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Vitit Muntarbhorn
Challenges
of International
Law in the Asian
Region
An Introduction
Challenges of International Law in the Asian
Region
Vitit Muntarbhorn
Challenges of International
Law in the Asian Region
An Introduction
Vitit Muntarbhorn
Faculty of Law
Chulalongkorn University
Bangkok, Thailand
ISBN 978-981-16-2046-1 ISBN 978-981-16-2047-8 (eBook)

https://doi.org/10.1007/978-981-16-2047-8
© Chulalongkorn University 2021

This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether
the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse
of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and
transmission or information storage and retrieval, electronic adaptation, computer software, or by similar
or dissimilar methodology now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information in this book
are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or
the editors give a warranty, expressed or implied, with respect to the material contained herein or for any
errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional
claims in published maps and institutional affiliations.
This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd.
The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721,
Singapore
Preface
The idea for this book can be traced back to a paper I presented at a conference
organized by the Asian Society of International Law in Beijing in August 2011. The
paper was titled: ‘International Law and Asia: A New Era … Miracle or Mirage?’
(That paper is reproduced in Appendix A at the back of this book.)
For a long time since then, I have been looking forward to delve more deeply
into some key challenges of International Law and their interface with the Asian
region. In this volume, I thus address a number of issues as part of that nexus,
for example, whether there are some identifiable roots of International Law in the
region and whether/where one can find some space for providing inputs for evolving
International Law. This is accompanied by a survey of the important relationship
between sovereignty, responsibility and Asian situations.
The study is also a search for contributions from Asian countries to the devel-
opment of International Law, particularly through various themes singled out in the
subsequent chapters, for instance, territorial and maritime matters, human rights,
international trade and commerce, and regionalism. The role of the UN is later
discussed. The study then covers the emerging techno-phenomenon in the shape
of digitalization and Artificial Intelligence in the final part. Of course, in identifying
positive contributions, it should not shy away from identifying key challenges and
discrepancies involving the Asian region. In regard to fundamental issues, such as
peace, human rights, democracy and sustainable development, there is an underlying
orientation from this author as the preferred way for and from the region: Asian coun-
tries should abide by International Law and elevate its yardsticks rather than lower
those standards and/or undermine them.
What might be the expectations from this humble volume? The book is intended
primarily for students of International Law/international relations and the general
public who might be interested in the relationship between International Law and
the Asian region, especially through the lens of various challenges of interest to me.
It provides relevant cases and materials, excerpted, to accompany the discussions,
in a simple and hopefully informative way. It is but an initial introduction to key
issues and does not aim or claim to be an evolved treatise on each of them. It is a
mix between the descriptive and the analytical through my own perspective.
v
vi Preface
Intentionally, I began the first draft of this study at Keble College, Oxford, on
1 August 2019, as I was fortunate to be there as part of the college’s celebrations.
The final chapter was first drafted on 12 April—Easter Sunday 2020, in the midst
of the COVID-19 pandemic, and the whole text was revised at the end of 2020 and
the beginning of 2021 after receiving comments from various readers. I would like
to convey my warmest thanks to the following friends and colleagues who helped to
provide support and some of the information cited and/or to read/advise on the draft
of the book: Judge Abdul Koroma, Judge Raul Pangalangan, Ambassador Thani
Thongphakdi, Ambassador Manasvi Srisodapol, Ambassador Sek Wannamethee,
Ambassador Sunanta Kangvalkulkij, Prof.Monica Pinto, Prof. Michael O’Flaherty,
Prof. Manfred Novak, Prof. Alex Bellamy, Director General Azevedo through WTO
staff (Graham Cook, John Adank, Robert Koopman and Masahiro Hayafuji who
were very kind to me) and Dean Asst. Prof. Dr. Pareena Srivanit of the Faculty of
Law, Chulalongkorn University, Bangkok.
My special thanks to the Chulalongkorn University ex-students (“author’s team”)
who kindly helped with the boxes, maps and tables: Art Paisit Pusittrakul, Praew
Thanjira, Kong Pichaya and Poom Sitikorn. Many thanks also to the Academic
Support staff of the Faculty of Law: Prapai, Nueng and Yui; UN librarians in Geneva;
and the Law Faculty Chulalongkorn University librarians, Anne and Mookda. All
views expressed are my personal views, and the mistakes are mine alone.
This book is dedicated to my Private International Law teacher and tutor, Prof. Sir
Peter North, and my Public International Law teacher and tutor, Prof. Ian Brownlie.
It is also a homage to my Jurisprudence teacher and tutor, Prof. Jim Harris; my
EU teachers, Prof. Michel Waelbroeck and Prof. Jean Victor Louis; my history
teachers, Ralph Blumenau and Trevor Birchell; and in remembrance of my friend,
Prof. Phijaisakdi Horayangkura. I am most grateful to my parents, Prof. Dr. Smarn
and Khun Niramol Muntarbhorn, for supporting my studies at school and university
which provided me with the knowledge and drive to write this book.
This book is the second in a series in honour of the Faculty of Law, Chulalongkorn
University, and the royalties will be given to educational purposes. (The first tome
was titled ‘The Core Human Rights Treaties and Thailand’ published in 2016). It
is also in celebration of the forthcoming significant Anniversary of the Faculty. My
heartfelt greetings and congratulations to all academic members of the Faculty, and
all the students, ex-students and administrative staff—for the great community which
you have built and are building!
Bangkok, Thailand Vitit Muntarbhorn

September 2020 AD (BE 2563) Professor Emeritus
Contents
1 Discourses and Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Peroration? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Mosaic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Forum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Diffusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2 Sovereignty and Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Configurations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Palestine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Digital Sovereignty? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Dysfunctionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
3 Historical Ambiguity and Territoriality . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Anomalies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Effectivités . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
4 Normativity and Maritime Competitivity . . . . . . . . . . . . . . . . . . . . . . . . . 61
Progression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Flashpoint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
5 Plights and Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Check and Balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Values . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Variability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Instruments/Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Realities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
6 Trade Liberalization and Inhibition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Engagement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Ambivalence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
vii
viii Contents
Dispute Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Hindsight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
7 Regionalism and Eclecticism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Regionalism? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Eclecticism? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Appendix B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Appendix C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Appendix D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Appendix E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Appendix F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
Appendix G . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
Bibiliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Abbreviations
AA Agreement on Agriculture
AALCC Asian-African Legal Consultative Committee
AALCO Asian-African Legal Consultative Organization
ACD Asia Cooperation Dialogue
ACIA ASEAN Comprehensive Investment Agreement
ACTIP ASEAN Convention Against Trafficking in
Persons, Especially Women and Children
ACWC ASEAN Commission on the Rights of Women
and Children
AD Anno Domini
ADA Anti-Dumping Agreement
ADB(I) Asian Development Bank (Institute)
AEC ASEAN Economic Community
AFAS ASEAN Framework Agreement on Services
AHRD ASEAN Human Rights Declaration
AI Artificial Intelligence
AICHR ASEAN Intergovernmental Commission on
Human Rights
AJIL American Journal of International Law
Am. Soc’y Int’l L. Proc. American Society of International Law Proceed-
ings
AMS Aggregate Measure of Support
APEC Asia-Pacific Economic Cooperation
APLPJ Asia and Pacific Law and Policy Journal
Arab Law Q. Arab Law Quarterly
ARF ASEAN Regional Forum
Art. Article
AS Artificial System
ASCM Agreement on Subsidies and Countervailing
Measures
ASEAN Association of Southeast Asian Nations
ASEM Asia–Europe Meeting
ix
x Abbreviations
Asian JIL Asian Journal of International Law

Asian Surv. Asian Survey
Asian yearb. int. law Asian Yearbook of International Law
ASIL Asian Society of International Law
ASLP Archipelagic Sea Lanes Passage
ATC Agreement on Textiles and Clothing
ATIGA ASEAN Agreement on Trade in Goods
AYBIL Australian Yearbook of International Law
AYPVC ASEAN Young Professionals Volunteer Corps
AYVP ASEAN Youth Volunteer Programme
BC Before Christ
BE Buddhist Era (543 years before AD)
BIMSTEC Bay of Bengal Initiative for Multi-Sectoral Tech-
nical and Economic Cooperation
BIT Bilateral Investment Treaty
BLR Bureau of Labour Relations
BOP Balance of Payment
BRI Belt and Road Initiative
Bull. World Health Organ. Bulletin of World Health Organization
BYIL British Yearbook of International Law
CACO Central Asian Cooperation Organization
CANWFZ Central Asian Nuclear-Weapon-Free Zone
CAR Central African Republic
CAREC Central Asian Regional Economic Cooperation
CAT Convention against Torture and Other Cruel,
Inhuman and Degrading Treatment
CCW Convention on Certain Conventional Weapons
CEACR Committee of Experts on the Application of
Conventions and Recommendations
CED Convention for the Protection of All Persons from
Enforced Disappearance
CEDAW Convention on the Elimination of All Forms of
Discrimination against Women
CERD Convention on the Elimination of All Forms of
Racial Discrimination
CGD Centre for Global Development
Chic. J. Int. Law Chicago Journal of International Law
China Perspect. China Perspectives
Chinese JIL Chinese Journal of International Law
CIS Commonwealth of Independent States
Clim.Law Climate Law
CMW Convention on the Protection of the Rights of All
Migrant Workers and of their Families
Colum. J. Transnat’l L. Columbia Journal of Transnational Law
Contemp. Southeast Asia Contemporary Southeast Asia
Abbreviations xi
CPPNM Convention on Physical Protection of Nuclear

Material
CPTPP Comprehensive and Progressive Agreement for
Trans-Pacific Partnership
CRC Convention on the Rights of the Child
CRPD Convention on the Rights of Persons with
Disabilities
CS Continental Shelf
CSO Civil Society Organizations
CUP Cambridge University Press
CVA Customs Valuation Agreement
Denv. J. Int’l L. & Pol’y Denver Journal of International Law and Policy
DILA Foundation for the Development of International
Law in Asia
DPR Dewan Perwakilan Rakyat /Indonesian Parlia-
ment/House of Representatives
DPRK Democratic People’s Republic of Korea
DRC Democratic Republic of the Congo
DS(B) Dispute Settlement (Body)
Duke L. J. Duke Law Journal
EAEU Eurasian Economic Union (also known as EEU)
EAS East Asia Summit
EC European Community/Communities
ECO Economic Cooperation Organization
Ed.(s) Editor(s)
EEC Eurasian Economic Commission (Council)
EEU Eurasian Economic Union (also known as
EAEU)
EEZ Exclusive Economic Zone
EJIL European Journal of International Law
Emory Int’l L. Rev. Emory International Law Review
ERIA Economic Research Institute for ASEAN and
East Asia
ESCAP (United Nations) Economic and Social Commis-
sion for Asia and the Pacific
ESCWA (United Nations) Economic and Social Commis-
sion for West Asia
Et seq. Et sequitur
Etc. Et cetera
EU European Union
FFMM (Independent International) Fact-Finding
Mission on Myanmar
FGS Federal Government of Somalia
FIDH Federation Internationale des Droits de l’homme
FMSs Federal Member States
xii Abbreviations
FN Footnote
FTA Free Trade Area
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
GCC Gulf Cooperation Council
GDP Gross Domestic Product
Glob. Trade Cust. J. Global Trade and Customs Journal
GPA Government Procurement Agreement
GVCs Global Value Chains
Health Systems and Reform Health Systems and Reform Journal
HI Humanitarian Intervention
HIV/AIDS Human Immunodeficiency Virus /Acquired
Immunodeficiency Syndrome
HoDs Heads of Delegations
IAEA International Atomic Energy Agency
IBSA International Blind Sports Federation
ICC International Criminal Court
ICCPR International Covenant on Civil and Political
Rights
ICESCR International Covenant on Economic, Social and
Cultural Rights
ICG International Crisis Group
ICJ International Court of Justice
ICRC International Committee of the Red Cross
ICSID International Centre for Settlement of Investment
Disputes
ICT Information and Communications Technology
IFRI Institut Francais des Relations Internationales
(French Institute of International Relations)
IHL International Humanitarian Law
IIAs International Investment Agreements
IIIM International, Impartial and Independent Mecha-
nism
IIMM Independent Investigative Mechanism for
Myanmar
IJIL Indian Journal of International Law
IJMMU International Journal of Multicultural and
Multireligious Understanding
ILC International Law Commission
ILM International Legal Materials
IMF International Monetary Fund
Int. Aff. International Affairs (Journal)
Int. J. Dev. Issues International Journal of Development Issues
Int. J. Hum. Rights International Journal of Human Rights
Int. Rev. Law International Review of Law
Abbreviations xiii
Int. Organ. International Organization (Journal)

Int’l J. Legal Info. International Journal of Legal Information
IP Intellectual Property
IRRC International Review of the Red Cross
ISDS Investor-State Dispute Settlement
ITLOS International Tribunal for the Law of the Sea
J. Comp. Legis & Int’l Law Journal of Comparative Legislation and Interna-
tional Law
J. Crim. Law Criminol. Journal of Criminal Law and Criminology
J. East Asian Stud. Journal of East Asian Studies
J. Hist. Ideas Journal of the History of Ideas
J. Int’l Aff. Journal of International Affairs
J. Middle Eastern and Islamic Journal of Middle Eastern and Islamic Studies (in
Asia)
J. East Asia Int. Law Journal of East Asia and International Law
J. Hist. Int’l Law Journal of the History of International Law
J. L. & Relig. Journal of Law and Religion
J. Transnat’l L. & Pol’y Journal of Transnational Law and Policy
JCLS Journal of Civil Law Studies
KYIL Korean Yearbook of International Law
Lao PDR Lao People’s Democratic Republic (Laos)
LAS League of Arab States
LDCs Least Developed Countries
Leiden J. Int. Law Leiden Journal of International Law
LLDCs Landlocked Developing Countries
LOS (United Nations Convention on the) Law of the
Sea
LSE London School of Economics
Mal LR Malaya Law Review
MDGs Millennium Development Goals
Melb. J. Int’l L. Melbourne Journal of International Law
MFN Most-Favoured Nation Status
MINUSMA (United Nations) Multidimensional Integrated
Stabilization Mission in Mali
MNCs Multinational Corporations
MOU Memorandum of Understanding
MSME Micro, Small and Medium Scale Enterprises
N.C. J. Int’l L. & Com. Reg. North Carolina Journal of International Law and
Commercial Regulation
NAFTA North American Free Trade Area
Nav. Law Rev. Naval Law Review
NGO Non-Governmental Organization
NIEO New International Economic Order
Nm Nautical miles
NNWS Non-Nuclear Weapon State
xiv Abbreviations
Nordisk Tidsskrift Int’l Ret Nordisk Tidsskrift for International Law Journal
NWS Nuclear Weapon State
OBOR One Belt One Road
Ocean Dev. Int. Law Ocean Development and International Law
Ocean Yearb. Ocean Yearbook
OHCHR Office of UN High Commissioner for Human
Rights
OSS One-Stop Shop
OUP Oxford University Press
PCA Permanent Court of Arbitration
Penn. St. J. L. & Int’l Aff. Penn State Journal of Law and International
Affairs
PIF Pacific Islands Forum
PRC People’s Republic of China
R2P Responsibility to Protect
RB Renmin B
RBPs Responsible Business Practices
RCEP Regional Comprehensive Economic Partnership
Res. Resolution
ROC Republic of China
ROK Republic of Korea
RTA Regional Trade Agreements
RTGNU Revitalized Transitional Government of National
Unity
SA Safeguards Agreement
SAARC South Asian Association for Regional Coopera-
tion
SCC Supreme Court Cases
SCO Shanghai Cooperation Organization
SDGs Sustainable Development Goals
SDP Sustainable Development Provision
SDT Special and Differential Treatment
SEANWFZ Southeast Asian Nuclear-Weapon-Free Zone
Sess. Session
SGS Societe Generale de Surveillance
SJEAA Stanford Journal of East Asian Affairs
SLAPP Strategic Litigation against Public Participation
South. Calif. Interdiscip. Law J. Southern California Interdisciplinary Law
Journal
SPS (Agreement on) Sanitary and Phytosanitary
Measures
Stan J. Int’l L. Stanford Journal of International Law Studies (in
Asia)
Supp. Supplement
SYBIL Singapore Yearbook of International Law
Abbreviations xv
TAC Treaty of Amity and Cooperation

TBT Technical Barriers to Trade (Agreement)
TFA Trade Facilitation Agreement
TPPC Trans-Pacific Partnership Cooperation
TPR(M) Trade Policy Review (Mechanism)
TRIMs Trade-Related Investment Measures (Agree-
ment)
TRIPS (Agreement on) Trade-Related Aspects of Intel-
lectual Property Rights
TS Territorial Sea
U. S. F. Mar. L. J. University of San Francisco Maritime Law
Journal
UCDavis L’Rev UC Davis Law Review
UCP Uniform Customs and Practices (for Documen-
tary Credit)
UN ESCAP United Nations Economic and Social Commis-
sion for Asia and the Pacific
UN ESCWA United Nations Economic and Social Commis-
sion for West Asia
UN GA (OR) United Nations General Assembly (Official
Reports)
UN United Nations
UNCITRAL United Nations Commission on International
Trade Law
UNCLOS United Nations Convention on the Law of the Sea
UNCTAD United Nations Conference on Trade and Devel-
opment
UNDP United Nations Development Programme
UNEP United Nations Environment Programme
UNHCR United Nations High Commissioner for Refugees
UNIDIR United Nations Institute for Disarmament
Research
UNSC United Nations Security Council
UNU United Nations University
UNV United Nations Volunteers
UOI Union of India
UPS United Parcel Services
US United States
USD US Dollar
Val. U. L. Rev. Valparaiso University Law Review
Vol. Volume
WIPO World Intellectual Property Organization
WTO World Trade Organization
List of Boxes
Box 3.1 ICJ Judgement in the Temple Case . . . . . . . . . . . . . . . . . . . . . . . . . 53

Box 4.1 Bangladesh/Myanmar case: ITLOS: Three Part Test . . . . . . . . . . . 68
Box 4.2 The issue of Historic Rights before the Arbitral Tribunal . . . . . . . 74
Box 5.1 (Vienna) Declaration and Programme of Action of the
World Conference on Human Rights 1993 . . . . . . . . . . . . . . . . . . . 89
Box 5.2 ICCPR Article on Freedom of Expression, Assembly and
Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Box 5.3 Functions of AICHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Box 6.1 WTO Agreements (Particularly Those Resulting from the
Uruguay Round of Negotiations Culminating in Marrakesh
1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
xvii
List of Maps
Map 1.1 Silhouette of the Asian region. Source map drawn by

author’s team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Map 1.2 Asian States present at the 1899 Hague Peace Conference.
Source map drawn by author’s team . . . . . . . . . . . . . . . . . . . . . . . . 15
Map 3.1 Thailand, Cambodia and disputed area. Source map drawn
by author’s team adapted from the ICJ, Case concerning
Preah Vihear (Cambodia v Thailand), Merits, Judgement of
15 June 1962 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Map 4.1 Spratly Islands. Source map drawn by author’s team adapted
from map in the Arbitral Tribunal Award, Case No 2013–19
in the Matter of the South China Sea Arbitration—before
an Arbitral Tribunal Constituted under Annex VII to the
1982 Convention on the Law of the Sea—between the
Republic of the Philippines and the People’s Republic of
China—Award of 12 July 2016. (copyright of PCA) . . . . . . . . . . . 71
Map 4.2 Spratlys—disputed area. Source map drawn by author’s
team adapted from map in the Arbitral Tribunal Award,
Case No 2013–19 in the Matter of the South China Sea
Arbitration—before an Arbitral Tribunal Constituted under
Annex VII to the 1982 Convention on the Law of the
Sea—between the Republic of the Philippines and the
People’s Republic of China—Award of 12 July 2016.
(copyright of PCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Map 7.1 ASEAN. Source Map drawn by author’s team . . . . . . . . . . . . . . . . 141
Map 7.2 RCEP. Source Map drawn by author’s team . . . . . . . . . . . . . . . . . . 148
xix
List of Tables
Table 4.1 Ratification of Law of the Sea (LOS) Convention by

Asian countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Table 6.1 Asian WTO members in dispute settlement . . . . . . . . . . . . . . . . . 124
Table B.1 Recent UN Security Council resolutions on R2P: voting
pattern of Asian States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Table C.1 Asian countries and International Humanitarian Law . . . . . . . . . 181
Table D.1 Asian countries and the International Criminal Court
Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Table E.1 Asian countries’ ratification of the 1951 Refugee
Convention and its 1967 Protocol . . . . . . . . . . . . . . . . . . . . . . . . . 187
Table F.1 Asian countries and human rights conventions: ratifications . . . 190
Table G.1 Asian countries as parties to the Paris climate change
agreement 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
xxi
Chapter 1
Discourses and Sources
Should I write “I”? An initial quandary in drafting this book was whether to use
the “I” in this Chapter to personalize the approach conveyed. This study was born
of my personal experience in studying International Law during my early days and
growing gradually with it as a coincidental teacher, writer and learner in my country
and the Asian region that surrounds it—and the world beyond.
What might be the expectations from this humble volume? The book is intended
primarily for students (especially of International Law and international relations)
and the general public who might be interested in the relationship between Interna-
tional Law and the Asian region, especially through the lens of various key challenges
of interest to me. It provides relevant cases and materials, excerpted, to accompany
the discussions, in a simple and hopefully informative way. It is but an initial intro-
duction to key issues and does not aim or claim to be an evolved treatise on each
of them. It is a mix between the descriptive and the analytical through my own
perspective.
Peroration?
I decided to use the “I” in this Chapter, at least as a discourse between myself and
the subject at hand. With humility, I prefer to see it as an educational conversation
rather than a personal peroration. All those years ago, International Law was taught
in a rather classical sense beginning with “sources” but in a formal manner, starting
with the Statute of the International Court of Justice (ICJ) and then broaching the
challenges faced primarily faced by States and to some extent, the United Nations
(UN). International Law was premised very much on inter-State relations.1
1 As one well-known Asian scholar has intimated—R. P. Anand, Studies in International Law
and History: An Asian Perspective (Leiden/Boston: Nijhoff, 2004), p. XI.: ‘International Law is
understood to be a law applicable among all the States in equal measure in their relations with each
other.’
© Chulalongkorn University 2021 1
V. Muntarbhorn, Challenges of International Law in the Asian Region,
https://doi.org/10.1007/978-981-16-2047-8_1
2 1 Discourses and Sources
Moreover, in my student days, there were few references to human rights, and
where they appeared, they were mainly in the context of the European human rights
system. Not much was said on the lessons from the various regions of the world
beyond Europe. In this study, therefore, I would like to interlink more closely
between various key issues and the region with which I am now most familiar.
The discourses in this book (between myself and the vast amount of literature
and analysts/protagonists/catalysts (agonists!)) are thus shaped by the following
considerations:
First, I should add what this book is about and is not about. It has to address and is certainly
aware of the narrow view of the emergence of International Law as a European construct
emanating only from the time of the Treaty of Westphalia 1648.2
Those are also the roots of the Eurocentric approach to International Law, beget-
ting or interlinked with colonization and its interface with (or superimposition on)
different parts of the world, grounded on the belief that International Law was more
of a “European discourse”.3 Thus there is a need to reevaluate that position in a more
plural setting.
Yet, even when the Eurocentric approach of such law has to be questioned, it
is also true that in the Asian region, liberal strands of International Law are often
less valued or less present in State practice, precisely because a number of Asian
settings—in olden times as well as now—are not democratic nor pluralistic, despite
their emergence as new States.4
More to the point: in essence, this study does not claim that there is a monolithic
or single “Asian approach” to International Law, if that phrase is premised on an
(imputed) homogeneous position from this continent. In fact and indeed, that geog-
raphy is too vast and heterogeneous to expect and prospect a common position on
the many dimensions of International Law. At times, Asian countries do converge
very much as a continental block; for example, many Asian Governments like to
invoke the principle of non-interference in the internal affairs of a State. At times,
2 SterlingE. Edmunds, The Lawless Law of Nations: An Exposition of the Prevailing Arbitrary
International Law System in relation to its Influence upon Civil Liberty, disclosing it as the Last
Bulwark of Absolutism against the Political Emancipation of Man (Washington, D.C: J. Byrne and
Company, 1925), p. 28:
All modern authorities on the Law of Nations affirm that no such body of law did or could
exist prior to the Peace of Westphalia, in 1648, which ended the Thirty Years’ War, ushered
in the modern European States system by confirming the independence and sovereignty of
nearly four hundred distinct absolute political entities. There were nations before that time,
to be sure, but the Law of Nations, as had been pointed out, is not a law of Nations but a
law of Sovereign States; and not until the large group of autocrats arose was there any other
comparable community to be found on earth’s surface.
3 C. H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th,
17th, 18th Centuries) (Oxford: Clarendon, 1967), p. 68.

4 Jean d’Aspremont, ‘International Law in Asia: The Limits to Western Constitutionalist and Liberal
Doctrines’, Asian yearb.int.law, 13(2001), pp. 27–49; 27.

Peroration? 3
there is great diversity of positions between different countries (e.g. on the issue of
agriculture in the context of world trade rules and regulations).
There is also variability between the different corners of the region. West Asia,
Central Asia, South Asia, Southeast Asia and East Asia do not come together on all
fronts (e.g. on the issue of sexual orientation and gender identity), while on some
fronts, they may have a common position or almost common position (e.g. their
membership of the UN, albeit difficult at times). There should also be a distinction
between individual countries and various regional (or subregional) organizations to
which they belong, and their nexus with International Law. Thus, the phrase I have
employed in this study—“Asian region”—is quite intentional and it obviates the
unitary implication of the word “Asia”.
Second, the discourse here does not propose a strict finite configuration for “what
is Asia?”. One commentator addresses the issue with an ironic smile as follows:
Asia, as a concept, stands for little more than not being Europe. Indeed, until the discovery
of the New World, the Orient was Europe’s first and primary Other against which it defined
itself. We see the indeterminacy of Asia in this Symposium as well. For some, Asia refers
primarily to (what we call today) South Asia, which is represented metonymically by India.
For others, the primary referent is East Asia, which in turn is represented metonymically by
China…
In sum, the short answer to the question, “Where is Asia?” is “not in Europe”. The definition
of Asia is essentially negative and geographically indeterminate.5
Add to that the many different religions and cultures in the Asian region which
militate against a sense of unity rather than uniqueness.6 A lot of the literature on
“Asia” is about East Asia, implying also Southeast Asia. As a balancing act and
replete with flexibility, this study would like to encompass also other parts of Asia,
such as West Asia, Central Asia and South Asia.7
There is an overlap with the Arab region; this is inevitable, since the Middle East
will be covered in some of the discussions here (e.g. Palestine) and is a key test case
for International Law. Generally, the study does not extend to the Pacific region,
apart from where there are cases/disputes between the countries of the Asian region
with countries of the latter, while on the other front, the study may at times refer to
Turkey and Russia as countries of the Asian region, since their geographies, steeped
in their close ties with the histories, politics, polities and cultures of this continent,
have an umbilical affinity with the region.
A tentative answer to the geographic scope of the region covered is thus from
West Asia to East Asia (while not forgetting Central, South and North/Northeast
Asia). In practical terms, it encompasses the Middle East, including the Palestine
and Syrian issues; the Gulf States and nearby (such as Saudi Arabia, Bahrain, Qatar,
5 Teemu Ruskola, ‘Where is Asia – When is Asia – Theorising Comparative Law and International
Law’, UCDavis L’Rev, 44(2011), pp. 879–96; 882–3.
6 Christian Tomuschat, ‘Asia and International Law – Common Ground and Regional Diversity’,
Asian JIL, I(2011), pp. 217–31; 218. See also: Stephan Barisitz, Central Asia and the Silk Road:
Economic Rise and Decline over Several Millennia (Cham/Switzerland: Springer, 2017).
7 Rima Tkatova, ‘Central Asian States and International Law: Between Post-Soviet Culture and
Eurasian Civilization’, Chinese JIL, 9(2010)1, pp. 201–20.

Map 1.1 Silhouette of the Asian region. Source map drawn by author’s team
United Arab Emirates, Yemen, Oman); the Central Asian group such as Kazakhstan,
Uzbekistan, Kyrgyzstan, Turkmenistan and Tajikistan; Iran and its neighbours (such
as Afghanistan); the South Asian group (India, Pakistan, Bangladesh, Sri Lanka,
Nepal, Maldives, Bhutan); Southeast Asia (namely the Association of Southeast
Asian Nations—ASEAN—group of countries and Timor Leste); and Northeast
Asia (particularly China, Mongolia, North Korea (Democratic People’s Republic
of Korea), South Korea (Republic of Korea), and Japan. In other words, from the
rim of the Mediterranean on the western side of Asia to the rim of the Pacific on the
eastern side of Asia, with the Indian Ocean in-between and to the south (Map 1.1).
Third, there is possibly the perception of International Law as a State instrument
and this has to be debated. While it is true that International Law is invoked, on
occasions, by various countries and their partners to leverage, if not pressurize, for
their own ends, some elements of International Law are fortunately a check and
balance against such instrumentalization and open the door to counteraction. The
various Chapters of this study are about amplifying those checks and balances. For
instance, while some States are favourable towards a broad notion of State sovereignty
which is inherently often also a self-justification for the expansive powers of the
Executive branch at the national level, globally there has been in recent years a
counterargument that such sovereignty is not absolute and is subject to other rules
of International Law. Nor is the State sovereignty there to enhance or protect the
privileges of the pillars of the State. Rather, its presence is to impose a responsibility
on the State and its pillars to behave well towards its population, failing which
international accountability might arise (as in the case of the responsibility to protect
discussed below).
Fourth, the study endeavours to move beyond the State-centric and vertical
approach of International Law. In classical thinking and teaching, much was said
Peroration? 5
of the subjects of International Law (International Legal Persons with Rights at the
international level)—primarily States and to some extent, international organiza-
tions, particularly the UN. Now is the time for an equally pertinent test of the various
dimensions facing the region and their relationship with other constituents, especially
communities, peoples and persons—the crux of humanity, who were traditionally
viewed as objects of International Law (not as International Legal Persons and thus
with no rights or lesser rights).8 There have arisen also a range of non-State actors,
including the business sector and non-government armed groups which are testing
International Law to the limit. Poignantly, the human face of International Law is at
stake.
With the advent of Automation, Artificial Intelligence (AI) and Algorithms (“the
3 A’s”), the future will have to address the issue of inanimate actors and their rela-
tionship with animate entities such as human beings, voiced in the final Chapter of
this study. In the meantime, humanity’s interface with nature—particularly environ-
mental degradation—surely and intuitively foreshadows all too readily our poten-
tial demise through natural and other disasters undermining our modus vivendi—
unless humanity is audacious and resolute in adopting sustainable measures based
on a global/local partnership in that testy cohabitation. As a regional and inter-
national mega-jolt, the COVID-19 virus was raging rapaciously when the final
Chapter of this study was first being drafted and in that Chapter, there is reflec-
tion on its implications for International Law and the Asian region—and vice versa.
And the final Chapter also raises the issue of another inanimate actor—the UN and
potential reforms as a bridge with peace, human rights, democracy and sustainable
development/environment.
Importantly, the search for the roots of International Law, their interplay with the
region, and their development today must be matched with a more human-centred and
horizontal approach, drawing from the plurality of actors and stakeholders. A simple
example of the discourse which will be further elaborated upon in a later Chapter
is this: while some Governments would advocate that there is an Asian approach to
human rights, this is essentially based upon a governmental approach to human rights
(in fact, only some and not all Governments from the Asian region!). Civil society
organizations (CSOs) or non-governmental organizations (NGOs) have shown time
and time again that their approach, more anchored in the human condition, is not
necessarily the same as the governmental position on human rights. There should
thus be recognition of diversity in that world of universality. Hence, approaches
rather than approach from the Asian region.
8 Eric C. Ip, The Power of International Personality in Regional Integration, United Nations Univer-
sity (UNU) Comparative Regional Integration Studies (CRIS) Working Papers W 2010/4 (Brugge:
UNU, 2010).
Mosaic
The classical orientation to identifying the sources of International Law begins with
Article 38(1) of the Statute of the International Court of Justice (ICJ):
The Court, whose function is to decide in accordance with international law such disputes
as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law…..9
The four sources—treaties, international customs, principles and judicial deci-

sions and teachings of academics (the latter two being subsidiary means)—are gener-
ally seen as a starting point and are not exhaustive. A recurrent issue is what/where
is the place of State practice in the identification of sources? Moreover, there is the
growing presence of the possibly normative force of UN resolutions as part of the
spectrum of sources of International Law.10
On analysis, there is an intriguing reference in the ICJ Statute above to “civilized
nations”. This was preceded by Article 22 of the Covenant of the League of Nations
which had mentioned the setting up of various mandates to cover territories once
held by the losing side as lands held in “sacred trust of civilization”.11
A Freudian riposte to those words might add: what of the unmentioned
condescending antithesis—“uncivilized nations”?
That terminology is redolent with historical sensitivities. The so-called civilizing
mission of the powers that came into being with the emergence of European States
and statehood at the Treaty of Westphalia (1648) in the seventeenth century increas-
ingly acted as a cloak for territorial aggrandizement by colonial powers, particularly
towards the twentieth century. As noted by one commentator concerning the spread
of capitulation treaties imposed by European States:
Capitulations were agreements that tended to grant European countries non-reciprocal priv-
ileges (among other things), Europeans could not be expelled from a country without the
consent of their consul; had the right to practice worship and build churches, enjoyed freedom
of trade and commerce, and were excepted from certain import and export duties; could not
be the object of reprisals, especially in case of insolvency; and were not subjected to the
9 Statute of the International Court of Justice: https://www.icj-cij.org/en/statute accessed 23 June
2020.
10 Marko Divac Oberg, ‘The Legal Effects of Resolutions of the UN Security Council and General
Assembly in the Jurisprudence of the ICJ’, EJIL, 16(2005)5, pp. 879–906.

11 Alexandrowicz, supra note 3, p. 70.
Mosaic 7
territorial courts in the event of disputes between Europeans, but to the jurisdiction of the
consul of the defendant or the victim.12
This was interlinked with unequal treaties imposed on many countries in the
Asian region; treaties favouring European powers and entrenching their privileges
vis a vis the local population became the norm which would only be rescinded
with the demise of colonization. These were intermixed with the arrival of reli-
gious personnel, commerce, diplomatic links and extraterritorial jurisdiction giving
consular privileges and protection to the nationals of the those powers.13
The International Law of that era was thus seen by those who had to fight the
colonization process as heavily prejudiced in favour of the colonizers. Hence, the
imbalance weighed heavily in favour of European powers of colonial times.14
This was particularly the case with rules on territorial acquisition which favoured
colonizers, an issue dealt with by a later Chapter of this book. Even with the demise
of colonization and after the advent of the UN in the second half of the twentieth
century, there remained and remains many unanswered territorial issues which cause
problems for newly emergent States in the post colonial world.
Yet, while the above picture represents an important dimension of International
Law, viewed very much from the Westphalian and colonial lens, it is incomplete.
There are various puzzles. The Asian region, even in olden times, had discourses
between different entities with rules interlinking between them, which could be seen
as seeds of International Law, even though they might not have belonged to the
European club. Some of those rules (such as in the field of warfare) are illustrated
below. Those rules were also obscured by the colonial seepage and subjection of
those entities here or in other regions to this yoke:
The international system is frequently called the “Westphalian system”…It is well known
that the European nations that dominated the world through their commercial fleets and
navies during the eighteenth and nineteenth centuries did not, during that epoch, recognize
the governmental entities that existed in Asia as States at the same level of legal parity.
After 1840, China was reduced by those powers to the status of semi-colonial country.’15
12 Antonio Cassesse, ‘States: Rise and Decline of the Primary Subjects of the International Commu-
nity’, in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of
International Law (Oxford: Oxford University Press (OUP), 2012), pp. 50–69; 53.
13 Anand, supra note 1, citing Oppenheim’s International Law, Vol.1, Peace (etd. by Sir Robert
Jennings and Sir Arthur Watts, 9th ed. (London: Longman, 1997, pp. 87–88), p. XI.
14 Ibid., p. XI: per Oppenheim:
The Old Christian States of Western Europe constituted the ongoing international commu-
nity within which International Law grew up gradually with custom and treaty…In former
times European States were not always regarded as being governed by the same rules of
international conduct (in their relationship with Non-European States) as prevailed between
European States.
15 Tomuschat, supra note 6, p. 219.

Conversely, it could be said that such perspective failed to recognize the fact that
the world of the East also had legal regulations which impacted upon the international
relations of the time and which may have regarded Europeans as uncivilized.
One could interject that the sense of superiority emerging from Europe was tenden-
tious in that strategically, it was more advantageous to regard others, including the
East, with a degree of condescension and this paved the way to conquering the
latter.16 On the other hand, there is the caveat that new States, whether from the East
or elsewhere, have been ready to invoke International Law rather than to reject it,
precisely because even in its imperfections, there are still some rules which provide
a degree of assurance for safeguarding their rights and interests.17
Intriguingly, there is the added discourse that at times in history, there have been
examples from the Asian region where one country adopted a civilizing approach
towards other countries in the region, exemplified by the rise of Japan in the nineteenth
century.18 The drive to be part of the so-called civilized world is explained partly
by its declaration of war with China in 1894.19 Nor did it want European powers to
intervene in its civilizing endeavour.20 Ejection of Britain’s extra-territorial presence
in Japan was a sign of the rise of the latter as a “civilized” nation.21 In the meantime,
China was seen by some quarters as “semi-civilized”.22
If a broader kaleidoscope of International Law is projected, especially predating
colonization, the Asian region (and other regions of the world) sowed seeds a long
time ago for the development of elements of International Law, positing various
preferred practices which provide a raison d’etre for the law(s) of today. This was/is
particularly the case in regard to rules concerning the protection of humans in times
of war or armed conflict; their roots predated colonization and provide an age-old
anchor with a more human-centred and horizontal validation of the International Law
of today.
What are some of elements drawn from the Asian region which help to globalize
and humanize International Law geared towards protecting people on the ground,
16 Ibid.
17 Anand, supra note 1, p. XIII.
18 Ibid., p. 47.
19 Ibid., p. 51: ‘The Japanese leaders were convinced of the sacred mission of the progressive
civilization and, therefore, even the way of waging war itself had to be civilized. The Meiji State,
in order to prove that it had become a “civilized nation” and was capable of becoming a member of
the family of nations, tried to observe the “civilized” International Law.
This was epitomized by the declaration of war by the country against China in 1894 consistently
with the law of nations. Sakuyi Takahashi, Cases of International Law during the China Japan War
(Cambridge, 1899, p. 2).’.
20 Ibid., p. 52.
21 Ibid., p. 55.
22 Ibid., p. 61: ‘On another front, discussing the “international status of non-Christian nations”
(Wheaton, Elements of International Law, 6th ed, 1929, p. 30), Wheaton questioned China’s inter-
national status which, he opined, was “semi-civilized”. China had also not adopted the rules of war
prescribed by the rules of civilized States. In sharp contrast to China, Wheaton praised Japan which
had adhered to international conventions, including the 1866 Convention and the Hague Convention
(on the laws of war).’.
Mosaic 9
in their interface with those in power, personified later by the State itself, and their
at-times pugilistic ways?
There is a multicoloured mosaic of influences.
For example, while it is tempting to start with Indian and Chinese traditions in
their influence on the Asian region, a less traditional approach might start with the
Mongolian influence emanating from Genghis Khan who conquered more than half
of the known world towards Europe itself in his heyday. While somewhat equivocal
as part of the “ruler” and “ruled” relationship, one seed planted by that Mongolian
experience (empire!) was to heed and respect freedom of religion as part of not only
winning the war but also winning the peace (albeit with conditions attached).
In 1204, Genghis Khan created the Mongol Empire. It quickly grew into the world’s largest,
with Genghis learning that one of the major sources of conflict and violence among diverse
peoples is religion. Among his subjects were millions of Muslims, Buddhists, Taoists, Chris-
tians and animists, and they not only fought each other but among themselves. To stop the
bloodshed, Genghis used a powerful two-pronged approach. He gave everyone the right to
choose their religion while bringing every organized religion firmly under the rule of law.
He offered freedom of religion, in other words, but no separation of church and state. To
enforce his power over religions, he lured officials with exemptions from taxes as well as
state duties like military service. He also offered financial support, freedom of belief and
practice, and respect so long as they obeyed him. If they showed the slightest sign of defi-
ance? Death. Genghis saw that in matters of religion there was no need to persuade, bargain
or compromise. The reward was wealth and freedom; the punishment, death.23
Of course, one should not doubt the plethora of cruelties committed along the
way and in the march of history in all parts of the world by the many “conquerors”
and rulers.
From another angle, centuries ago, Islam also laid the seeds for various humane
practices in times of war, although as above, subject to some differentiation between
believers and non-believers with theocentric underpinnings:
Stop, O People, that I may give you ten rules for your guidance in the battlefield. Do not
commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither
kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with
fire, especially those which are fruitful. Slay not any of the enemy’s flock, save for your
own food, You are likely to pass by people who have devoted their lives to monastic service;
leave them alone.24
Muslim leadership used freedom of religion as a means of ruling the Empire.

This was witnessed by the practices of Sultan Mahmud of Ghazni and his group (in
the vicinity of today’s Afghanistan). They ‘respected the institutions of embassies,
communities, and laws of peace and war. They had a written code of law, applied
by their judges called Kazis, which regulated relations between States and subjects
inter se. Their notions of sovereignty and kingship had been inherited from their
23 Jack
Weatherford, ‘Genghis Khan: Hero of Religious Freedom?’ https://www.ozy.com/opinion/
genghis-khan-hero-of-religious-freedom/72553 accessed 1 August 2019.
24 Muhammad Munir, ‘Suicide Attacks and Islamic Law’, IRRC, 90(2008)869, pp. 71–89; 86.
predecessors, the Hindu empires like the Guptas and the Mauryan, and the Sultanate
of Delhi.’25
On another front, Islamic doctrine advocated the need to distinguish between
civilians and military targets in conflicts, protecting the former, while forbidding
certain practices such as deception or perfidy in war.26
There was also a blending of religion, local rules/customs and geography, as seen
in the case of Central Asia:
Speaking about the sources of International Law in the Central Asian States, one can mention
the Koran, which had considerable influence in Central Asia on customs and bilateral agree-
ments. The Koran permitted the existence of such notions as “djihad” and “gazarat” (the
war of faith), but at the same time, the necessity of the principle of good neighbourliness
with other nations and aspiration of peace and justice. The main source of feudal law in
Central Asia was for centuries the oral custom – Adat. The credibility of this customary law
derived from the sanctity of the ancient traditions and respect for ancestors. The norms of the
Shariah were also common to Central Asian law. However, if the Adat played an important
role in the life of Kazakhs and Kyrgyzs, Turkmans and Tajiks were more dependent on Islam
and the combination of legal, ethical and religious norms of Islam, proclaiming eternal and
unfailing divine advice.27
Through another cultural gateway, there is considerable literature on the Indian

influence in this field which dates back thousands of years; the rules from various
exponents such as Manu and Kautilya included fair treatment of vulnerable groups,
the call against war, the injunction to protect civilians and the prohibition of use of
various weapons of war:
Arthasastra (of Kautilya) requires that necessary aid should be granted primarily to “pil-
grim,…..ascetics, diseased, those suffering from hunger, thirst and long journey, foreigners”.
Arthasastra, III. 74–75.2028
There were exhortations such as: ‘Give up the battle, as war is not worth of
approval under any circumstances’ (Mahabharata, V.57, 1–9).29
In the law or Code of Manu, there is the following stricture prohibiting the killing
of:
one who was on the ground, nor naked, nor unarmed, nor the one who is not fighting but just
watching, nor the one who is fighting head-to-head with someone else…nor the wounded,
or heavily wounded.30
25 Diane A. Desierto, ‘Postcolonial International Law Discourse on Regional Developments in South
and Southeast Asia’, Int’l J. Legal Info., 36 (2008)3, pp. 387–95; 395.
26 Jacob Turner, ‘Towards a Synthesis between Islamic and Western Ius in Bello’, J. Transnat’l L.&
Pol’y, 21(2011)3, pp. 165–204; 193.

27 Rima Tkatova, supra note 7, p. 208.
28 Olga V. Butkevich, ‘History of Ancient International Law: Challenges and Prospects’, J. Hist.
Int’l Law (2003), pp. 189–236; 199.

29 Ibid., p. 207.
30 Ibid.
Mosaic 11
And on limitations on arms:

In battle, the enemy should not be attacked with treacherous weapons, nor saw-edged, nor
poisoned, nor red-hot ones.31
Manu was like a “doctrine” setting down many rules based on ethics32 : As for the
Code:
The Hindu Code of Manu also made formal efforts to prescribe rules of warfare and informal
attempts to regulate armed conflict. These are reflected in the Rajput Code of medieval India
following the Gupta period of Buddhism. The governing rules of interstate conduct and
diplomacy, peace and war, were based on the concept of Dharma.
Manu Smriti is the major codification of the laws governing personal and national life - a
comprehensive set of civil and criminal code.
….Dharma in Sanskrit means both religion and duty, which is of primary importance for
understanding the Hindu law of ancient India.33
The Code of Manu, a second century BC document, laid down various rules of
warfare, including these strictures:
91: Nor should anyone (mounted) slay an enemy down on the ground, a eunuch, a suppliant,
one with loosened hair, one seated, one who says ‘I am thy prisoner’.
92: Nor one asleep, one without armour, one naked, one without weapons, one not fighting,
a looker-on, one engaged with another;
93: Nor one who has his arms broken, a distressed man, one badly hit, one afraid, one who
has fled; remembering virtue, one should not slay them.34
As for the rules, they ranged from prohibition of use of various weapons to decent
treatment of conquered persons, influenced by Hinduism.35 So the region already
had many rules concerning conduct which embodied a sense of humanity—a good
bell weather for any claim to civilization.36
There were rules for interstate conduct,37 enriched by the conglomeration of
kingdoms on the Indian subcontinent.38
31 Ibid.
32 Alakh Niranjan Singh and Prabhakar Singh, ‘What can International Law learn from Indian
Mythology. Hinduism and History’, J. East Asia Int. Law ( Spring 2009), pp. 239–71; 249.
33 Ibid., p. 250.
34 H. W. Mouton, ‘History of the Laws and Customs of War up to the Middle Ages’ (1959) Revue
international de la Croix Rouge—(English) Supplement 182; H. W. Mouton, ‘History of the Laws

and Customs of War up to the Middle Ages’ (1959) Revue international de la Croix Rouge—
(English Supplement) 198, as cited by Vitit Muntarbhorn, ‘The 1899 Hague Peace Conference and
the Development of the Laws of War: Asia’s Contribution to the Quest for Humanitarianism’, in
Tim L. H. McCormack, Michael J. Tilbury, and Gillian D. Triggs (eds.), A Century of War and
Peace (Leiden: Kluwer, 2001), pp. 111–137; 112.
35 Alakh Niranjan Singh, supra note 32, p. 261.
36 R. P. Anand, ‘Development of International Law and South Asia: An Historical Approach’, IJIL,
47 (2007)4, pp. 535–93; 536.

37 Ibid., p. 538.
38 Ibid., p. 539.
As for the issue of weapons:

It was widely accepted that poisoned weapons or weapons causing unnecessary injury
were prohibited; magical methods, which were undeclared must be avoided; devastating
the country, poisoning wells etc. was clearly prohibited; all non-combatants, or combat-
ants in difficulties, or at a disadvantage, must be spared; and those who laid down their
arms or surrendered were to allowed to live’.39 The rules were expounded by such compila-
tions as Manu’s Manav Dharmasastra and Kautilya’s Arthasastra. There were key practices
advocated through poetry and history.40
In addition, per Kautilya, ‘humanitarian treatment of conquered soldiers and citi-

zens…humanitarian policy towards a defeated people was practical, pointing out that
if a king massacres those whom he has defeated, he frightens all the kingdoms that
surround him…more land and loyal subjects can be gained if the defeated are treated
magnanimously.’41
The Indian classical work, Mahabharata, prohibited using of destructive weapons,
while according to Agni Puraa: ‘Prisoners of War should not be enslaved; if soldiers
were taken prisoners, they were to be released at the cessation of hostilities.’42
In addition, there was this important innovator in the person of Emperor Ashoka
in the third century BC who turned to non-violence.43 There was a law to this effect:
The Edicts of Indian King Ashoka (264–231 BC) instructed to minimize whenever possible
the conduct of war, the killing of people and cattle, prohibition to kill ministers of church,
those wounded and disabled.44 There was thus a lesson to be consecrated by modern
International Humanitarian Law (IHL) rules.45
Indeed, non-violence later personified by Mahatma Gandhi himself had roots in

the Hindu concept of Ahimsa or non-injury.46
To the Far East, in ancient China, a similar call appeared as follows:
He who attacks will not be successful. According to Tao, all this is called an excess wish
and vain behavior…he who conducts a war in a humane way will win…The military art
says: “I dare not to start first, I must wait…Good people seek agreement, vile ones look for
exaction” (Tai-te Ching { { 24, 29, 30, 31, 67, 68, 79, 80).47
39 Ibid., p. 540.
40 Manoj Kumar Sinha, ‘Hinduism and International Law’, IRRC, 87(2005)858, pp. 285–294; 288:
‘In early days, the practice was to declare war, and the Ramayana and Mahabharata epic poems
both stressed the need to do so in the case of a righteous war. The practice of stopping hostilities at
sunset and returning to their respective camps to tend more easily to the days’ casualties also dates
from very ancient time.’
41 Ibid., pp. 292–93.
42 Ibid., p. 292.
43 Ibid., p. 289.
44 Butkevich, supra note 28, p. 208.
45 Sinha,supra note 40, p. 291.
46 Ibid., p. 294.
47 Butkevich, supra note 28, p. 205.
Mosaic 13
In Sun Tzu’s The Art of War, the following is advocated as a customary rule in
the Law of War:
To capture the enemy’s army is better than to destroy it. To take intact a battalion, a company
or a five-man squad is better than to destroy them.48
Another key area where the seeds were planted long ago was in regard privi-
leges and immunities for ambassadors. In Indian history, for example, in the epic
poetry, ‘The Ramayana describes and interesting discussion between Ravana and his
brother Vibhishana about the inviolability of an ambassador…His brother Vibhis-
hana reminded him that if he did kill the ambassador, he would be acting against Raj
Dharma (the duty of kings).’49
Those influences are, of course, illustrative and non-exhaustive. Aptly, this
conversation brings me to the potential aims of this study.
First, this book looks at a number of issues interlinking International Law and
the Asian region, e.g. the relationship between sovereignty, responsibility and Asian
situations. Second, it is a humble search for contributions from Asian countries
to the development of International Law, particularly through the lens of various
themes singled out in the subsequent Chapters, for instance, territorial and maritime
matters, human rights, international trade and commerce, and regionalism. It then
casts a glance at future agendas, such as UN reforms and the potential omnipresence
of Artificial Intelligence and its implications for International Law. Of course, in
identifying positive contributions, the study should not shy away from identifying
also key challenges and discrepancies from this region. Third, in this endeavour,
the study does not claim that there is a single approach from the Asian region in
its nexus with International Law. Rather, it identifies that on some fronts, many
Asian countries converge on a position in regard to International Law, while on other
fronts, there is a disparity of approaches from the Asian region. Nor does it overlook
the viewpoint from non-State sources, such as civil society, on key areas such as
human rights, which adds to the plurality of approaches from the Asian region. The
perspective is thus variegated and non-monolithic. However, in regard to key issues,
such as peace, human rights, democracy and sustainable development, there is an
underlying orientation from this author as the preferred way for and from the Asian
region: Asian countries should abide by International Law and elevate its yardsticks
rather than lower those standards and/or undermine them.
Forum
At this juncture, a pertinent question is this: where can one feel the pulse of the Asian
region in its interaction with and possible contribution to International Law?
48 Ibid., p. 207.
49 Sinha, supra note 40, p. 292.
The invitation is to look back to the nineteenth century when an international

system started to emerge, such as through treaty-making, and a small number of
Asian countries began to participate in the international arena. The limited number
from this region was obvious from the fact that most of today’s Asian States were
not yet born or were merely colonies under the various Powers of the day.
The first treaty with an international scope covering potentially the globe was the
treaty emanating from a conference in Paris which in 1865 established the Inter-
national Telegraph Union50 —later to become the International Telecommunications
Union. Asian countries were not present at the formulation of that treaty unless the
Russian Empire (later Russia) and the Ottoman Empire (later Turkey) were counted
as Asian; these two countries were part of the original founders of that organization.
The first forum for the participation of a notable number of States, including
some Asian States, was the Hague Peace Conference which took place in 1899,
followed by another in 1907. Twenty-six States participated at the first Hague
Conference, including these Asian States: Persia (now Iran), China, Japan and
Siam (now Thailand).51 In the broader Asian sense, Russia and Turkey counted
as States from this region. On the initiative of the Tsar of Russia, with the help
of the Netherlands, the first Hague Conference was convened with three issues in
mind: arms limitations/disarmament, laws of war and peace, and international dispute
settlement.52 (Map 1.2).
There is an underlying conundrum: why were those Asian states invited? My
response may be as follows: ‘It is worth remembering that the Hague Conference
was organized by a State power, primarily for other State powers. There was no room,
at the time, for non-State actors, as warfare was seen very much as the prerogative of
States and in the eyes of the international community warfare involved international
wars, rather than non-international armed conflicts. The latter has become the main
preoccupation at the turn of the new millennium. Intriguingly, apart from Mexico,
no Latin-American States were invited to the 1899 Conference.
If Powers such as China and Japan were invited, why was a small country such
as Siam also invited? Siam was certainly not a power but was seen by many as a
buffer State between the various colonial Powers which were vying for influence and
territory in the Southeast Asian region. Siam may have been invited precisely because
it was a buffer State which had never been colonized and which held the balance of
power in the region. Further reasons may have been that Siam was accredited to the
court of the Tsar in St Petersburg, and there were close personal links between the
Russian royal family and the Siamese royal family. A commentator has, however,
cautioned against too much historical speculation or ex post facto rationalization.’53
50 https://www.itu.int/en/history/Pages/ITUBorn1865.aspx accessed 19 August 2020.

51 Muntarbhorn, supra note 34, p. 113.
52 Geoffrey Best, ‘Peace Conferences and a Century of Total War, The 1899 Hague Conference and
What Came After’, Int. Aff., 75(1999)3, pp. 619–34; Nobuo Hayashi, The Role and Importance of
the Hague Conferences: A Historical Perspective (Geneva: UN Institute for Disarmament Research
(UNIDIR), 2017).
53 Muntarbhorn, supra note 34, p. 113.
Forum 15
Map 1.2 Asian States present at the 1899 Hague Peace Conference. Source map drawn by author’s
team
At the Hague Peace Conference 1899, the first issue—arms limita-

tions/disarmament—was unresolved, but the other two issues led to more construc-
tive results. A series of Conventions and Declarations on the conduct of war, and on
dispute settlement, were adopted, and there was agreement on these instruments:
– I. Convention for the pacific settlement of international disputes;
– II. Convention for the adaptation to maritime warfare of the principles of the 1864 Geneva
Convention;
– III. Convention with respect to the laws and customs of war on land;
– IV. Declaration concerning the prohibition of the use of bullets which can easily expand
or change their form inside the human body such as bullets with a hard covering which
does not completely cover the core, or containing indentations;
– V. Declaration concerning the prohibition of the discharge of projectiles and explosives
from balloons or by other new analogous methods; and
– VI. Declaration concerning the prohibition of the use of projectiles with the sole object
to spread asphyxiating poisonous gases.54
This opened the door to the establishment of the Permanent Court of Arbitration
for international dispute settlement, then and now in the Hague. It is still active today
as seen later in this book in its role on settling maritime disputes, especially one of
today’s Asian hotspots—the Spratlys.
54 Hayashi, supra note 52, p. 2.

However, the irony was that after the 1899 Conference, there were outbreaks of
war: the Hispano-American War and the Russo-Japanese War, before the 1907 Peace
Conference took place, with Russia particularly weakened in the process. The 1907
Hague Peace Conference had broader participation:
This conference sat from June 15 to October 18, 1907, and was attended by the representa-
tives of 44 states. Again the proposal for the limitation of armaments was not accepted. The
conference did, however, adopt several conventions relating to such matters as the employ-
ment of force for the recovery of contract debts; the rights and duties of neutral powers and
persons in war on land and sea; the laying of automatic submarine contact mines; the status
of enemy merchant ships; bombardment by naval forces in wartime; and the establishment
of an international prize court. The conference of 1907 renewed the declaration prohibiting
the discharge of projectiles from balloons but did not reaffirm the declarations prohibiting
asphyxiating gas and expanding bullets. The final acts of the conference were the unani-
mous acceptance by the delegates of the principle of compulsory arbitration and the stating
of a number of voeux (resolutions), the first of which was the recommendation that another
conference be summoned in eight years, thus establishing the concept that the best way to
handle international problems was through a series of successive conferences.55
There were 44 signatories, including the Asian countries present at the first
Hague Convention. Interestingly, the number of Asian signatories did not increase—
precisely because of the limited number of Asian countries in existence as
independent countries and the fact that the decolonization process had not yet started.
Not long after, there followed the First World War: Germany, Austria-Hungary,
Bulgaria and the Ottomans against Great Britain, France, Italy, Romania, Japan and
the US (the Allied Powers).56
Siam also declared war and joined the Allied Powers.
The end of World War I was followed by the setting up of the League of Nations
where those few Asian countries which had been at the Hague Peace Conferences
also became members. The International Labour Organization was also established
and this paved the way for many treaties on the labour issue which would be catalytic
for all countries. This period saw the demise of the German, Austro-Hungarian and
Ottoman Empires, and a Mandates system emerged to look after the various colonies
of the former German Empire. Japan, in particular, was spreading its power in China
and this led to the setting up of a puppet regime in Manchuria. The 1937 period
also witnessed the Second Sino-Japanese war which lasted till 1945. Those Asian
countries present in the League had to contend with the issue of warfare which did
not cease to take place, and the League later met its demise with the Italian invasion
of Abyssinia (Ethiopia) by Italy, followed by German aggrandizement under Hitler
with a subsequent alliance with Japan and Italy. This converged fatally with the
Second World War 1939–1945.
55 https://www.britannica.com/event/Hague-Conventions accessed 13 July 2020.

56 World War I began in 1914 after the assassination of Archduke Franz Ferdinand and lasted
until 1918. During the conflict, Germany, Austria-Hungary, Bulgaria and the Ottoman Empire
(the Central Powers) fought against Great Britain, France, Russia, Italy, Romania, Japan and
the United States (the Allied Powers). https://www.history.com/topics/world-war-i/world-war-i-his
tory#:~:text=World%20War%20I%20began%20in,States%20(the%20Allied%20Powers accessed
14 July 2020.
Forum 17
Nevertheless, there were some interesting issues addressed by the League during
the time of its operationalization which involved the participation of Asian countries,
in particular the issue of human trafficking and drugs trafficking, including the opium
trade. Some Conventions emerged during the time of the League to counter the
slave trade and other aspects of human trafficking.57 There was also international
conferencing on the issue of the drugs trade and various treaties on the regulation of
the opium trade were agreed upon.58
The setting up of the UN with the UN Charter was limited to a small number
of States which were on the side of the Allies which had won the war. Only a few
Asian countries were participants at the San Francisco Conference followed by the
signing of the UN Charter, thus becoming the original members. Out of the original
50 signatories, 8 Asian countries belonged to the group: China, India, Iran, Iraq,
Lebanon, Philippine Republic, Saudi Arabia and Syria.59 In the extended sense of
Asian geography, Turkey and the Union of Soviet Socialist Republics (later Russia)
were also members.
Since then, many more Asian countries have joined the UN and their varied contri-
butions, such as on territorial and maritime issues, human rights, and international
trade and commerce, are the subject of the later Chapters of this book.
Turning the leaf to another aspect of Asian participation in International Law
making and evolution, since the 1950s, a key forum can be identified as a kind of
government lawyers’ focal point for the Asian region on International Law. The
Asian-African Legal Consultative Organization (AALCO) is the closest that the
region has to a regional forum specifically dealing with International Law and its
work is complementary to the UN’s own International Law Commission (ILC).60 It is
an intergovernmental organization and is comprised of government related lawyers
(such as from the Foreign Ministry) from the two regions. Its secretariat is based
in India. It is an eminently suitable forum for identifying the contribution from
the Asian (and African) region to the development of International Law, precisely
because it works in parallel with the ILC. While often it takes up issues under the
remit of the ILC, at times it goes further and this is the case of its work on evolving
various refugee-related principles as an issue of common concern to the countries,
as seen below. The organization was originally known as the Asian-African Legal
Consultative Committee (AALCC), founded in 1956.
The original founders were Burma (now Myanmar), Ceylon (now Sri Lanka),
India, Indonesia, Iraq, Japan and Syria (then United Arab Republic), and the
Committee was to serve as an advisory body of legal experts for States with this
mandate: Article 3:
57 1921 International Convention for the Suppression of the Traffic in Women and Children and
1926 Convention to suppress the slave trade and slavery. https://ec.europa.eu/anti-trafficking/leg
islation-and-case-law-international-legislation-united-nations/1921-international-convention_en;
https://www.encyclopedia.com/history/legal-and-political-magazines/league-nations-convention-
suppress-slave-trade-and-slavery accessed 19 August 2020.
58 International Opium Convention 1915 and a revised Convention in 1925.
59 https://research.un.org/en/unmembers/founders accessed 19 August 2020.
60 http://www.aalco.int/ accessed 18 August 2020.
(a) Examination of questions that are under consideration by the International Law
Commission, and to arrange for the views of the Committee to be placed before the said
Commission.
(b) Consideration of legal problems that may be referred to the Committee by any of the
participating countries and to make such recommendations to Governments as may be
thought fit.
(c) exchange of views and information on legal matters of common concern and.
(d) to communicate with the consent of the Government of the participating countries the
points of view of the Committee on international legal problems referred to it, to the UN,
other institutions and international organizations.61
The first session was in Delhi, followed by the 2nd in Cairo 3rd in Colombo, 4th
in Tokyo, 5th in Rangoon, 6th in Cairo and 7th in Baghdad.62
At the first session, the following issues of International Law were raised,
illustrating some of the public and private International Law interests at the time:
– Diplomatic immunities (referred by India and Japan)
– Extradition (referred by Burma and India)
– High seas, seabed and subsoil (referred by Ceylon and India)
– Status of aliens including responsibility of States regarding treatment of foreign
nationals (referred by Japan)
– Restriction on immunity of States in commercial transactions (referred by India)
– Territorial sea (referred by Ceylon)
– Dual citizenship (referred by Burma)
– Ionospheric sovereignty (referred by India)
– Divorce laws (referred by Ceylon)
– Free legal aid (referred by Ceylon)63
These interests were continued in the next few years.64
At the 6th session, the issue of refugees started to be discussed.65 Interestingly,
there was the sensitive question of refugee rights, including the proposed innovative
right to return and the right to compensation for refugees which were raised for
deliberation.
The Report of the 7th session noted:
The Committee decided to postpone consideration of the question as to whether any provision
should be made for ensuring the implementation of the right to return and the right to
compensation which have been provided for in the articles on the rights of refugees.The
Committee could not for lack of time, give detailed consideration to the provisions of the UN
Refugee Convention of 1951, and accordingly it decided to postpone its recommendation
61 AALCC, Report of 2nd session, Cairo 1958 (New Delhi: AALCC Secretariat, 1958), p. 1.
62 AALCC, Report of 7th session, Baghdad 1965 (New Delhi: AALCC Secretariat, 1965).
63 AALCC, Report of 2nd session, supra note 61, pp. 1–3.
64 AALCC, Report of 3rd session, Colombo 1960 (New Delhi: AALCC Secretariat, 1960).
65 AALCC, Report of 7th session, supra note 62.
Forum 19
on the question whether a State should endeavour to afford to the refugee treatment in
conformity with the principles contained in that Convention.66
However, there started to emerge a draft of Principles on Status and Treatment of

Refugees, discussed further below, in 1966, and the 11th session in Accra adopted
the Addendum to the Principles concerning Treatment of Refugees.67 The Principles
also stipulated the right of return and right to compensation.68 The 12th meeting was
in Colombo.69
As an example of the early years of its work, at its 13th meeting, a report of the
AALCC noted:
The subjects on which the Committee has been able to make its final reports (recommen-
dations) so far include “Diplomatic Immunities and Privileges”, “State Immunity in respect
of Commercial Transactions”, “Extradition”, “Status and Treatment of Aliens”, “Dual or
Multiple Nationality”, “Legality of Nuclear Tests”, “Arbitral Procedure”, “Recognition and
Enforcement of Foreign Judgments in Matrimonial Matters”, “Reciprocal Enforcement of
Foreign Judgments, Service of Process and Recording of Evidence, both in Civil and Crim-
inal Cases”, “Free Legal Aid”, “Relief against Double Taxation”, “the 1966 Judgment of
the International Court of Justice in South West Africa Cases” and the Law of Treaties. The
Committee had also finalized its recommendations on the subject of “Rights of Refugees” at
its eighth session held in Bangkok (1966), but at the request of one of its Member Govern-
ments it had decided to reconsider its recommendations in the light of new developments in
the field of international refugee law. The subject was accordingly given further consideration
by the Committee at its tenth and eleventh sessions. The subjects on which the Committee
has made considerable progress are “the Law of International Rivers”, “International Sale
of Goods and related topics” and “the Law of the Sea with particular reference to peaceful
uses of the sea-bed and ocean floor lying beyond the limits of national jurisdiction”. At its
eleventh session the Committee decided to include the “Law of the Sea and Sea-bed” as a
priority item on the agenda … its twelfth and subsequent sessions having regard to the recent
developments in the field and the proposal for convening of a United Nations Conference
of Plenipotentiaries to consider various aspects of this subject. Having regard to the great
importance of the problems concerning the Law of the Sea to the countries of the Asian
African region, it was also decided to invite all such countries to participate in the discus-
sions on the subject at the twelfth as also at the thirteenth session. The main object underlying
this Committee’s taking up the Law of the Sea is to provide a forum for mutual consultation
and discussions among the Governments of Asian and African States and to assist them in
making concerted and systematic preparations for the forthcoming U.N. Conference. Some
of the other topics which are pending consideration of the Committee include “Diplomatic
Protection and State Responsibility”, “State Succession”, “Commercial Arbitration” and
“International Shipping Legislation”.70
66 Ibid., p. 26. See further for early developments of its work: 8th session in Bangkok, 9th session
in Delhi: AALCC, Report of 9th Session (New Delhi: AALCC Secretariat, 1967); 10th session in
Karachi: Report of the Tenth Session, Karachi 1969 (New Delhi: AALCC Secretariat, 1969); 11th
session in Accra which adopted the Addendum to the Principles concerning Treatment of Refugees:
Report of the 11th Session, Accra 1970 (New Delhi: AALCC Secretariat, 1970).
67 Report of the 11th Session 1970, ibid.
68 Ibid.: references in the 1970 report: re refugees’ right of return and right to compensation: pp. 26,
115, 129.
69 AALCC, Report of the 12th Session, Colombo 1971 (New Delhi: AALCC Secretariat, 1971).
70 AALCC, Report of the 13th Session, Lagos 1972 (New Delhi: AALCC Secretariat, 1972), pp. 5–6.
Looking back, S. Ogata, the former UN High Commissioner for Refugees

(UNHCR), aptly described the work of the organization as a cooperative forum with a
specialist regional value added.71 This was interlinked with the Bangkok Principles,
discussed below, in particular.
The organization changed its name to Asian African Legal Consultative Organi-
zation (AALCO) in 2001,72 its mandate being adjusted a little earlier.
Its mandate per adjustment in 1987 is as follows:
Article 4:
(a) To examine questions that are under consideration by the ILC and to arrange for the
views of the Committee to be placed before the Commission; to consider the reports
of the Commission and to make recommendations thereon to the Governments of the
participating States;
(b) To communicate with the consent of the governments of the participating States, the
points of view of the Committee on international legal problems referred to UN, other
institutions and international organizations;
(c) To consider legal problems that may be referred to the Committee by the participating
States and to make such recommendations to Governments as may be thought fit;
(d) To exchange views and information on matters of common concern having legal
implications and to make recommendations thereon, if deemed necessary and
(e) To undertake, with the consent of or at the request of the participating States, such
other activities as may be deemed appropriate for the fulfilment of the functions and
purposes of the Committee.73
The evolution of this organization is witnessed through a number of changes.

First, it has broader membership than when it was originally established. Thus it has
mutated from “Committee” to “Organization” with outreach throughout Asia and
Africa. Second, the topics which it takes up are not necessarily the same as the UN’s
ILC. In some respects, it can be more progressive that the ILC or the current position
of International Law (as seen in the case of the Refugee Principles below). Third,
it has branched out from the normative aspect of International Law to education
and dissemination of such law, as seen later in the samples from its recent training
programme.
71 Sadako Ogata, ‘Protecting the Human Rights of Refugees and Displaced Persons: The Tasks
Ahead’, AALCC, Essays on International Law, 40th Anniversary Commemorative Volume (New
Delhi: AALCC Secretariat, 1997), pp. 23–42; 34.
72 Yearbook of the AALCO, Vol. 1(2003), p. 2.
(The members from the Asian region have increased and are as follows:
In 1956 (Original Members) United Arab Republic (Syria and Egypt), India, Indonesia,
Iraq, Japan, Myanmar, Sri Lanka. Then came: Pakistan, Thailand, Jordan, Iran, Republic
of Korea, Kuwait, Malaysia, Singapore, Syria, Nepal, Bangladesh, Democratic People’s
Republic of Korea, Saudi Arabia, Turkey, Oman, Qatar, United Arab Emirates, Republic
of Yemen, Mongolia, People’s Republic of China, State of Palestine, Kingdom of Bahrain,
Lebanon, Brunei Darussalam, and Socialist Republic of Vietnam.).
73 AALCC, Report of 23rd, 24th and 25th sessions held in Tokyo (1983), Kathmandu (1985) and
Arusha (1986) (New Delhi: AALCC Secretariat, 1988), p. 182.

Forum 21
Perhaps the most constructive contribution it has made to date has been to formu-
late various principles concerning refugees which not only help to fill in the gap
whereby few Asian countries are parties to the 1951 International Refugee Conven-
tion and its 1967 Protocol but also expand the reach beyond those treaties with new
principles from the Asian and African regions. These principles are known as the
“Bangkok Principles”: Principles on Status and Treatment of Refugees.
After a period of gestation, the “Bangkok Principles” were finally adopted in 2001
by the AALCO.74
The principles follow the 1951 International Refugee Convention’s definition
of “refugee” as someone fleeing the country of origin for a well founded fear of
persecution and expands its scope as below, while reiterating the principle of non-
refoulement—no push back of persons seeking refuge to areas of danger, particularly
the country of origin. The innovations include firstly, the wider range of grounds for
refugee status, namely: 8 grounds as compared with 7 grounds under the Refugee
Convention: race, colour, religion, nationality, ethnic origin, gender, political opinion
or membership of a particular social group. Gender is explicitly included by the
Principles. This is innovative as gender differs from “sex” in that the latter refers
to the biological link with the person while gender is a social construct which can
be broader. Indeed, a person’s gender is not necessarily based upon the biological
attribution at birth and can be shaped by how a person self identifies in the person’s
relations with society at large. Moreover, it extends the definition of “refugee” to
cover persons fleeing armed conflicts and this converges with the yardsticks of inter-
national humanitarian law75 as well as regional treaties, particularly the Organization
of African Unity’s Convention on the status of refugees.76
The principles thus provide value added beyond the Refugee Convention as
follows:
– Coverage of protection for war/armed conflict cases and other violent situations;
– Extension of non-refoulement to non-rejection at the frontier;
– Right to return to the country of origin;
– Availability and assurance of provisional asylum, i.e. temporary refuge or
protection;
– Standard of treatment for refugees not less favourable than that accorded to aliens;
– Explicit reference to protection of women and children;
– Non-penalization of returnees in the case of voluntary repatriation;
– The call to address root causes in addition to international cooperation;
– Possible right of compensation for refugees versus the country of origin;
74 http://www.aalco.int/refugees-2004.pdf accessed 20 August 2020; AALCO, Status and Treatment
of Refugees (New Delhi: AALCO Secretariat, 2004).

75 This is particularly linked with the Red Cross related Geneva Conventions of 1949 and their 1977
Protocols which mention refugees in the context of armed conflicts.

76 See further: https://www.unhcr.org/about-us/background/45dc1a682/oau-convention-governing-
specific-aspects-refugee-problems-africa-adopted.html.
– International solidarity and burden-sharing.77

More recent directions of the AALCO point to its interest in providing an analysis
of international customary law, with its formation of an informal expert group and a
rapporteur on the issue.78 This should be valuable, and it has to address the fact that
some key Asian countries are more willing to abide by treaties to which they consent
rather than what they might see as the uncertain parameters of custom arising without
their consent. This ambivalence invites discourse based on situations and cases from
the field and is much evident in the Chapter on Plights and Human Rights.
This set of Draft Conclusions 6(7) (Form of Practice) on the emergence of
international custom is informative:
(1) Only State conduct in relation to an international question (can) be counted as practice;
(2) Verbal acts taken in connection with a particular commitment or matter count as practice
and as evidence of opinion juris and should be given greater weight, while verbal acts
expressed in a general and abstract way may count as evidence of opinion juris and should
be given less weight or none at all;
(3) Inaction may constitute practice if the situation demands reaction from the concerned
State, which is clearly conscious of this situation and has taken a conscious decision not to
act.79
A key concern is how to deal with persistent objection to a situation which may
prevent a custom from arising and or a custom from binding a State. This interrelates
with the resolutions of the UN General Assembly (GA) and other organs. The draft
above adds:
Draft conclusions should contain a provision on the persistent objector rule to the effect that
a State that objected to a new rule of customary international law at the beginning of its
formation and has persisted in its objection ever since is not bound by the rule for as long as
it persists in its objection and so long as that rule has not attained the status of iuscogens80 ….
(There is a) need for clear rule on how to use such resolution as evidence in the identification
of customary international law so as to put States on notice regarding the point so that they
can act accordingly during the voting process at the relevant organizations, in order to ensure
better quality in and better respect for the exercise of sovereignty and reduce to a minimum
the irony involved in using resolutions of a political nature as constituent material for legally
binding rules under customary International Law.81
77 Derived from AALCO, ‘Final Text of the AALCO’s 1966 Bangkok Principles on Status and
Treatment of Refugees’ as adopted on 24 June 2001 at the AALCO’S 40th session, New Delhi.
78 http://www.aalco.int/TheFormation%26evidenceofCustomaryInternationalLaw accessed 20
August 2020.
79 Report by Sufian Jusoh, Chairman of AALCO’s Informal Expert Group on Customary Interna-
tional Law, 2015. pp. 3–4.

http://www.aalco.int/54thsession/AALCOIEG%20Chairman’s%20Statement%20and%20S
pecial%20Rapporteur’s%20Report%2020150324.pdf accessed 20 August 2020. See a parallel
development: Sienho Yee, Report on the International Law Commission (ILC) Project on
“Identification of Customary International Law”, Chinese JIL, 14(2015)2, pp. 375–98.
80 Namely, peremptory norm of International Law such as the prohibition of torture.
81 Jusoh, supra note 79, p. 5.
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Dispute Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Asian JIL Asian Journal of International Law

CPPNM Convention on Physical Protection of Nuclear

Int. Organ. International Organization (Journal)

TAC Treaty of Amity and Cooperation

Box 3.1 ICJ Judgement in the Temple Case . . . . . . . . . . . . . . . . . . . . . . . . . 53

Map 1.1 Silhouette of the Asian region. Source map drawn by

Table 4.1 Ratification of Law of the Sea (LOS) Convention by

17th, 18th Centuries) (Oxford: Clarendon, 1967), p. 68.

Doctrines’, Asian yearb.int.law, 13(2001), pp. 27–49; 27.

Eurasian Civilization’, Chinese JIL, 9(2010)1, pp. 201–20.

a. international conventions, whether general or particular, establishing rules expressly

The four sources—treaties, international customs, principles and judicial deci-

9 Statute of the International Court of Justice: https://www.icj-cij.org/en/statute accessed 23 June

Assembly in the Jurisprudence of the ICJ’, EJIL, 16(2005)5, pp. 879–906.

15 Tomuschat, supra note 6, p. 219.

Muslim leadership used freedom of religion as a means of ruling the Empire.

Through another cultural gateway, there is considerable literature on the Indian

25 Diane A. Desierto, ‘Postcolonial International Law Discourse on Regional Developments in South

Pol’y, 21(2011)3, pp. 165–204; 193.

Int’l Law (2003), pp. 189–236; 199.

And on limitations on arms:

international de la Croix Rouge—(English) Supplement 182; H. W. Mouton, ‘History of the Laws

47 (2007)4, pp. 535–93; 536.

As for the issue of weapons:

In addition, per Kautilya, ‘humanitarian treatment of conquered soldiers and citi-

Indeed, non-violence later personified by Mahatma Gandhi himself had roots in

The invitation is to look back to the nineteenth century when an international

50 https://www.itu.int/en/history/Pages/ITUBorn1865.aspx accessed 19 August 2020.

At the Hague Peace Conference 1899, the first issue—arms limita-

54 Hayashi, supra note 52, p. 2.

55 https://www.britannica.com/event/Hague-Conventions accessed 13 July 2020.

However, there started to emerge a draft of Principles on Status and Treatment of

Looking back, S. Ogata, the former UN High Commissioner for Refugees

The evolution of this organization is witnessed through a number of changes.

Arusha (1986) (New Delhi: AALCC Secretariat, 1988), p. 182.

74 http://www.aalco.int/refugees-2004.pdf accessed 20 August 2020; AALCO, Status and Treatment

of Refugees (New Delhi: AALCO Secretariat, 2004).

Protocols which mention refugees in the context of armed conflicts.

– International solidarity and burden-sharing.77

tional Law, 2015. pp. 3–4.

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