Pub Date : 2019-09-04DOI: 10.1093/law/9780198793854.003.0007
S. Linton
This chapter assesses the approaches of Asia-Pacific states to international humanitarian law (IHL) and international criminal law (ICL), within the context of the international legal framework. It first addresses influential approaches in the region, including how states present themselves in relation to IHL and ICL issues. Next, it considers how regional states engage with the issue of responsibility in international law, with an emphasis on IHL and ICL. The chapter then examines acceptance of these two bodies of law, arguing that there is no hostility to the basic norms of IHL, but a more unsettled approach to ICL. There is a definite chill in respect of aspects that potentially encroach on independence, sovereignty, and territorial integrity, or that smack of Western neo-colonialism. These are of course subjectively evaluated by each state. In practical terms, this frostiness can be seen in the responses to external threats of accountability against political leaders, the exercise of universal jurisdiction, Security Council referrals to the International Criminal Court, Pillar Three of the R2P doctrine, the crime of aggression, and certain formulations of other international crimes (for example, war crimes in non-international armed conflict). However, even within these broad regional trends, there is no uniformity. There is decidedly no collective ‘Asia-Pacific approach’ that emerges from the present chapter.
{"title":"International Humanitarian Law and International Criminal Law","authors":"S. Linton","doi":"10.1093/law/9780198793854.003.0007","DOIUrl":"https://doi.org/10.1093/law/9780198793854.003.0007","url":null,"abstract":"This chapter assesses the approaches of Asia-Pacific states to international humanitarian law (IHL) and international criminal law (ICL), within the context of the international legal framework. It first addresses influential approaches in the region, including how states present themselves in relation to IHL and ICL issues. Next, it considers how regional states engage with the issue of responsibility in international law, with an emphasis on IHL and ICL. The chapter then examines acceptance of these two bodies of law, arguing that there is no hostility to the basic norms of IHL, but a more unsettled approach to ICL. There is a definite chill in respect of aspects that potentially encroach on independence, sovereignty, and territorial integrity, or that smack of Western neo-colonialism. These are of course subjectively evaluated by each state. In practical terms, this frostiness can be seen in the responses to external threats of accountability against political leaders, the exercise of universal jurisdiction, Security Council referrals to the International Criminal Court, Pillar Three of the R2P doctrine, the crime of aggression, and certain formulations of other international crimes (for example, war crimes in non-international armed conflict). However, even within these broad regional trends, there is no uniformity. There is decidedly no collective ‘Asia-Pacific approach’ that emerges from the present chapter.","PeriodicalId":146103,"journal":{"name":"The Oxford Handbook of International Law in Asia and the Pacific","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122007037","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-04DOI: 10.1093/law/9780198793854.003.0013
Mogami Toshiki
This chapter examines international law in Japan. It begins by looking at Japan’s embroilment with international law in the course of its efforts to revise the unequal treaties which had been concluded with about a dozen Occidental states while Japan was categorized as one of the ‘barbarian’ states in the world. After gradually overcoming this unequal status, it became a late-coming big power around the end of World War I. This big power then plunged into World War II, with the result that it was then branded an aggressor state and was penalized in an international tribunal. After that defeat, it turned into both a serious complier of new—that is, post-World War II—international law and a state deeply obedient to the United States. These factors have brought about complex international law behaviour as well as serious constraints in Japan’s choice of international law action.
{"title":"Japan","authors":"Mogami Toshiki","doi":"10.1093/law/9780198793854.003.0013","DOIUrl":"https://doi.org/10.1093/law/9780198793854.003.0013","url":null,"abstract":"This chapter examines international law in Japan. It begins by looking at Japan’s embroilment with international law in the course of its efforts to revise the unequal treaties which had been concluded with about a dozen Occidental states while Japan was categorized as one of the ‘barbarian’ states in the world. After gradually overcoming this unequal status, it became a late-coming big power around the end of World War I. This big power then plunged into World War II, with the result that it was then branded an aggressor state and was penalized in an international tribunal. After that defeat, it turned into both a serious complier of new—that is, post-World War II—international law and a state deeply obedient to the United States. These factors have brought about complex international law behaviour as well as serious constraints in Japan’s choice of international law action.","PeriodicalId":146103,"journal":{"name":"The Oxford Handbook of International Law in Asia and the Pacific","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124696407","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-04DOI: 10.1093/law/9780198793854.003.0009
Robert Beckman
This chapter describes Asia’s active participation in the law of the sea. The modern law of the sea is set out in the United Nations Convention on the Law of the Sea 1982 (UNCLOS), as modified by the Agreement relating to the Implementation of the Convention 1994. UNCLOS establishes a legal order for all use of the oceans, has been universally accepted, and has been described as a ‘constitution’ for the oceans. Indeed, one of the major achievements of UNCLOS was the establishment of a clear demarcation of rights and jurisdiction in the oceans. The chapter then looks at how Asian states have contributed to, participated in, and implemented the UNCLOS regime. The term Asian states is used rather loosely, but includes states in South Asia, Southeast Asia, Northeast Asia, and the western Pacific.
{"title":"Law of the Sea and Asian States","authors":"Robert Beckman","doi":"10.1093/law/9780198793854.003.0009","DOIUrl":"https://doi.org/10.1093/law/9780198793854.003.0009","url":null,"abstract":"This chapter describes Asia’s active participation in the law of the sea. The modern law of the sea is set out in the United Nations Convention on the Law of the Sea 1982 (UNCLOS), as modified by the Agreement relating to the Implementation of the Convention 1994. UNCLOS establishes a legal order for all use of the oceans, has been universally accepted, and has been described as a ‘constitution’ for the oceans. Indeed, one of the major achievements of UNCLOS was the establishment of a clear demarcation of rights and jurisdiction in the oceans. The chapter then looks at how Asian states have contributed to, participated in, and implemented the UNCLOS regime. The term Asian states is used rather loosely, but includes states in South Asia, Southeast Asia, Northeast Asia, and the western Pacific.","PeriodicalId":146103,"journal":{"name":"The Oxford Handbook of International Law in Asia and the Pacific","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128593432","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-04DOI: 10.1093/law/9780198793854.003.0023
B. Chimni
This chapter examines international law in India, offering an overview of India’s engagement with international law in the colonial and postcolonial periods. Whether it is the fact of the East India Company becoming an empire, or British India becoming an original member of both the League of Nations and the United Nations, India’s relationship with international law has been somewhat unusual. The review in this chapter encompasses the following sub-themes: the development of international law in the colonial era, 1600–1947; the place of international law in the Constitution of India 1949; the approach of Indian courts to international law, 1950–2017; and India’s multilevel engagement and contribution to international law, 1947–2017.
{"title":"India","authors":"B. Chimni","doi":"10.1093/law/9780198793854.003.0023","DOIUrl":"https://doi.org/10.1093/law/9780198793854.003.0023","url":null,"abstract":"This chapter examines international law in India, offering an overview of India’s engagement with international law in the colonial and postcolonial periods. Whether it is the fact of the East India Company becoming an empire, or British India becoming an original member of both the League of Nations and the United Nations, India’s relationship with international law has been somewhat unusual. The review in this chapter encompasses the following sub-themes: the development of international law in the colonial era, 1600–1947; the place of international law in the Constitution of India 1949; the approach of Indian courts to international law, 1950–2017; and India’s multilevel engagement and contribution to international law, 1947–2017.","PeriodicalId":146103,"journal":{"name":"The Oxford Handbook of International Law in Asia and the Pacific","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129114783","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-04DOI: 10.1093/law/9780198793854.003.0004
Antony T. Anghie
This chapter looks at debates about Asia in scholarship on the history and theory of international law. It also traces the evolution of concepts of sovereignty in the context of Asia’s colonial history, and more recent preoccupations with development. What counts as the ‘history and theory’ of international law is itself continuously changing and scholars must engage with new materials and issues. Possible new initiatives include deeper research on Asian traditions and concepts of rule and governance, justice, and order; approaching the history and theory of international law in Asia in global rather than regional terms; and turning to other disciplines—such as social/cultural anthropology—to develop new insights into the questions of governance and territory, and the powerful imaginaries of nationhood, sovereignty, and empire that animate the peoples of Asia, and that have not been entirely displaced by modern concepts of sovereignty and globalization. Examining these themes illuminates the important issues of how Asian states have attempted to innovate and use international law to further their own interests.
{"title":"Asia in the History and Theory of International Law","authors":"Antony T. Anghie","doi":"10.1093/law/9780198793854.003.0004","DOIUrl":"https://doi.org/10.1093/law/9780198793854.003.0004","url":null,"abstract":"This chapter looks at debates about Asia in scholarship on the history and theory of international law. It also traces the evolution of concepts of sovereignty in the context of Asia’s colonial history, and more recent preoccupations with development. What counts as the ‘history and theory’ of international law is itself continuously changing and scholars must engage with new materials and issues. Possible new initiatives include deeper research on Asian traditions and concepts of rule and governance, justice, and order; approaching the history and theory of international law in Asia in global rather than regional terms; and turning to other disciplines—such as social/cultural anthropology—to develop new insights into the questions of governance and territory, and the powerful imaginaries of nationhood, sovereignty, and empire that animate the peoples of Asia, and that have not been entirely displaced by modern concepts of sovereignty and globalization. Examining these themes illuminates the important issues of how Asian states have attempted to innovate and use international law to further their own interests.","PeriodicalId":146103,"journal":{"name":"The Oxford Handbook of International Law in Asia and the Pacific","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126419518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-04DOI: 10.1093/law/9780198793854.003.0017
Romel Regalado Bagares
This chapter assesses international law in the Philippines. The primary entry points of international law in Philippine jurisdiction are the Incorporation Clause and the Treaty Clause of the 1987 Charter. The chapter considers the paradoxical phenomenon of the supposedly dualist device of treaties opening a quasi-monist door to international legal obligations in the form of executive agreements that do not require the concurrence of the Senate but become binding on the Philippines by Executive imprimatur. Moreover, as quasi-monist devices, executive agreements function both as a sword, giving direct effect to international law—especially in the protection of rights—and as a shield, raising barriers to public or international accountability according to political considerations. The four other entry points for international law in Philippine practice include the direct effect by the Supreme Court’s rule-making powers, constitutionalization, statutory application, and international law in the State of Exception.
{"title":"The Philippines","authors":"Romel Regalado Bagares","doi":"10.1093/law/9780198793854.003.0017","DOIUrl":"https://doi.org/10.1093/law/9780198793854.003.0017","url":null,"abstract":"This chapter assesses international law in the Philippines. The primary entry points of international law in Philippine jurisdiction are the Incorporation Clause and the Treaty Clause of the 1987 Charter. The chapter considers the paradoxical phenomenon of the supposedly dualist device of treaties opening a quasi-monist door to international legal obligations in the form of executive agreements that do not require the concurrence of the Senate but become binding on the Philippines by Executive imprimatur. Moreover, as quasi-monist devices, executive agreements function both as a sword, giving direct effect to international law—especially in the protection of rights—and as a shield, raising barriers to public or international accountability according to political considerations. The four other entry points for international law in Philippine practice include the direct effect by the Supreme Court’s rule-making powers, constitutionalization, statutory application, and international law in the State of Exception.","PeriodicalId":146103,"journal":{"name":"The Oxford Handbook of International Law in Asia and the Pacific","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131937002","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-04DOI: 10.1093/law/9780198793854.003.0006
H. Hannum
This chapter focuses on human rights in Asia and the Pacific. On the level of purely legal commitments, the great majority of Asian and Pacific states have ratified both of the two major UN human rights treaties, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR). Association of Southeast Asian Nations (ASEAN) is the most developed of the sub-regional organizations with respect to human rights, although that development has been fairly recent and, to date, relatively minimal. However, attempts to characterize or distinguish different approaches to human rights in Asia frequently include reference to a number of arguments put forward to justify Asian exceptionalism in this field. Perhaps the most widely asserted argument contends that ‘Asian values’ are different from the Western values that animate today’s international human rights norms.
{"title":"Human Rights","authors":"H. Hannum","doi":"10.1093/law/9780198793854.003.0006","DOIUrl":"https://doi.org/10.1093/law/9780198793854.003.0006","url":null,"abstract":"This chapter focuses on human rights in Asia and the Pacific. On the level of purely legal commitments, the great majority of Asian and Pacific states have ratified both of the two major UN human rights treaties, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR). Association of Southeast Asian Nations (ASEAN) is the most developed of the sub-regional organizations with respect to human rights, although that development has been fairly recent and, to date, relatively minimal. However, attempts to characterize or distinguish different approaches to human rights in Asia frequently include reference to a number of arguments put forward to justify Asian exceptionalism in this field. Perhaps the most widely asserted argument contends that ‘Asian values’ are different from the Western values that animate today’s international human rights norms.","PeriodicalId":146103,"journal":{"name":"The Oxford Handbook of International Law in Asia and the Pacific","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133917182","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2001-10-06DOI: 10.1093/law/9780198793854.003.0025
K. Hossain, S. Bhuiyan
This chapter focuses on international law in Bangladesh. Neither the Constitution of Bangladesh nor any statute contains any specific provision on domestic application of international law rules. However, it is well settled by various judicial decisions that in respect of domestic application of international treaties, Bangladesh is a dualist country. In order to be applied by national courts, it is necessary for the treaty to be incorporated into Bangladesh’s legal system by an act of incorporation. In respect of customary international law, there is no clear judicial decision on whether customary law automatically forms part of Bangladesh law or whether, like treaties, such law is required to be made a part of Bangladesh law by a legislative, judicial, or other measure. It is likely that Bangladesh courts will adhere to the English and common law tradition of treating customary international law as automatically forming part of Bangladesh law as long as there is no inconsistent domestic legal provision.
{"title":"Bangladesh","authors":"K. Hossain, S. Bhuiyan","doi":"10.1093/law/9780198793854.003.0025","DOIUrl":"https://doi.org/10.1093/law/9780198793854.003.0025","url":null,"abstract":"This chapter focuses on international law in Bangladesh. Neither the Constitution of Bangladesh nor any statute contains any specific provision on domestic application of international law rules. However, it is well settled by various judicial decisions that in respect of domestic application of international treaties, Bangladesh is a dualist country. In order to be applied by national courts, it is necessary for the treaty to be incorporated into Bangladesh’s legal system by an act of incorporation. In respect of customary international law, there is no clear judicial decision on whether customary law automatically forms part of Bangladesh law or whether, like treaties, such law is required to be made a part of Bangladesh law by a legislative, judicial, or other measure. It is likely that Bangladesh courts will adhere to the English and common law tradition of treating customary international law as automatically forming part of Bangladesh law as long as there is no inconsistent domestic legal provision.","PeriodicalId":146103,"journal":{"name":"The Oxford Handbook of International Law in Asia and the Pacific","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2001-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131025678","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/law/9780198793854.003.0030
J. Corrin
This chapter explores international law in the South Pacific Island states of Oceania. While there are some commonalities, the area is one of immense cultural and biological diversity. South Pacific Island states are beset by plural legal systems, where state laws coexist with non-state laws, at times operating side by side and at others overlapping or even intermingling. These competing domestic laws are not the only sources of law to contend with; international law plays an increasingly large role in these countries. While international law is traditionally regarded as the law governing the relationship between states, ‘modern’ international law includes rules relating to individuals and non-state bodies. This additional layer of law increases the complexities of the relationship between formal and customary laws. The chapter then focuses on international law in common law island states in the Pacific, specifically looking at the South Pacific Island states which have ratified the Pacific Island States Trade Agreement.
{"title":"South Pacific Island States","authors":"J. Corrin","doi":"10.1093/law/9780198793854.003.0030","DOIUrl":"https://doi.org/10.1093/law/9780198793854.003.0030","url":null,"abstract":"This chapter explores international law in the South Pacific Island states of Oceania. While there are some commonalities, the area is one of immense cultural and biological diversity. South Pacific Island states are beset by plural legal systems, where state laws coexist with non-state laws, at times operating side by side and at others overlapping or even intermingling. These competing domestic laws are not the only sources of law to contend with; international law plays an increasingly large role in these countries. While international law is traditionally regarded as the law governing the relationship between states, ‘modern’ international law includes rules relating to individuals and non-state bodies. This additional layer of law increases the complexities of the relationship between formal and customary laws. The chapter then focuses on international law in common law island states in the Pacific, specifically looking at the South Pacific Island states which have ratified the Pacific Island States Trade Agreement.","PeriodicalId":146103,"journal":{"name":"The Oxford Handbook of International Law in Asia and the Pacific","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114896922","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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