011A_Joe_Cao

Convergence with and Divergence from Eurocentric Regional Institutional Integration

Panel organizers, chairs & discussants

JOE, Un-hye (University Jena)
Francis M. Cao (University Frankfurt)

Contributors

Wilhelmus van der Geest (Independent Advisor)
JOE, Un-hye (University Jena)
Francis M. Cao (University Frankfurt)

Panel abstract

The successful establishment of European integration, with the creation of the European Economic Community in 1957, was a source of inspiration to East Asia as it provided a precedent. However, its classic Eurocentric regionalism overlooked the very nature of regional integration: integration is “an organic process which translates a structural unity already existing in nuce in culture, economics and political consciousness for a long time into a definitive political form” (Walter Hallstein). Since the 1990s, a more holistic and multi-disciplinary understanding has been required in regionalism theories, and its exceptionalism has also had far-reaching consequences in terms of legal scholarship, taking into consideration the re-establishment of the contents of public power, citizenship, and fundamental rights for the supranational governance system.

This panel draws upon elements of both the classic Eurocentric frameworks and the models of new regionalism theory. Whereas Joe stresses the importance of applying three European integration principles – democracy, the rule of law, and human rights – to East Asia so as to direct it toward a convergence with the European legal community-building process, Cao will highlight the divergent dynamics of East Asian regionalism through the concepts of dystopian temporality and constitutional temporality, which could allow for coexistence and peaceful integration across East Asia. Both presenters focus on both the conceptual and the practical aspects of legal science; however, while Joe deals with correct law (richtiges Recht) by primarily presenting European legal doctrine dimensions, Cao promotes themes regarding the process of the realization of law (Prozeß der Rechtsverwirklichung), focusing on the legal sociological sphere.

Wilhelmus van der Geest: Multilateralism versus the dilemma of dynamic Multi-Polarity

The scope of an Euro-centric international order was irrevocably diminished after World War II when decolonization became one of the core-instrument of Pax Americana.

The reshaping of the international order emerging in the new Millennium implied that the European Union had become an actor with limited hard security dominance, trading primarily on its ability of projecting soft power using tools of persuasion and policy dialogue, cultural attraction, international trade and development assistance and foreign investment and transfer of technology.

Promoting institutional regionalism became the headline of Europe’s Asia policy initiatives with South East Asia. The paper will examine the effectiveness and relevance of this approach, when the US had started to actively projecting its dominance, through using its trade and investment policy as a hard security bargain and rupturing the emerging consensus of ‚open regionalism‘ for the Asia Pacific region.

JOE, Un-hye: East Asian Integration Legal Principles

Whereas regional economic ‘cooperation’ involves confidence-based activities simply interacting to achieve common goals within an area, the process of ‘integration’ has as its main characteristic the abolition of discrimination. The latter’s form is used synonymously with ‘community-building,’ which requires first, investment in trust-building and second, establishment of common values, or legally speaking, principles. Finally, these processes should be undergirded by the rule of law.

In 2019, ASEAN Plus Three concluded the Regional Comprehensive Economic Partnership and is next expected to promote ‘community-building,’ similar to what the European Economic Community (EEC) created in 1957. Relative to the early EEC system, however, East Asian integration’s legal system has been generally recognized as an insufficient legal structure. The reason behind all this is that East Asia has failed to reach a consensus on ‘principles’ that can support the acceptance of essential rules and institutions to be shared across the region. In fact, researching principles has scarcely been the object of thorough integration research in East Asia.

In the European Union, the multiple interdependence of each sovereign state in the community had necessitated a minimum degree of homogeneity with regard to the legitimization and limits of state power. And this homogeneity requirement is expressed in Article 2 of the Treaty on European Union with democracy, rule of law, and human rights. These fundamental principles were expressly laid down in the Preamble of the European Convention on Human Rights (ECHR) in 1950.

Of course, it is impossible to simply project a common European Union denominator of principles onto East Asia. Rather, a doctrine of East Asian principles must localize the content of the EU. However, the EU’s concepts and insights have offered a systematic exposition of the most essential legal norms of a supranational organization’s legal order. Since the enactment of the ECHR, its values have channeled and rationalized political and social conflicts by stipulating controversial questions fundamentally and have limited arbitrary governmental decisions through transparency and coherence of the law. Its research, therefore, can lend primary methods to make an understanding of the whole legal system possible as an ‘organic whole’ and to develop a form of ‘community-building’ with East Asian identification.

Focusing on the judicial sphere, this paper first analyzes the European doctrine of integration principles and second, highlights its applicability to East Asia, according to both aspects of East Asian integration theories between classic Eurocentric frameworks and models of new regionalism theory.

Francis M. Cao: Never Again: dystopian temporality as the normative condition of Transnational Asia

Asia is the only region in the world that does not have a human rights court or commission that cover the region as a whole. Previous literature has pointed out that transnational Asia has been shaped in the absence of an overarching principle, such as human rights regime, which governs its formation and constitution. However, the introduction of temporality into constitutional studies indicates otherwise. Against the background, “temporality turn“ emphasizes the processual feature that conditions the emergence of transnational ordering in which production regimes thrive. Looking at the temporal formation of transnational Asia, this paper addresses the normative aspect of temporal formation that formulates societal constitutionalism operating beyond state. In Asian context, dystopian temporality is represented by the symbols, discourses and procedures that references the narrative of modern Asian history that is preoccupied with warfare, turmoil and underdevelopment. By thematizing the temporality with „never again”, the representation offers a transnational account of Asia that isolates the drive for economic prosperity from those nationalist narratives that at times dominates political and cultural spheres. The paper argues that the dystopian temporality potentialize a normative framework for an integrated Asia by conditioning the making of transnational order.