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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. ISBN 978-90-04-43777-7 (hardback) ISBN 978-90-04-43778-4 (e-book) Copyright 2020 by the Authors. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. Koninklijke Brill NV reserves the right to protect the publication against unauthorized use and to authorize dissemination by means of offprints, legitimate photocopies, microform editions, reprints, translations, and secondary information sources, such as abstracting and indexing services including databases. Requests for commercial re-use, use of parts of the publication, and/or translations must be addressed to Koninklijke Brill NV. This book is printed on acid-free paper and produced in a sustainable manner. Asian Yearbook of International Law Co-Editors-in-Chief Seokwoo Lee – Hee Eun Lee Executive Editor Christine Sim Editorial Board Members Jay Batongbacal Kitti Jayangakula Tran Viet Dung Sumaiya Khair Mario Gomez Jaclyn Neo V.G. Hegde Li-Ann Thio Juwana Hikmahanto Dustin Kuan-Hsiung Wang Kanami Ishibashi Guifang Julia Xue State Practice Contributors Founding General Editors Sumaiya Khair (Bangladesh) Ko Swan Sik V.G. Hegde (India) Christopher W. Pinto Kanami Ishibashi (Japan) J.J.G. Syatauw Buhm-Suk Baek (Korea) Shaun Kang (Malaysia) Key Editors for Previous Volumes Jay L. Batongbacal (Philippines) Elisabeth Liang and Jaclyn L. Neo (Singapore) B.S. Chimni Kitti Jayangakula (Thailand) Miyoshi Masahiro Tran Viet Dung (Vietnam) Javaid Rehman Surya Subedi Advisory Board Members Kevin YL Tan Li-Ann Thio Karin Arts Jamal Seifi Kevin Y.L. Tan 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 Contents xi 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
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