China and East Asia on the world stage.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 9:00 a.m., Saturday, March 27, by its moderator, Julia Ya Qin of Wayne State University, who introduced the panelists: Deborah Brautigam of American University's School of International Service; * Henry Gao of Singapore Management University; Saadia Pekkanen of the University of Washington's Henry M. Jackson School of International Studies; and Edmund Sim of Appleton Luff PTE LTD. ([dagger])

* Deborah Brautigam was unable to contribute remarks for the Proceedings.

([dagger]) Edmund Sim did not submit remarks for the Proceedings.


I am presenting a jointly authored paper, in which my coauthors (Henry Gao and Dukgeun Ahn) and I are examining and reassessing the behavior of the dominant powers in Asia, specifically China, Japan, and South Korea, in the system of international economic law.1 Put simply, our contention is that in terms of their involvement and engagement with international economic law these countries have moved toward an orientation that can best be described as aggressive legalism. By this we mean that we are looking at a moving picture in which they have significantly increased their emphasis on the precision of, obligation to, and delegation based on stable transnational rules in economic relations. In our collective judgment, this newer orientation, which remains under-appreciated, is not so much a game of numbers--how many cases are filed, or are won and lost, which is to be sure important in its own way--but rather a change in the orientation in terms of the uses and interplay of international economic law involving their foreign trade relations.

Increasingly, the public and private actors in these countries are consciously, and often times determinedly, using legal rules to affect outcomes involving their foreign economic relations. The socialization of these actors into the system of international economic law-and from there their efforts to taking, making, and shaping rules---demand cohesive theoretical and empirical attention. This is all the more important in an era in which we see the increasing spread and scope of international rules governing almost all activities (i.e., goods, services, intellectual property, investment, and so on) in the global and also regional Asian economy. What these Asian countries do, and the ways in which they decide to do it, has important consequences for the global as well as regional economies and its institutional underpinnings.

Our present work and emphasis on aggressive legalism in these countries' behavior comes out of a long trajectory of thinking and writing over the past decade in which each of us worked separately to understand the behavior of these major economic players, particularly with the formation of the WTO in 1995. (2) Separately, we came to roughly similar conclusions about the shift in orientation in these countries, which went against the conventional wisdom about the legal identity of a region with countries indifferent to the forces of international economic law.

What we found is that aggressive legalism was spreading not just in terms of litigation in the WTO, but on a variety of different dimensions, across numerous forums, and in convoluted ways that were not exactly obvious at first blush and that may be even more consequential for embedding the language of the law in economic relations. We are not suggesting that all this is linear or systematic; rather as with the evolution of any system of functioning and cohesive international economic law, the process is disjointed and discursive, sometimes visible and other times less so. Our goal in our larger project is thus to examine and analyze various dimensions, issues, forums, and ways focusing on the comparative behavior of these three economic powers. Concretely all this means that we look beyond litigation and also beyond the WTO to also include other legalized forums, legal institutions, rule-based negotiations, rule-invocation, and also rule-making as measures of the phenomenon of interest to us.

How did things come to this? How do we begin to explain these shifts or change in orientation? To be sure, interests matter, as political economy perspectives suggest; and there is nothing like concrete economic, profit-driven interests operating across borders to concentrate the mind. But interests have to also be socialized. We therefore think that socialization matters, that is the conditions under which and the mechanisms through which Asian countries have shifted from being mere rule-takers to becoming rule-shakers and even rule-makers, shows a progression toward the internalization of international economic law. Concretely this means that they have moved beyond just instrumental role-playing or strategic calculations, and begun to use laws and legal processes to affect their own foreign economic interactions and the institutional design of their own region.

There are several ways to get at the measurement of this phenomenon--both broad and specific to China, Japan, and Korea. Broadly, of course, the WTO was critical in terms of socializing these actors--that is, in terms of the initial steps, learning how to play the legal role whether they agreed with it or not. One broad statistic of their involvement in the WTO is that if there were stark difference in terms of their complainant and defendant activities, relative to other...

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