This article addresses the need for clarity as regards the sources of public international law, or at least as much clarity as possible. Questions relating to sources lie at the heart of international law. Of particular concern is the lack of rigour shown by some domestic judges when it comes to determining the rules of customary international law.

International lawyers in Asia have long felt the need to establish an Asian Society of International Law. The American Society of International Law was founded a century ago in 1906; its European counterpart was established in 2004. In Africa, there is an African Society of International and Comparative Law. Asia, in fact, was the only major region of the world which had no international law society on a region-wide basis.

With Asia now being one of the most important and vibrant regions of the world in international affairs, it has risen as an active and influential player in international relations. This is apparent in fields such as peace and security, international trade and investment, human rights and the environment, as well as many other fields of international activities. There is today an acute need for the nations of Asia, as well as academics and practitioners working in or on Asia, to have their voices heard on these important issues, to contribute to the development of international law on a global basis, and to consolidate the rule of law in various fields of present-day international relations. There is by now ample room for Asia to contribute to the world not only in the economic and political fields, but also in the social, legal, and other intellectual fields.

From a conceptual viewpoint, the legal universe has found its almost perfect configuration in our time. Almost all of the peoples of the world are members of the United Nations and as such are entitled to co-operate in shaping the direction and content of policies at the global level. Before World War II, and even a considerable time after the horrendous events unleashed by that war, many nations had no say in international matters. They were placed under colonial rule, which meant that their voices were not heard—or heard only through the mediation of the powers that acted as their wards and guardians. That situation of structural discrimination has changed dramatically. All the peoples of the world have reached sovereign statehood and have been admitted to the world forum.

As a growing power, China is confronted with many challenges that include the revision of its erstwhile philosophies so as to better adapt itself to globalization and the contemporary international legal order. This article analyzes the close relationship between China’s attitude to international law and Chinese philosophy. It aims to help people to understand China’s behaviour on the global plane and the steps China is taking to integrate more seamlessly into the international legal order.

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.

International law is developed and implemented today in a complicated, diverse, and changing context. Globalization and integration, fragmentation and decentralization, and bottom-up empowerment are arising simultaneously among highly diverse peoples and civilizations. Most importantly, this period is characterized by rapid and often unforeseen changes with widespread effects. Advances in information technology make possible ever shifting ad hoc coalitions and informal groups and a myriad of individual initiatives.

The resulting kaleidoscopic world faces global problems that affect everyone: climate change, financial crises, health threats, communication disruptions and cyber attacks, ethnic and other conflicts, among many others. These cannot be managed solely by one state or a handful of states, or solely by non-state actors. Some of these problems erupt quickly and are not easily contained. Others, like climate change, have inherently long time-horizons and affect the welfare of future generations. One of the most pressing problems is poverty, with more than 1.4 billion people existing on less than US$1.25 per day in 2008 and another 1.2 billion people on less than US$2.00 per day.1

This kaleidoscopic world both offers opportunities for international law to become more relevant and central and poses significant dangers for its relevance and effectiveness. This article provides an initial analysis of the significance of the kaleidoscopic world for international law.

International policy-makers so far have successfully pre-empted any new major national legislation in the G7 countries aimed specifically at sovereign wealth funds by getting the International Monetary Fund to work with them on formulating a set of best practices commonly known as the Santiago Principles. However, some observers stress that this is just the beginning. How does one measure and evaluate compliance with these principles? Is voluntary self-regulation really sufficient? Or is there a need for new rules and regulations? As the discussion shifts from policy and economics to governance and regulation, we move firmly into the realm of law—legal norms, rules, and statutes. However, the required clarity and commonality of definitions and terms have been elusive. There does not seem to be universal agreement about the precise meanings of even the most fundamental terms in the SWF debate. This article hence focuses on the definitional challenges inherent in this debate.

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 strategic investments made by SWFs in vital economic sectors of the developed states have caused national security concerns. The existing law on foreign investment, which was designed by the developed states to permit liberal flows of foreign investment and emphasize protection against government interference, sits uneasily with recent moves to control SWF investments. The developed states may have to dismantle to a significant extent the international law they had created to protect foreign investment and retreat into principles of sovereignty earlier advocated by the developing states. This will result in dramatic changes to customary law as well as treaty norms and significantly undermine the present structure of investment protection: a complete reversal of the neoliberal vision may occur. This phenomenon provides an opportunity for the examination of how events that lead to the quick making of legal rules in line with a legal theory favoured in a particular political context are, equally quickly, replaced by another set of rules to suit rapid changes in the power balances.

Sovereign wealth funds—state-controlled transnational portfolio investment vehicles—began as an externally imposed category in search of a definition. SWFs from different countries had little in common and no desire to collaborate. This article elaborates the implications of diverse public, private, domestic, and external demands on SWFs, and describes how their apparently artificial grouping became a site for innovation in international law-making.

The formation of the Asian Society of International Law (AsianSIL) leads us to ask the question of whether there are unique features of Asian civilizations (Chinese, Indian, Japanese, etc.) that shape the approach of Asian peoples and states to international law. Does each of the civilizations offer a distinct outlook on international law? What kind of surplus meaning can be generated by a civilizational approach that is, insofar as Asian developing countries are concerned, not already articulated by the Third World approaches to international law (TWAIL)?1 Is any talk of civilizational influences on the approach to international law productive and helpful?

Like the apocryphal elephant defined by the blind men touching different parts of its anatomy, the content of the phrase “human security” varies with its users. In this sense it is rather like the phrase “self-determination”, which is widely employed by and for diverse interests.1 The lack of uniform definition or use stems in both cases not from intrinsic incoherence but from the way in which, from their first appearance, the phrases seemed to challenge the views, values, and interests of the practitioners of traditional diplomacy, powerful actors who then had a choice: resist them absolutely as rogue concepts threatening the very structure of international relations or neuter their revolutionary potential through an interpretation rendering them compatible with, even a reinforcement of, the basic structure of the status quo.

In this article we look at the governance of SWFs from the perspective of the competing political interests embedded in the sponsor—the domestic political claims on funds and the principles and practice of governance used to discipline those interests in favour of a long-term perspective that emphasizes the conservation of wealth and the intergenerational transfer of benefits. Using the case-study of the Australian SWF known as the Future Fund, we argue that SWFs can be used as legal instruments to promote the interests of future generations. In this way, it puts into action the principle of intergenerational equity which has been hereto notoriously difficult to substantively apply in international law. By invoking the intergenerational principle, we argue that the Australian government not only responded to the legal challenges of implementing intergenerational equity but also contributed to its currency as a customary norm.

Asian governments tend to be more sensitive about their sovereignty than governments in the contemporary West. Therefore, when differences occur and disputes arise, Asian governments tend to insist that they be resolved through bilateral consultations and negotiations. The reality is that, very often, the differences and disputes remain unresolved after years and even decades of negotiations. When left unresolved, some of these disputes have a tendency to contaminate the bilateral relationship as a whole. This is a great pity, because the disputes may revolve around relatively minor issues compared to the many other areas in which the two countries have convergent interests. Asian governments should therefore consider resolving such disputes by other peaceful means.

What are other modalities for the peaceful resolution of disputes? They are: (i) conciliation; (ii) mediation; (iii) fact-finding; (iv) arbitration; and (v) adjudication.

Sovereign Wealth Funds (SWFs) are currently under increased scrutiny. This article aims at identifying the features and likely impact of the Generally Accepted Principles and Practices (GAPP), using two lenses, both well known to legal scholars, especially within global administrative law (GAL) studies: global standards and transparency. On the one hand, contrasting the GAPP with other types of global financial standards can help identify the most powerful incentives to foster compliance. On the other hand, even though the transparency provisions requesting SWFs to provide public information concerning their legal basis, structure, and financing decisions appear to be a step in the right direction, they need further clarification so that a proper balance between disclosure and the need to avoid unnecessary costs can be struck. Moreover, this article claims that the effectiveness of disclosure provisions in fostering the accountability of the funds depends also on the existence of structural elements.

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

Concerns in host countries about the investment activities of sovereign wealth funds (SWFs) arise from their non-commercial motives and lack of transparency. In response to such concerns, investor countries have begun to work together to set up the norms and laws which will define the governance and regulation of SWFs. In particular, the Santiago Principles have given birth to a set of voluntary principles and guidelines designed to guide their investment behaviour. In this article, we point out that the Santiago Principles are fundamentally consistent with the commercial self-interest of SWFs, which bodes well for the prospects of their voluntary adoption. The Santiago Principles serve a highly valuable role as a mechanism which signals and crystallizes the commitment of SWFs to comply with the basic rules and regulations of the countries in which they invest.

The establishment of the Asian Society of International Law (hereinafter “the Society”) may be characterized as symbolizing a fundamental change in history: the transformation from the West-centric world of the twentieth century to the multipolar and multi-civilizational world of the twenty-first. The Society’s establishment suggests the urgent need for those living in this multipolar world—international lawyers in particular—to enhance their ability to appreciate this changing reality and the normative responses to it. The Society could also be an important forum for achieving these aims.

Global society in the twentieth century was dominated by “Western” powers. In the field of international law, it was mainly the governments, media institutions, leaders, non-governmental organizations (NGOs), experts, and international lawyers of the Western nations that constructed, interpreted, maintained, and implemented the international legal order. For a long time, it was the major Western universities and the American Society of International Law (ASIL) that played a leading role in the field of the academic and professional activities of international law.

From around the end of the twentieth century, it became evident that Asian nations had again risen in the global arena. Japan took the lead and has remained the world’s second-largest economy since the late 1970s. Yet it is the resurgence of China and India as world powers that is of fundamental importance from the perspective of human history.

The China Investment Corporation (CIC) has often been perceived as a threat by Western economies. Such fears, however, are unfounded as the severe losses incurred by CIC during the recent economic crisis reveals that the fund, just like other investment entities, is vulnerable to market conditions. Moreover, given their relative lack of expertise in international investment, the regulation and development of “young and inexperienced” sovereign wealth funds (SWFs) within their home state is more pertinent than the defensive regulation structured by the host states in which SWFs invest. Positive financial returns should always be the fundamental goal of SWFs, rather than non-commercial considerations. This article proposes a three-step approach to regulating SWFs from a Chinese perspective: (1) home states should distinguish between their roles as shareholders and managers of state-owned capital-exporting institutions, and can use the Santiago Principles for that purpose; (2) host countries should not discriminate against SWFs but treat them as private institutional investors; and (3) there should be a clarification of the international investment regime regarding state investment. If these three steps are taken, SWFs would be depoliticized, and biased regulatory agencies and regulations would be a thing of the past. Under a broad regime, concerns between home and host states could then be addressed at bilateral or multilateral forums.