International Courts and Tribunals and the Rule of Law in Asia
Chapter by Professor Geir Ulfstein in the forthcoming book "Global Constitutionalsim from European and East Asian Perspectives".
This chapter contains general reflections on the rule of law and international courts, and it discusses the significance of international courts for the rule of law in the Asian context. I argue that we may expect increasing pluralism between the approaches of different Asian states, between different issue areas, and between different geographic levels as regards international courts. We may expect more judicialisation involving Asian states in trade and investment than in human rights. Finally, while there is a general reluctance to enter into regional dispute resolution mechanisms, we see support for a mosaic of bilateral (BITs), subregional (ASEAN), transregional (TPP) and global (ICJ, ITLOS, WTO) international courts. The scepticism of Asian states may weaken the development of more international rule of law protection and constitutionalisation. But the rule of law provided by existing international courts will continue to expand, also for Asian states: through their constant dispute resolution, their interpretation of treaties and general international law, and through their judicial law-making functions.