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Asian Yearbook of International Law Volume ASIAN YEARBOOK OF INTERNATIONAL LAW VOLUME 19 2013 foundation for the development of international law in asia handong international law school First published 2017 by the Foundation for the Development of International Law in Asia (DILA) in collaboration with the Handong International Law School, South Korea. c/o Handong International Law School Handong Global University, Pohang, Korea 37554. © 2017 selection and editorial matter, the Foundation for the Development of International Law in Asia; individual chapters, the contributors. Asian Yearbook of International Law: 2013. Vol. 19 / [editor-in- chief Kevin Y.L. Tan]. — Pohang : Handong International Law School: Foundation for the Development of International Law in Asia, 2017 viii, 444 p.; 22.8 cm 361.0091-KDC5 341.095-DDC21 CIP2013019728 ISBN 979-11-88231003-93360 (paperback): US$29.00 The Asian Yearbook of International Law, Vol 19 (2013) by the Foundation for the Development of International Law in Asia and Handong International Law School, South Korea is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License. ASIAN YEARBOOK OF INTERNATIONAL LAW VOLUME 19 2013 editor-in-chief Kevin Y.L. Tan executive editor Hee Eun Lee editors Javaid Rehman Sumaiya Khair associate editors Diane Desierto Prabhakar Singh Jeong Woo Kim assistant editors Hyechan Cho Youmin Cho Darae Eom Daniel Kyu Jin Jung Juan Kim Mijung Kim Han Kuhm Lee Hyewon Lee Jinsung Lee Somang Lim Boremey (Ben) Meas Soo Young Paik Patrick Song Janice Yu iv (2013) 19 Asian Yearbook of International Law state practice contributors Arie Afriansyah [Indonesia] Buhm Suk Baek [Korea] Tran Viet Dung [Viet Nam] Yuwen Fan [China] Mario Gomez [Sri Lanka] V.G. Hegde [India] Ridwanul Hoque [Bangladesh] Kanami Ishibashi [Japan] Yanitra Kumaraguru [Sri Lanka] Seh Lih Long [Malaysia] Hao Duy Phan [Viet Nam] Dinesha Samararatne [Sri Lanka] Francis Tom Temprosa [Philippines] founding general editors Ko Swan Sik Christopher W Pinto J.J.G. Syatauw 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 the study of: (a) and analysis of topics and issues in the field of international law, in particular from an Asian perspective; and (b) dissemination of knowledge of, inter- national law in Asia; promotion of contacts and co-operation between persons and institutions actively dealing with questions of international law relating to Asia. The Foundation is concerned with reporting and analyzing develop- ments in the field of international law relating to the region, and not pri- marily with efforts to distinguish particular attitudes, policies or practices as predominately 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 State of Asia, and even more importantly, demonstrate that those areas of interest and concern are, in fact, shared by the international community as a whole. chairman Seokwoo Lee [South Korea] vice-chairmen Nishii Masahiro Hikmahanto Juwana Bing Bing Jia [Japan] [Indonesia] [China] members Azmi Sharom [Malaysia] Surendra Bhandari [Nepal] Kitti Jayangakala [Thailand] Sumaiya Khair [Bangladesh] Mario Gomez [Sri Lanka] Hee Eun Lee [South Korea] Javaid Rehman [Pakistan] Seyed Jamal Seifi [Iran] Maria Lourdes Sereno [Philippines] Kevin Y.L. Tan [Singapore] vi (2013) 19 Asian Yearbook of International Law 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 under the auspices of the Foundation for the Development of International Law (DILA) in collaboration with the Handong International Law School in South Korea. 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 provides 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 international 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 international law as well as in disseminating such scholarship, its Govern- ing Board has decided to make the Yearbook open access. TABLE OF CONTENTS ARTICLES 1. Li-ann Thio International Law in the Courts of Singapore: No Longer a Little Island? 1 2. V.G Hegde International Law in the Courts of India 63 3. Francis Tom Temprosa Reflections of a Confluence: International Law in the Philippine Court 1940–2000 88 4. Jamal Seifi & Kamal Javadi The Consequences of the “Clean Hands” Concept in International Investment Arbitration 122 LEGAL MATERIALS 5. Treaty Section – Karin Arts 171 6. State Practice of Asian Countries in International Law 201 a. Air Law 204 b. Aliens 207 c. ASEAN 209 d. Arbitration 212 e. Courts and Tribunals 216 f. Criminal Law 218 g. Diplomatic and Consular 229 h. Dispute Settlement 241 i. Environmental Law 242 j. Extradition 260 k. Human Rights 264 l. Humanitarian Law 306 m. International Economic Law 306 n. International Labour Organisation (ILO) 314 o. International Law Commission 317 viii (2013) 19 Asian Yearbook of International Law p. International Organisations 323 q. Jurisdiction 328 r. Law of the Sea 338 s. Municipal Law 351 t. Sovereignty 356 u. Territory 358 v. Terrorism 360 w. Treaties 364 x. United Nations 379 Literature Bibliographic Survey Jeong Woo Kim, International Law in Asia: A Bibliographic Survey — 2013 382 General Information 444 International Law in the Courts of Singapore: No Longer a Little Island? Li-ann Thio1 1. INTRODUCTION This article examines the role and scope of international law within the courts of Singapore,2 a former British colony, and makes comparative refer- ences to other common law jurisdictions, where appropriate, to highlight points of convergence and divergence in judicial methodology. It consid- ers in particular the reception, interpretation and treatment of treaty law, customary international law and soft law, and also examines the factors that might preclude the court from considering arguments based on inter- national law. It concludes by offering observations on the interaction and impact of international law within the municipal legal order of Singapore. 2. CONSTITUTIONAL SILENCE AND WESTMINSTER PARLIAMENTARY SYSTEMS Like most Asian common law jurisdictions, the Singapore Constitution, which is a modified variant of the Westminster parliamentary system, is silent on the reception and status of international law within the domestic legal order. This is distinct from the approach adopted in contemporary constitution-making in the Post-Cold War era where, the reception and 1 Ph.D. (Cambridge); LL.M. (Harvard); B.A. (Hons.) (Oxford); Barrister (Gray’s Inn, UK), Provost Chair Professor of Law, National University of Singapore; Senior Advisor, Ministry of Foreign Affairs. 2 See generally Li-ann Thio, Reception and Resistance: Globalisation, International Law and the Singapore Constitution, 4(3) National Taiwan University Law Review 335, 335-86 (2009) [hereinafter Thio, Reception and Resistance]; Li-ann Thio, A Treatise on Singapore Constitutional Law 82-93 (2012) [hereinafter Thio, A Treatise]. 1 2 (2013) 19 Asian Yearbook of International Law ranking of international law within the municipal legal system is explic- itly provided for.3 The Constitution does not specifically identify which government agency has the power to enter into treaties. Following British practice, this falls to the parliamentary executive or Cabinet government. There is no requirement, as in the US model, that the executive needs Parliament’s advice and consent in treaty-making. Judicial receptivity to international law based arguments turns on a range of factors,4 not least judicial knowledge of international law. Unfa- miliarity with international law can breed a culture of legal resistance5 and disposition to treat international legal norms as an exotic creature to gasp at but give no legal weight to, or alternatively, to adopt a dismissive attitude. In terms of British practice, the approach of the courts has been increasingly open to international law, and the predominant approach to customary international law has been monist in orientation, whereby the law of nations is treated as part of the common law.6 A key point to note in relation to Singapore practice is that there has been a significant sea change in relation to the treatment of international law based arguments raised before national courts. In the last decade of the 3 See, e.g., Constitution of the Democratic Republic of Timor-Leste May 22, 2002, § 9. See generally Antonio Cassese, Modern Constitutions and International Law, in 192 Collected Courses of the Hague Academy of International Law 331 (1985). 4 Thio,Reception and Resistance, supra note 2, at 339. 5 Rosalyn Higgins, Problems & Process: International Law and How We Use It 206-07 (1994). 6 Somerest v. Stewart, (1772) 98 Eng. Rep. 499 (K.B).
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