Competing Visions of the Rule of Law in Southeast Asia: Power,Rhetoric and Governance

Abstract

This article introduces a special issue on the emergent relationship between the rhetoric and implementation of the rule of law concept in Southeast Asia. It thematically introduces four country case studies (Cambodia, Myanmar, Thailand and Vietnam), and the case of ASEAN’s adoption of the rule of law in region-building, which are included in this special issue. We highlight how ideals that are arguably central to the “tradition” of the rule of law are being excised, marginalised, defended and/or undermined in Southeast Asian contexts. We emphasise how the very concept is deeply contested and far from neutral – at stake is the very notion of “law” for whom, and for what. The article offers insight into the social dynamics affecting how the rule of law is being interpreted by political actors and how it is being contested and consolidated via governance practices in the region, and proposes new avenues for research in assessing how the rule of law is operating in transitional and authoritarian state settings.     

Mens rea,the Achilles’ Heel of Criminal Law

Abstract

The evolution of criminal law in Western legal systems is often portrayed as a path leading from objective to subjective notions of criminal responsibility. By examining the historical development of the notions of subjective responsibility, this article suggests that the function of a wrongdoer’s subjective mental state, in both its substantive and procedural aspect, as an element in the process of attributing criminal responsibility, remains much the same today as it was in antiquity. This is indicated by what subjectivity, as an essential condition of culpability (actus non facit reum nisi mens sit rea), is said to imply: the distinction between intentional and unintentional acts. Although the notions of intent and malice aforethought are attested to in various sources on ancient Athenian law, there are several kinds of cases in which the role played by these aspects—traditionally referred to as mens rea (“guilty mind”)—remain unsolved in contemporary jurisprudence and legal practice. Yet despite the difficulties of establishing facts in particularly complex criminal cases, setting the boundary between “intentional” and “unintentional” remains crucially important in determining criminal responsibility and thus in distinguishing the “licit” from the “illicit,” which is the very foundation of the rule of law.     

A Victorian Embarrassment: Consular Jurisdiction and the Evils of Extraterritoriality

In 1856, the Treaty of Paris nominally welcomed the Ottoman Empire into the Concert of Europe, but this exposed a deep fault line in international relations. Although the gesture implied full sovereign rights, it seemed incompatible with the extraterritorial privileges held by Europeans in Ottoman lands under the age-old capitulations. New commercial treaties complicated the issue by extending similar privileges to British subjects as far afield as China, Siam and Japan. Consular jurisdiction soon became the focus of controversy in Westminster as extraterritoriality featured prominently in local disputes following British commercial expansion across Asia, among them the Arrow incident that led to the Second Opium War. In Japan and other states, it would also become a key grievance in popular campaigns against ‘unequal treaties’ and the injustices of informal empire. This analysis shows how, even before such narratives of resistance emerged, there was already a seam of ambivalence in Victorian political discourse on the question of extraterritoriality. In the Foreign Office, it came as no surprise to be told of defects in these treaties, but it was the context of the existing debate, notably fresh initiatives to set up mixed courts, that framed the British response.     

Maritime territorialisation as performance of sovereignty and nationhood in the South China Sea

The South China Sea (SCS) is a conflict‐ridden international arena of rivalry between China, the USA, India, and the other ASEAN countries over sovereignty, resources and security. In this geopolitical clash China is the dominant force and Vietnam its main challenger. While most analysts assume that the various claims to the mostly uninhabited islands are motivated by the presence of submarine mineral resources, the conflicts evoke strong nationalist feelings in Vietnam and China, fuelled by narratives of the historical presence of fisheries and navies. By analysing the tension between complex territorial claims, new technologies and forms of knowledge applied by these states to delineate their material borders on the sea and vernacular notions of social space, this paper explores how sovereignty and nationality is enacted on a day‐to‐day basis. Thus, I argue that maritime territorialisation is a paradox of treating the sea as ‘land’ produced by the performance of a socially constructed image of the state geo‐body capitalising on strong nationalistic sentiments in China and Vietnam.     

Climate change,conflict, and cooperation: Global analysis of the effectiveness of international river treaties in addressing water variability

Climate-driven water variability is a natural phenomenon that is observed across river basins, but one that is predicted to increase due to climate change. Environmental change of this kind may aggravate political tensions, especially in regions which are not equipped with an appropriate institutional apparatus. Increased variability is also likely to challenge regions with existing institutional capacity. We argue that our best attempts to assess the ability of states to deal with variability in the future rest with considering how agreements have fared in the past. In this paper, we explore treaty effectiveness, or treaty resilience, by investigating whether particular water allocation and institutional mechanisms help mitigate inter-country tensions over shared water. We use water-related events from the Basins at Risk events database as a dependent variable to test particular hypotheses regarding the impact of treaty design on conflict and cooperation over time. A broad set of climatic, geographic, political, and economic variables are used as controls. The analysis is conducted for the years 1948–2001 using the country dyad as the level of observation. Findings pertaining to our primary explanatory variables suggest that country dyads governed by treaties with water allocation mechanisms exhibiting both flexibility and specificity evince more cooperative behavior. Country dyads governed by treaties with a larger sum of institutional mechanisms likewise evince a higher level of cooperation, although certain institutional mechanisms appear to be more important than others.     

Studying the International,Serving the Nation: The Origins of International Relations (IR) Scholarship in Germany, 1912–33

This paper examines the dynamics of internationalist and nationalist political thought in the formation of International Relations (IR) scholarship in Germany during the early twentieth century. It argues that while liberal internationalism played a significant role in shaping the discipline, IR scholars were often devout nationalists and worked for their government rather than for international peace. German institutions for the study of IR, like their Anglo-American counterparts, were founded in the aftermath of the First World War. Celebrated during the 1920s as ‘bulwarks of democracy’, they were nationalised by the Nazi government, lost their academic profile and since then have been largely forgotten. This paper explains the origins of IR research at the Institut für Auswärtige Politik, based in Hamburg and directed by Albrecht Mendelssohn Bartholdy, as well as at the Deutsche Hochschule für Politik, led by Ernst Jäckh in Berlin. Formally inaugurated in 1923 and 1920 respectively, both institutions drew on pre-war intellectual traditions as well as wartime networks. In light of recent re-appraisals of inter-war IR scholarship in other countries, the German case offers new and important insights into the complex intellectual traditions of what has traditionally been oversimplified as a first ‘great debate’ between ‘idealists’ and ‘realists’.     

A. V. Dicey and English constitutionalism

The jurist A. V. Dicey’s study of the Law of the Constitution (1885) has been since its publication the dominant analysis of the British constitution and the source of orthodoxy on such subjects as parliamentary sovereignty and the rule of law. This canonical status has obscured the originality of Dicey’s ideas in the history of legal and political thought. Dicey reworked the traditional idea of sovereignty into two separate concepts – legal and political sovereignty – in order to square the common law notion of the sovereignty of parliament with the democratic idea of the sovereignty of the people. He forged a new concept – ‘the rule of law’ – to explain the legal basis of liberty in common law countries in a manner that was both Benthamite and constitutionalist. Finally, he provided a democratic and anti-federalist rationale for maintaining the Union of Great Britain and Ireland. This majoritarian, centralist and utilitarian constitutionalism has been one of the most enduring products of Victorian scholarship. This article seeks to recover it in its original context and, in so doing, to show the value of reintegrating legal thought into the mainstream of modern British history and the history of political thought.     

Equality of Women's Economic Status? A Major Bone of Contention in the International Gender Politics Emerging During the Interwar Period*

This study brings together the often disparate scholarship on the League of Nations and the ILO. It follows the interactions between the League, women internationalists, and the ILO, which evolved around the question of woman-specific labor legislation and the equality of women's status. These interactions resulted in a broadening mandate of international gender policies while deepening the institutional and legal distinction between women's ‘political and civil’ as opposed to their ‘economic’ status. The ILO insisted on certain forms of women-specific labor regulation as a means of conjoining progressive gender and class politics, and was anxious to ensure its competence in all matters concerning women's economic status. The gender equality doctrine gaining ground in the League was rooted in a liberal-feminist paradigm which rejected the association of gender politics with such class concerns, and indeed aimed to force back the ILO's politics of gender-specific international labor standards. As a result of the widening divide between the women's policies of the League and the ILO, the international networks of labor women reduced their engagement with women's activism at the League. The developments of the 1930s deepened the tension between liberal feminism and feminisms engaging with class inequalities, and would have problematic long-term consequences for international gender politics.     

‘Mucho malo for fascisti’: Languages and Transnational Soldiers in the Spanish Civil War

This article explores the linguistic experiences of transnational soldiers, using the Spanish Civil War as a case study. It argues that communication difficulties provoked by linguistic diversity within the Republican war effort and particularly within the International Brigades, caused the high command to move from a utopian, internationalist policy to a more pragmatic approach. The article evaluates the role played by language intermediaries in this evolving policy and in the wider Republican war effort. Finally, it argues that soldiers grassroots experiences of language contact forged new linguistic forms which underlined a strong sense of shared purpose and identity.