Dissecting the Role of Asian States in Modern International Law: Changing gears from Bilateralism to Jus Cogens
Volume IV, Issue I, 2021
The 21st century marked Asia’s emergence as a global force to reckon with, notwithstanding this, its Human Rights track record continues to remain dismal. A large share of the Treaty and Institutions remains under-represented by the Asian States. This is based on several legitimate justifications rooted in past and present- like colonialism, post-war trials to unequal treaties. The author undertakes a journey to discover why this ambivalence is endemic amongst the Asian States through a combination of an empirical and non-empirical study, placing reliance on primary and secondary sources of law. Further, the author has delimited the research paper to an Asian theme, drawing comparisons with Europe and Africa in certain instances. In Part I the research article probes into the inherent basis as to why Asian-States remain hesitant to sign or ratify major treaties like Statute of the World Court 1945 International Criminal Court, 1998 International Covenant on civil and political rights 1966 etc. Even if an Asian State is a signatory to these so-called universal instruments, it has generally invoked reservation or declaration trumping compulsory Jurisdiction. Part II of the study traces the European conception of the civilised States an offshoot of Westphalia notion of subjugating the non-civilised States, which subsequently created an air of suspension amongst the Asian-State towards international treaties which primarily is the product of the West. In Part III, the author provides a comprehensive analysis of the lack of internal democracy in International law primarily in the realm of Customary International Law and Human Rights Law. In the final section, the researcher visualises the path forward; in a sense, the author contemplates the potential role that concepts like Dharma, Jus Cogens, and Erga Omnes could play to make international law inclusive and value-based. The study is purely doctrinal and attempts to juxtapose Asia’s share experience vis-à-vis the internal structures in International Law.
Keywords: Customary International Law, Jus Cogens, Asian States, Civilized States, Dharma