This paper provides an assessment of the Tribunal’s Award on the merits relating to the Philippines’ Submissions No. 1 and 2. First, it argues that the Convention is not the sole legal source of maritime rights. Second, the Tribunal erroneously infers from Article 311 that the Convention prevails over customary international law. Meanwhile, Article 293 does not terminate rules of general international law that are incompatible with the Convention. Third, the Tribunal, by deciding that historic rights under general international law have been superseded by the regimes of exclusive economic zone and continental shelf established under the Convention, fails to draw a distinction between the two separate legal regimes, namely the Convention and general international law. Fourth, as one of the “matters not regulated by the Convention”, historic rights should be governed by, and have been well established in, general international law.

The Trans-Pacific Partnership Agreement (TPP) has an ambitious agenda and could radically reshape trade in the Asia-Pacific. At the same time, TPP obligations have the potential to significantly restrict the ability of governments to regulate in the interests of public health. This paper examines the impact the TPP could have on two areas of public health regulation—tobacco control and access to medicines. It concludes that a number of legitimate concerns arise from the known content of the TPP, that the inclusion of a general health exception would be the preferable means of safeguarding the regulatory space of governments in relation to public health, and that the United States’ proposals for stronger intellectual property protections be resisted. With negotiations shrouded in secrecy, TPP parties’ desires to promote international trade and investment must not overshadow the need of governments to be able to implement sensible and effective public health policy.

This paper discusses the possible uses of heritage listing under UNESCO for the promotion of broader political and social agendas by minority groups. The paper uses as a case-study the “Buddhist Chanting of Ladakh: recitation of sacred Buddhist texts in the trans-Himalayan Ladakh region, Jammu and Kashmir, India”. This heritage showcases issues of Tibetan autonomy (both within India and more broadly), relationships between Tibetan and Muslim cultures, and regional autonomy and accommodation of cultural minorities in the Indian state. There are many uses of listing Ladakhi heritage, ranging from listing as a means for autonomy of the Ladakhi, to listing as an instrument of domination, or even geographical control. I argue that heritage listing is not as “apolitical” as normally thought of, and it can be used as a mechanism to both benefit or harm minority groups and the advocacy of their claims within or against the territorial state.

With the rapid advent of globalization, international law has come to expand into new areas which had traditionally been under the exclusive domain of municipal law. As a result, problems concerning interaction between the international and domestic legal orders have become increasingly common. Specifically, difficulties have arisen concerning the implementation of international law decisions into the domestic legal order. This paper examines this problem in three different areas: the process of incorporation of international treaties into the domestic legal order; the issue of giving effect to Security Council resolutions in domestic law; and the issue of the implementation within the domestic legal system of judgments of international courts and tribunals. The paper concludes that, in an age of the emergence of a global community as a matter of socioeconomic reality, the two legal orders should work together to promote common public policy, paying due respect to the decisions of international institutions.

The Right of Passage case flagged off India's adversarial tryst with international law, in which Portugal had argued for the validity of a 1779 treaty signed with the Marathas. India had denied its existence and interpretation. Within the UN Charter, India's subsequent assimilation of Goa constituted illegal invasion, with which the Indian Supreme Court disagreed. Subsequently, Britain deployed its colonial de jure distinction by refusing to recognize India's control of Goa. However, for Nehru, Goa was “a symbol of decadent colonialism trying to hold on”. The Right of Passage case profoundly shaped India's post-colonial foreign policy by coupling India's body politic with its judiciary. Since then, the Lotus case continues to enamour the Indian government. This paper considers the views of the Indian government, judiciary, and publicists to examine whether India has been able to advance a specific approach to international law.

This article traces the development of the definition of “investment” under Article 25(1) of the ICSID Convention. It proposes that the definition should act as an outer limit to the usually broad definition of investment (encompassing every kind of asset) in international investment agreements (IIAs). The article discusses the various characteristics (hallmarks) of an investment which should constitute the definition. It argues that the hallmark of “significant contribution to economic development” can be refined to reduce uncertainty while giving effect to the intent of the ICSID contracting states by drawing a distinction between an ordinary commercial transaction and an investment. Recent IIA definitions of investment adopting Salini hallmarks show that states adopt the “every kind of asset” definition of investment in IIAs out of a concern that the form which the investment may take should not be restricted and that states do not necessarily view the Salini hallmarks as unwelcome.

This article provides the first-ever detailed analysis of Non-Precluded Measures (NPM) provisions in India's International Investment Agreements (IIAs) from the perspective of India's regulatory power as a host nation. It critically analyses NPM provisions in fifty-seven Indian IIAs by studying the divergence in their formulation and argues that the present formulation of NPM provisions in Indian IIAs is inadequate for the exercise of regulatory power by India for all its policy needs. Hence, in the light of the growing pros and cons of investor treaty arbitration (ITA), the article concludes that NPM provisions in Indian IIAs should be reformulated in a manner that balances investment protection with India's regulatory power to pursue non-investment-related policy objectives.

This paper revisits the controversy of Judge Sir Muhammad Zafrulla Khan's recusal from the South West Africa cases using new information from the National Archives in Australia, India, South Africa, and the United Kingdom, including an unpublished manuscript written by the Australian judge and the Court's President Sir Percy Spender. Sir Percy's manuscript, which addresses the “recusal” controversy and the 1966 Decision, raises uncomfortable questions about the politics of international law within the Court in the 1960s. In many ways, Judge Zafrulla's struggle with Sir Percy at the ICJ can be analogized to the struggle of non-European peoples to self-determination. The internal “legal” struggle within the Court paralleled the larger “political” struggle outside the Court. Zafrulla would win the struggle, however, when as President of the Court during the 1971 Advisory Opinion on Namibia he would contribute to decolonization, a possibility he foresaw when he was forced to recuse himself.

Whilst international submarine cables are essential to modern-day life, threats to these cables from competing ocean uses, such as fisheries, persist. Protection of submarine cables, and resolution of potential conflicts among various ocean uses, is needed now more than ever. This article examines and identifies weakness in the current legal regime for submarine cables, with a specific focus on the regulations concerning punishment for the breaking or damage of submarine cables and the integrated management of competing ocean uses. After discussing the legal regime, the article offers some proposals for reform, outlining various options for future action at the international level.

The theme of the Second Biennial Conference of the Asian Society of International Law—“International Law in a Multi-Polar and Multi-Civilizational World: Asian Perspectives, Challenges, and Contributions”—touched on a number of interesting aspects of international law. Three basic issues arise from this topic. First, how do we evaluate the current state of international law from an Asian perspective? Second, in an increasingly globalized world, why do we need a regional society of international law? And finally, what purposes do we expect this society to serve?

In the post-Cold War era, the most evident change in international legal discourse is the universal assertion of values as the basis to promote the rule of law in international relations. Obviously, values are related, among other things, to culture. Any analytical inquiry into values and law in international relations should therefore begin by tracing the origin and impact of the international legal system. The Asian Society of International Law came into being at a time when international law, both in theory and practice, was increasingly confronted with these new challenges.

On 7 May 2009, the People's Republic of China (PRC) protested Vietnamese and joint Malaysian-Vietnamese submissions to the Commission on the Limits of the Continental Shelf (CLCS). In support of Chinese claims, a map was annexed to the letter of protest portraying a dotted U-shaped line engulfing the greater part of the South China Sea. Following a brief primer on the genesis of the U-line, this article aims to decipher the text of the protest letter accompanying the U-line, suggesting several possible interpretations. This contribution argues that the map is of doubtful probative value in the light of various factors fleshed out in international jurisprudence regarding map evidence. Attention will be paid to the reactions of third-party states to the U-line. This article maintains that effective protest on the part of regional states has prevented the map from becoming opposable to them.

Water security issues arising from the Central Asian states’ heavy reliance on, and competition over, the shared waters of the Aral Sea Basin have attracted urgent political and academic discussion. However, any analysis of the role that international law plays in addressing these substantive complex problems remains incomplete and imprecise. This article sets the stage for a deeper understanding of international law and of its potential operation in the context of the transboundary waters in the Aral Sea Basin. It seeks to explore the substantive norms operating in the field, namely, the rule of equitable and reasonable use, the no-harm rule, and obligations relating to environmental protection, with a view to understanding how these substantive norms work and ascertaining what conduct is required of the states with respect to their shared watercourses.

Data localization is a phenomenon that is of increasing global significance, as a growing number of countries impose data localization requirements on data controllers. This paper discusses data localization in the ASEAN context. It proposes a schema of data localization laws which comprises two categories of data localization requirements. This schema is used to examine data localization laws within ASEAN, and it will be shown that there is presently a moderate level of data localization among ASEAN Member States. The paper then discusses how data localization is dealt with in the EU and in ASEAN, addressing some recent developments in the two regimes. It concludes with recommendations for ASEAN's approach to data localization, drawing from the EU regime.

In this article we look at the governance of SWFs from the perspective of the competing political interests embedded in the sponsor—the domestic political claims on funds and the principles and practice of governance used to discipline those interests in favour of a long-term perspective that emphasizes the conservation of wealth and the intergenerational transfer of benefits. Using the case-study of the Australian SWF known as the Future Fund, we argue that SWFs can be used as legal instruments to promote the interests of future generations. In this way, it puts into action the principle of intergenerational equity which has been hereto notoriously difficult to substantively apply in international law. By invoking the intergenerational principle, we argue that the Australian government not only responded to the legal challenges of implementing intergenerational equity but also contributed to its currency as a customary norm.

The conflict between ethical universalism and cultural diversity remains a pre-eminent problem of the present international legal system. International law is in a dilemma. It cannot abstain from adopting some material values as the international community cannot be indifferent to the suppressions of citizens or certain minorities by totalitarian regimes. Yet the international legal system must not become an instrument of Western cultural imperialism by negating any cultural differences. This contribution argues that international law is a framework concept prescribing certain basic values. However, these values are not absolute and must be balanced against competing interests. In this balancing process, states have considerable political discretion. This concept will be exemplified by an analysis of the debate on the existence of a right to democratic governance in international law. It will be shown that even though international law does not require states to be democratic, it nevertheless imposes certain standards of legitimacy.

The recently adopted Trade-Related Aspects of Intellectual Property Rights (TRIPS) waiver decision at the World Trade Organization is a grossly inadequate and insincere response to the COVID-19 pandemic. This paper criticizes the TRIPS waiver for being faulty on several fronts such as: excluding COVID-19 diagnostics and therapeutics from its fold and focusing only on COVID-19 vaccines; restricting its coverage to only patents and leaving out other intellectual property rights; excluding developed countries that possess manufacturing and technological capability from being eligible exporters of COVID-19 vaccines; and its perplexing silence on the transfer of technology. It will have negligible impact on fighting the pandemic, sets an enfeebled example for the future, and is a classic case of “too little too late”.

International clean technology diffusion is essential to mitigate and adapt to climate change, while fast and optimal diffusion can be prevented by the paywall of patents. This article explores the deficiency in clean technology diffusion caused by the legal fragmentation and rule complex of international environmental law and intellectual property law. It systematically examines three pathways to foster international clean technology diffusion through: restriction of intellectual property, including imposing external restraints in environmental law; striking internal balancing in maximizing TRIPS flexibilities; and keeping the status quo. It argues that treaty pathways may not work, and an operable pathway to promote clean technology diffusion is to maximize and consolidate TRIPS flexibilities in national laws. This option challenges the popular proposal of a “Doha-like” declaration on TRIPS and climate change due to the paralyzed multilateral trade mechanism, asymmetrical negotiation power of developing countries, prolonged negotiation process, and categorization problem in treaty negotiations.

This paper revisits the ICJ's original 1962 Decision in the case of the Temple of Preah Vihear, examining its legacy in the light of the 2013 Decision. The 2013 Decision, when read in isolation from the 1962 Judgment, does not provide any indication that the original Judgment was controversial. In contrast to the unanimous Decision of the Court in 2013, in 1962 three of the judges appended Dissenting Opinions. They dissented because they could not agree with the majority that the Temple was located in Cambodia. The 1962 Judgment was controversial because it relied on an inaccurate sketch map and deduced Thai acquiescence from a single photograph of a brief meeting between a dead Thai prince and a dead French official. The unanimous decision of the 2013 Court therefore appears to be to a conscious decision by the Court to reinforce a Judgment that was, in retrospect, evidentially weak.