c

c 

The Recent past has seen the proliferation of regional organizations within the Asian continent. Some of
the most prominent ones have been ASEAN, APEC, SAARC and the Shanghai Cooperation
Organization. There seems to be some commonality in the aims that are sought to be achieved by these
organizations which are firstly foster a sense of community among its member nations, the acceleration
of economic growth and social progress within the nation and the promotion of peace and stability
within the region. However, a majority of the activities of these organizations have been concentrated
toward the promotion of cooperation within the economic sphere. There has been consistent criticism of
the ineffectiveness of the community to deal with disturbances of the peace of the region in a unified
manner.

The past half century has seen the proliferation of international courts and tribunals with differing
spheres of control and areas of influence. However, it is evident that the Asian politico-legal sphere has
largely been unaffected by such phenomenon largely due to the absence of a regional body of influence.

The Article seeks first to emphasize this lack of uniformity within the international legal system and
seeks to make linear sense of a mostly non-hierarchical structure. If such analysis may indeed bolster the
necessity of having an µinternational legal system¶ the second question that this Article seeks to answer
is whether the system need indeed be regionalized more specifically within the Asian situation demands
it or would accommodate it. Therefore, this brings us back to the question that the article primarily seeks
to answer: whether, if, there is such a need, an institution such as an Asian Court of Justice is desirable.

The second part of the Article then begins by comparing the different forms that an Asian Court of
Justice might take from the experiences of the establishment of tribunals such as the African, Caribbean
and European courts of justice within their own socio-economic contexts. This analysis will primarily be
based upon the way cases have been decided and implemented in these courts and shall be weighed by
an analysis of the Asian situation over the past few years special reference being made to organizations
of Asian cooperation such as ASEAN or SAARC.

The Article hopes to conclude that while the possibility of having an Asian Court of Justice with a far
reaching influence may be marred by the very diversity that defines the continent, it is reasonable to
expect a compromise on those essential matters of common concern.

   


 

The countries that comprise Asia have different historical legacies, cultural heritages, and ethnic and
linguistic origins. These and other differences have, throughout history, contributed to enrich the
diversity of the people of this region.
Political systems are also vastly diversified. Brunei, for example, is under sultan rule and Islam is the
state religion. By contrast, Malaysia adheres to a parliamentary democracy, but it, too, has Islam as the
state religion. Thailand has a constitutional monarchy, with the king as the guardian of Buddhism.
Indonesia and the Philippines have adopted republican forms of government, both of which are headed
by a president.
Given such diversity, it is no wonder that the forces that fostered regional cooperation and integration in
other parts of the world following World War II did not promote integration in Asia. But diversity was
not the only factor that worked against it. Integration was also slowed by the lack of identifiable
common policy goals among East Asian countries.
The Cold War also played a significant part in preventing regional cooperation and integration. In fact,
two of the major armed conflicts during the Cold War period-the Korean War and the Vietnam War-
were fought in Asia. In Europe, the arrival of the Cold War expedited the process of regional
cooperation for self-defense, as evidenced by the establishment of NATO, and regional integration for
prosperity, as evidenced by the formation of the European Community (EC). By contrast, in the
confrontation among the major powers-the United States, USSR and China-had the effect of delaying
the process of regional cooperation and integration because of the ideological chasm and psychological
ambivalence that came to prevail among the newly born countries of the region.

  c

 

 

The reference point for this argument is the creation of the permanent court of international justice
around the turn of the 19th century this was really when the Asian countries came into contact with the
western nations or as the µcountries of the civilized world¶ as the perception was back then.
Understandably, in this historic undertaking to create a permanent international court to settle disputes
between sovereign States through adjudication on the basis of law, Japan was practically Asia's only link
to this process. At that time, she was the only country from Asia to be represented on the work of this
Committee of Jurists. The reason for this weak link between Asia and international adjudication during
this period is very simple. At the turn of the century from the 19th to the 20th, there were not yet many
sovereign members of the international community from Asia. Many of the territories in this region,
which nowadays enjoy wide membership in the United Nations, were still under the colonial rule of
Western states.1 The lesson the Japanese drew from their participation was that international law was not
really a body of principles based on natural justice which the East could share in common with the West,
but a bunch of technical rules which were devised by the West for their interest and which could be
manipulated to the tactical advantage of the West. They could work to your advantage if you were
sufficiently skillful; they could work to your disadvantage if you were not skillful in manipulating this
tool.2Be that as it may, it seems remarkable that the recent success in nation-building in many nations of
Asia, with the corresponding growth in confidence of their capacity to be significant players in
international affairs of the contemporary world is changing this traditional vista of the region.

The International Court of Justice appears to have come to gain, little by little, a degree of confidence
among Asian countries. It is true that already in the Right of Passage over Indian Territory (Portugal v.
India) case3 as early as in 1955, India became the first Asian country to appear before the International
Court of Justice in the post World War II period. However, this was a case in which India was brought
before the Court as Respondent. Much more significant in this respect was the famous Temple of Preah
Vihear (Cambodia v. Thailand) case4 which was referred to the International Court of Justice already in
1959. These pioneering attempts were followed by a succession of cases which included two countries
of South Asia--i.e., the Appeal Relating to the Jurisdiction of the ICAO (India v. Pakistan) case5 and the
Trial of Pakistani Prisoners of War (Pakistan v. India) case.6

This new emergence of interest and confidence among the nations of Asia, as well as Africa, in the
judicial settlement of international disputes and in the consolidation of the rule of law in the
international community is to be regarded as an extremely promising development. The emerging new
trend in Asia and Africa towards more frequent use of the Court is indeed a source for gratification in

1
Hisashi Owada  e Experience of Asia wit International Adjudication Singapore Year Bookof International Law 2005
2
Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, online: International
Tribunal for Law of the Sea http://www.itlos.org/start2_en.html, this perception was bolstered by cases such as the South
West Africa (Ethiopia v. South Africa; Liberia v. South Africa), [1966] I.C.J. Rep. 6
3
Case concerning Right of Passage over Indian Territory (Portugal v. India), [1960] I.C.J. Rep. 6
4
Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) [1962] I.C.J. Rep. 6
5
Appeal Relating to the Jurisdiction of the ICAO (India v. Pakistan), [1972] I.C.J. Rep. 46
6
Case concerning East Timor (Portugal v. Australia), [1995] I.C.J. Rep. 90
this respect, inasmuch as it is a testimony to the increasing confidence that the Asian and African states
place on the primacy of international law in international relations and on the role of the International
Court of Justice as its primary agent.



    

It has been argued that the Asia as a continent has been ³under-legalised´ as compared to other parts of
the world.7The region does not rely in its functioning on the operation of inter-governmental
organizations and more on trans-governmental regulators and bi-lateral or multi-lateral relations carried
on a more private level between the nations. Over the past years there has been felt the lack of Asian
regional institutions at the expense of considering the level of participation by countries in the region
with global institutions such as those of the United Nations system or the World Trade Organization.8

While Europe and North America provide a benchmark for "high legalization", the Asia²Pacific
region was the opposite. The region had "produced few formal multilateral institutions" and had
participated in regional institutions that remained "highly informal" and intentionally non-legal; the
region had produced a limited number of formal rules or obligations and appeared to prefer codes of
conduct or vague, unenforceable principles over precisely defined binding treaties. It appears that the
region at best manages their disputes but does not litigate them before delegated dispute settlers.9 Some
believe that you cannot seriously expect effective or deep legalization in regions such as the Asian
Continent, characterized by stark differences between authoritarian regimes (from the Asian tigers to
China and North Korea) and those that are classically liberal (such as Australia and New Zealand).10

Lack of legalisation reflects a strategic choice by government elites to accomplish other ends. Asian
governments encourage strong nationalist bonds to keep political order, to paper over ethnic or other
internal divides, to protect officials' discretion for as long as possible, or to keep regional or global
hegemons (such as Japan, China, or the United States) and their hegemonic forms of international law at
bay. Asia--Pacific governments associate international law and institutions with high sovereignty costs.

7
Hoze Alvarez, Institutionalised Legalisation and t e Asia-Pacific "Region" Vol. 5 New Zealand Journal of Public and
International Law 9
8
Judith Goldstein, Legalization and World Politics: A Special Issue of International Organization (2000) 54 International
Organization 385
9
Miles Kahler "Legalization as Strategy:  e Asia--Pacific Case" (2000) 54 International Organization 549, 549. Also Miles
Kahler "Institution-building in t e Pacific" in Andrew Mack and John Ravenhill (cds) Pacific Cooperation: Building
Economic and Security Regimes in the Asia--Pacific Region (Allen and Unwin, Sydney, 1994) 16
10
Anne-Marie Slaughter "International Law in a World of Liberal States" (1995) 6 EJIL 503
Strategic reasons -- such as a need to retain their own power -- therefore help to explain their avoidance
of both law and its institutions.11 And the many Asian societies that are post-colonial are able to play on
the historical memory of Western abuse to achieve these strategic ends. This helps to explain why
certain Asian governments find it useful, for example, to blame the Asian economic crisis on "Western
legalism" as characterised by the dictatorial demands of the International Monetary Fund (IMF).




 


The Asia--Pacific "region", as defined by the regional institutions, has shown a propensity towards
establishing relatively non-institutionalised forums for dialogue. Beneath the welter of impressive
names/acronyms -- ASEAN, ARF and APEC, the Shanghai Five and its Shanghai Cooperation
Organisation, ASEAN plus Three (APT), the Pacific Forum, the ASEAN Troika, the ASEAN Security
Community (ASC), the ASEAN Economic Community (AEC) -- and the seemingly impressive
agreements produced under these organisational auspices (such as the ASEAN Single Window, ASEAN
Retreats, ASEAN Human Rights Mechanism and numerous free trade agreements) are arrangements
that are at the low "non-legal" end of the obligation, precision, and delegation tables as defined by the
authors of the Legalization Issue. Most of these are easy to dismiss as: mere mechanisms for diplomacy,
playgrounds for spheres of influence or the exercise of balance of power, venues for dispute resolution
through power politics, or vehicles for the venting of hot air. They are anything but centralised,
hierarchical institutions capable of rule-making by majority vote or binding judicial decision.12

It is true that unlike Europe, the Americas, and Africa, Asia lacks a regional human rights court; or an
organisation charged with legal harmonisation as compared to even the relatively weak Organisation for
Economic Co-operation and Development (which after all is authorised to adopt legally binding
instruments and has, on occasion done so, such as the Code of Capital Movements); or a collective
security arm as legalistic as the North Atlantic Treaty Organization or any other entity clearly eligible to
act on behalf of the collective security of the region under Chapter VIII of the UN Charter; or a regional

11
Valeriane Toon "International Criminal Court: Reservations of Non-State Parties in Sout east Asia" (2004) 26
Contemporary Southeast Asia 218. Joseph Yu-shek Cheng " e ASEAN-C ina Free rade Area: Genesis and Implications"
(2004) 58 Australian Journal of International Affairs 257
12
Yoshi Kodama, Asia Pacific Economic Integration and t e GA-WO Regime (Kluwer Law International, The Hague,
2000) 95-97, 118-119, describing the Asia--Pacific Economic Cooperation's (APEC) preferences for informal processes,
modest institutionalisation, and relations with, and dependence upon, non-state actors such as the private sector and
contrasting these with the structures and arrangements in the European Economic Community.
charter for economic integration as legalised as that of the EU or even the NAFTA.13 Indeed, the
ASEAN Free Trade Area has been criticized for standing for "agree first, talk after" for its lack of
achievement and precision.14 And the region- with notable exceptions such as Australia and New
Zealand -- has lagged behind the rest of the world in ratifying the International Criminal Court.15

It is also true that quite apart from their less than institutionalised regional institutions, the countries of
the region have taken an active part in purposely non-institutionalised, non-legalised activities. Like
many countries and perhaps more than some, the countries of Asia and the Pacific have participated in
all presumptive alternatives to traditional IOs on the model of those of the UN system.16 These
decidedly ³non-Grotian´ activities include:

(1) Trans-governmental networks of regulators, involving sub-state actors like the central bankers of the
Basle Committee or informal networks of law enforcers engaged in counter-terrorism.

(2) Non-binding inter-state institutions (especially on security issues) such as the Financial Action Task
Force (FATA) -- which includes as members Australia, Hong Kong, Japan, New Zealand, and Singapore
-- and the United States's Proliferation Security Initiative (PSI). Singapore and Japan each have hosted
PSI interdiction exercises. Other "active PSI participants" in that regime include Thailand, Australia,
Russia, Japan, and New Zealand, while PSI observers include Cambodia, China, India, Indonesia,
Malaysia, Pakistan, South Korea, Philippines, and Vietnam.17

(3) Public/private consortia. There has been considerable scholarship on, for example, the prevalence of
transnational ethnic social networks in the Asian region based on ancestral and kinship ties.18 It appears
that networks of private entrepreneurs working with local authorities have encouraged trans-border sub-
regional economic integration -- especially in the Western Pacific rim embracing parts of China, Hong
Kong, and Taiwan. These bottom-up public/private developments -- which do not fit the model or the

13
Michael Leifer " e ASEAN process: A Category Mistake" (1999) 12 The Pacific Review 25. See also Hilaire McCorbrey
and Justin Morris, Regional Peacekeeping in t e Post-Cold War Era (Kluwer Law International, The Hague, 2000) 154-183
14
Zakir Hafez,  e Dimensions of Regional rade Integration in Sout east Asia (Transational, Ardsley (NY), 2004) 205-266
15
For a list of States Parties to the ICC, see Multilateral Treaties Deposited With The Secretary-General <
untreaty.un.org/english/bible/englishinternetbible/partl/chapterXVIII/treaty11.asp> (accessed 27 September 2010)
16
Eyal Benvenisti "Substituting International Law" in American Society of International Law, Proceedings of t e 100t
Annual Meeting, 289 (2006)
17
Robert Joseph, Under-Secretary for Arms Control and International Security "ransforming our Counterproliferation
Efforts in t e Asia Region" (Remarks to the Institute of Defense and Strategic Studies, Singapore, 15 August 2005)
<www.state.gov/t/us/rm/51129.htm> (accessed 28 September 2010)
18
Xiangming Chen "Bot Glue and Lubricant: ransnational Et nic Social Capital as a Source of Asia--Pacific
Subregionalism" [2000] Policy Sciences 269
form of inter-state compacts -- may have made more formal legalised customs unions at the national
level less necessary.

(4) Standard-setting by private actors. Asia is also not averse to such things as participating in the
International Organization for Standardization.



 



Asia with its different political, religious, cultural, social, judicial scenario is a very complex society and
cannot be dealt with or be governed by a uniform code. The major Human Rights Violations in Asia
vary from Armed conflicts and Attack on Education in Afghanistan to the trial of Aung San Suu Kyi in
Burma to Freedom of Speech of Expression in China19. The major concerns in Asia can be broadly
classified into three major categories:

? Territorial Disputes
? Water Conflicts
? Disputes over terrorism and insurgency
? Human Rights Violations
A Territorial Dispute is a disagreement over the possession/control of land between two or more states,
or over the possession or control of land by a new state and occupying power after it has conquered the
land from a former state no longer currently recognized by the new state. These disputes in Asia have
been the most prominent area of conflict in Asia as they affect both the peace within the contending
countries and the tremors being so strong and widespread that it affects the International Community as
well. A few major disputes being:

? India- Pakistan
? Israel- Palestinian Authority
? India- People¶s Republic of China
? Russia- Kazakhstan
The Water Conflicts arise mainly because of the rivers flowing through different countries and in these
disputes the main contention of contending states is the division of water flowing in these rivers.

' 

 

19
258, World Report 2010, United Nations
A regional Court with an authority to issue binding judgments upon cannot be expected to be established
by a Political Statement or Diplomatic Dialogue or a Regional Resolution as this kind of an Institution
would not hold a binding value upon its member states when settling on a particular matter. The reason
for this being primarily that a political dialogue does not create a legal obligation upon the member
states. Thus, the ACJ needs to be established by an International Treaty concluded in accordance with
the Vienna Convention on the Law of Treaties20 thus creating a binding force upon the parties and be
performed by all states to it in good faith (Pacta Sunt Servanda). In this situation the member states
would not be able to invoke the municipal laws as a justification for their failure to adhere to the treaty
or the judgment of the Court.

     




  


µRegionalism¶ has a different meaning and purpose for each nation when they become a part of any
regional organization. In most cases states that join hands in any regional cooperation mechanism have
certain basic differences; for most regional cooperation is limited only to economic cooperation through
free-trade agreements. Differences among memberstates of the regional cooperation organizations are
greater in the presence of inter-state conflict(s) between the member states. Even if states seem to agree
on some issues at the platform of that particular regional cooperation organization, their intentions
behind the concept and purpose of regionalism are fundamentally different. Inter-state conflicts have
posed hurdles to regionalism. However such a mechanism may prove to be indispensible in the
settlement of disputes within the region.

!
 "
India-Pakistan Deadlock on issues of Siachen glacier, Kargil and Sir Creek.
Afghanistan-Pakistan Durand line issue
#!


India-Pakistan On several occasions there have been blames from both sides (India and Pakistan) on each other
for carrying out terrorist activities or supporting such acts in their country.
 
 


India-Pakistan Both countries are having dialogue regarding the Baglihar dam being built over River Chenab in
İndia administered Kashmir.

20
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p.
331, available at: http://www.unhcr.org/refworld/docid/3ae6b3a10.html
India-Bangladesh Bangladesh wants a fair share of Ganga river by opposing the construction of Farrakha Barrage
in India
 $%#

   



India-Bangladesh Illegal immigration of Bengalis into India.
Afghanistan-Pakistan Pakistan has decided to shut down refugee camps under increasing pressure to crack down
on crossborder militancy.
Nepal-Bhutan Over repatriation of Bhutanese refuges in Nepal.



  
 & 


The court being proposed should e divided into two sections viz.

? The Public International Law (PIL) Section and

? The Human Rights Section
In this kind of setup the PIL section with the disputes related to territories and water bodies and the
Human rights section dealing with the cases of Human rights violation. The reason for a separate section
exclusively for human Rights cases is that Human Rights violation is the biggest concern around the
globe with the raid change in the Global Political and Economic circumstances21. Also, the nature and
magnitude of such cases vary from region to region and country to country on the other hand the
territorial disputes and economic disputes can be clearly identified and addressed to by the parties
themselves which is not the case with Human Rights as the party violating the Human Rights of the
other would be stronger and powerful of the two. Human rights violations occur when any state or non-
state actor breaches any part of the UDHR treaty or other international human rights or humanitarian
law. In regard to human rights violations of United Nations law. Article 39 of the United Nations
Charter designates the UN Security Council (or an appointed authority) as the only tribunal that may
determine UN human rights violations.22

 
 &

The Courts shall comprise of Judges who are elected to the courts by the member nations by elections on
the lines of the appointments of the judges at the International Court of Justice23 and thus ³during every

21
Interfax News Agency, 15 June 2001
22
Amnesty International Report 2004. Amnesty International. 2004.
23
3 Bevans 1179; 59 Stat. 1031; T.S. 993; 39 AJIL Supp. 215 (1945)
election, the electors shall bear in mind not only that the persons to be elected should individually
possess the qualifications required, but also that in the body as a whole the representation of the main
forms of civilization and of the principal legal systems of the world should be assured´24

24
Article 9, Statute of the International Court of Justice, 3 Bevans 1179; 59 Stat. 1031; T.S. 993; 39 AJIL Supp. 215 (1945)