of the great religions, may be said to have offered the world the very foundation son which canons of civilized conduct have been constructed.
Material decline among Asian nations over the last 5 centuries coincided with the emergence of powerful nation States in the West. Commercial and naval rivalries among them gave rise to the need for mutually beneficial regulation of certain fields of inter-State activity and, over some 400 years, the gradual acceptance of the regulatory system which is generally recognized today as international law. While that system was constructed on foundations of principle which may be thought of as Asian in origin, the nations of Asia themselves had little or no role to play in its early formulation. Unable at that time to match the capacities of the European powers, they had become the objects of Western dominance, a dominance manifest most clearly in the colonial empires that existed until the end of the Second World War.
Established as commercial outposts, “colonies” were soon the means of economic exploitation and political hegemony by the relatively well-organized, efficient and stable forms of government developed in the West. For an Asian nation, its sovereignty forfeit, and its territory and resources subject to governmental controls designed to serve the economic and strategic aims of a dominant metropolitan power, the latter tended to become the focus of its economic and political activity in a relationship that was essentially one of dependency. There seemed neither need for opportunity, nor indeed any legal basis, for the colonized nation to initiate and represent policies of its own concerning relations with other countries whether of the region or elsewhere. Exchanges among colonized Asian peoples, particularly in the field of law, failed to develop despite the fact that the colonial era did present them with a tool of incalculable significance: knowledge of the language of the metropolitan power which became the key to communication among subject peoples. Such exchanges as did take place were between the subject people and the metropolitan power, and had to do essentially with a legal framework decreed by the metropolitan power with a view to maintaining legislative uniformity as an aid to administering a far-flung empire, and less with the expression, discussion and mutual comprehension of each other’s indigenous laws and policies.
Thus, among the participants in the early modern law-making conference - twenty-six at the Hague Peace Conference of 1899 and forty-three at its sequel in 1907 - only four were from Asia: China, Iran, Japan and Siam. Significantly, none of them had actually been colonized. Four Asian States were among the twenty-seven “Original Members” of the LEague of Nations (China, Hedjaz, Japan, Siam) (1920), and eight were among the fifty-one “Original Members” of the United Nations (China, India, Iran, Iraq, Lebanon, Philippine Commonwealth, Saudi Arabia, Syria) (1945). It was not until the programme of decolonization initiated with the United Nations had been substantially completed, that the great majority of Asian countries were able to participate fully as sovereign States in the formulation of the laws that were to govern their conduct internationally. While the numbers of States in the Asian Group at the United Nations varies slightly depending on the purpose for which it convenes, the current overall total number of States in the Group at the time of writing is forty-three out of a total of some one-hundred-and-sixty-five members. (Webmaster’s note: this article was first prepared for the 1991 edition of the Asian Yearbook of International Law)
The study of international law in Asian countries developed gradually under the impetus imparted by independence and sovereignty regained. In many Asian universities the subject is taught at degree level. The Foreign Ministries of many Asian governments are advised on international law questions by their own specialist departments, while others rely on specialists located in the offices of the government’s general legal advisers. Nevertheless, it is only in a few countries that the level of interest and pool of expertise has been deemed sufficient to support a journal dedicated to international law.
Adapted from Ko Swan Sik, M.C.W. Pinto, J.J.G. Syatauw, “Introduction by the General Editors” in 1 Asian Y.B. Int’l L. xi (1991).
