Law of the Sea and Asian States

This chapter describes Asia’s active participation in the law of the sea. The modern law of the sea is set out in the United Nations Convention on the Law of the Sea 1982 (UNCLOS), as modified by the Agreement relating to the Implementation of the Convention 1994. UNCLOS establishes a legal order for all use of the oceans, has been universally accepted, and has been described as a ‘constitution’ for the oceans. Indeed, one of the major achievements of UNCLOS was the establishment of a clear demarcation of rights and jurisdiction in the oceans. The chapter then looks at how Asian states have contributed to, participated in, and implemented the UNCLOS regime. The term Asian states is used rather loosely, but includes states in South Asia, Southeast Asia, Northeast Asia, and the western Pacific.

International Humanitarian Law and International Criminal Law

This chapter assesses the approaches of Asia-Pacific states to international humanitarian law (IHL) and international criminal law (ICL), within the context of the international legal framework. It first addresses influential approaches in the region, including how states present themselves in relation to IHL and ICL issues. Next, it considers how regional states engage with the issue of responsibility in international law, with an emphasis on IHL and ICL. The chapter then examines acceptance of these two bodies of law, arguing that there is no hostility to the basic norms of IHL, but a more unsettled approach to ICL. There is a definite chill in respect of aspects that potentially encroach on independence, sovereignty, and territorial integrity, or that smack of Western neo-colonialism. These are of course subjectively evaluated by each state. In practical terms, this frostiness can be seen in the responses to external threats of accountability against political leaders, the exercise of universal jurisdiction, Security Council referrals to the International Criminal Court, Pillar Three of the R2P doctrine, the crime of aggression, and certain formulations of other international crimes (for example, war crimes in non-international armed conflict). However, even within these broad regional trends, there is no uniformity. There is decidedly no collective ‘Asia-Pacific approach’ that emerges from the present chapter.

Regional Organizations

This chapter examines the relationship that Asia-Pacific regional and sub-regional organizations have with international law, looking at seven international organizations that span the region. It is commonly believed that the member states of Asia-Pacific regional organizations prefer less formalized institutions and fewer binding commitments. Conventional reasons for this include their history of colonialism, less legalistic and formalized cultures, and a preference for stricter conceptions of sovereignty. As such, their organizations are often perceived as less effective. However, the effectiveness of Asia-Pacific regional institutions should not be judged by one uniform standard. Instead they should be judged on their own definition of effectiveness. There should be a broader understanding that Asia-Pacific states consciously use and participate in their regional organizations differently than in other regions, and they may prefer less institutionalized models as these serve their purposes better and can still be successful.

New Zealand

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.

Cambodia

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.

Viet Nam

This chapter explores international law in Viet Nam. It is difficult to comprehensively conceptualize international law in Viet Nam’s legal system. There is no formal documentation concerning two of the main sources of public international law: international custom and general principles of law. Treaties, by contrast, are dealt with in great detail. Viet Nam adopts a modified monist approach by maintaining the primacy of the Constitution and the priority of treaties and incorporating treaties into the muninipal law on a case-by-case basis. The use of treaties in Viet Nam can be divided into two phases: (i) colonial times and (ii) since independence in 1945 when modern Viet Nam, proactively relying on international law in the quest for ultimate independence and unification in 1975 and since, started a period of robust engagement in the international legal order. The chapter finally looks at Viet Nam’s current practice of concluding and enforcing treaties.

Malaysia

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.

The Philippines

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.

Indonesia

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.

Japan

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.