Can International Law build confidence among Asian States?

This article could address several issues. However, here, it demands, principally, a reiteration or otherwise of the place and function of International Law among nations, bilaterally, regionally and globally especially among Asian States. Its merit may lie, perhaps, in the value of International Law as practised on the one hand and its normative character on the other.

It is now a widely accepted view that there is no other regime of substantive law or modus operandi which could be substituted or applied to build sustained relations among nations.

Notwithstanding, it must be borne in mind that International Law is not a monolith bounded by absolute certainty. It is itself dynamic and evolutionary. It applies variably to facts, circumstances and issues. This dynamic and evolutionary character of International Law operates within a given regime of laws, rules and principles of International Law itself.

Since International Law can be paradigm specific, it can be bilateral, issue specific, region specific, global, underpinned by custom or treaty or other valid source. But whatever it is governed by, it is still International Law which ushers and sustains relationships among nations and provides the value-basis and modus operandi for relations among States.

In my involvement with the practice of international relations, the anchor of such relations has been International Law. My co-practitioners, international lawyers and academics have repeatedly and continuously affirmed this. Thus, where there has been an issue between bordering States requiring the settlement of land boundaries or maritime boundaries, a framework for cooperation, delimitation of maritime boundaries, apportionment of common resources, access to resources, including access to the sea by landlocked countries, cross border issues including counter terrorism, the development and sharing of the benefits of trade, science and technology, to name just a few, International Law has been a sine qua non.

Every sustainable progress that has been made to share commons, potential commons, build a paradigm, or enable likely dispute settlement, has been generated by the acceptance of International Law as the basis for achieving an objective rejecting a unilateral regime by any single or combination of States inconsistent with International Law which includes the rights of a persistent objector.

Where a less developed or less resourceful State and a more developed or more resourceful State have been involved in an issue before them, it is International Law which has provided tools to the less resourceful State to pursue its claims. Since International Law clearly acknowledges equity, equitable principles, principles of preferential treatment, treatment on the basis of non-reciprocity, historicity and a host of other principles which could safeguard the less developed or less resourceful State, it is here, too, that International Law could be effectively relied upon in negotiations to best serve its interests.

Confidence among States is generated by the invocation of International Law and not by arbitrary or unilateral methods. Amongst Asian States, many of which have been subjected to an unjust colonial history, shared pains and sacrifices, the degree of cooperation which now subsists between them has also drawn upon general International Law and such of its variants to suit cooperating States. Even where there is little or no agreement, the principles for enforcing or safeguarding entitlements is contained within the body of International Law.

Whilst International Law is the governing basis and modus operandi in a relationship and signifies the investment of confidence among States desirous of cooperating in a prevailing regime, it is not the only factor among States generating such confidence. A large measure of confidence is built on political will, often born of shared values. It is imperative that States may choose to settle issues overriding domestic political and constraining historical considerations exercising their political will, bonded by these shared values.

The political will to settle such issues may rest on the trust enjoyed by States among themselves by an impending future. The issue of climate change or the use of rivers by both upper and lower riparian States demands cooperation among affected States. But historically, cooperation may never have taken place on the issues staring them in the face. There may have been bitterness among these states for a variety of reasons and this bitterness may have featured in the absence of cooperation. There may have been governments in the concerned States which did not see eye to eye with each other or because they belonged to different alliances in our post-colonial world. The convergence of issues was, therefore, never matched by action. At the root of all this was the absence of trust. The political will to be shared must also be founded on the trust each State vests in another or the multiple States involved.

Trust itself could be built through engagement by a change in the character of the government in at least one of two States when any two States are involved. In the case of multiple states it is imperative that trust must be generated in the multiple States, often by a single or more key players, but there must be engagement.

Beyond the bedrock of International Law, political will, and the trust prevailing amongst the States involved, engagement and the competence of the engaging parties is are factors in enhancing confidence. If a fair and just entitlement is not advanced competently there is that much less chance that there would be continuing confidence among States, including Asian States, and agreements would not be sustainable although International Law, per se, was applied.

I accept that International Law generates confidence among States including Asian States, and that all relations among States must be sustainable on such basis. But to build confidence among Asian States it, alone, may not be enough. It must be supported by political will, trust among States, engagement, competent representation by respective states, diplomacy at its best, opportunity for advancing cooperation and resolution of conflicts at the right time, together with a conducive global environment.

International Law, itself, is dynamic and evolutionary underpinning relations. But it is not the sole criterion for building confidence among Asian States.

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