Asian Yearbook of International Law, Volume 24 (2018)最新文献

2018 DILA International Conference and 2018 DILA Academy & Workshop 2018年DILA国际会议和2018年DILA学术研讨会

Asian Yearbook of International Law, Volume 24 (2018) Pub Date : 2020-10-22 DOI: 10.1163/9789004437784_024

Seokwoo Lee, Hee-Eun Lee

引用次数: 0

Use of Force as Self Defence against Non-State Actors and TWAIL Considerations: A Critical Analysis of India’s State Practice 使用武力作为对非国家行为者的自卫和TWAIL考虑:对印度国家实践的批判性分析

Asian Yearbook of International Law, Volume 24 (2018) Pub Date : 2020-10-22 DOI: 10.1163/9789004437784_007

Srinivas Burra

{"title":"Use of Force as Self Defence against Non-State Actors and TWAIL Considerations: A Critical Analysis of India’s State Practice","authors":"Srinivas Burra","doi":"10.1163/9789004437784_007","DOIUrl":"https://doi.org/10.1163/9789004437784_007","url":null,"abstract":"International law on the use of force has been prominently a contentious issue in the last two decades. This has been mainly after the September 11 incident. International law dealing with the use of force, principally on self defence, is sought to be applied in contexts which arguably are contentious. While Article 2(4) of the United Nations Charter prohibits the use of force in international law, Article 51 provides for the possibility of the use of force as self defence. In accordance with the text of Article 51, it is generally understood that the use of force as self defence takes place by a state against another state. However, in the recent instances of uses of force, it is asserted that this right of self defence can be invoked by a state while using force against nonstate actors (NSAs) operating from another state. States which are in favour of the invocation of Article 51 in such situations of force argue that if the state from which the non-state actor is operating is unwilling or unable to deal with the non-state actors, the state which is the target of the non-state actor has the right of self defence. This argument is primarily relied upon by a few states while justifying their use of force in the recent past. These states mainly include the United States of America, the United Kingdom, Turkey and France, who claimed individual self defence against the Islamic State (IS).1","PeriodicalId":430084,"journal":{"name":"Asian Yearbook of International Law, Volume 24 (2018)","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131832145","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

A Legal Critique of the Award of the Arbitral Tribunal in the Matter of the South China Sea Arbitration 南海仲裁案仲裁庭裁决的法律批判

Asian Yearbook of International Law, Volume 24 (2018) Pub Date : 2020-10-22 DOI: 10.1163/9789004437784_009

引用次数: 3

Prosecuting Crimes against Humanity before International Crimes Tribunal in Bangladesh: A Nexus with an Armed Conflict 在孟加拉国国际刑事法庭起诉危害人类罪:与武装冲突的联系

Asian Yearbook of International Law, Volume 24 (2018) Pub Date : 2020-10-22 DOI: 10.1163/9789004437784_010

Yudan Tan

引用次数: 0

The “ASEAN Way”: A Sore Thumb for ASEAN Solidarity in the Face of an Ailing Global Trade System? “东盟方式”:面对萎靡的全球贸易体系，东盟团结的痛处?

Asian Yearbook of International Law, Volume 24 (2018) Pub Date : 2020-10-22 DOI: 10.1163/9789004437784_008

Noel Chow Zher Ming

{"title":"The “ASEAN Way”: A Sore Thumb for ASEAN Solidarity in the Face of an Ailing Global Trade System?","authors":"Noel Chow Zher Ming","doi":"10.1163/9789004437784_008","DOIUrl":"https://doi.org/10.1163/9789004437784_008","url":null,"abstract":"“Standards and integrity are for Oscar winners. Everybody else has to bend over”. (lan Arkin’s character, Norman Newlander, to Sandy Kominsky (Michael Douglas) in The Kominsky Method, 2019). The Kominsky Method is a comedy series starring Michael Douglas as Sandy Kominsky, a once successful actor turned acting coach, and Alan Arkin as Norman Newlander, his recently widowed agent. Both are in their latter years. Newlander retorts with this line when Kominsky attempts to explain why he turned down numerous career enhancing opportunities in his younger years. When we strip away the fictional characters, setting and circumstances, the substance of this retort represents a struggle that is far from fictional. For many years, scholars who identify themselves as being advocates of Third World Approaches to International Law (TWAIL) have argued that the “Oscar winners” of the international community, the America and the Eurocentric West, who could afford to have standards and integrity, proceeded to shape international law with these standards and then imposed them on everyone else under the brand of human rights, civil liberties and the rule of law. TWAIL developed as a response from the “everybody else”, the colonized Third World, which had to bend over. Southeast Asia’s participation in international law is uniquely recent, but important. The region was only recently decolonized, culturally and politically diverse, experiencing unprecedented economic and population growth, and integrated into the international legal order. But it is at the same time considered to be the birthplace (geographically at least) of the Third World’s response to mainstream international law scholarship traditionally dominated by Western powers with a colonial lineage. The Bandung Conference of 1955 became an assembly of like-minded, recently independent and mostly Asian","PeriodicalId":430084,"journal":{"name":"Asian Yearbook of International Law, Volume 24 (2018)","volume":"37 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113969294","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Centenary of the League of Nations: Colonial India and the Making of International Law 国际联盟成立一百周年:殖民地印度与国际法的制定

Asian Yearbook of International Law, Volume 24 (2018) Pub Date : 2020-10-22 DOI: 10.1163/9789004437784_002

Amritha V. Shenoy

{"title":"The Centenary of the League of Nations: Colonial India and the Making of International Law","authors":"Amritha V. Shenoy","doi":"10.1163/9789004437784_002","DOIUrl":"https://doi.org/10.1163/9789004437784_002","url":null,"abstract":"The wave called “turn to history” in international law narrates various historical aspects of international law. This turn introduced a sub-discipline namely, the “History of International Law. However, narrating the history of international law is not a new phenomenon. History has been indispensable to the Third World Approaches to International Law (TWAIL). In the words of R.P. Anand, “the present cannot be properly assessed, nor future projected, without an understanding of the past”.1 The second generation of TWAIL scholars connects history to the present.2 Comparing the writings of TWAIL scholars on historical aspects of international law to the present writers on the discipline, one can see that Eurocentric histories are reiterated. The Eurocentric turn to history needs to be challenged by the narration of alternative histories. The alternative histories need to point out the principles of international law that existed in different civilisations so that modern international law can truly become a universal law. There are rules that governed war, treaty-making, diplomacy, and trade in many civilisations of the world. However, the existence of an international organisation in pre-nineteenth century cannot be found in other civilisations of the world.3 International organisations were formed in the nineteenth century. The craving for co-existence and the catastrophes of the World Wars gave an impetus to the formation of international organisations in the twentieth century.4 Thus, the consciousness of a State to move","PeriodicalId":430084,"journal":{"name":"Asian Yearbook of International Law, Volume 24 (2018)","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127748417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Breaking Bad Customs: Involving the Idea of Opinio Juris Communis in Asian State Practice 打破陋俗:在亚洲国家实践中涉及共产主义法理观念

Asian Yearbook of International Law, Volume 24 (2018) Pub Date : 2020-10-22 DOI: 10.1163/9789004437784_003

T. Ananthavinayagan

引用次数: 0

Harmonizing UNCITRAL Model Law: A TWAIL Analysis of Cross Border Insolvency Law 协调贸易法委员会示范法:跨国界破产法的双重分析

Asian Yearbook of International Law, Volume 24 (2018) Pub Date : 2020-10-22 DOI: 10.1163/9789004437784_006

Dwayne Leonardo Fernandes, D. Pathak

{"title":"Harmonizing UNCITRAL Model Law: A TWAIL Analysis of Cross Border Insolvency Law","authors":"Dwayne Leonardo Fernandes, D. Pathak","doi":"10.1163/9789004437784_006","DOIUrl":"https://doi.org/10.1163/9789004437784_006","url":null,"abstract":"Globalization has had a twofold effect on the world of commerce. On one hand, it has resulted in dramatic increases in the exchange of goods, services, factors of production, and the revenues that such forms of exchange generate.1 This, advocates of neoliberalism have argued, has resulted in higher GDP, higher GDP Per Capita, and better standards of living the world over.2 Sceptics remain unconvinced by these arguments due to the lack of concern for the distributional consequences of this newly created wealth.3 However, on the other hand, this increase in the volume of exchange across borders has led to an increase in the number of practical issues concerning juridical boundaries in the regulation of transnational commercial activity. In a global context characterized by the interplay between multilateral institutions4 and sovereign nations, the former have devised global norms, authored by the Global North and premised on a normative belief in the efficacy of the market mechanism, to coordinate legislative and policy-making processes across the world.5 Through the mechanism of conditionalities that, when imposed, permit or restrict access to financial resources, these multilateral agencies can pressurize nations into adopting these global norms.","PeriodicalId":430084,"journal":{"name":"Asian Yearbook of International Law, Volume 24 (2018)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130545082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Understanding Human Rights from an Eastern Perspective: A Discourse 从东方视角理解人权:一种话语

Asian Yearbook of International Law, Volume 24 (2018) Pub Date : 2020-10-22 DOI: 10.1163/9789004437784_004

Ravi Prakash Vyas, R. Murarka

{"title":"Understanding Human Rights from an Eastern Perspective: A Discourse","authors":"Ravi Prakash Vyas, R. Murarka","doi":"10.1163/9789004437784_004","DOIUrl":"https://doi.org/10.1163/9789004437784_004","url":null,"abstract":"Human rights, though assumed as a Western concept, is not an exclusive construct of the Western world. As a matter of fact, if one analyses the rich debate around human rights and the obstacles which Human Rights Commission have overcome to establish certain universal values as rights,1 one would not fall into the trap of engaging in an East versus West debate on human rights. There is an overwhelming influence of the West on the discourse around human rights, owing to the World Wars. However, it would be a travesty to conclude that Asian views were not considered while drafting the Universal Declaration of Human Rights. In fact, the drafting committee of Human Rights had two prominent Asian scholars, Charles Malik from Lebanon and P.C. Chang from China. Later, Charles Malik served as a president of the Human Rights Commission. Despite having a long history of practices which can be equated with the principles of human rights in the Asian region, it is established globally that human rights is largely a Western concept. The misconception lies in the interpretation of Asian texts. Most of the ancient Asian texts are analysed from the lens of religion. Another misconception is that the Judeo-Christian religion is a Western religion, and that Hinduism, Islam and Buddhism are oriental religions. However, the fact of the matter is that all major religions have their roots in Asia. Christianity, though claimed as a Western religion, is rooted in Asia and, from there, spread to the West. Therefore, juxtaposing Christianity as a Western religion against Eastern religions like Hinduism, Buddhism and Islam is a factual error. But it is also true that the West is more influenced by Christianity than any other religions.","PeriodicalId":430084,"journal":{"name":"Asian Yearbook of International Law, Volume 24 (2018)","volume":"83 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124610538","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

Subcontinental Defiance to the Global Refugee Regime: Global Leadership or Regional Exceptionalism? 次大陆对全球难民制度的反抗:全球领导还是地区例外论?

Asian Yearbook of International Law, Volume 24 (2018) Pub Date : 2020-10-22 DOI: 10.1163/9789004437784_005

Jay Ramasubramanyam

{"title":"Subcontinental Defiance to the Global Refugee Regime: Global Leadership or Regional Exceptionalism?","authors":"Jay Ramasubramanyam","doi":"10.1163/9789004437784_005","DOIUrl":"https://doi.org/10.1163/9789004437784_005","url":null,"abstract":"This article emerges from, among other factors, my identity and my lived experiences and understanding of South Asian history. Those who had firsthand experiences of the malaises of the Partition of India in 1947 are long gone, and the current generation of people have effectively become “custodians of such collective memory” that have been deeply etched in the identity and ethos of a subcontinental being.1 The memories of the Partition of India, though not mainstream, serve to signify the development of modern-day South Asia and also “humanize and pluralize Partition stories” – characteristics that escaped British imagination and colonial historiographies which projected distorted tropes that served to demonize the subaltern and further their own political goals.2 I believe that I too have the responsibility to not only articulate such memories through academic interventions, but also provide some steps towards understanding refugee history that has overlooked the subjective experiences of displacement in the aftermath of the Partition. This article forms a small part of a larger project – to write into international refugee law the alternate modes of international protection that resist and challenge the Eurocentric and hegemonic norms as outlined by the 1951 Convention Relating to the Status of Refugees, which projects a faux universality with respect to its application. The article’s objective is to analyze the marginalization of South Asian experiences of refugeehood and provide some insights into the alternate mechanisms of refugee protection that have been developed in response. The first part of this article will engage in discussions on South Asian states’ relationship to the 1951 Convention Relating to the Status of Refugees. While many scholars have","PeriodicalId":430084,"journal":{"name":"Asian Yearbook of International Law, Volume 24 (2018)","volume":"132 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121570574","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2