Looting and illicit trafficking of cultural artefacts pose major threats to Asia's cultural heritage. This not only causes a continuing loss of cultural objects but also the destruction of large numbers of archaeological and historical sites as objects are often looted from tombs or cut off from larger pieces in order to obtain transportable parts for sale on the international art market. In addition, items are stolen from collections and museums or are trafficked in violation of export bans. This article explores the relevant international conventions dealing with the prevention of the illicit export of cultural artefacts and their repatriation, examines how those legal instruments are implemented in Asia and extended in bilateral agreements between market and source countries, and how particularly regional co-operation between Asian nations, international solidarity and assistance, and relevant domestic approaches can assist in improving the situation.

The strategic investments made by SWFs in vital economic sectors of the developed states have caused national security concerns. The existing law on foreign investment, which was designed by the developed states to permit liberal flows of foreign investment and emphasize protection against government interference, sits uneasily with recent moves to control SWF investments. The developed states may have to dismantle to a significant extent the international law they had created to protect foreign investment and retreat into principles of sovereignty earlier advocated by the developing states. This will result in dramatic changes to customary law as well as treaty norms and significantly undermine the present structure of investment protection: a complete reversal of the neoliberal vision may occur. This phenomenon provides an opportunity for the examination of how events that lead to the quick making of legal rules in line with a legal theory favoured in a particular political context are, equally quickly, replaced by another set of rules to suit rapid changes in the power balances.

Joint petroleum development has often been considered as a viable solution to the seemingly intractable Spratly Islands dispute in the South China Sea (SCS). This is, however, more easily said than done. On the other hand, little attention is paid to fisheries co-operation in the SCS despite the fact that fisheries constitute an important part in the economies of coastal states. The present laissez-faire approach to fisheries in the disputed area gives rise to friction and tension. By highlighting the salient features of existing fisheries’ co-operative arrangements in the world, this article demonstrates the merits of a fisheries arrangement in the SCS. It also argues that fisheries co-operation, as a low-profile undertaking, is probably easier to achieve than joint petroleum development. A fisheries arrangement would serve the immediate interests of parties to the Spratly Islands dispute and may pave the way for their future high-profile co-operation, i.e. joint petroleum development.

This paper analyzes the application of rights-based approaches to disaster displacement in the Asia-Pacific region in order to assess whether the current framework is sufficient to protect the rights of internally displaced persons. It identifies that disaster-induced displacement is increasingly prevalent in the region and that economic and social conditions in many countries mean that the impact of displacement is often prolonged and more severe. The paper identifies the relevant human rights principles which apply in the context of disaster-induced displacement and examines their implementation in a number of soft-law instruments. While it identifies shortcomings in implementation and enforcement, the paper concludes that a rights-based approach could be enhanced by greater engagement with existing human rights treaties and greater implementation of soft-law principles, and that no new instrument is required.

All the claimants in the South China Sea disputes have engaged in various degrees of island-building on many of the geographic features in the Spratly Islands. However, as noted by the Tribunal in the South China Sea Arbitration, none has been on the scale of Chinese island-building on the features which it occupies, which escalated after the Philippines initiated arbitral proceedings in 2013. While the most important aspect of the Award is that it clarified the extent of the respective maritime rights of China and the Philippines in the South China Sea, the Tribunal’s rulings on the reclamation and island-building activities of China are equally significant. To this end, this paper will examine the findings of the Tribunal on the legality of China’s island-building activities as well as legal constraints on such activities (if any). Last, it will explore the implications of these findings for the Southeast Asian claimants and island-building and fortification of the features that they occupy.

The Asian Infrastructure Investment Bank [AIIB] is the world’s newest multilateral development bank [MDB] and already one of Asia’s largest international organizations by membership. This paper will compare the institutional structure of the AIIB with that of the Asian Development Bank [ADB] to identify areas in which the AIIB has innovated as a matter of international institutional law. In reviewing the constituent documents, bylaws, and operational policies of the two banks, the paper will juxtapose the AIIB and ADB’s approaches to membership, project finance, voting, and governance. It will identify not only innovations, but also the likely implications, positive and negative, thereof. Finally, it will assess the degree to which these innovations may impact the AIIB’s ability to partner with existing MDBs. In particular, the AIIB’s approach to project finance and governance mark a significant break from the status quo, while in other areas it has remained conservative.

Invited to speak at the opening of the Second Biennial Conference of the Asian Society of International Law, which focused on International Law in a Multi-Polar and Multi-Civilizational World: Asian Perspectives, Challenges, and Contributions, I had to reflect on the specific contributions our regional societies supposedly bring to international law. More specifically, the underlying idea was that of a regional vision or approach to international law which could be more or less rooted in a tradition. I soon realized that our regional societies could be viewed in a rather ambiguous or ambivalent way, since they could be seen as a means of promoting a regional vision as well as a means of enabling people to meet beyond the domestic scope, which is the horizon of most academics, if not practitioners, to share their views on international law at large. The two views are not entirely incompatible but they do not carry exactly the same spirit regarding the purpose of regional societies.

The ambivalence originates in the necessity we feel to justify our own existence. On the one hand, we can be very pragmatic and point out that the regional level, empirically conceived, is a sort of “critical” level to organize events and network. National is not enough any more for most countries. Global is too much. Regional is, let us say, practicable.

Indonesia has enacted laws which provide mandatory protection for victims of human trafficking. It also has mandatory drug laws which, in some cases, lead to the death penalty. This legislative conflict together with investigative and prosecutorial failure risks the execution of human trafficked victims who are used as drug mules in organized crime. In countries where there is no statutory defence to criminal conduct, there is a need to approach criminal conduct in a way that protects victims. This includes mechanisms to ensure non-prosecution and non-punishment. The recent reprieve for Mary Jane Veloso, albeit temporary at the time of writing, is an opportunity for Indonesia to lead a new global approach to victim protection.

The Fukushima nuclear accident raised questions about the implementation of the Convention on Nuclear Safety by the Japanese government and identified the need to reassess the obligation of each contracting party deriving from the Convention and IAEA safety standards. The author analyzes several major deficiencies such as the lack of independence and effectiveness of the regulatory body, the failure to evaluate all relevant site- and design-related factors, and design and construction of the installation, as well as the emergency response, in order to determine the failure of the Japanese government to comply with the Convention and exercise the obligation of due diligence. As a result, the author demonstrates the fulfilment of two elements of state responsibility for nuclear damage. The author also establishes the ineffectiveness of the Convention's preventive monitoring mechanisms and recommends the introduction of a stronger monitoring regime and highlights the need to amend the Convention safety rules.

The principle of non-intervention remains a significant legal issue, particularly in Asia, for regional efforts to address a wide range of transnational security issues in the absence of a regional collective security mechanism. This article revisits the principle of non-intervention with a particular focus on the application and interpretation of the principle by Asian states for the purpose of identifying whether and in what respect an Asian approach or approaches can be found, and considering its implications for regional efforts to address transnational security issues. This article finds that the emerging regional norm of comprehensive security requires clear demarcation between the principle of non-intervention and the norm of comprehensive security, as well as an institutionalized mechanism to ensure that regional efforts to address transnational security issues are not used as a disguised form of intervention and that the fear of intervention does not impede those regional efforts.

It is the purpose of this paper to examine what challenges globalization poses to China, and “Eastphalian” sovereignty. Some commentators have suggested that globalization's advance will transform the globe into something more closely resembling the West. Accordingly, it could be said that it is inevitable that globalization's influences will bring Western perceptions of liberalism and democracy to China. The paper will briefly sketch the broad outlines of sovereignty and globalization to enable working definitions of “Westphalian” and “Eastphalian” sovereignty. The authors then discuss and assess the engagement of European powers with China as a means of contextualizing Eastphalian sovereignty's essence as ideology and worldview. This discussion sets the background for the following analysis of China's and Eastphalian sovereignty's reaction to the notion of a global community.

The formation of the Asian Society of International Law (AsianSIL) leads us to ask the question of whether there are unique features of Asian civilizations (Chinese, Indian, Japanese, etc.) that shape the approach of Asian peoples and states to international law. Does each of the civilizations offer a distinct outlook on international law? What kind of surplus meaning can be generated by a civilizational approach that is, insofar as Asian developing countries are concerned, not already articulated by the Third World approaches to international law (TWAIL)?1 Is any talk of civilizational influences on the approach to international law productive and helpful?

On 26 June 2018, the United Nations Commission on International Trade Law [UNCITRAL] approved, largely without modification, the final drafts of the Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) and amendments to the Model Law on International Commercial Mediation prepared by Working Group II. These instruments aim to promote the enforceability of international commercial settlement agreements reached through mediation in the same way that the New York Convention facilitates the recognition and enforcement of international arbitration awards. This paper provides a critical analysis of the Singapore Convention, and some commentary from an Asian perspective.

The ASEAN Economic Ministers unveiled the ASEAN Regional Guidelines on Competition Policy on 24 August 2010. This is a non-binding document covering all key issues relating to competition law and policy. This article provides a comparative study of the regional harmonization of competition law and policy among the EU, NAFTA, MERCOSUR, CAN, and ASEAN, with a focus on ASEAN. In contrast to the “hard law” approach of the EU, NAFTA, MERCOSUR, and CAN, ASEAN has opted for a “soft law” approach because it is constrained by (1) the traditional “ASEAN Way”; (2) the diversity in economic conditions and competition regimes among its members; and (3) the lack of a supranational body to enforce common competition rules, or, at least, a mechanism for dispute resolution. The author concludes that this modest step which ASEAN has taken in the regional harmonization of competition law and policy is appropriate for the time being.

Despite a noticeable shift in recent years, indigenous peoples in Asia continue to experience many forms of human rights violations, with the most serious perhaps being the loss of traditional lands and territories. The purpose of this paper is to examine indigenous peoples’ land rights and its application in Southeast Asia. To that end, the paper will provide an overview of the development of indigenous peoples’ land rights internationally; offer regional perspectives from the Inter-American Court of Human Rights and the African Commission for Human and Peoples’ Rights; analyze the concept of indigenous peoples in Asia, juxtaposing it with concurrent difficulties being experienced on the African continent; examine three countries (Cambodia, the Philippines, and Malaysia) that recognize indigenous peoples’ land rights to some extent, whether through constitutional amendments, legislative reform, or domestic jurisprudence; and highlight the implementation gap between the rights of indigenous peoples in law and practice.

This paper looks at the Judgment handed down by the International Court of Justice in November 2013 on the interpretation of its 1962 Judgment in the Temple of Preah Vihear case between Cambodia and Thailand. The primary objective of this paper is to disclose the imperfect account of states’ obligations provided for by the Court. In effect, the ICJ emphasized that Cambodia and Thailand must co-operate pursuant to the World Heritage Convention in the protection of the Temple as a world heritage site of outstanding universal value. Accordingly, the Court obscured the fact that the regime for the protection of cultural heritage in wartime was applicable in this case. This paper first examines the ICJ’s narrow approach and its implications. Next, it brings the focus back into a larger context by analyzing the impact of the ICJ’s jurisprudence on the development of international cultural heritage law.

Southeast Asia remains a notorious hotbed for human trafficking. The seriousness of the problem has led to the emergence of various initiatives to combat human trafficking. This paper seeks to address why human trafficking in Southeast Asia remains a contentious issue despite the various initiatives put in place for its eradication. ASEAN Member States, including Singapore, can only resolve the current inertia when it comes to combatting trafficking-in-persons (TIP) by adopting a multidimensional, and multistakeholder approach to the problem. Within Singapore, it is recommended that the Prevention of Human Trafficking Act should be amended such that it provides greater protection for all types of trafficking victims. At the regional level, there is a need for greater collaboration and co-ordination amongst ASEAN bodies in tackling human trafficking, which must be accompanied by comprehensive monitoring, compliance, and enforcement mechanisms.

In April 2008, the Human Rights Commission of Malaysia (SUHAKAM) was informed of the possible downgrading of its “A” status within the UN system, due to its apparent failure to comply with the Paris Principles relating to the status of national human rights institutions. This article explores this threat to downgrade SUHAKAM and the actions which it stimulated on the part of the Malaysian government and SUHAKAM itself. It argues that despite expectations by government and civil society at the time of its establishment, SUHAKAM has directly challenged government on major human rights issues on a number of occasions. At the same time, it has had difficulty persuading government to give effect to its recommendations and has as a consequence drawn strong criticism from civil society for failing to protect human rights that are within the government’s power to rectify.

This paper explores the value of international law in combating transnational organized crime in the Asia-Pacific, with particular reference to the United Nations Convention against Transnational Organized Crime. It begins by highlighting the definitions of organized crime under national and international law. It then analyzes the extent to which states in the Asia-Pacific have implemented the Convention, focusing on harmonization of national criminal laws and procedures, mutual recognition of law enforcement decisions and measures, as well as provision of technical assistance. The paper also touches upon the protection of the human rights of victims and perpetrators of organized crime. The main conclusion reached is that, although the implementation of international instruments pertinent to transnational organized crime has not been an easy task in the Asia-Pacific, they are slowly but surely making a difference on the ground. Therefore, their value should not be dismissed completely.

Severe exploitation of vulnerable persons is occurring in fishing industries globally. An overview of exploitation in New Zealand and Thailand highlights the incentive for states to downplay exploitation and underpins the appeal of a right of visit, which is provided for under the Law of the Sea Convention in regards to the slave trade. Although reported as forced labour, debt bondage, or human trafficking, an examination of international jurisprudence reveals that current practices likely amount to slavery; primarily due to the inherent vulnerability of persons at sea. Two persuasive cases, Kunarac and Tang, provide guidance on interpreting the definition of slavery, particularly “the powers attaching to the rights of ownership”. The operation of a right of visit is considered against the law of the sea regime, as are the implications in the light of international attempts to control IUU fishing.