The Unequal Treaties weave the narrative of state transformation and the deconstruction of the Sino-centric regional order in the Southeast Asia. A chain of empires and kingdoms—extending from the Korean plateau in the northeast, Japan, the Qing Empire, and the Kingdom of Siam in the southeast, were faced with relentless diplomatic pressure under the shadow of gunboats, and coerced into entering into biased and one-sided treaties. Across the region, these treaties set out a pattern of relations, which formed the infrastructure of a semi-colonial political system. Not only the unequal treaties forced the semi-colonial states to reform and restructure themselves to suit the needs of the Western powers, they also provided a new institutional framework for international politics in the region. The post-Westphalia concepts of sovereignty and equality displaced the traditional hierarchy-based system of inter-state relations in the region. As the nineteenth century turned over, the Western powers systematically fractured the former Sino-centric regional structure by carving out spheres of influence, and left it littered with bitter political disputes and legal anomalies that continue to this day.
However, a lesson in history is not where this discourse on Unequal Treaties ought to stop. This is so particularly because the current international legal regime is still frequently used to legitimize and sustain the unequal structures and processes that have manifested themselves in the growing North-South divide. The relationship between ‘state’ and ‘international law’ is being reconstituted to the distinct disadvantage of the Third World and its people. As in the past two centuries, the policies and laws of the Third World states are still being dictated by the international institutions that are conspicuously controlled by the ‘First World’. It is not in vacuum that the terms like ‘neo-colonialism’ or ‘neo-imperialism’ have been coined. Many of the Southeast Asian States forming a part of the Third World, have witnessed debilitating economic meltdowns and severe political interferences because of such a structure of the international order that infiltrates and superimposes the interests of a transnational ruling elite on the developing states.
It is at this juncture that the ‘Third World Approach to International Law’ (TWAIL) be taken into serious consideration. TWAIL – a critical school of international legal scholarship — is an intellectual and political movement formed by a group of states, which are, although geographically, culturally, politically, and economically diverse, bound by a shared colonial past. It is a coming together of such States to build a common platform to consolidate the sources of international law in order to articulate and address the material and ethical concerns of the region and its people. TWAIL seeks to pierce the partial blindness induced by the structural determinism of the omnipresent and penetrative international legal regime, which has in turn prevented a holistic critique of the regressive international practices, or mapping out alternative futures. This approach has come a long way from its first generation foundational phase to inter-state forums being set up on the basis of their common history and shared goals. TWAIL may not be dismissed as a mere theoretical proposition or a wishful radical transformation, as it proves its practical and real-life functionality. A most recent and a gem of an example is the setting up of the New Development Bank by the BRICS States. By establishing this new multilateral bank, the BRICS States have decentralized the power previously held by IMF, and the World Bank, which were always complained to be too American or Eurocentric. The success of the BRICS Bank is yet to be assessed in coming years, but the establishment of such an institution, which may mark the emergence of a new financial order, by a handful of developing states, is a laudatory act in itself.
Witnessing the continuing imposition of structural inequality in Southeast Asia, affected through partisan application of International Law, the central proposition calls for construction a common TWAIL-based identity for the region. Drawing largely from the Constructivist theories in international relations, it can be plausibly argued that construction of an identity based on doctrinal epochs of TWAIL will create an intersubjective system based upon shared history, mutual understanding and social knowledge, and common understanding. This will be instrumental in helping the Southeast Asian states to positively identify their interests with regard to each other in larger international forums. Once this shared identity is settled into the consciousness of the States in the region, it can be evolved into a political platform to gain leverage in international negotiations on the issues of common regional concern, and for establishment of new institutions and regional orders, howsoever the need be.
Hopefully, by reclaiming the narrative and turning over the rhetoric through TWAIL, this long continuing discourse of the unequal treaties will come to an end in this era.