The philosophy underlying the UNESCO World Heritage Convention of 1972 [WHC] consists in promoting a system of international co-operation in the context of which the States Parties commit to preserving the cultural treasures of “outstanding universal value” located within their territories. However, it is a fact that today many properties inscribed on the List set under the WHC are endangered. This paper will focus on the role played by “non-state actors” in the enforcement of the WHC. It will thus dwell upon the relationships between public and private interests, on the one hand, and between international and domestic legal orders, on the other. Its purpose is to map out and discuss the most salient problems about the involvement of non-state actors—particularly non-governmental organizations [NGOs] and private companies—in the monitoring and implementation of the WHC.

The exploitation of natural resources in times of conflict has been the object of a prolific literature due to the extremely laconic character of the standards of conduct prescribed by the Hague and Geneva Conventions. Such laconicism has led scholars to be creative in ensuring that this central aspect of modern conflicts falls within the scope of existing legal instruments. This article starts by depicting the rich argumentative creativity developed by scholars and experts to ensure a more comprehensive regulation of what has often been perceived as a form of international brigandage. Subsequently it reflects on the biases of the professional community that has dedicated its efforts to the elaboration of a fairer framework of natural resources exploitation in times of conflict. In particular, it formulates some critical remark on the “just world business” that has dictated the methodology behind most of the interpretative engineering to be found.

The development of uncrewed maritime vehicles [UMVs] has the potential to increase the scale of military maritime surveillance in the exclusive economic zones of foreign coastal states. This paper considers the legal implications of the expanded use of UMVs for this purpose. It shows how features of the legal regime—namely how its application depends on determining the intent of a vessel's operation (to distinguish marine scientific research from military surveillance), as well the obligation to have due regard—have a “dynamic” quality that will pose a challenge to UMVs operated by autonomous technology. The legal obligations will require equipping UMVs with the capacity to communicate something about their identity, the purpose of their mission, and to be able to have some capacity to be responsive to the economic and environmental interests of the coastal state.

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.

Despite the existence of almost eighty international agreements and legal instruments, there has not been a marked development in the transfer of climate change technologies to poor and the least developing countries. This article investigates the role of intellectual property rights (IPDs) and scrutinizes the effects of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on the transfer of these technologies. It explores the TRIPS patent protection provisions and examines the associated flexibilities like compulsory licensing and parallel import options in the context of the transfer of climate change technologies. It finally concludes that the TRIPS patent protection rules, including the existing flexibilities, are one of the biggest impediments to the transfer of these technologies to poor and least developed countries. New agreements or promises on the transfer of green technologies would be fruitless if these TRIPS rules are not amended.

The development of post-colonial states through the operation of the uti possidetis principle in international law is intrinsically connected to the suppression of ethnic minorities and the ensuing humanitarian catastrophes in these states. With the continuation of colonial boundaries in post-colonial states due to the uti possidetis principle, international law facilitates many of these catastrophes. Accordingly, through exploring the questionable legal status of the uti possidetis principle and the fallacy of its conflict-preventing potential, I argue that uti possidetis itself is a key problem. The continuation of arbitrarily drawn colonial boundaries undermines the legitimate right to self-determination of numerous ethnic minorities. This paper specifically explores the application of uti possidetis to Myanmar and how it contributed to the Rohingya crisis. In the process, the paper also highlights the inherent relationship between colonialism and international law and how it has shaped the development of post-colonial states.

This paper aims to build an analytical framework and a research agenda for a study of the potential impact of the rise of China and India on international law. In the light of the possibility that the two states may, together or individually, make changes in international law and shift it from its present Europe-America moorings, this paper attempts to analyze and answer three topics: (1) the common and different stances of China and India on the existing international legal order; (2) the changes China and India have sought to the international status quo; and (3) the contributions that have been or could be brought by China and India to the development of international law and their implications for the future. It proposes an analytical framework in which these questions are viewed through two lenses: the romantic vision and the realist vision.

International environmental law has come a long way in addressing humans’ extractive and negative relationship with nature, although despite its profound anthropocentrism and economic focus. This paper analyzes how and whether international environmental law can be conceived differently by incorporating different perspectives about the human/nature relationship. More specifically, the article engages with the concept of multinaturalism, as developed by anthropologist Eduardo Viveiros de Castro, to address the advantages and significance of admitting indigenous forms of life in international environmental law. Forms of life which not only relate to nature differently but can conceive of nature differently. Taking such an approach requires a methodological shift to examine the existence of forms of life that invert the traditional Western conception of nature and culture, thus allowing for the potential to move international environmental law beyond anthropocentrism, while providing elements to resolve the tension between development/economic concerns in ecological conservation and long-term species survival.

The separate legal personality of ASEAN, an international organization, is a matter of some significance. ASEAN is capable of separate action and can carry rights and obligations on the international plane, as a distinct entity from its Member States. In this Journal, Chen Zhida advances the proposition that ASEAN is entitled to conclude treaties on behalf of its Member States, a practice which, it is argued, should be valid at international law. This paper responds by drawing attention to the difficulties with this argument on technical and conceptual grounds. For technical reasons, it is important to make a meaningful distinction in the ASEAN practice of concluding instruments such as Memoranda of Understandings, which can be distinguished from treaties. At a conceptual level, the treaty practice of ASEAN as a separate legal person must be based on what was consented to by Member States in the ASEAN Charter, a constituent instrument.

The China Investment Corporation (CIC) has often been perceived as a threat by Western economies. Such fears, however, are unfounded as the severe losses incurred by CIC during the recent economic crisis reveals that the fund, just like other investment entities, is vulnerable to market conditions. Moreover, given their relative lack of expertise in international investment, the regulation and development of “young and inexperienced” sovereign wealth funds (SWFs) within their home state is more pertinent than the defensive regulation structured by the host states in which SWFs invest. Positive financial returns should always be the fundamental goal of SWFs, rather than non-commercial considerations. This article proposes a three-step approach to regulating SWFs from a Chinese perspective: (1) home states should distinguish between their roles as shareholders and managers of state-owned capital-exporting institutions, and can use the Santiago Principles for that purpose; (2) host countries should not discriminate against SWFs but treat them as private institutional investors; and (3) there should be a clarification of the international investment regime regarding state investment. If these three steps are taken, SWFs would be depoliticized, and biased regulatory agencies and regulations would be a thing of the past. Under a broad regime, concerns between home and host states could then be addressed at bilateral or multilateral forums.

There has been a recent proliferation of scholarship on the development, identification, and determination of customary international law [CIL]. Much of this has focused on explication of the theoretical and practical problems inherent in the modern use of CIL as a source of international law. However, there are influential voices who argue that CIL nevertheless continues to play a necessary role in the international legal system, and that many of the problems that have been identified are exaggerated. This paper maintains that the problems which have been identified in the processes of identification and determination of CIL are of such a serious and institutionalized nature as to produce a presumptive distrust of any statement about what is or is not CIL. It argues that the process of identifying and authoritatively determining CIL must evolve to more objectively evidence the positive assent of states to the making of customary rules.

From a conceptual viewpoint, the legal universe has found its almost perfect configuration in our time. Almost all of the peoples of the world are members of the United Nations and as such are entitled to co-operate in shaping the direction and content of policies at the global level. Before World War II, and even a considerable time after the horrendous events unleashed by that war, many nations had no say in international matters. They were placed under colonial rule, which meant that their voices were not heard—or heard only through the mediation of the powers that acted as their wards and guardians. That situation of structural discrimination has changed dramatically. All the peoples of the world have reached sovereign statehood and have been admitted to the world forum.

A number of commentators, including Michael Hwang and Jennifer Fong who were featured in a recent issue of this journal,1 have contributed to an ongoing debate about the definition of investment by expressing their support for an objectivist theory or the “outer limits” approach as advocated in Salini v. Morocco. However, this article argues that neither the Salini test nor the rival subjectivist theory can offer an internally consistent and viable legal framework for determining the existence of an investment. After critically examining existing approaches to defining investments in arbitral practice, international investment treaties, European Union (EU) law, and international trade law, the article considers the role of ordinary and effective interpretation and a telos behind investment treaty instruments in coining a meaningful definition.

Article 2(2) of the Kyoto Protocol imposes an obligation only on certain developed countries, working through the International Maritime Organisation (IMO), to pursue the reduction of greenhouse gas (GHG) emissions from marine bunker fuels. The IMO recently took the initiative to adopt a new legal instrument for the reduction of ship-generated greenhouse gas emissions. Some developing countries have suggested that the proposed IMO initiative should strictly adhere to Article 2(2) of the Kyoto Protocol and the principle of Common but Differentiated Responsibility (CBDR). Against this backdrop, this article intends to review the extent to which it is possible to propose an international legal instrument for the reduction of GHG emissions from marine bunker fuels which is applicable only to ships from developed countries considering the complex characteristics of the international shipping industry. This article also examines how far this approach is justifiable even within the framework of the CBDR principle.

The penal legislation of the Republic of Kazakhstan includes a number of crimes against the peace and security of mankind. Among these are most of the traditional “core” crimes under international law—genocide, war crimes, and the crime of aggression—as well as some other crimes. Crimes against humanity are not included in the Criminal Code so far but some of their definitional features are shared by so-called “extremist crimes”. In addition to other customary crimes against the peace and security of mankind—such as deliberately attacking internationally protected persons and organizations and abusing internationally protected emblems—the Code also includes more novel crimes, such as participation in foreign armed conflicts. This paper analyses the relevant provisions of the Criminal Code of Kazakhstan in the light of corresponding treaty-based and customary rules of international law, and suggests further improvements to be made to the Code.

Concerns in host countries about the investment activities of sovereign wealth funds (SWFs) arise from their non-commercial motives and lack of transparency. In response to such concerns, investor countries have begun to work together to set up the norms and laws which will define the governance and regulation of SWFs. In particular, the Santiago Principles have given birth to a set of voluntary principles and guidelines designed to guide their investment behaviour. In this article, we point out that the Santiago Principles are fundamentally consistent with the commercial self-interest of SWFs, which bodes well for the prospects of their voluntary adoption. The Santiago Principles serve a highly valuable role as a mechanism which signals and crystallizes the commitment of SWFs to comply with the basic rules and regulations of the countries in which they invest.

This article analyses offences dealing with the incrimination of organized crime under international and domestic laws in the Asia Pacific region and develops recommendations to improve existing and proposed provisions. The article frames the arguments for and against offences such as “participation in an organized crime group”, “gangsterism”, or “racketeering”, and critically examines the rationale, elements, and application of existing and proposed organized crime offences in the Asia Pacific.

The study of uti possidetis in international law has proceeded without any detailed examination of its application to South Asian borders. Yet, the consequences of uti possidetis in the Indian subcontinent offer critical insight into the legal and functional critique levied against the doctrine. The South Asian experience provides evidence that uti possidetis cannot be considered a norm of regional customary international law, confined to Latin America and Africa. Simultaneously, it provides compelling proof of this doctrine's ruinous impact on self-determination, pointing to its potential for identity-alteration and intrastate violence: consequences that have received scarce attention in legal scholarship. By undertaking a detailed study of the Radcliffe Line in Punjab, this paper makes a prudent attempt to commence filling this gap in the literature by re-centring South Asia in the debate on uti possidetis.

The global community faces the challenge of dealing with movements in opposite directions: the emphasis on decolonization and self-determination in the postwar world has encouraged the building of barriers and boundaries between jurisdictions, while globalization has encouraged the breaking or transcending of the same. This paper focuses on the legal protection of private economic rights in the transnational arena by considering the regulation of transnational economic relationships at three different levels: (a) where a party's rights are not regulated or governed by any contract; (b) where there is a contract between the parties; and (c) where a foreign investor looks to protect its investment against unlawful interference by a host state. It concludes with some thoughts on what might lie ahead and suggests possible solutions to the issues and challenges faced.

If a state has waived state immunity by agreement with a non-state entity in advance of court proceedings brought by that entity to enforce an arbitral award against that state, then the enforcement court should give effect to the waiver. That is the opposite of what the Hong Kong Court of Final Appeal decided in Democratic Republic of the Congo v. FG Hemisphere, but it is the approach reflected in the 2004 United Nations Convention on the Jurisdictional Immunities of States and their Property. After examining that Hong Kong case and that United Nations Convention, this paper considers the position in various jurisdictions. The prevalent position is in general terms that consent to arbitration usually constitutes waiver of state immunity from jurisdiction of a court to recognize the arbitral award as creating a debt binding on the state, but usually does not constitute waiver of state immunity from execution of that debt against the assets of the state. The conclusion of the paper includes a model waiver of state immunity from jurisdiction and from execution.