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About DILA
HISTORY OF DILA
Foundation for the
Development of International Law in Asia
From its inception and rejuvenation to the future
Ko Swan Sik and M.C.W. Pinto
The “Foundation for the Development of International Law in Asia” began its legal existence on 20 December 1989. On that day, almost twenty-five years ago, three Asian international law specialists whom chance had brought together as residents in the Netherlands, met to set up a not-for-profit institution, a “legal person” under the law of the Netherlands and termed “stichting” in Dutch. As required by law, the basic document establishing the “stichting” (foundation) setting out its essential elements, including the location of its seat (The Hague), its aims and purposes, its management structure and the names of the members of its governing board, was executed before a Notary who recorded and registered the process.
This paper will attempt to address some questions that are asked of the founders of DILA: what were the aims and purposes that motivated the founders to undertake this initiative? What were the ways and means they envisaged for achieving their goals? Why did they prefer the creation of a “stichting” instead of the more familiar vehicle of a “society” of like-minded “members”, frequently chosen for such a purpose? Were there reasons for creating DILA at that particular moment in time?
Responses offered to these questions will unavoidably show a certain personal bias or emphasis on the part of the founders. It will be for those who have now courageously assumed the management and control of DILA to determine whether the original choices and decisions of policy made by the founders continue to be viable, or should be changed in response to the challenges to be faced by DILA in the future.
Background
As the Second World War came to end, most Asian countries became acutely aware of their failure to make progress over the centuries when they had been subject to controlling influence, or outright colonial domination by Western powers. The end of the war, which had devastated many of the formerly dominant countries, seemed to presage a new era of emancipation and progress for hitherto subject peoples. In an atmosphere of national awakening and high expectations, Asian jurists sought to change the anomalous situation that had existed earlier, when international law had been for all practical purposes a product of relations among the countries of Europe and North America, and the creation of a new law was essentially determined by consensus among those powers alone. The era of foreign domination also had the effect of impeding and limiting communications among subject peoples, a situation that was urgently in need of change so as to facilitate the emergence of a new and more inclusive world order.
Initiatives at the United Nations in the early post-war years saw the adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples, as well as Covenants on Human Rights and on Civil and Political Rights, all of which facilitated the participation of Asian and African States in the creation and application of international law. We may recall here the birth of the Non-aligned Movement in Bandung, and the creation of the Asian-African Legal Consultative Committee. Asian jurists sought a greater role and influence in the United Nations, and its regulatory and treaty-making initiatives, but there was no mechanism that might assist them in achieving their goals.
The initiators and Asian support
It was by pure coincidence that, as the century drew to a close a number of Asian jurists became resident in The Hague. Among them were M.C.W. Pinto from Sri Lanka, who had been appointed Secretary-General of the newly established Iran-United States Claims Tribunal; Ko Swan Sik, Indonesian citizen, who was head of the Public International Law department of the “T.M.C.Asser” Inter-university Institute for International Law; and J.J.G. Syatauw, also Indonesian citizen, who was Professor of International Law at the post-graduate Institute of Social Studies. We formed the nucleus of a group which eventually conceived and brought DILA into being in 1989. There were, however, many other factors that contributed to that result.
The year 1983 was of particular importance to our Dutch hosts, as well as to the creation of DILA. That year marked the fourth century since the birth of Hugo Grotius, and the T.M.C. Asser Institute organized a major colloquium entitled “Internataional Law and the Grotian Heritage”. The Institute was able to secure the participation in the colloquium of two Asian jurists, the late Professor Wang Tieya of China and M.C.W. Pinto. There were two other Asian participants whose attendance proved critically relevant to the creation of DILA: Professor Chang Hyo Sang from Hanyang University in Korea, and Professor Chiu Hungdah, who was Professor of International Law at the University of Maryland. At informal meetings during the Colloquium, they urged that the favourable academic climate of Europe might be conducive to Asia-oriented projects in the field of international law. It was agreed that, by way of a “pilot project”, there should be a collective effort by Asian authors to produce a volume consisting of chapters on approaches to the topic “nationality” from Asian countries. A volume entitled “Nationality and International Law in Asian Perspective”, published by Martinus Nijhoff Publishers, The Hague, appeared in 1990. This volume had been conceived as the first of a series on Asian approaches to international law, but it soon became apparent that consideration of the time and effort that would need to be devoted to such a series by jurists who were engaged in full-time occupations, would make such a project impractical.
Asian Yearbook of International Law
Thoughts then turned to the production of a periodical publication that would focus on Asian approaches to international law. It was not imagined that there could be some single over-arching approach to international law that could be characterized as “Asian” but rather that a panorama of perspectives of some fifty countries of the continent, from small islands to great continental States could be of interest and value. From an organizational perspective, a Yearbook seemed to demand lees frequent short-time commitment, although it was recognized that launch of an Asian Yearbook would offer substantial challenges. Nevertheless it was determined that an “Asian Yearbook of International Law” would be a most enduring contribution to the Asian international law community. The final decision to commence publication on a regular basis was taken after successful negotiations with the reputed international law publisher Martinus Nijhoff.
The territorial scope of “Asia”
Having chosen a “Yearbook” as the main means by which to serve the Asian community of international law scholars, it was necessary to determine what the term “Asia” meant for the purpose of deciding eligibility for inclusion of material in the Yearbook. While it was clear that an author’s nationality would not be relevant so long as the topic focused on “Asia”, it was still necessary to decide what countries should be considered as being within “Asia”, given that one motivation for our project had been the furtherance of the aspiration of countries that had been subject to alien domination. The Introduction to Volume 1 of the Asian Yearbook referred to the suggestion which takes the Caucasus mountains, the Black Sea, the Mediterranean Sea and the coast of the Arabian Peninsula as boundaries. However, there was never a consensus on the matter, and, as the lack of agreed geographic limits presented no practical difficulty, the matter was left open.
The search for support among Asian jurists
With the idea of an Asian Yearbook as a major instrument and contribution to the community of Asian international law specialists, it became necessary to seek opinions and advice from them that would ensure the relevance and value of the Yearbook and at the same time create a partnership with what should become a community of Asian jurists. Consultations were thus begun inter alia with Park Choon-Ho of Korea, Wang Tieya and Ni Zhengyu of China, Oda Shigeru, Onuma Yasuaki and Takabayashi Hideo of Japan, Florentino Feliciano of the Philippines, Sompong Sucharitkul of Thailand, “Tommy” Koh Thong Bee of Singapore, Lal Chand Vohrah nof Malaysia, Mochtar Kusumaatmadja of Indonesia, Rahmatullah Khan of India, Jamshed Hamid of Pakistan, Surya Prasad Subedi of Nepal, and Seyed Jamal Seifi of Iran. Responses were generally positive, although some expressed doubt regarding the feasibility of our plans in the light of earlier failures of similar ventures.
The choice of a “stichting” (foundation) instead of a “society” as the legal structure of the project
The receipt of start-up donations from the Netherlands government and a Swedish foundation alerted us to the need to be able to conclude and administer contracts and to maintain fiscal discipline and accountability in the course of the work to come. The model most familiar to the initiators of the project was the “society”, or association of members with a scholarly interest in international law, similar to those in many countries. However, on reflection, such a structure for an international project like ours could, it seemed, have disadvantages. There was, for example, the level of a membership fee to be levied from members who could ill afford it, and might be restricted in their ability to pay in foreign currency. What could the members of such a society receive as benefit for payment of a fee? Start-up funds were barely adequate, and the expense of publishing the Yearbook would leave little, if anything to finance other activities such as seminars or symposia of an international character. Administering membership of a society would also involve work for a staff who would have to be compensated. Given the uncertainty of funding in the initial stages, membership numbers and the workload involved, the initiators decided to choose the legal structure of a “stichting” and confer upon the members of its governing board the powers necessary to ensure publication of the Yearbook, and perhaps to find ways and means of holding conferences or other activities that would further and promote the objectives of the “stichting” which, as expressed in its title, would be the “Development of International Law in Asia”.
Seat of the “stichting”
The presence in the Netherlands of the three initiators of the project, their facility with the English language which could reach international law specialists in most Asian countries and the ability of the publisher Martinus Nijhoff to produce high quality publications in English made it the most practical course to set up a legal entity under Dutch law and establish the seat of the foundation at The Hague. As the community to be served comprised Asian jurists, this was essentially an interim decision. It was the intension to move the seat of DILA at some time to an Asian country where it would be formally incorporated. This aspiration is reflected in Article 19, paragraph 1(ii) of the Statutes, which provides of the “winding up” of DILA “if [the Board] determines that it would be more likely that those aims and purposes would be best achieved or implemented if activities herein provided for or referred to were to be carried out by an institution established in a country in Asia”.
The Governing Board and commencement of business
By Article 7 of the Statutes of DILA the Governing Board was to consist of 3, 5, 7 or 9 persons of recognized competence in international law, at least two-thirds of them being nationals of Asian countries, the actual number of members being decided by the unanimous decision of the incumbent members.
Having obtained consent of the persons concerned, the composition of the first Governing Board was set forth in the founding instrument (in alphabetical order, with their function at the time) as follows: (1) Florentino P. Feliciano (Associate Justice of the Philippine Supreme Court), (2) Jamshed Hamid (Legal Advisor of the Ministry of Foreign Affairs of Pakistan), (3) Rahmatullah Khan (Professor at the School of International Studies, Jawaharlal Nehru University at New Delhi), (4) Ko Swan Sik, (5) R.St.J. Macdonald (Professor at Dalhousie University at Halifax), (6) M.C.W. Pinto, (7) Sompong Sucharitkul ([Guest] Professor at the University of Leiden, (8) J.J.G. Syatauw, and (9) Yamamoto Soji (Professor at Jochi (Sophia) University at Tokyo).
Thus established, the Board elected (under Article 10 of the Statutes) Ko Swan Sik as chairman and J.J.G. Syatauw as vice-chairman, and appointed, under Article 11 of the Statutes, an Executive Committee consisting of the Chairman, the Vice-Chairman and M.C.W. Pinto, to which it delegated functions additional to the basic ones listed in Article 13 of the Statutes.
Financing DILA
Financing a body devoted to the development of international law in Asia did not have the kind of appeal that would induce governments or the private sector to offer financial support to implement DILA’s activities. However, a request for assistance addressed to the Netherlands Ministry of Development Co-operation centred on publication of the Yearbook did receive a positive response. DILA also very much appreciated other donations received at the outset from the Swedish International Development Authority, Mr. Sata Yasuhiko on behalf of Tokibo Co.Ltd, the Japan Foundation and the Paeksang Foundation, Korea, through the intermediation of Dr. Chung Il-Young.
The concept of the Yearbook
Earlier mention has been made of the motives of the initiating group for preferring an annual scholarly publication instead of one addressing issues at shorter intervals. In doing so, we took into account the consequences and requirements of that choice, such as relatively long intervals for preparations of the texts and materials to be included. Besides, editorial policy would be expected to focus on the publication of substantial articles of long-term relevance, while not completely barring important topical and useful shorter contributions, as “notes”. These and similar choices were to endow the Yearbook with a character different from that of shorter-term journals which typically provided information and a forum for scholarly discussion of topical issues. While it is for others to judge if we succeeded in implementing such policy, it would be useful to elaborate briefly on the various regular sections which we considered particularly useful and relevant to be accorded a permanent place in the Asian Yearbook of International Law.
In accordance with DILA’s basic aim of promoting understanding among Asian countries of each other’s international law practices, one of the regular sections consisted of the presentation of “Legal Materials” relating to international law. The term was intended to cover legislation, judicial and similar decisions, and other forms of “State practice”. Another section was intended to record the “participation of Asian states in open multilateral law-making treaties” allowing the reader to observe in each successive year, which Asian states had adhered to a specific multilateral treaty. The labour-intensive preparation of this section has for many years been generously undertaken by a Dutch colleague, Professor Karin Arts, of the Institute of Social Studies at The Hague.
Another regular section was set up to take note of the activities of the institutionally based and annually convened Asian-African \legal Consultative Committee (AALCC). This Committee, now reconstituted as an “Organization” (AALCO) was intended, inter alia, to discuss and review, from an Asian-African perspective, the work done under the auspices of the United Nations, including, in particular, the United Nations International Law Commission. In view of its special membership and purpose, bringing together Asian and African countries with a shared history, there was no doubt about the appropriateness of regular coverage of its work in the Yearbook. However, AALCO’s deliberations appeared to lose influence on the membership to such an extent that the Editors decided in 1996 to suspend the section for the time being. It has not re-appeared in the Yearbook since Volume 5. We should cherish the hope that the activities of AALCO will soon offer renewed motivations for the Editors to resume reporting its activities in the Yearbook.
A similar section was included in the first three Volumes of the Yearbook, dealing with United Nations activities with special relevance to Asia. It was edited by the most competent person for the task, (Roy S.) Lee Shih Guang of the Office of the Legal Counsel of the United Nations. The section was discontinued because the scope of DILA’s coverage of Asia turned out to be incompatible with the U.N. materials.
Another regular section was the “Chronicle of events and incidents relating to Asia with relevance to international law”. The section did not have as its purpose the presentation of strictly legal materials, but aimed at recording events and occurances among subjects of international law which could be the source of issues of relevance to international law. This was based on the assumption that most international disputes arise as a result of different perceptions of the facts, while the parties disagree about the law to a much lesser extent. As a consequence, it is considered useful to make readily accessible clear, yet concise data on events and incidents considered directly relevant for international law research. According to the rather detailed explanatory introduction to the section in Volume One of the Yearbook (Vol.1, p.265) the section was inspired by the well-known, similar, almost “classical” section in the French “Revue generale de droit international public”, initiated by Professor Charles Rousseau. As Rousseau’s most useful and regular (quarterly) contributions mainly focus on events and incidents relating to Western states, it was decided to include in the Yearbook a comparable though differently organized annual survey that would focus on Asian states. Subsequent Editors of the Yearbook have decided to discontinue the section. It will be for subscribers to evaluate that decision.
There was, of course, to be a familiar section for Book Reviews. It was intended to include (and emphasize) review of books published in Asia in Asian languages (and consequently (!) less accessible to us Asians!) thereby promoting communication and mutual understanding among legal scholars. However, implementation of the idea required organizational capacities which DILA never yet possessed. The same may be said of another section that would have contained a Bibliography of international law concerning Asian affairs. Finally, a section was reserved for the verbatim reproduction of (highly exceptional) Selected documents on international law with special relevance to Asia. Re-evaluation of all these sections is to be highly recommended.
The Manila Meeting
Thanks to the financial support of the Japan Foundation and the hospitality of our Philippine colleagues of the Institute of International Legal Studies, University of the Philippines Law Center, it was possible for the first time to organize an extended meeting of the members of the Governing Board (or their representatives) in Manila in April 1997. The meeting, which was attended by other interested jurists, was thought of as an initial step towards consolidating the activities of DILA, and in planning their further expansion.
The Manila meeting was rich in decisions taken on additional projects, such as setting up a website and an online newsletter. The former was eventually set up, but lack of management of the site as an active source of information resulted in its early demise. The latter project has not survived its conception in spite of elaborate outlines for its intended functioning as an instrument for regular communication among Asian international lawyers in addition to the website. In both cases, it proved not (or not yet) possible to recruit persons from within our Asian community able and willing to give of their time and effort to implementing these projects. The meeting also discussed ways to promote and support the teaching of international law in less affluent Asian countries by setting up projects to this end, especially by preparing and providing teaching materials, but none of these ideas has yet materialized.
Finally, mention should be made of the decision to produce a collection of essays on “international law in Asian perspective” which, unfortunately, failed to gain traction without an editor/manager able to devote time and resources to the project.
Rejuvenation and the future
This paper has attempted to describe the origins and the vicissitudes that attended the activities undertaken by a group of persons who came from different countries and who began as strangers to each other, but went on to become close friends and trusted partners in a shared pursuit of common ideals. A continuation of the story can be told only by a next generation.
At the commencement of a new century, the incumbent Governing Board members have determined to embark upon a rejuvenation of stewardship, and the management of DILA passed on to a new generation of inspired colleagues. In that spirit, DILA entered the twenty-first century under the leadership of Kriangsak Kittichaisaree from Thailand.
The future: “solidarity and joint effort” or “diversity and competition”
This brief survey is now concluded with some remarks on the future. We recall the initiatives in the past decade for the foundation of an “Asian Society of International Law” by colleagues from our community of Asian scholars, with aims and purposes very similar, if not identical, with those of DILA. There has been lively discussion of its desirability and its expediency quite independent of anything to do with DILA. Those discussions ended with the only possible conclusion, viz. that there is neither legal nor moral impediment to such initiative. However, that left unanswered the question whether the existence of two practically identical entities is desirable and practical. One of the major experiences of DILA in the past has been the fact that there continues to be very limited supply of human resources in Asia and the consequent difficulty of finding colleagues capable and prepared to take up the many desirable projects that come to mind. Of course, such human resources may be readily available outside Asia, but one may assume and venture to hope that another of our common aspirations will be realized: the independence of our Asian community, especially in the field of international law, and the ambition of achieving our ideals through our own strengths and abilities.
All these considerations and the unavoidable movements of our friends and colleagues between DILA and AsianSIL that are actually and increasingly taking place as a result, in addition to an increasing scarcity of the available human resources mentioned earlier should, one may assume, move us to take initiatives toward an early coming together of the two entities and their activities, irrespective of the ultimate institutional design. One should express the hope that personal relationships should in no way influence our attitude toward this issue and that we all should be glad to contribute to facilitating such a union.
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