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Internal Self-Determination in International Law: A Critical Third-World Perspective

  • Kalana SENARATNE (a1)

Internal self-determination is a popular dimension of self-determination in international law. Often regarded as a right to democratic governance, its early promoters were largely Western states and international lawyers. A central observation made by such promoters was that the West favoured internal self-determination while the Third World did not. The present article will argue why this is a misconception and an outdated observation today. However, having argued so, the article proceeds to develop a Third World-oriented constructive critique of internal self-determination, suggesting why the Third World should nevertheless be more critically cautious and vigilant about the promotion of internal self-determination by Western actors as a distinct and concrete right in international law.

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PhD Candidate, Faculty of Law, University of Hong Kong. LL.B (London), LL.M. (London). This article is based on ongoing doctoral research work. I wish to thank my supervisor, Professor C.L. Lim, and the two anonymous reviewers, for their valuable comments on an earlier draft of this article.

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1. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, [2010] I.C.J. Rep. 1 at 29−30.

2. In this article, by “West” I refer to a collection of states which includes Member States of the EU— including the UK—the US, and Canada. By “Third World” I am referring to those states—in Asia, Africa, and Latin America—which share a common history of being subjected to colonial and foreign domination. I have also included China within the “Third World” category. While it is admitted that these terms lack clear and precise definitions, especially in contemporary times, reference to them is still useful for present purposes given the manner in which promoters of internal self-determination have come to distinguish the two groups, as will be discussed in Section II of this article.

3. SUMMERS, James, Peoples and International Law: How Nationalism and Self-Determination Shape a Contemporary Law of Nations (Leiden/Boston: Martinus Nijhoff, 2007) at 188

4. CASSESE, Antonio, “Political Self-Determination: Old Concepts and New Developments” in Antonio CASSESE, ed., UN Law/Fundamental Rights: Two Topics in International Law (Alphen aan den Rijn: Sijthoff & Noordhoff, 1979), 137 at 137

5. CASSESE, Antonio, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995) at 101

6. THORNBERRY, Patrick, “The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism” in Christian TOMUSCHAT, ed., Modern Law of Self-Determination (Dordrecht/Boston/London: Martinus Nijhoff, 1992), 101 at 101

7. ROSAS, Alan, “Internal Self-Determination” in Tomuschat, supra note 6, 225 at 232

8. Ibid., at 230 (author's emphasis, footnote omitted).

9. JOSEPH, Sarah, SCHULTZ, Jenny, and CASTAN, Melissa, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford: Oxford University Press, 2000) at 103

10. SALMON, Jean, “Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?” in Tomuschat, supra note 6, 253 at 265

11. Reference re Secession of Quebec, Supreme Court of Canada, 161 Dominion Law Reports (1998), 4th Series, at 385.

12. Ibid., at 437.

13. Ibid., at 438.

14. “Committee on the Elimination of Racial Discrimination, General Recommendation 21”, online: University of Minnesota 〈〉.

15. Cassese, supra note 5 at 101

16. Cassese, supra note 4 at 140

17. THORNBERRY, Patrick, International Law and the Rights of Minorities (Oxford: Clarendon Press, 1991) at 217

THORNBERRY, Patrick, “Self-Determination, Minorities, Human Rights: A Review of International Instruments” (1989) 38 International and Comparative Law Quarterly 867 at 883

18. Cassese, supra note 5 at 322

19. PAZARTZIS, Photini, “Secession and International Law: the European Dimension” in Marcelo G. KOHEN, ed., Secession: International Law Perspectives (Cambridge: Cambridge University Press, 2006), 355 at 372

20. Written statement of the Republic of Albania, 14 April 2009, at 40 (emphasis added), online: ICJ 〈〉.

21. Written statement of the Kingdom of The Netherlands, 17 April 2009, at 9 (emphasis added), online: ICJ 〈〉.

22. Written statement of the Republic of Cyprus, 3 April 2009, at 33−4, online: ICJ 〈〉. It is a right which “applies between the State and all its population, giving people the right to choose the form of government and have access to constitutional rights” (p. 35).

23. Written statement of the Federal Republic of Germany, 15 April 2009, at 33 (emphasis added), online: ICJ 〈〉.

24. Written statement of Finland, 16 April 2009, at 3, online: ICJ 〈〉.

25. Ibid., at 4 (emphasis added).

26. Ibid., at 6 (emphasis added).

27. Ibid., at 7 (emphasis added).

28. Written statement by the Russian Federation, 16 April 2009, at 30, online: ICJ 〈〉.

29. Written statement of the Slovak Republic, 16 April 2009, para. 10, online: ICJ 〈〉.

30. Conference on Security and Co-operation in Europe Final Act, Helsinki 1975, online: OSCE 〈〉 [1975 Helsinki Final Act].

31. The Conference on Security and Co-operation in Europe (CSCE) process has been regarded as “an engine of democratic change and a repository of democratic principles”; Thornberry, supra note 6 at 121 (footnote omitted). In 1994, the CSCE was renamed the “Organization for Security and Co-operation in Europe” (OSCE).

32. Principle VIII of the 1975 Helsinki Final Act, supra note 30 (emphasis added).

33. Cassese, supra note 4 at 152

34. See 1975 Helsinki Final Act, supra note 30.

35. KOSKENNIEMI, Martti, “National Self-Determination Today: Problems of Legal Theory and Practice” (1994) 43 International and Comparative Law Quarterly 241 at 256

36. Cassese, supra note 4 at 150

37. Ibid., at 151.

38. European Charter of Local Self-Government, Strasbourg, 15.X.1985, online: Council of Europe 〈〉.

39. PACKER, “The OSCE High Commissioner on National Minorities” in Gudmundur ALFREDSSON, Jonas GRIMHEDEN, Bertram G. RAMCHARAN, and Alfred de ZAYAS, eds., International Human Rights Monitoring Mechanisms (The Hague/Boston/London: Martinus Nijhoff, 2001) at 641656

40. See “High Commissioner on National Minorities: Speech by Max van der Stoel”, 13 May 1994, online: OSCE 〈〉.

41. Ibid.

42. “Early Warning and Early Action: Preventing Inter-Ethnic Conflict”, 9 July 1999 (emphasis added), online: OSCE 〈〉. For a more recent statement on the various models available for minority participation, see “Rights for Peace: Promoting Minority Participation to Avert Conflicts”, 4 October 2011, online: OSCE 〈〉.

43. “The Lund Recommendations on the Effective Participation of National Minorities in Public Life & Explanatory Note”, September 1999, online: OSCE 〈〉 [Lund Recommendations]. See especially para. 19 at 11−12, on “territorial arrangements”.

44. PALERMO, Francesco, “When the Lund Recommendations are Ignored. Effective Participation of National Minorities through Territorial Autonomy” (2009) 16 International Journal on Minority and Group Rights 653 at 654655

45. Ibid., at 659.

46. ANGHIE, Antony, “The Evolution of International Law: Colonial and Postcolonial Realities” (2006) 27 Third World Quarterly 739 at 748

47. NKRUMAH, Kwame, Towards Colonial Freedom: Africa in the Struggle against World Imperialism (London/Melbourne/Toronto: Heinemann, 1962) at 43

48. Ibid. (emphasis added).

49. APPADORAI, A., The Bandung Conference (New Delhi: The Indian Council of World Affairs, 1955)

50. Ibid., at 21. The discussion on self-determination and human rights had not taken too much time, given the universal acceptance afforded to the principle of self-determination. The only contribution was the show of support for the rights of the people of Palestine, calling for the implementation of relevant UN Resolutions that had been adopted on the matter (pp. 15−18).

51. Declaration on the Granting of Independence to Colonial Countries and Peoples, UN General Assembly Resolution 1514(XV), 14 December 1960, online: OHCHR 〈〉 [1960 Colonial Declaration]. This was largely promoted by Third World states. Eighty-nine states voted for, while none voted against. Interestingly, however, a number of states abstained from voting, most of which belonged to the European/Western bloc; namely, Portugal, Spain, Belgium, France, the UK, and the US.

52. Thornberry, “Self-Determination, Minorities, Human Rights”, supra note 17 at 875

53. See the declaration of the Government of India, online: UN 〈〉.

54. Written statement of the People's Republic of China, 16 April 2009, online: ICJ 〈〉.

55. Ibid., at 3.

56. Ibid., at 3−4 (emphasis added).

57. Ibid., at 5 (emphasis added).

58. As India once noted: “Like other citizens of India, the people of Jammu and Kashmir had been periodically exercising their right to self-determination within India's constitutional framework by participating in the five nation-wide general elections that had been held in the 29 years since India's independence. There could be no question of the people of Jammu and Kashmir exercising the right of self-determination separately from India. That would be a violation of the Indian Constitution and of the sovereignty and territorial integrity of India and an unwarranted interference in its internal affairs, all of which would constitute a violation of the United Nations Charter”: 31 GAOR (1976) 3rd Committee., 17th Meeting, (A/C.3/31/SR.17), para. 57, quoted in Summers, supra note 3 at 366 (ftn 202).

59. GHAI, Yash, “Autonomy Regimes in China: Coping with Ethnic and Economic Diversity” in Yash GHAI, ed., Autonomy and Ethnicity: Negotiating Competing Claims in Multi-Ethnic States (Cambridge: Cambridge University Press, 2000) at 7798

60. DUGARD, John and RAIC, David, “The Role of Recognition in the Law and Practice of Secession” in Kohen, ed., supra note 19, 94 at 123

61. “Statements Made by Mr. Hardeep Singh Puri, Ambassador and Permanent Representative of India at the 60th Session of the Commission on Human Rights, Geneva (March 15−April 23, 2004)”, online: Ministry of External Affairs, India 〈〉.

62. RAO, Pemmaraju Sreenivasa, “The Indian Position on Some General Principles of International Law” in Bimal N. PATEL, ed., India and International Law (Leiden/Boston: Martinus Nijhoff, 2005), 33 at 5254

63. Written statement of the Arab Republic of Egypt, 16 April 2009, at 19, online: ICJ 〈〉.

64. BELL, Christine, Peace Agreements and Human Rights (Oxford: Oxford University Press, 2000) at 133

65. KEANE, John, The Life and Death of Democracy (London: Pocket Books, 2010)

66. Ibid., at xi.

67. Jomo KENYATTA, “The Kikuyu System of Government” in Wilfred CARTEY and Martin KILSON, eds., The African Reader: Independent Africa (New York: Vintage Books, 1970) at 1928

68. GARRATT, G.T.ed., The Legacy of India (Oxford: Clarendon Press, 1937)

69. Ibid.

70. WEERAMANTRY, C.G., Equality and Freedom: Some Third World Perspectives (Colombo: Hansa, 1976) at 26

71. See for instance: the African Charter on Human and Peoples’ Rights, 27 June 1981 (entered into force 21 October 1986), online: UNHCR 〈,MULTILATERALTREATY,OAU,,3ae6b3630,0.html〉 [1981 African Charter]; the African Charter on Democracy, Elections and Governance, 30 January 2007, online: African Union 〈〉; the Inter-American Democratic Charter, 11 September 2001, online: OAS 〈〉; the South Asian Association for Regional Cooperation (SAARC) Charter of Democracy, online: SAARC 〈〉; the Arab Charter on Human Rights, 22 May 2004, online: University of Minnesota 〈〉.

72. Written statement of The Islamic Republic of Iran at 7, online: ICJ 〈〉.

73. SHELTON, Dinah, “Self-Determination in Regional Human Rights Law: From Kosovo to Cameroon” (2011) 105 American Journal of International Law 60

74. OUGUERGOUZ, Fatsah and TEHINDRAZANARIVELO, Djacoba Liva, “The Question of Secession in Africa” in Kohen, supra note 19, 257 at 257

75. 1981 African Charter, supra note 71.

76. Katangese Peoples’ Congress v. Zaire, Communication 75/92, Eighth Annual Activity Report (1994−1995), online: University of Minnesota 〈〉.

77. Ibid.

78. Dugard and Raic, supra note 60 at 108

79. Kevin Mgwanga Gunme v. Cameroon, Communication 266/2003, Twenty Sixth Annual Activity Report (2008−2009), online: 〈〉.

80. Ibid., at 37.

81. UMOZURIKE, U.O., Introduction to International Law (Ibadan: Spectrum Law Publishing, 1993) at 55

OFUATEY-KODJOE, W., “Self-Determination” in Oscar SCHACHTER and Christopher C. JOYNER, eds., United Nations Legal Order, Vol. 1 (Cambridge: Cambridge University Press, 1995)

82. SUKSI, Markku, Sub-State Governance through Territorial Autonomy: A Comparative Study in Constitutional Law of Powers, Procedures and Institutions (Heidelberg/Dordrecht/London/New York: Springer, 2011) at 244269

83. Ibid., at 252. See “Memorandum of Understanding between the Government of the Republic of Indonesia and the Free Aceh Movement”, online: Aceh Monitoring Mission 〈〉. This paved the way for the adoption of the Law of the Republic of Indonesia No. 11 of 2006 on the Governing of Aceh.

84. Ibid., at 188−213. The two-government structure which was put in place as a consequence of the formation of Tanzania (i.e. the coming together of Zanzibar and Tanganyika in 1964) has therefore been regarded as a solution “that guaranteed Zanzibar a large measure of internal self-determination on the basis of residual law-making powers” (p. 640).

85. Nkrumah, supra note 47 at xvi−xvii

86. Ibid., at 27. Therefore, “self-government” or autonomie were “nothing but blinds and limitations in the way of the struggle of the national liberation movement in the colonies towards self-determination and complete national independence” (p. 32).

87. Ibid., at 43.

88. Ibid., at 44−5 (emphasis added).

89. NEHRU, Jawaharlal, An Autobiography (New Delhi: Jawaharlal Nehru Memorial Fund, 1981) at 418

90. Ibid., at 608 (emphasis added).

91. Ibid., at 420.

92. Keane, supra note 65 at 597

93. B.S. CHIMNI, “Third World Approaches to International Law: A Manifesto” in Antony ANGHIE, Bhupinder CHIMNI, Karin MICHELSON, and Obiora OKAFOR, eds., The Third World and International Order: Law, Politics and Globalization (Leiden/Boston: Martinus Nijhoff, 2003), 47 at 61

94. Cassese, supra note 5 at 12

95. Ibid.

96. CASTELLINO, Joshua, International Law and Self-Determination: The Interplay of the Politics of Territorial Possession with Formulations of Post-Colonial “National” Identity (The Hague/Boston/London: Martinus Nijhoff, 2000) at 13

97. PRIESTLAND, David, The Red Flag: Communism and the Making of the Modern World (Harmondsworth: Penguin Books, 2010) at 235

BOWRING, Wilson's; Bill, “Positivism versus Self-Determination: the Contradictions of Soviet International Law” in Susan MARKS, ed., International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge University Press, 2008), 133 at 143

98. BERMAN, Nathaniel, “The International Law of Nationalism: Group Identity and Legal History” in David WIPPMAN, ed., International Law and Ethnic Conflict (Ithaca, NY/London: Cornell University Press, 1998), 25 at 37

99. BROWNLIE, Ian, “An Essay in the History of the Principle of Self-Determination” in C.H. ALEXANDROWICZ, ed., Grotian Society Papers 1968: Studies in the History of the Law of Nations (The Hague: Martinus Nijhoff, 1970), 90 at 95

100. Ibid., at 97.

101. NOWAK, Manfred, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd rev. ed. (Kehl: N.P. Engel, 2005) at 10

102. CHIMNI, B.S., “Marxism and International Law: A Contemporary Analysis” Economic and Political Weekly (6 February 1999), 337

103. HARRISON, Paul, Inside the Third World: The Anatomy of Poverty, 3rd ed. (Harmondsworth: Penguin Books, 1993)

104. Weeramantry, supra note 70 at 38

105. Makau MUTUA, “What is TWAIL?” ASIL, Proceedings of the 94th Annual Meeting, April 2000, online: University of Buffalo 〈〉.

106. CARTY, Anthony, “The National as a Meta-Concept of International Economic Law” in Asif H. QURESHI, ed., Perspectives in International Economic Law (London: Kluwer Law International, 2002), 65 at 71

107. ANGHIE, Antony, “Time Present and Time Past: Globalization, International Financial Institutions, and the Third World” (2000) 32 New York University Journal of International Law and Politics 243

108. Ibid., at 246.

109. B.S. CHIMNI, “Developing Countries and the GATT/WTO System: Some Reflections on the Idea of Free Trade and Doha Round Trade Negotiations” in Chantal THOMAS and Joel P. TRACHTMAN, eds., Developing Countries in the WTO Legal System (Oxford: Oxford University Press, 2009), 21 at 26

110. Chimni, supra note 102 at 341

Chimni, ibid., at 39−40

SORNARAJAH, M., “A Developing Country Perspective of International Economic Law in the Context of Dispute Settlement” in Qureshi, supra note 106 at 83−110

Helene Ruiz FABRI, “Regulating Trade, Investment and Money” in James CRAWFORD and Martti KOSKENNIEMI, eds., The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012) at 352372

111. Anghie, supra note 107 at 288

112. CHIMNI, B.S., “International Institutions Today: An Imperial Global State in the Making” (2004) 15 European Journal of International Law 1

113. BEDJAOUI, Mohammed, Towards a New International Economic Order (Paris: UNESCO, 1979)

ELIAS, T.O., New Horizons in International Law, 2nd rev. ed. (Dordrecht/Boston/London: Martinus Nijhoff, 1992)

Weeramantry, supra note 70 at 135−138

114. See Declaration on the Right to Development, A/Res/41/128, 4 December 1986, online: UN 〈〉. Article 4(2) therein states: “As a complement to the efforts of developing countries, effective international co-operation is essential in providing these countries with appropriate means and facilities to foster their comprehensive development.”

115. MARKS, Susan and CLAPHAM, Andrew, International Human Rights Lexicon (Oxford: Oxford University Press, 2005) at 102

116. Carty, supra note 106 at 79

117. QURESHI, Asif H. and ZIEGLER, Andreas R., International Economic Law (London: Sweet & Maxwell, 2007) at 57

118. CASSESE, Antonio, International Law, 2nd ed. (Oxford: Oxford University Press, 2005) at 506

119. MUTUA, Makau, “Why Redraw the Map of Africa: A Moral and Legal Inquiry” (1995) 16 Michigan Journal of International Law 1113

120. QUASHIGAH, Edward and OKAFOR, Obioraeds., Legitimate Governance in Africa: International and Domestic Legal Perspectives (The Hague/London/Boston: Kluwer Law International, 1999)

NDLOVU-GATSHENI, Sabelo J., “Fiftieth Anniversary of Decolonization in Africa: A Moment of Celebration or Critical Reflection?” (2012) 33 Third World Quarterly 71

121. BUCHHEIT, Lee C., Secession: The Legitimacy of Self-Determination (New Haven, CT/London: Yale University Press, 1978) at 1415

122. SUMMERS, James, “Why does the Right of Self-determination have Internal and External Aspects?”. Lecture delivered at the Lauterpacht Centre for International Law, University of Cambridge (28 October 2011)

123. Buchheit, supra note 121 at 15

124. FRANCK, Thomas, “The Emerging Right to Democratic Governance” (1992) 86 American Journal of International Law 46

MARKS, Susan, “What Has Become of the Emerging Right to Democratic Governance?” (2011) 22 European Journal of International Law 507

125. Franck, supra note 124 at 46

126. Ibid., at 52. The right to self-determination was therein interpreted as a “right of a people organized in an established territory to determine its collective political destiny in a democratic fashion”.

127. FOX, Gregory H., Humanitarian Occupation (Cambridge: Cambridge University Press, 2008)

128. GRAY, Christine, International Law and the Use of Force (Oxford: Oxford University Press, 2000) at 4244

Simone van den DRIEST, “‘Pro-Democratic Intervention’ and the Right to Political Self-determination: The Case of Operation Iraqi Freedom” (2010) 1 Netherlands International Law Review 27

129. Gray, supra note 128, at 42

GRAY, Christine, “The Use of Force and the International Legal Order” in Malcolm EVANS, ed., International Law (Oxford: Oxford University Press, 2010), 615 at 620

130. CRAWFORD, James, “Sovereignty as a Legal Value” in Crawford and Koskenniemi, supra note 110, 117 at 130

131. Gray, supra note 129 at 620

132. Article 2(4) of the UN Charter states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”

133. REISMAN, W. Michael, “Coercion and Self-Determination: Construing Charter Article 2(4)” (1984) 78 American Journal of International Law 642 at 643

134. Ibid.

135. SCHACHTER, Oscar, “The Legality of Pro-Democratic Invasion” (1984) 78 American Journal of International Law 645

136. Ibid., at 648.

137. NANDA, Ved P., “The Validity of United States Intervention in Panama under International Law” (1990) 84 American Journal of International Law 494

138. Ibid., at 500 (footnotes omitted).

139. For a detailed discussion especially in the context of the Iraqi invasion (2003), see generally Driest, supra note 127.

140. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment, [1986] I.C.J. Rep. 14 at 133.

141. Gray, supra note 128 at 43

142. Ibid., at 42.

143. CHIMNI, B.S., “Legitimating the International Rule of Law” in Crawford and Koskenniemi, supra note 110, 290 at 301

FALK, Richard, “A Commentary on Marathon Murders” Richard Falk Blog (19 April 2013)

144. KOJI, Watanabeed., Humanitarian Intervention: The Evolving Asian Debate (Tokyo/New York: Japan Centre for International Exchange, 2003)

THAKUR, Ramesh, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge: Cambridge University Press, 2006)

145. ANGHIE, Antony, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004)

GATHII, James Thuo, “International Law and Eurocentricity” (1998) 9 European Journal of International Law 184

146. RAJAGOPAL, Balakrishnan, “Counter-hegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy” (2006) 27 Third World Quarterly 767

147. SAID, Edward, Culture and Imperialism (London: Vintage, 1994) at 18

148. Robert A. DAHL, “Democracy and Human Rights Under Different Conditions of Development” in Asbjorn EIDE and Bernt HAGTVET, eds., Human Rights in Perspective: A Global Assessment (Oxford: Blackwell, 1992), 235 at 235

149. It has been the view of a former UN Independent Expert on the Right to Development, Dr Arjun Sengupta, that the right to development could only be achieved through a development plan which “would be totally different from the earlier forms of central planning and would be based entirely on decentralized decision-making with the participation and empowerment of the beneficiaries”; see “Report of the Independent Expert on the Right to Development’ (submitted by the UN Secretary General at the Fifty-Fifth Session to the UN General Assembly, 17 August 2000), reproduced in Franciscans International, ed., The Right to Development: Reflections on the First Four Reports of the Independent Expert on the Right to Development, Dr. Arjun Sengupta (Geneva: Franciscans International, 2003) at 183.

150. Chimni, supra note 102 at 343

151. SIMPSON, Gerry J., “Imagined Consent: Democratic Liberalism in International Legal Theory” (1994) 15 Australian Yearbook of International Law 103 at 121

152. QUASHIGAH, Edward and OKAFOR, Obiora, “Toward the Enhancement of the Relevance and Effectiveness of the Movement for the Securement of Legitimate Governance in Africa” in Quashigah and Okafor, supra note 120, 539 at 547

153. GHAI, Yash, “Human Rights and Governance: The Asian Debate” (1994) 15 Australia Year Book of International Law 1

154. Marks and Clapham, supra note 115 at 69

155. Simpson, supra note 151 at 121

156. HOBSBAWM, Eric, Globalisation, Democracy and Terrorism (London: Abacus, 2007) at 99

157. Salmon, supra note 10 at 280

* PhD Candidate, Faculty of Law, University of Hong Kong. LL.B (London), LL.M. (London). This article is based on ongoing doctoral research work. I wish to thank my supervisor, Professor C.L. Lim, and the two anonymous reviewers, for their valuable comments on an earlier draft of this article.

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