There seem to be no answers to resolve the deadlock between the Global North and the Global South on liability and compensation for loss and damage from climate change. Revisiting the original story of international environmental law from the Stockholm Conference of 1972 may help us address these historical tensions. In doing so, this article unveils the genesis of Third World Approaches to International Law (TWAIL) from the Stockholm Conference as an alternative consciousness centred around the aspirations of the Global South. Indira Gandhi's plenary address at Stockholm outlined the Global South's position on environmental issues, which greatly influenced early TWAIL scholarship in the 1980s. Locating TWAIL's origins at Stockholm allows us to: (1) chart the environmental concerns of the Global South till date; (2) infer its evolved view on the “development versus environment” debate; and (3) understand the role of future TWAIL scholarship in challenging the enduring and structural limitations of international environmental law, especially in future deliberations on loss and damage.

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.

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

The rule of law bears a special meaning in the context of the international legal order, where there is no clear vertical hierarchy or sovereign. The international rule of law strives to curb the excess autonomy of individual states for the common good. Although there is considerable scepticism about whether the international rule of law actually exists, states largely do behave as if international law is truly “law”, and international obligations are also more enforceable now than ever before. But there have been and will be moments when the international rule of law is interrupted by major powers. In an interdependent world that is both capable of and prone to inflicting unimaginable destruction, the strategy for small states unable to defend themselves directly is to create the conditions that will best promote their survival, and that is accomplished by pursuing and promoting the rule of law both domestically and internationally.

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.

The inadequacy of existing international law in the prevention of an arms race in outer space leaves uncertainties to international peace and security. The resurgence of aggressive space programmes in the new millennium has intensified concerns over the possible degradation of outer space into an area of conflicts, prompting various initiatives aimed to fill this loophole. The year 2014 witnessed the release of the revised draft PPWT proposed by China and Russia at the CD, the fifth public edition of the ICoC promoted by the EU, and the adoption of the Resolution on “No first placement of weapons in outer space” in the General Assembly. This paper attempts to make a comparison between the three initiatives in terms of their postulated primary-level obligations, namely to what extent space weapons are prohibited on the chain of “research, development, testing, placement and use”, and the verification of compliance with these obligations.

The concept of semi-sovereignty, a now obsolete category of international entities possessing limited sovereignty, remains hazily understood. However, the historical examination of how semi-sovereignty was defined and practised during the long nineteenth century can provide insights on the interplay between authority and control within the hierarchies of international relations. This paper examines one specific type of semi-sovereignty—namely, suzerainty—which is often used to describe China's traditional authority in Tibet and Mongolia. By examining the events that led to the acceptance of suzerainty as the legal framing for the China-Tibet and China-Mongolia relationships, I argue that suzerainty was a deliberately vague concept that could be used to create liminal international legal spaces to the advantage of Western states, and to mediate between competing claims of political authority. Finally, I point to the importance of semi-sovereignty as an arena of legal contestation between the Western and non-Western members of the “Family of Nations”.

This paper examines the recent decision by the Indonesian government to terminate its Bilateral Investment Treaty (BIT) with the Netherlands when it expires on 30 June 2015. It discusses the likely driving forces behind Indonesia’s decision, and its alternative future strategy. In particular, it focuses upon controversial provisions on investor-state dispute settlement (ISDS) universally included in BITs. While Indonesia’s termination may appear of minor consequence at first glance, it has significant implications in terms of Indonesia’s obligations under international law as well its capacity to exercise its rights as a sovereign state to act domestically in the public interest. The termination of Indonesia’s first investment treaty containing the ISDS mechanism is also highly symbolic because it represents the first step in a reported strategy to review all its sixty-seven BITs. Indonesia thus joins a growing number of countries concerned about perceived excessive corporate rights enshrined in investment agreements as being incompatible with national development objectives.

The United Nations Protocol Against the Smuggling of Migrants by Land, Sea and Air sets out an ambitious international approach to prevent and combat the smuggling of migrants. Although the Protocol has found widespread adoption worldwide, many countries have not—or not yet—signed and ratified the Protocol. Many critics argue that the Protocol promotes the views of rich, developed destination countries and offers little incentives for developing countries of origin to support the Protocol. This paper examines the reasons why some countries choose not to ratify the Protocol. The paper sheds light on the common concerns and characteristics of the forty-five non-Party States in order to pave the way for wider adoption of the Protocol and for more concerted efforts to combat the smuggling of migrants worldwide.

This research explores AI-generated originality's impact on copyright regulations. It meticulously examines legal frameworks such as the Berne Convention, EU Copyright Law, and national legislation. Rigorously analyzing cases, including Infopaq International A/S v Danske Dagblades Forening and Levola Hengelo BV v Smilde Foods BV, illuminates evolving originality and human involvement in AI creativity. The study also contemplates global perspectives, drawing from esteemed organizations such as the World Intellectual Property Organization and the European Court of Justice and exploring diverse approaches adopted by individual nations. The paper emphasizes the imperative need for legislative updates to address the challenges and opportunities of AI-generated works. It highlights the pivotal role of international collaboration and public awareness in shaping copyright policies for the AI-driven creativity era. It also offers insights and recommendations for policymakers and researchers navigating this complex terrain.