Veronica L. Taylor
This chapter addresses international law in Afghanistan. States where the ‘post-conflict’ period is, in fact, a series of continuing sub-national conflicts, are often coded as ‘failed’ or ‘fragile’ and are also criticized as failing in their embrace of international law. In the case of Afghanistan, such ‘discourses of deficiency’ also erase some important legal history. For most of its history, Afghanistan has been contingent as a Westphalian state. This means that it has also had a fluid relationship with the institutions and norms of international law, including the normative discourse and practice of the international rule of law. Although Afghanistan has been a member of the United Nations since 1946, and thus a contributor to international law in the twentieth century, it is seen more as a subject of international law. After considering these issues, the chapter then highlights the complexity of Afghan’s location within, as well as its relationship with, international law, international legal institutions, and international legal norms.
This chapter studies international law in Australia. As a former British colony, Australia received a Western and specifically British tradition of international law, which was initially tied to imperial interests and even the possession of its own colonies in the Pacific. While its international legal personality matured in the 1920s and 1930s, it was only after the Second World War that Australia came to exercise a genuinely independent approach to international law. A hallmark of Australian policy and practice has been a broadly bipartisan political commitment to international law and institutions and to multilateralism, albeit affected by its close alliance with the United States. As a self-described ‘middle power’, Australia views the international legal order as giving it a voice on the international plane, securing its territorial and economic interests, and reflecting the values of the Australian community. Accordingly, Australia participates actively in the various specialized branches of international law and their associated governance mechanisms and dispute resolution procedures, although it occasionally strays from full compliance with its obligations.
Kamal Hossain and Sharif Bhuiyan
This chapter focuses on international law in Bangladesh. Neither the Constitution of Bangladesh nor any statute contains any specific provision on domestic application of international law rules. However, it is well settled by various judicial decisions that in respect of domestic application of international treaties, Bangladesh is a dualist country. In order to be applied by national courts, it is necessary for the treaty to be incorporated into Bangladesh’s legal system by an act of incorporation. In respect of customary international law, there is no clear judicial decision on whether customary law automatically forms part of Bangladesh law or whether, like treaties, such law is required to be made a part of Bangladesh law by a legislative, judicial, or other measure. It is likely that Bangladesh courts will adhere to the English and common law tradition of treating customary international law as automatically forming part of Bangladesh law as long as there is no inconsistent domestic legal provision.
This chapter studies international law in Cambodia. Cambodia’s evolving relationship with public international law must be understood in the context of the nation’s unique history and circumstances, which are marked by colonization, conflict, Vietnamese occupation, territorial administration, civil war, transitional justice, and state-building. Cambodia’s legal system has undergone significant changes from the early days of unwritten customary laws, to the imposition of French civil law, and thereafter the ‘legal vacuum’ created by the ultra-Marxist Khmer Rouge regime that left Cambodia in a state of war and international isolation until the 1980s. The chapter then outlines key aspects of international law in and apropos Cambodia that illustrate Cambodia’s reception of public international law, and its position as an active participant in the international legal system. Cambodia has certainly taken strides in its participation in dispute resolution on the international plane. However, its tryst with international law is a fractious one.
This chapter describes the experiences of five Central Asian states—Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan—with international law over the past three decades, identifying some of the distinctive features of Central Asian states’ approaches towards international law. The commonalities in the stance of Central Asian states on matters of international law are determined by the context of their emergence as sovereign states at the end of the Cold War, their common history as former Soviet republics, their belonging to the Eurasian group of continental legal systems, and their common status as landlocked developing states. At the same time, each Central Asian state has its own specifics, with differences in their foreign policy priorities, levels of economic development, and resource endowment. The chapter then reviews the participation of Central Asian states in the Commonwealth of Independent States (CIS), particularly their experiences with the CIS Economic Court.
This chapter discusses international law in China. Although the teaching, research, and dissemination of international law have become part of China’s steady efforts to achieve its aspirations for national rejuvenation, early Chinese experience with international law still remains a key to understanding China’s present attitude towards international law. Indeed, the perennial concern with its status, security, and territorial integrity, as shaped by its historical legacies, still overshadows China’s legal behaviour in the conduct of its foreign relations. Today, with its rise to world great-power status, China is depicted as a stakeholder in the present international system. China has been playing a constructive role in international and regional issues and has made significant contributions to world peace and development. In the inquiry into China’s attitude towards international law, one area which China attempts to draw attention to is the importance of the Five Principles of Peaceful Co-existence.
This chapter examines international law in India, offering an overview of India’s engagement with international law in the colonial and postcolonial periods. Whether it is the fact of the East India Company becoming an empire, or British India becoming an original member of both the League of Nations and the United Nations, India’s relationship with international law has been somewhat unusual. The review in this chapter encompasses the following sub-themes: the development of international law in the colonial era, 1600–1947; the place of international law in the Constitution of India 1949; the approach of Indian courts to international law, 1950–2017; and India’s multilevel engagement and contribution to international law, 1947–2017.
This chapter looks at international law in Indonesia. From the beginning of its establishment as a state, alongside the formation of the Indonesian government, Indonesia has committed itself to participating on the international stage. Paragraph 4 of the Preamble of the Constitution of the Republic of Indonesia 1945 shows such commitment. Indonesia’s role in the Bandung Conference of 1955 is another pivotal point to consider since Indonesia was one of the initiators of the Conference. Nevertheless, the development of international law in Indonesia is not merely about the 1945 Constitution and the Bandung Conference. It is also about Indonesia advancing its interests at the international level and making its voice count. In doing so, however, Indonesia has not been free from politics. Indonesia uses international law as a political instrument to pursue its interests; and other countries likewise use international law to advance their interests towards Indonesia.
This chapter examines international law in Japan. It begins by looking at Japan’s embroilment with international law in the course of its efforts to revise the unequal treaties which had been concluded with about a dozen Occidental states while Japan was categorized as one of the ‘barbarian’ states in the world. After gradually overcoming this unequal status, it became a late-coming big power around the end of World War I. This big power then plunged into World War II, with the result that it was then branded an aggressor state and was penalized in an international tribunal. After that defeat, it turned into both a serious complier of new—that is, post-World War II—international law and a state deeply obedient to the United States. These factors have brought about complex international law behaviour as well as serious constraints in Japan’s choice of international law action.
This chapter examines the limitations of traditional rules and institutions with respect to the use of force. It considers international cooperation in managing the use of force, and whether and when the use of force is justified, within the framework of the jus ad bellum. The chapter discusses three factors that help to explain why the rules and institutions that regulate the use of force have not been effective. First is the weakness of international law’s secondary rules concerning consent, obligation, and causation. Second is the weaknesses in the UN Charter rules due to deficiencies in the wording of the rules themselves, especially with regard to pre-emptive self-defence. Third is the weakness in compliance resulting from the UN Security Council’s dysfunctionality, in part due to the UN’s professed reliance upon the principle of sovereign equality.
Abdul Ghafur Hamid @ Khin Maung Sein
This chapter describes international law in Malaysia. Malaysia is unique in the sense that it amalgamates multiple characteristics: a federal state, a constitutional monarchy, and a state with a dual legal system. It is a multilateral player with active involvement in many intergovernmental organizations. In relation to international conventions, Malaysia has a policy of respecting them and complying with them. What is surprising, however, is that Malaysia rejects outright the doctrine of incorporation in respect of customary international law, deviating from the practice of the UK and other common law countries. Despite the fact that customary international law is binding on all states, and that a state will be responsible under international law for its breach, customary international law appears to be an alien law to the Malaysian courts. It appears that Malaysia is not only a dualist country, but also more dualist compared to any other common law counterparts.
This chapter discusses international law in Myanmar. The efforts of the International Labour Organization (ILO) Commission of Inquiry to eradicate the use of forced labour in Myanmar, and the nature of the military regime’s response to these efforts, represent a remarkable chapter in the history of international law. Of note, first, is the determination of the ILO to test the limits of its power to enforce compliance with the resolutions of its governing body. Second, Myanmar’s engagement with the ILO clarified the vexed issue of what constitutes a peremptory norm of international law. Third, civil litigation in the United States around the issue of forced labour by transnational corporations in Myanmar uncovered the scope and potential for domestic courts to apply international law. Finally, Myanmar’s variable and often extreme responses to the Commission’s findings demonstrate the dynamics of state resistance to and engagement with international law.
Pratyush Nath Upreti and Surya P. Subedi
This chapter looks at international law in Nepal. Nepal has had more than its fair share of internal political upheavals. In the latter part of the twentieth century, this history was complemented by a diverse set of interactions with the United Nations and the regimes negotiated under its auspices. These interactions with the outside world and international law have tended to pursue three objectives: first, asserting and protecting Nepal’s freedom of action and maintaining its own equilibrium vis-à-vis its two larger neighbours, China and India; second, economic development; and third, promoting liberal democratic values underpinned by human rights and the rule of law. After reviewing this historical background, the chapter then considers the application of international law in the Nepalese legal system as well as the specific ways in which international law has been used in Nepalese politics to bridge normative gaps, in the context of hydro-diplomacy between India and Nepal and in the context of transit and trade rights.
This concluding chapter discusses New Zealand’s interaction with international law, adopting a chronological approach which takes account of the increasing authority of New Zealand’s institutions since 1840, when British colonization began. Over this period, New Zealand has developed and diversified its international trading, political, and strategic relations with other states, and has experienced the broadening and deepening of international law which has responded to massive scientific, technical, environmental, and geopolitical developments. The chronological approach also helps to identify major changes in New Zealand’s positions on, and contributions to, international law. Also central are New Zealand’s geography and population. It was first settled by Polynesians and later populated by Europeans, mainly British, who began to arrive only 200 years ago. Now, New Zealand has a rapidly diversifying population, with increasing numbers of people relocating from the Pacific and Asia.
Ahmer Bilal Soofi
This chapter evaluates international law in Pakistan. In the international arena, Pakistan was collectively recognized as a sovereign state within the community of nations by gaining membership of the United Nations. Pakistan is also a member of various other international and regional governmental organizations. Now enshrined in the country’s Constitution of 1973 are principles of policy for the state to ‘promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means’. With regards to its international law obligations, Pakistan operates as a dualist state: The Rules of Business 1973 empower the Cabinet to sign and ratify international treaties and agreements on behalf of the state, following which the Parliament is tasked with their incorporation via implementing legislation. The chapter then highlights Pakistan’s contribution to international law, through state practice or otherwise, as well as the role of international law in Pakistan’s domestic jurisprudence.
Romel Regalado Bagares
This chapter assesses international law in the Philippines. The primary entry points of international law in Philippine jurisdiction are the Incorporation Clause and the Treaty Clause of the 1987 Charter. The chapter considers the paradoxical phenomenon of the supposedly dualist device of treaties opening a quasi-monist door to international legal obligations in the form of executive agreements that do not require the concurrence of the Senate but become binding on the Philippines by Executive imprimatur. Moreover, as quasi-monist devices, executive agreements function both as a sword, giving direct effect to international law—especially in the protection of rights—and as a shield, raising barriers to public or international accountability according to political considerations. The four other entry points for international law in Philippine practice include the direct effect by the Supreme Court’s rule-making powers, constitutionalization, statutory application, and international law in the State of Exception.
Li-Ann Thio and Kevin YL Tan
This chapter addresses international law in Singapore, looking at Singapore’s role in international and regional organizations like the UN and the Association of Southeast Asian Nations (ASEAN), and particularly at the role played by key Singaporean representatives in these organizations. From its earliest days, Singapore committed itself to being an active player in the international community. At the UN, its permanent representatives displayed extraordinary diplomatic acumen and capability and were prominent in key meetings and deliberations. Meanwhile, throughout its history, Singapore has been one of ASEAN’s strongest advocates and supporters. The chapter then considers how international law is implemented in Singapore by domestic tribunals and by Parliament and discusses the implementation of human rights norms in the context of state imperatives concerning human welfare and development.
Gleider I. Hernández
This chapter illuminates the role that sources doctrine plays in construing international law as a system. It frames international law’s systemic qualities within the recursive relationship between sources doctrine and debates over international law’s systematicity. Sources doctrine reinforces and buttresses international law’s claim to constitute a legal system; and the legal system demands and requires that legal sources exist within it. International law’s systematicity and the doctrine of international legal sources exist in a mutually constitutive relationship, and cannot exist without one another. This recursive relationship privileges unity, coherence, and the existence of a unifying inner logic which transcends mere interstate relations and constitutes a legal structure. In this respect, the social practices of those officials who are part of the institutional workings of the system, and especially those with a law-applying function, are of heightened relevance in conceiving of international law as a system.
Seokwoo Lee and Hee Eun Lee
This chapter evaluates international law in South Korea. The tumultuous experiences of the Korean nation in the twentieth century, within the context of international relations in Northeast Asia, has had a significant impact on South Korea’s attitude towards and practice of public international law. Joseon, as Korea was referred to in the late nineteenth and early twentieth centuries, was confronted with public international law introduced by Western imperial states that challenged the existing ‘Sinocentric’ normative system. Eventually, the devolution of the Sinocentric order led to the demise of Joseon, despite appeals to state sovereignty under public international law in the face of Japanese imperialism. This inevitably set the stage for the creation of the modern South Korean state. South Korea today is an active participant in the international legal system, in large part due to its vibrant export-oriented economy, its status as an Asian middle power, as well as its emergence as a robust democracy.
This chapter explores international law in the South Pacific Island states of Oceania. While there are some commonalities, the area is one of immense cultural and biological diversity. South Pacific Island states are beset by plural legal systems, where state laws coexist with non-state laws, at times operating side by side and at others overlapping or even intermingling. These competing domestic laws are not the only sources of law to contend with; international law plays an increasingly large role in these countries. While international law is traditionally regarded as the law governing the relationship between states, ‘modern’ international law includes rules relating to individuals and non-state bodies. This additional layer of law increases the complexities of the relationship between formal and customary laws. The chapter then focuses on international law in common law island states in the Pacific, specifically looking at the South Pacific Island states which have ratified the Pacific Island States Trade Agreement.