The theme of the Second Biennial Conference of the Asian Society of International Law—“International Law in a Multi-Polar and Multi-Civilizational World: Asian Perspectives, Challenges, and Contributions”—touched on a number of interesting aspects of international law. Three basic issues arise from this topic. First, how do we evaluate the current state of international law from an Asian perspective? Second, in an increasingly globalized world, why do we need a regional society of international law? And finally, what purposes do we expect this society to serve?

In the post-Cold War era, the most evident change in international legal discourse is the universal assertion of values as the basis to promote the rule of law in international relations. Obviously, values are related, among other things, to culture. Any analytical inquiry into values and law in international relations should therefore begin by tracing the origin and impact of the international legal system. The Asian Society of International Law came into being at a time when international law, both in theory and practice, was increasingly confronted with these new challenges.

Feminist analysis in international law began to emerge two decades ago. It has taken many different forms and is now a lively feature of international legal debate. But has it had any effect? And is it worth pursuing? In this short article, I will argue that feminists have been successful in bringing the language of women’s empowerment into international law but less adept at identifying methods to give this language life on the ground.

The history of international law is often told in terms of the rise and fall of great powers or as a mechanism of colonial subjugation. To the extent that these accounts consider justice, it is usually to demonstrate its absence. This paper points out that justice has been integral to the evolution of international law in the era of the United States. Individuals and members of civil society in the US and Europe have influenced systemic developments in international law through their efforts to realize a vision of justice in interstate relations, their vision being of a body of international law and a world court which together obviate the need for war. To suggest the possibility of an historical narrative constructed around justice is not to deny the validity of other histories focused on inequitable relations of power, but to point to the scope for nuance in the frameworks within which we portray international law and its history.

The International Law Commission recently completed its work on the controversial issue of the effects of armed conflicts on treaties, culminating in the adoption of a set of eighteen draft articles and an annex. The Commission's efforts are nothing short of commendable, but this article argues that insufficient attention has been paid to the role of supervening impossibility of performance and fundamental change of circumstances in determining the effects of armed conflicts on treaties. Although both doctrines may in fact appropriately apply in the context of armed conflicts, the mere referencing of them in the adopted draft articles gives rise to several problems. In particular, the two doctrines were codified by the 1969 Vienna Convention on the Law of Treaties without their application to armed conflicts in mind. Some changes to the draft articles are proposed to address these difficulties.

To suggest that there might be good use for state sovereignty sounds counter-intuitive. After all, at least since the time of the League of Nations, we international lawyers have been critical of sovereignty. We have thought it a narrow, ethnocentric way to think about the relations of human beings. We have rehearsed a moral case against it. Sovereignty, we say, upholds egoistic interests of limited communities against the world at large, providing unlimited opportunities for oppression at home. It is, we sometimes say, “organized hypocrisy”.1 If a country claims that a matter is under its “domestic jurisdiction”, and refers to Article 2(7) of the UN Charter, we are inclined to think of this as an effort by its leaders to hide from well-founded international criticism. From a sociological perspective, we have attacked it because it fails to articulate the economic, environmental, technological, and ideological interdependencies that link humans all across the globe, giving a mistaken description of the reality of human relationships across the world. And from a functional perspective, we have observed its failure to deal with global threats such as climate change, criminality, or terrorism, while obstructing such beneficial projects as furthering free trade and protecting human rights. Therefore, we have wanted to replace it with international or global approaches, working across “artificial” national boundaries in pursuit of objectives that have nothing territorially limited about them.2

The conflict between ethical universalism and cultural diversity remains a pre-eminent problem of the present international legal system. International law is in a dilemma. It cannot abstain from adopting some material values as the international community cannot be indifferent to the suppressions of citizens or certain minorities by totalitarian regimes. Yet the international legal system must not become an instrument of Western cultural imperialism by negating any cultural differences. This contribution argues that international law is a framework concept prescribing certain basic values. However, these values are not absolute and must be balanced against competing interests. In this balancing process, states have considerable political discretion. This concept will be exemplified by an analysis of the debate on the existence of a right to democratic governance in international law. It will be shown that even though international law does not require states to be democratic, it nevertheless imposes certain standards of legitimacy.

A vast private recruitment industry has emerged across South and Southeast Asia, driven by exponential increases in migrant workers seeking temporary low-wage jobs abroad. Many workers encounter mistreatment which is traceable to systemic recruiter misconduct. Could origin countries better protect their citizens and render recruiters more accountable? This paper presents a novel, rights-based recruitment governance framework to tackle this challenge, based on empirical studies conducted across Asia. Section I examines recent regulatory efforts and illustrates their limited effectiveness absent such a guiding framework. Section II elucidates and applies the key elements of the framework, including: incorporation of human rights standards; enforceable legal rights and obligations; effective implementing institutions and processes; and empowered participation of migrant workers in key labour migration processes and decisions. Section III identifies structural and practical obstacles to regulatory enforcement that the framework addresses, creating necessary conditions for transnational market-based reforms and responsible recruitment within origin countries. Section IV concludes that the framework provides countries of origin with a feasible path to better protecting migrant workers within a sustainable development strategy.

It is the purpose of this paper to examine what challenges globalization poses to China, and “Eastphalian” sovereignty. Some commentators have suggested that globalization's advance will transform the globe into something more closely resembling the West. Accordingly, it could be said that it is inevitable that globalization's influences will bring Western perceptions of liberalism and democracy to China. The paper will briefly sketch the broad outlines of sovereignty and globalization to enable working definitions of “Westphalian” and “Eastphalian” sovereignty. The authors then discuss and assess the engagement of European powers with China as a means of contextualizing Eastphalian sovereignty's essence as ideology and worldview. This discussion sets the background for the following analysis of China's and Eastphalian sovereignty's reaction to the notion of a global community.

A number of commentators, including Michael Hwang and Jennifer Fong who were featured in a recent issue of this journal,1 have contributed to an ongoing debate about the definition of investment by expressing their support for an objectivist theory or the “outer limits” approach as advocated in Salini v. Morocco. However, this article argues that neither the Salini test nor the rival subjectivist theory can offer an internally consistent and viable legal framework for determining the existence of an investment. After critically examining existing approaches to defining investments in arbitral practice, international investment treaties, European Union (EU) law, and international trade law, the article considers the role of ordinary and effective interpretation and a telos behind investment treaty instruments in coining a meaningful definition.

Numerous international institutions now seek to address the problems of misappropriation and disappearance of traditional knowledge. The relevant legal frameworks were developed at different times and motivated by diverse policy goals. As new frameworks continue to emerge, an important question arises as to how the unity of international efforts to protect traditional knowledge can be maintained. This paper scrutinizes the fragmentation of international law in this field, how it came about, and what its implications are for traditional knowledge protection. It argues that much of the confusion surrounding traditional knowledge protection today is attributable to the fragmentation of international law in this area. To reverse the adverse effects of fragmentation, all institutions involved must be conscious of, and collectively work towards, a common goal, however loosely defined that goal might be. National governments must also ensure that their negotiating positions are consistent across all relevant fora.

This paper explains why so much soft law is widely adopted and followed despite lacking legal and coercive force. It argues that legal standards are susceptible to network effects. Network effects occur when the value of a standard to a user increases as the number of other agents using the same standard grows, which in turn draws more users to the standard. This can trigger a spontaneous coalescence around a standard in a “snowball effect” fashion. The paper argues that many areas of soft law exhibit strong network effects, rendering such soft law uniquely calibrated to induce voluntary adoption and even compliance. The model helps explain why certain soft law gains traction, and has important implications for international governance. Finally, the paper argues that policy-makers can strategically harness this dynamic to stimulate legal harmonization, but cautions that policy-makers must also remain mindful of the negative consequences that network effects can generate.