[每周读论文] Meaningful Dialogue Through a Common Discourse: Law and Values in a Multi-Polar World
打算做一个系列的ICJ女性法官的论文阅读。从我国的薛法官开始。
薛法官bio:http://www.icj-cij.org/files/members-of-the-court-biographies/xue_en.pdf
XUE H, “Meaningful Dialogue Through a Common Discourse: Law and Values in a Multi-Polar World” (2011) 1 Asian Journal of International Law 13
这篇文章是薛法官在 Second Biennial Conference of the Asian Society of International Law的发言稿整理而成，所以没有introduction，而直接是正文部分。
Introduction
文章指出是否存在区域方式（regional approach）的国际法是存在争议的。有学者认为国际法只应是国家或全球的，所谓的区域主义在历史上经常被大国势力操纵以追求帝国主义或霸权，因此不应当加以鼓励。这一观点进一步推动了另一个问题：在这个多极化、多元文化和多重宗教信仰的世界，区域贡献如何能够帮助确定推动国际法发展的共同价值？
作者认为，过去二十年【为什么是20年？从冷战结束开始计算？】见证了国际法的极大发展和分化，多数变化都是西方主导或西方导向，反映的是西方自由主义的基本价值。发展世界国家的作用极为边缘化。不过这并不必然能够得出结论，即西方倡导的基本价值，例如法治、人权和民主，就不为所有国家所共享。关键问题在于这些被西方所倡导的价值是否是唯一构建国际关系的规则框架之共同基础。考虑到国与国之间多元的文化和文明，这不仅仅是视角问题，更重要的，是探究新的世界秩序的问题。
I. Historical perspective 历史视角
作者概述了一下，在去殖民化时期，新独立的国家（包括许多亚洲国家）立刻接受了国际法的基本原则作为其外交政策的法律基础，比如和平、平等和正义，这些国家用这些原则来保护其主权和领土完整，对抗帝国主义和霸权主义。
亚洲是多文化和多宗教区域，从传统和历史的角度上看，亚洲国家之间存在着某种共同的价值和崇尚的美德，这些会自然而然地反映在睦邻关系中并影响它们的外交政策【嗯，总结是总结，但how and to what extent?】作者举了中印之间1954年首次提出和平共处五项原则，这五项原则都可以在各自的文化中找到源头。追求和平和和谐可以在孔子和佛教哲学中找到影子【但所有原则somehow都是共享的啊……】。
从和平共处五项原则开始，到万隆会议发展出的十项原则（被不结盟运动所接受），最后纳入1970年联合国《关于各国依联合国宪章建立友好关系和合作的国际法原则宣言 》。作者强调了中国严格遵守和平共处五项原则作为其独立自主外交政策的基础，并且以此与超过170个国家建立了外交关系。她用了一个obviously来提示读者，绝大多数国家接受和平共处五项原则并不仅是因为共有的文化价值，还因为这些原则呼应了联合国宪章目的和宗旨所吸收的基本国际法原则，这些国际法原则已成为一般国际法的强行规范。【(⊙o⊙)…反正演讲嘛，没有什么推理过程都是这种declaractory statement，每句话后面都要有很严密的论证才行啊】
背景知识：什么是万隆会议十项原则？
The following are the main goals and objectives guiding members of the Non-Aligned Movement as espoused at the 1955 Bandung Conference:
1. Respect of fundamental human rights and of the objectives and principles of the Charter of the United Nations. 尊重基本人权、尊重《联合国宪章》的宗旨和原则
2. Respect for the sovereignty and territorial integrity of all nations.尊重一切国家的主权和领土完整。
3. Recognition of the equality among all races and of the equality among all nations, both large and small. 承认一切种族的平等、承认一切大小国家的平等。
4. Non-intervention or non-interference into the internal affairs of another -country. 不干预或干涉他国内政
5. Respect of the right of every nation to defend itself, either individually or collectively, in conformity with the Charter of the United Nations.尊重每一个国家按照《联合国宪章》单独地或集体地进行自卫的权利。
6. Non-use of collective defence pacts to benefit the specific interests of any of the great powers.不使用集体防御的安排来为任何一个大国的特殊利益服务
7. Refraining from acts or threats of aggression and use of force in against the territorial integrity or political independence of any country. Non-use of pressures by any country against other countries. 不以侵略行为或侵略威胁或使用武力来侵犯任何国家的领土完整或政治独立； 任何国家不对其他国家施加压力
8. Settlement of all international disputes by peaceful means, such as negotiation, conciliation, arbitration or judicial settlement as well as other peaceful means of the parties’ own choice, in conformity with the Charter of the United Nations. 按照《联合国宪章》，通过如谈判、调停、仲裁或司法解决等和平方法以及有关方面自己选择的任何其他和平方法来解决一切国际争端。
9. Promotion of mutual interest and cooperation. 促进相互的利益和合作。
10. Respect for justice and international obligations. 尊重正义和国际义务。
正面说到这一步，作者话锋一转，提出其实大多数亚洲国家长期对国际法都持有怀疑和批评的态度。她援引小和田恒法官在2007年就任亚洲国际法协会主席的发言提醒读者，一直到2007年，亚洲是世界上唯一一个没有国际法协会的主要区域。究其原因，区域多样性可能可以部分解释为什么没有产生任何成立机构的提议，但在作者看来，更深层的原因在于亚洲对于国际法体系的认知和对于现存国际法实践的不满。从威斯特伐利亚开启国际法到当代的法律发展，国际法的规范性结构和实质内容都主要由西方主导。
作者再次提醒读者，国际法作为西方天主教文明的产物最初是通过西方势力对亚洲的殖民统治而首次传入亚洲。强加给亚洲国家的殖民和帝国主义统治的残酷性其实严重践踏并削弱了国际法和平、正义和平等等基本核心价值。尽管在获得独立之后，亚洲国家都同意国际法作为其国际关系的基本原则，但他们通常会对国际法在对抗国际事务中的帝国主义和霸权主义、维持和平和正义公平和有效性半信半疑。
II. Continued disparity 持续分歧
Power rivalries between the East and the West during the Cold War period did not change the general framework of the legal system. Despite the laudable contributions made during the decolonization process towards a new legal order—the push for a New International Economic Order,4 permanent sovereignty over natural resources,5 and the Declaration on Friendly Relations,6among others—the developing countries continued to be afforded only a limited role in the international law-making process.7The phenomenon under traditional international law where “the weak might propose, it was the strong that disposed”8 is still a common phenomenon in contemporary international relations. Although international relations have profoundly changed in the past sixty years, especially in the last two decades, the cultural superiority and selectivity that characterized the old legal system continue to have lingering effects in international relations; the typical example is the confrontational approach adopted in the human rights dialogues between Western and developing countries.
The matter is not a question of whether the developing countries should forget or forgive the past, but where and how to start dialogues among states. Obviously, various critical legal studies undertaken by Asian international jurists are not purely scholastic exercises to trace the origin or cultural values of international law. They are meant to provide a special and pertinent perspective of the international legal system while pursuing meaningful dialogues between different cultures through a common discourse.9
The past two decades have witnessed a wide array of dramatic events with significant impact on the fundamental principles and the existing institutions of international law. Never before has the international community, including our region, been confronted with such a large scale of global issues—from world security to food security, from the traditional domain to the non-traditional realm—which require a concerted response.
In the midst of great changes brought about by economic globalization, modern technology, and regional integration, one can observe that international law is paradoxically regarded with both high expectations and deep disappointment. On the one hand, the role of international law in dealing with both the traditional and non-traditional challenges of international relations seems on the wane, as it poses more legal uncertainties than provides advisable solutions. Such fundamental principles as sovereign equality, non-interference in internal affairs, and non-use of force are frequently disregarded as no longer applicable or relevant and even deemed obsolete. On the other hand, international law is experiencing a most volatile period of change, affecting both political processes at home as well as international discourse. Furthermore, terms like the rule of law, democracy, human rights, and global governance have become the catchwords of the day.
Even more seriously, international law apparently suffers from public distrust and apathy, a sentiment particularly acute after the 2003 Iraq war. Repeated use of force in international relations constantly reminds us that searching for effective peace and security mechanisms remains one of the priorities for international law.
In shaping the new world order, controversies over sovereignty and non-interference, human rights, international criminal justice, climate change, and environmental protection, in the final analysis, are questions of values. In a multi-polar—or preferably, multicultural—world, where economic and social development vary from state to state, international law, both in form and in substance, should reflect some basic values that are shared by all states, such as peace, equality, and common development. When we talk about Asian traditional and cultural values, we do not mean to claim that there should be such international principles that only reflect “Asian values”. This clarification, on the other hand, does not negate cultural relevance in identifying common values.
Western liberalism and neoliberalism have had great influence in modern international law. The popular pluralism has brought more non-state actors onto the world stage and more traditionally “internal issues” are being addressed by international law. This, while adding vigour and vitality to the international legal order, has a tendency to imbalance. When the rule of law, democracy, and human rights are being advocated at the international level, they often tend to represent essentially one type of ideology, one form of culture, and one kind of political system. (The word “representation” is deliberately chosen because such values are normally interpreted and applied according to the prevailing choices of a certain group of states and imposed on others—the so-called “West and the rest”.) Although such values are generally reflected in international principles, when they are placed in a certain political context and defined with certain political connotations, the issue often depends on their interpretation and application in foreign policy. When conflicting interests and agendas emerge between states, these values could be used as a camouflage to serve the particular goals and the national interests of their advocate. That is why, in the field of human rights, we often have to point out the practice of double standards. In the area of development, conditionalities attached to international aid have seriously jeopardized the mutual trust and co-operation between the recipient and donor states. When peace is of secondary importance to prosecution under international criminal law, it may be even harder to achieve meaningful “justice”. The relevance of principles of sovereignty and non-interference is not whether these terms should be reviewed and redefined in the abstract; rather it is a matter that touches on the political and legal fundamentals of states, raising the question of whether each state can genuinely exercise its sovereign right to determine its own path of development.
Ideology and cultural superiority are hardly new phenomena in international law. Nevertheless, international lawyers as well as the general public—including those from the West—are now more vocal and critical about such matters, which is a positive development in international law.
III. Asian's challenges
As part of the international community, Asia is expected to play a greater role in international law. With globalization, Asia’s ties with the rest of the world have become ever closer and deeper. In recent decades, Asia has been one of the most dynamic and vibrant areas in the world. Its remarkable economic success and social progress are recognized worldwide, with the two most populous developing countries, China and India, in the lead in more recent years. At the same time, we cannot fail to see that the Asian region is also fraught with tough issues that are globally challenging: terrorism, security, energy, poverty, environmental degradation, natural disasters, and, more recently, the economic and financial crisis. It would not be exaggerating to say that the sustainable development of Asia depends on a stable and constructive world legal order. To promote such a legal order, Asia should duly undertake its responsibility and play an active role in international legal development. In this regard, intellectual exchanges among legal scholars as offered by the Asian Society of International Law would help enhance meaningful dialogue among states.
In the legal field, frankly speaking, Asian countries remain largely at the receiving end; their influence in the making and shaping of the law, both procedurally and substantively, is rather limited. Although their economic growth is tremendous, their voices in the legal dialogues are minimal. For the most part they are passive and defensive. This low profile is particularly evident in the fields of human rights, the environment, and social development. Legal discourse has not yet become a significant part of international dialogue within Asia. Now that international law and institutions have become important vehicles for promoting policy goals, legal co-operation within Asia has to be strengthened.
Indeed, nowadays it is difficult, if not impossible, to distinguish what issues are regional and what are global as we are truly living in a “global village” and the notion of “neighbourhood” is changing as well. Yet these changes do not mean Asia does not have its own priorities, nor do they suggest that Asia should take unilateral actions in coping with new challenges. Diversified as they are, Asian countries can identify such issues as their common concerns: security, economic development and financial stability, energy and environmental protection, public health, and disaster management. Obviously, regional responses are not sufficient to tackle these issues, but regional input will have a direct bearing on future international action.
When we assert that Asian culture cherishes peace through dialogue and harmony in diversity, we do not deny that there also exist differences and disputes among Asian countries—some left over by history, some caused by conflicting interests. In the two decades after the Cold War, international relations in Asia have greatly improved. In this regard, China takes great pride in the positive developments in North-East Asia. International co-operation at the regional level in various fora and through different mechanisms is flourishing. The prospects are so promising that their impact on the international order is now discernible. With a greater mix of cultures in international society, the international legal order will transform and, in this regard, Asian peoples are expected to play an important role in the diversification of power and values.10
It goes without saying that intellectual exchanges should first and foremost be carried out among Asian countries. To be meaningful, equality and mutual respect must be emphasized among dialogue partners and issues pertinent to Asia for peace, development, and co-operation must be discussed.
Despite the differences that may exist, the most important first step is to build mutual respect and trust among different parties by adhering to the fundamental principles of international law. Any legal institutional design for the settlement of disputes should first and foremost aim at the peace and stability of the region. The promotion of human rights and democracy has to be founded on a balanced economic and social development of each state. Global governance should not aspire to a world government or a model government, but to promote closer international co-operation among states. This understanding does not suggest that we can easily embark on a smooth path to build up a new international legal order. On the contrary, it would be a long and hard process that requires consistent and persistent efforts from all states.
During the process, the participation of the major powers is often portrayed as having the potential for great power rivalry in the region, particularly with rising economies such as China and India. As a developing country, China fully appreciates what a superpower means in international relations. In Chinese philosophy, we follow the maxim: “Don’t do to others what you do not wish others to do to you.”11 While rejecting the power theory, it is agreed that as the region grows, Asia as a whole will participate more actively in international affairs and undertake fair and equitable responsibility for the future international legal order, its ideas, and systems. In a time of great change, international legal studies, as many other areas, have to be re-oriented to meet new challenges. It is hoped that the Asian Society of International Law will be of service to the region.
[未完待续……]
