Asian Yearbook of International Law Asian Yearbook of International Law Volume 24 (2018) LEIDEN | BOSTON This is an open access title distributed under the terms of the CC BY-NC-ND 4.0 license, which permits any non-commercial use, distribution, and reproduction in any medium, provided no alterations are made and the original author(s) and source are credited. Further information and the complete license text can be found at https://creativecommons.org/licenses/by-nc-nd/4.0/ The Development of International Law in Asia-Korea (DILA-KOREA), as the secretariat of DILA, is responsible for the management of DILA along with the Asian Yearbook of International Law and Asia Pacific Ocean Law Institutions Alliance. DILA-KOREA has generously provided financial support so that Volume 24 (2018) is available as open access. Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. 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Asian Yearbook of International Law Co-Editors-in-Chief Seokwoo Lee – Hee Eun Lee Executive Editor Christine Sim Editorial Board Members Jay Batongbacal Tran Viet Dung Mario Gomez V.G. Hegde Juwana Hikmahanto Kanami Ishibashi Kitti Jayangakula Sumaiya Khair Jaclyn Neo Li-Ann Thio Dustin Kuan-Hsiung Wang Guifang Julia Xue State Practice Contributors Sumaiya Khair ( Bangladesh ) V.G. Hegde ( India ) Kanami Ishibashi ( Japan) Buhm-Suk Baek ( Korea ) Shaun Kang ( Malaysia ) Jay L. Batongbacal ( Philippines ) Elisabeth Liang and Jaclyn L. Neo ( Singapore ) Kitti Jayangakula ( Thailand ) Tran Viet Dung ( Vietnam ) Advisory Board Members Karin Arts Jamal Seifi Kevin Y.L. Tan Founding General Editors Ko Swan Sik Christopher W. Pinto J.J.G. Syatauw Key Editors for Previous Volumes B.S. Chimni Miyoshi Masahiro Javaid Rehman Surya Subedi Kevin YL Tan Li-Ann Thio volume 24 (2018) The titles published in this series are listed at brill.com/ayil Foundation for the Development of International Law in Asia (DILA) DILA was established in 1989, at a time when its prime movers believed that economic and political developments in Asia had reached the stage at which they would welcome and benefit substantially from a mechanism to promote and facilitate exchanges among their international law scholars that had failed to develop during the colonial era. The Foundation was established to promote: (a) the study of and analysis of topics and issues in the field of international law, in particular from an Asian perspective; (b) the study of and dissemination of knowledge of international law in Asia; and (c) contacts and co-operation between persons and institu- tions actively dealing with questions of international law relating to Asia. The Foundation is concerned with reporting and analyzing developments in the field of international law relating to the region, and not primarily with efforts to distinguish particular attitudes, policies or practices as predominate- ly or essentially “Asian”. If they are shown to exist, it would be an interesting by-product of the Foundation’s essential function, which is to bring about an exchange of views in the expectation that the process would reveal areas of common interest and concern among the states of Asia, and even more impor- tantly, demonstrate that those areas of interest and concern are, in fact, shared by the international community as a whole. The Asian Yearbook of International Law Launched in 1991, the Asian Yearbook of International Law is a major internationally-refereed yearbook dedicated to international legal issues as seen primarily from an Asian perspective. It is published by Brill under the auspices of the Foundation for the Development of International Law (DILA). When it was launched, the Yearbook was the first publication of its kind, edited by a team of leading international law scholars from across Asia. It pro- vides a forum for the publication of articles in the field of international law, and other Asian international legal topics. The objects of the Yearbook are two- fold: first to promote research, study and writing in the field of international law in Asia; and second, to provide an intellectual platform for the discussion and dissemination of Asian views and practices on contemporary internation- al legal issues. Each volume of the Yearbook contains articles and shorter notes, a section on state practice, an overview of the Asian states’ participation in multilateral treaties and succinct analysis of recent international legal developments in Asia, as well as book reviews. We believe this publication to be of importance and use to anyone working on international law and in Asian studies. In keeping with DILA’s commitment to encouraging scholarship in inter- national law as well as in disseminating such scholarship, its Governing Board decided to make the Yearbook open access and is available through Brill Open. Acknowledgments The Co-Editors-in-Chief would like to acknowledge and thank the staff of the Handong International Law School Law Review for their work reviewing and editing the citations in the Yearbook. The staff includes Senior Editors So Jin Kim (Editor-in-Chief), In Hyuk Hwang (Managing Editor), Yeonsoo Lim, and Dajeong Lucy Kim; and Junior Editors Eojin Yoo, Ji Min Ryu, Ji Hun Park, Josephine Grace Mann, Soyeon Moon, and Yaeeun Shin. Contents Editorial Note xii Seokwoo Lee and Hee Eun Lee Special Feature: Asian State Practice in International Law from the Perspective of Third World Approaches to International Law (TWAIL) The Centenary of the League of Nations: Colonial India and the Making of International Law 3 Amritha V. Shenoy Breaking Bad Customs: Involving the Idea of Opinio Juris Communis in Asian State Practice 24 Thamil Venthan Ananthavinayagan Understanding Human Rights from an Eastern Perspective: A Discourse 41 Ravi Prakash Vyas and Rachit Murarka Subcontinental Defiance to the Global Refugee Regime: Global Leadership or Regional Exceptionalism? 60 Jay Ramasubramanyam Harmonizing UNCITRAL Model Law: A TWAIL Analysis of Cross Border Insolvency Law 80 Dwayne Leonardo Fernandes and Devahuti Pathak Use of Force as Self Defence against Non-State Actors and TWAIL Considerations: A Critical Analysis of India’s State Practice 106 Srinivas Burra The “ASEAN Way”: A Sore Thumb for ASEAN Solidarity in the Face of an Ailing Global Trade System? 127 Noel Chow Zher Ming x Contents Articles A Legal Critique of the Award of the Arbitral Tribunal in the Matter of the South China Sea Arbitration 151 National Institute for South China Sea Studies Prosecuting Crimes against Humanity before International Crimes Tribunal in Bangladesh: A Nexus with an Armed Conflict 294 Yudan Tan Legal Materials Participation in Multilateral Treaties 325 Karin Arts State Practice of Asian Countries in International Law Sumaiya Khair (Bangladesh) 353 V.G. Hegde (India) 370 Kanami Ishibashi ( Japan) 380 Buhm-Suk Baek (Korea) 384 Shaun Kang (Malaysia) 393 Amritha V. Shenoy, Ravi Prakash Vyas and Rachit Murarka (Nepal) 398 Jay L. Batongbacal (Philippines) 411 Elisabeth Liang and Jaclyn L. Neo (Singapore) 417 Kitti Jayangakula (Thailand) 426 Tran Viet Dung (Vietnam) 431 Literature Book Review 441 Seokwoo Lee International Law in Asia: A Bibliographic Survey – 2018 443 Soyeon Moon xi Contents DILA Events 2018 DILA International Conference and 2018 DILA Academy & Workshop 461 Seokwoo Lee and Hee Eun Lee Editorial Note The 2018 edition (volume 24) of the Asian Yearbook of International Law has special feature articles on the practice of Asian states from the perspective of Third World Approaches to International Law (TWAIL) and is followed by two main articles; legal materials including a listing of the participation of Asian states in multilateral treaties and a description of the state practice of Asian states in the field of international law; along with a literature section featuring a book review and a bibliographic survey of materials dealing with international law in Asia; and finally a summary of the activities undertaken by the Foundation for the Development of International Law in Asia (DILA) in the year 2018. I Articles The special feature articles were drawn from papers that were presented at the 2019 DILA-Korea International Conference on Asian State Practice in International Law from the Perspective of TWAIL held in Seoul, Korea from November 7 to 9, 2019. The purpose of the conference was to discuss the is- sues related to the global South and assess how the dynamics of international politics and transnational interactions have influenced and redefined interna- tional law. The first article provides a historical case study in “The Centenary of the League of Nations: Colonial India and the Making of International Law” by Amritha V. Shenoy of Kathmandu School of Law. Next, Thamil Venthan Ananthavinayagan of Griffith College follows with a look at the sources of international law, in particular customary international law in “Breaking Bad Customs: Involving the Idea of Opinio Juris Communis in Asian State Practice.” After, Ravi Prakash Vyas and Rachit Murarka, both of Kathmandu School of Law, provide a TWAIL perspective of human rights in “Understanding Human Rights from an Eastern Perspective: A Discourse.” Jay Ramasubramanyam from Carleton University then examines the refugee issue in “Subcontinental Defiance to the Global Refugee Regime: Global Leadership or Regional Exceptionalism?” Next, Dwayne Leonardo Fernandes and Devahuti Pathak ex- amine “Harmonizing UNCITRAL Model Law: A TWAIL Analysis of Cross Border Insolvency Law.” This is followed by the “Use of Force as Self Defence against Non-State Actors and TWAIL considerations: A Critical Analysis of India’s State Practice” authored by Srinivas Burra of South Asian University. The last special xiii Editorial Note feature article is a look at the issue of international dispute resolution in “The ‘ASEAN Way’: A Sore Thumb for ASEAN Solidarity in the Face of an Ailing Global Trade System?” by Noel Chow Zher Ming of Tradewin Asia. The special feature section is followed by the first main article entitled, “A Legal Critique of the Award of the Arbitral Tribunal in the Matter of the South China Sea Arbitration” by the National Institute for South China Sea Studies. Next, Yudan Tan examines “Prosecuting Crimes against Humanity before International Crimes Tribunal in Bangladesh: A Nexus with an Armed Conflict.” Ii Legal Materials The Yearbook from its inception was committed to providing scholars, practi- tioners, and students with a report on Asian state practice as its contribution to provide an understanding of how Asian states act within the international system and how international law is applied in their domestic legal systems. The Yearbook does this in two ways. First, it records the participation of Asian states in multilateral treaties; and second, it reports on the state practice of Asian states. A number of diligent scholars have provided the Yearbook with reports on the 2018 state practice of their respective countries. 1 Participation in Multilateral Treaties Karin Arts of the International Institute of Social Studies, Erasmus University Rotterdam in The Hague, The Netherlands has compiled and edited the par- ticipation of Asian states in multilateral treaties for the 2018 calendar year. 2 State Practice of Asian States in the Field of International Law The state practice section is intended to offer readers of the Yearbook an out- line and summary of the activities undertaken by Asian states that have a direct bearing on international law. The national correspondents, listed in the table of contents, have undertaken the responsibility to report on the state practice of their respective countries during the 2018 calendar year. Their submissions describe how these states are applying international law in their domestic legal systems and in their foreign relations. xiv Editorial Note III Literature 1 Book Review For this edition of the Yearbook, Seokwoo Lee, of the Board of Editors, gives his review of History and International Law: An Intertwined Relationship published in 2019 by Edward Elgar Publishing. 2 Bibliographic Survey Soyeon Moon of Handong International Law School in Pohang, Korea pre- pared the bibliography for 2018 which provides information on books, articles, notes, and other materials dealing with international law in Asia. Iv DILA Activities The 2018 edition of the Yearbook concludes with a report on the activities undertaken by DILA in the year 2018, namely the annual DILA International Conference and DILA Academy and Workshop that was held on April 21 to 22, 2018 in Yogyakarta, Indonesia at the Islamic University of Indonesia. Seokwoo Lee Co-Editor-in-Chief Hee Eun Lee Co-Editor-in-Chief Special Feature: Asian State Practice in International Law from the Perspective of Third World Approaches to International Law (TWAIL) ∵ © Amritha V. Shenoy, 2020 | doi:10.1163/9789004437784_002 This is an open access chapter distributed under the terms of the CC BY-NC-ND 4.0 license. The Centenary of the League of Nations: Colonial India and the Making of International Law Amritha V. Shenoy* 1 Introduction The wave called “turn to history” in international law narrates various his- torical aspects of international law. This turn introduced a sub-discipline namely, the “History of International Law. However, narrating the history of international law is not a new phenomenon. History has been indispensable to the Third World Approaches to International Law (TWAIL). In the words of R.P. Anand, “the present cannot be properly assessed, nor future projected, without an understanding of the past”.1 The second generation of TWAIL schol- ars connects history to the present.2 Comparing the writings of TWAIL scholars on historical aspects of international law to the present writers on the disci- pline, one can see that Eurocentric histories are reiterated. The Eurocentric turn to history needs to be challenged by the narration of alternative histories. The alternative histories need to point out the principles of international law that existed in different civilisations so that modern international law can truly become a universal law. There are rules that governed war, treaty-making, diplomacy, and trade in many civilisations of the world. However, the existence of an interna- tional organisation in pre-nineteenth century cannot be found in other civilisations of the world.3 International organisations were formed in the nineteenth century. The craving for co-existence and the catastrophes of the World Wars gave an impetus to the formation of international organisa- tions in the twentieth century.4 Thus, the consciousness of a State to move * Assistant Professor, Kathmandu School of Law, Bhaktapur, Nepal. I would like to express my gratitude to Sakshi Shree, Doctoral Candidate, Centre for Japanese Studies, Jawaharlal Nehru University for providing valuable suggestions. 1 R.P. Anand, New States and International Law 5 (2nd ed. 2008). 2 Antony Anghie, Imperialism, Sovereignty and the Making of International Law 139 (2004). 3 Clive Archer, International Organizations 5 (James Crawford & John S. Bell eds., 3rd ed. 2001). 4 Inis L. Claude, Jr., Swords into Plowshares 17 (4th ed. 1964). 4 Shenoy beyond national interests, i.e., internationalism, led to the creation of interna- tional organisations.5 The pioneer international organisations were for postal services, technol- ogy, humanitarian aid and other matters.6 The League of Nations was the first international organisation that dealt with pervasive topics affecting human life. It had an inextricable link to the International Labour Organisation, international health organisations, and interntional economic and financial organisations. Remembering the organisation on its centenary, the League of Nations, despite its demise, was a breakthrough idea not only for international relations but also for challenging various concepts of international law itself. It posed a challenge to the positivist idea that State was the only subject of interna- tional law. It gradually widened the ambit of international law.7 The formation of an international organisation was clearly piercing through the sovereignty of the States. Many internal matters were discussed directly or indirectly in the League. Therefore, in theoretical terms, international law was moving from positivism to liberalism. However, only European states became members of the international organ- isations established before the League. For instance, the Central Commission for the Navigation of the Rhine was formed as a result of the Congress of Vienna in 1815. It was a creation of Europe with European members. Eurocentrism was challenged by the formation of alternative organisations. The Soviet Union and the colonised nations together formed the Comintern or Communist International in 1919, challenging imperialism. Apart from Eurocentrism, patriarchy was challenged also by the formation of women’s organisations. There were three prominent international women’s organisations in the post-First World War era, viz., the International Alliance of Women, the International Council of Women, and the Women’s International League for Peace and Freedom. The Women’s International League for Peace and Freedom organised a meeting of women during the First World War when most of the other inter-governmental organisations were not functional. 5 Akira Iriye, Global Community: The Role of International Organizations in the Making of the Contemporary World 9–10 (2002). 6 Commerce was the triggering point for the proliferation of international organisations. Health was another concern. The international organisations included the International Telegraphic Bureau (1868), the General Postal Union (1874), the International Bureau of Weights and Measures (1875), the International Union for the Publication of Customs Tariffs (1890), the Metric Union, and International Health offices in Vienna, Paris, and Havana. 7 This challenge was manifest after the creation of the United Nations. However, the League of Nations was one of the first steps. 5 The Centenary of the League of Nations Colonial India was a member of some of the international organisations. In 1874, a representative for India signed the Berne Convention, by virtue of which India became a member of the Universal Postal Union in 1876. In 1890, India8 was represented by a delegate at the Conference of the International Union for the Publication of Customs Tariffs. British India signed the Inter- national Wireless Telegraph Convention in 1912. India had a separate vote at the International Radiotelegraph Conference in 1912. Colonial India was party to 150 multilateral treaties9 and 44 bilateral treaties.10 Certain international agreements were also signed separately by colonial India.11 With regard to the alternative organisations, M.N. Roy, an Indian, was a member of the execu- tive committee of the Comintern. Colonial India acceded to the International Alliance of Women to promote universal suffrage.12 Colonial India was a founding member of the League of Nations. 2019 was the centennial year of the formation of the League of Nations. Its contribu- tions as one of the first international organisations are remarkable in the history of international law. Nevertheless, in the narrations of the League’s history, a substantial part is neglected; it is the contribution of the colonies. Their contributions remain a part of alternative histories. The struggles of the people of colonial India, internal as well as external struggles, remain neglected. The period when colonial India was a member of the League reflects the way the Empire operated.13 Therefore, the present article is an attempt to nar- rate an alternative history to highlight the contributions as well as struggles of colonial India in the international arena. The article describes the political entity called colonial India by exam- ining its position in international organisations despite being a colony. It discusses the ground for Indian membership in the League. Membership in an international organisation gives rise to financial responsibilities to con- tribute to the sustenance of the organisation. Hence, the article elucidates financial contribution and disproportionate representation with regard to colonial India. It highlights the problems faced by the Indian delegation due to the dominance of Europe in the League. It points out the issues discussed in the League on India. The history narrated herein also looks at the positive 8 India hereafter means colonial India. 9 See generally 124 L.N.T.S., 26 U.N.T.S. 10 See generally 32 L.N.T.S., 12 U.N.T.S. 11 Oliver J. Lissitzyn, Territorial Entities other than Independent States in the Law of Treaties , 125 Recueil Des Cours 1, 72 (1968). 12 Iriye, supra note 5, at 29–30. 13 B.S. Chimni, India , in The Oxford Handbook of International Law in Asia and the Pacific 551 (Simon Chesterman, Hisashi Owada & Ben Saul eds., 1st ed. 2019).