Showing papers in "Asian Journal of International Law in 2014"
TL;DR: This paper examined the extent to which the relevant rules of international law are capable of providing "justice" by accommodating the unique historical contexts in the region in settling highly politically sensitive territorial and maritime claims.
Abstract: Recently increased tensions across East Asia over territorial and maritime disputes show glimpses of brinkmanship. However, the past experiences of Western colonization and Japan's imperialism within the region add complexity to those disputes challenging our understanding of legal debates surrounding territorial and maritime disputes. This article examines the extent to which the relevant rules of international law are capable of providing “justice” by accommodating the unique historical contexts in the region in settling highly politically sensitive territorial and maritime claims. It finds that the existing rules of international law are more than capable of accommodating the peculiar historical contexts of East Asia in the resolution of territorial and maritime disputes, whilst acknowledging that certain ambiguities in the law are contributing to some of the current tensions that have arisen over these disputes.
18 citations
TL;DR: In this article, the adoption of basically similar AML norms by many developing countries results from the global diffusion of the international AML regime through two major mechanisms: coercion (by powerful economies and international institutions) and socialization (through tactical communications).
Abstract: The international anti-money laundering (AML) regime has developed and diffused rapidly in the last two decades. Most developing countries have engaged with the international AML regime under pressure from other states rather than on a voluntary basis.1 Establishing the national AML regime in these countries in compliance with international standards is very expensive, while the benefits are elusive.2 This paper reveals that the adoption of basically similar AML norms by many developing countries results from the global diffusion of the international AML regime through two major mechanisms: coercion (by powerful economies and international institutions) and socialization (through tactical communications). This paper points out that although the AML regime of Vietnam was established under external coercion and socialization, domestic factors determine the extent of compliance with international standards. In Vietnam, a determinative factor is the political willingness of the Communist Party in fighting money laundering.
16 citations
TL;DR: The work in this paper provides an overview of the history of international peoples' tribunals in Asia, and examines three tribunations that have focused on situations in Asia and argues that they not only respond to a perceived gap in official structures of accountability, but also perform other functions such as building solidarity and networks and recording and memorializing otherwise unacknowledged experiences.
Abstract: Since the 1960s, over eighty international peoples’ tribunals have been established outside formal state and international structures. Many have drawn on the forms and procedures of state-sponsored international tribunals and investigated whether states, international organizations, and transnational corporations have violated established norms of international law, while also seeking to infuse it with more progressive values. This paper first provides an overview of the history of international peoples’ tribunals in Asia, then examines three tribunals that have focused on situations in Asia. We argue that not only do peoples’ tribunals respond to a perceived gap in official structures of accountability, but they also perform other functions. These include building solidarity and networks, and recording and memorializing otherwise unacknowledged experiences. Further, such tribunals not only engage in holding states and others accountable informally but also articulate claims about the right of civil society to “own”, interpret, and develop international law.
13 citations
TL;DR: In this paper, the status and role of natural prolongation in delimiting this area Natural prolongation constitutes the legal basis for entitlement to the continental shelf beyond 200 nm Also, natural extension should play a role as a relevant circumstance in delimitation of the continental boundary beyond 200nm.
Abstract: This paper is a response to the latest Bangladesh/Myanmar case decided by the ITLOS on 14 March 2012, which is the first case concerning delimitation of the continental shelf beyond 200 nm The paper aims to discuss the status and role of natural prolongation in delimiting this area Natural prolongation constitutes the legal basis for entitlement to the continental shelf beyond 200 nm Also, natural prolongation should play a role as a relevant circumstance in delimiting the continental shelf beyond 200 nm To address these two issues, the judgment of the Bangladesh/Myanmar case will also be reviewed Both the interpretation of the meaning of natural prolongation and its exclusion in the delimitation process are not convincing Hence, the Judgment's future influence on the continental shelf delimitation is limited
12 citations
TL;DR: In this paper, the authors examine Southeast Asian approaches to maritime boundaries and explore the extent to which Southeast Asian practice has contributed to the normative development of international law on maritime delimitation.
Abstract: From both a geographical and geopolitical perspective, Southeast Asia is a particularly interesting case-study for maritime delimitation. Despite the existence of significant obstacles to maritime boundary-making, including a complex coastal geography and a multitude of territorial and jurisdictional disputes, Southeast Asia has been described as the “scene of very active and innovative ocean boundary diplomacy”. The objective of this paper is to examine Southeast Asian approaches to maritime boundaries. First, it seeks to identify whether there are common trends and practices in Southeast Asian practice which have contributed to the high number of maritime boundaries concluded by Southeast Asian states. Second, the paper will explore the extent to which Southeast Asian practice has contributed to the normative development of international law on maritime delimitation. Third, the paper will discuss whether there are any lessons to be learned from Southeast Asian practice that can be used to settle unresolved maritime boundary issues in the region.
8 citations
TL;DR: The International Criminal Court (ICC) was established to prosecute crimes that "threaten the peace, security and well-being of the world". Yet piracy was excluded from the Rome Statute as discussed by the authors.
Abstract: The International Criminal Court (ICC) was established to prosecute crimes that "threaten the peace, security and well-being of the world". Maritime piracy has a long history as a threat to international security and was in fact the first international crime. Yet piracy was excluded from the Rome Statute. In the years since the drafting of the Rome Statute, piracy has increased dramatically to become more like the threat it was in the "Golden Age of Piracy". Criminal accountability for piracy has been minimal, due to logistical and jurisdictional difficulties. This paper offers an analysis of the potential of the ICC for prosecuting pirates: why it should be considered as a potential forum for ensuring criminal accountability for piracy, how piracy fits within the ICC's jurisdiction, and whether or not piracy should be added to the Rome Statute as a stand-alone crime or under the rubric of crimes against humanity.
7 citations
TL;DR: This paper will argue that, under international law, ASEAN is entitled to conclude treaties on behalf of its Member States.
Abstract: The Association of Southeast Asian Nations (ASEAN) has, on various occasions, concluded treaties on behalf of its Member States. This raises some interesting questions: is ASEAN entitled to enter into treaties on behalf of its Member States; and if so, what should be the status of ASEAN and its Member States vis-a-vis the other party to the treaty? The issue is not one of whether the ASEAN Member States have consented to such a practice—it must be assumed that they have. Instead, the real issue is whether such treaty-making practice can and should be valid under international law, even if the Member States have consented for ASEAN to conclude these treaties on their behalf. This paper will argue that, under international law, ASEAN is entitled to conclude treaties on behalf of its Member States.
4 citations
TL;DR: This article argued that the persistence of inequality should provide grounds for seeking the renegotiation of a treaty, and that a general principle in favour of remedying unacceptable levels of inequality was applied to build flexibility and stability into treaty relationships.
Abstract: In 2005, Matthew Craven noted that “[t]he phenomenon of unequal treaties [has] largely evaporated as an issue from the domain of international law”. In Craven's opinion, international lawyers have demonstrated an “unwillingness to engage effectively with the problem of equality”. This paper argues that states have, in fact, addressed issues of inequity in recent treaty negotiations. When states have had to unite around common goals, various methods of according special and differential treatment have been used to address concerns about substantive equality. Drawing upon precedents from environmental law and international trade, this paper proposes the recognition of a principle of equality in treaty relations. It is suggested that the persistence of inequality should provide grounds for seeking the renegotiation of a treaty, and that a general principle in favour of remedying unacceptable levels of inequality should be applied to build flexibility and stability into treaty relationships.
3 citations
TL;DR: The authors analyzes the relationship between international terrorism and human rights and examines how these two concepts might appropriately be spoken of in the same breath even in the aftermath of those terrible attacks, concluding that counter-terror efforts must be approached in a way that endeavours to achieve a positive relation to, and co-existence with, the system of human rights at both international and national levels.
Abstract: Following the attacks of September 11, 2001, a line was crossed in the history of terrorism and political violence—many things we had until then taken for granted were lost. This paper analyzes the relationship between international terrorism and human rights and examines how these two concepts—which some suggest are antithetical—might appropriately be spoken of in the same breath even in the aftermath of those terrible attacks. The overarching thesis is that counter-terror efforts must be approached in a way that endeavours to achieve a positive relation to, and co-existence with, the system of human rights at both international and national levels. In this connection, Singapore's approach to counter-terrorism will be considered, providing food for thought on how far it achieves a balance between security and liberty.
3 citations
TL;DR: A financial transactions tax (FTT) is a tax on wholesale capital market transactions, which civil society has long advocated for on grounds of social justice as discussed by the authors, and the potential of such a tax, the arguments for and against it, and its feasibility.
Abstract: A financial transactions tax (FTT) is a tax on wholesale capital market transactions, which civil society has long advocated for on grounds of social justice. This so-called “Robin Hood Tax” would take from the rich and give to the poor. Revenue estimates for a global FTT of 0.05 percent are around US$500 billion per annum. One-quarter of this revenue stream can achieve the first six Millennium Development Goals relating to poverty, health, and education. Even if the developed countries retain all of the revenue raised, the impost would see financial services institutions making a fairer contribution to the societies in which they operate. Thus, as an instrument of justice, the potential of an FTT is great—but, most of all, such a tax will enhance the operations of contemporary financial markets substantially. This paper explores the potential of such a tax, the arguments for and against it, and its feasibility.
2 citations
TL;DR: In this article, the authors explore the complex web of decisions and advices that currently regulate REDD+ initiatives within the international climate regime and identify some relevant considerations when seeking to design a just and legally binding REDD+, including the impact of market versus fund-based investment channels, the importance of defining a clear objective, the inclusion and role of international principles such as sovereignty, preventative action, common but differentiated responsibility, sustainable development, and Free, Prior, and Informed Consent.
Abstract: The international climate regime is in the process of negotiating a legally binding instrument concerning Reducing Emissions from Deforestation and Degradation (REDD+). The paper starts by exploring the complex web of decisions and advices that currently regulate REDD+ initiatives within the international climate regime. This is followed by an analysis of justice issues raised by non-state actors in the REDD+ international negotiations. The paper concludes by building on this analysis to identify some relevant considerations when seeking to design a just and legally binding REDD+ instrument. These considerations include: the impact of market- versus fund-based investment channels, the importance of defining a clear objective; the inclusion and role of international principles such as sovereignty, preventative action, common but differentiated responsibility, sustainable development, and Free, Prior, and Informed Consent; the appropriate design of REDD+ safeguards and the inclusion of grievance mechanisms within the instrument which provide guidance on resolving disputes associated with REDD+ investment.
TL;DR: The applicability and scope of existing treaties for regulating this activity have been reviewed within international legal systems, in particular within the London Protocol, and the establishment of a liability regime with respect to these activities has also been raised during a discussion on regulation of ocean fertilization as discussed by the authors.
Abstract: Ocean fertilization was first introduced as a carbon dioxide mitigation technique in the 1980s. However, its effectiveness to slow down climate change is uncertain and it is expected to damage the marine environment. Consequently, international law, including the London Convention/Protocol and the Convention on Biological Diversity, limits this activity to scientific research purposes. The applicability and scope of existing treaties for regulating this activity have been reviewed within international legal systems, in particular within the London Protocol. The establishment of a liability regime with respect to these activities has also been raised during a discussion on regulation of ocean fertilization under the London Protocol. One of the key purposes of the liability regime could be to make ocean users more cautious when exploring and exploiting the oceans through charging cleaning costs or imposing compensation for damage. This paper aims to identify such a preventative effect of the international liability regime, in particular, state liability.
TL;DR: In this article, the fragmentation of international law in this field, how it came about, and what its implications are for traditional knowledge protection is examined, and it is argued that much of the confusion surrounding traditional knowledge preservation today is attributable to the fragmentation in international law.
Abstract: Numerous international institutions now seek to address the problems of misappropriation and disappearance of traditional knowledge. The relevant legal frameworks were developed at different times and motivated by diverse policy goals. As new frameworks continue to emerge, an important question arises as to how the unity of international efforts to protect traditional knowledge can be maintained. This paper scrutinizes the fragmentation of international law in this field, how it came about, and what its implications are for traditional knowledge protection. It argues that much of the confusion surrounding traditional knowledge protection today is attributable to the fragmentation of international law in this area. To reverse the adverse effects of fragmentation, all institutions involved must be conscious of, and collectively work towards, a common goal, however loosely defined that goal might be. National governments must also ensure that their negotiating positions are consistent across all relevant fora.
TL;DR: The authors pointed out that the SCS U-line drawn by the Chinese government in 1947, at the median position between China's SCS islands and reefs, and the coastlines of bordering states, reflects the scope of China's claims and intent.
Abstract: The Chinese traditional maritime boundary line (U-line) in the South China Sea (SCS) and its validity under international law have been challenged by bordering states and some scholars. In 2012, Franckx and Benatar questioned the validity of the U-line in view of factors such as the intent of the state reflected by the map, the cartographer's neutrality, technical accuracy, consistency of the cartographic material, and recognition and acquiescence by the international community. This paper points out that the SCS U-line drawn by the Chinese government in 1947, at the median position between China's SCS islands and reefs, and the coastlines of bordering states, reflects the scope of China's claims and intent. The consistency of the claims has been maintained by the PRC after 1949, and the claims have been recognised or acquiesced to by bordering states over quite a long period. Therefore, the U-line has probative force under international law.
TL;DR: In this paper, the authors argue that compliance is a legal concept that is unsuited to the central social-scientific pursuit of various disciplines, and that compliance has often misused the concept of compliance.
Abstract: ‘‘positivist’’ is used in the book in two different meanings—‘‘in Comte’s scientific sense of the term’’ by IR scholars, and in ‘‘the Austinian jurisprudential sense’’ by IL scholars. More importantly, Lisa Martin shows that IR scholars have often misused the concept of compliance; she identifies compliance to be ‘‘a legal concept that is unusually ill-suited to the central social-scientific pursuit’’ (p. 591). According to Martin, political scientists using compliance data to measure the effectiveness of international law ‘‘make errors of both omission and commission—mistakenly attributing state behavior to institutional participation, and underestimating the influence of institutions on states that are not ‘in compliance’’’ (pp. 59122). She concludes that ‘‘the way that compliance has entered the IR literature is a cautionary tale about the risks associated with celebrating interdisciplinarity without careful attention to the different demands and purposes of various disciplines’’ (p. 606). Anne-Marie Slaughter argues that such obstacles may be solved through the growing socialization of IL and IR scholars, and the development of team works (pp. 613214). Joost Pauwelyn and Manfred Elsig’s chapter on the politics of treaty interpretation reflects the beneficial symbiosis between a thorough doctrinal investigation and a solid IR analysis (p. 445). Besides such terminological and conceptual obstacles, another hurdle stems from the sociological tension alluded to before. This tension is perhaps the fruit of a feeling of competition between IL and IR, as well as disciplinary isolation. Jutta Brunée and Stephen Toope note that ‘‘relatively few international lawyers have taken advantage of [constructivist] contributions, perhaps because constructivism is a poor fit for those who see the legal status of a norm as exclusively connected to its provenance from a formal source’’ (p. 129). They add: ‘‘constructivism can speak to international lawyers only to the extent that they are prepared to understand legal norms as social norms, and so as constituted and powered primarily by social practices’’ (p. 129). Despite significant progress, IL/IR studies often remain affected by rigid departmental isolation and diverging disciplinary agendas. As almost all the contributors to this book are based in North America, one may wonder whether such hurdles have been overcome at all in other regions of the world.
TL;DR: The history of international law is often told in terms of the rise and fall of great powers or as a mechanism of colonial subjugation as mentioned in this paper, and to the extent that these accounts consider justice, it is usually to demonstrate its absence.
Abstract: The history of international law is often told in terms of the rise and fall of great powers or as a mechanism of colonial subjugation. To the extent that these accounts consider justice, it is usually to demonstrate its absence. This paper points out that justice has been integral to the evolution of international law in the era of the United States. Individuals and members of civil society in the US and Europe have influenced systemic developments in international law through their efforts to realize a vision of justice in interstate relations, their vision being of a body of international law and a world court which together obviate the need for war. To suggest the possibility of an historical narrative constructed around justice is not to deny the validity of other histories focused on inequitable relations of power, but to point to the scope for nuance in the frameworks within which we portray international law and its history.
TL;DR: In the past twenty years, global justice has gradually become the central theme of international legal discourse, from the so-called "human rights revolution" to global governance, the rule of law, and international criminal justice.
Abstract: Justice is a basic tenet for all legal systems, as the ultimate goals of the rule of law are to uphold and restore justice and to correct and punish injustice. In pursuing justice, however, social specificity and context often prove determinative in defining the notion, which is true at any communal level, either national or international. In the past twenty years, global justice has gradually become the central theme of international legal discourse, from the so-called ‘‘human rights revolution’’, to global governance, the rule of law, and international criminal justice. The claim that ‘‘without justice there is no peace’’ apparently advocates a shift of legal emphasis. Institutional proliferation of criminal judicial organs since the early 1990s, described by some scholars as ‘‘tribunalization of global justice’’, has taken the centre stage of international law development, focusing primarily on retributive justice. It may be recalled that the justice theme arose in the wake of the Cold War; a time when the international community was painfully confronted with reoccurrences of the most serious and massive violations of human rights that took place during regional and internal strife and armed conflicts. To hold the perpetrators, especially those in charge of state powers, personally accountable under international law for such crimes received popular support as a way to uphold justice. Creation of ad hoc criminal tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the subsequent adoption of the Roman Statute that set up the International Criminal Court (ICC), gave people the aspiration to put an end to impunity. However, this progression of human rights in many aspects challenges some existing international