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 Third, the Tribunal, by deciding that historic rights under general international law have been superseded by the regimes of exclusive economic zone and continental shelf established under the Convention, fails to draw a distinction between the two separate legal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.

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.

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.

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.

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.

Given the global contestation against BITs and ISDS, the outcome of the Philip Morris v. Uruguay case upholding Uruguay’s right to regulate for public health is important for the international investment law community. However, it is not just the outcome of a case but also the quality of legal reasoning that is significant in building the legitimacy of the ISDS system. This paper focuses on the reasoning adopted by the tribunal in deciding whether Uruguay’s regulatory measures resulted in the expropriation of Philip Morris’s investment. The paper critiques the tribunal’s use of Article 31(3)(c) of the Vienna Convention on the Law of Treaties to invoke the police powers rule in interpreting the expropriation provision of the Switzerland-Uruguay BIT. The tribunal’s reasoning was internally inconsistent and based on abuse of arbitral precedents. Clarity in legal reasoning by ISDS tribunals is imperative to boost the legitimacy of the ISDS system for all stakeholders.

This article examines the implications for a change in framework from sustainable development to degrowth in the environmental and social discourse of International Economic Law (I.Econ.L.). It argues that the framework of sustainable development accommodates the Global North's inaction in assuaging environmental degradation and alleviating global inequality by remaining embedded in a capitalist, growth-oriented political economy. Degrowth would provide a strategy to move past such an impasse by encouraging actors to grapple with the role growth plays in the rationale behind I.Econ.L. Degrowth advocates a planned economic contraction to reconcile human's relationship with the environment. This project serves as the first effort to link ideas of degrowth with I.Econ.L. and seeks to identify some of the areas in I.Econ.L.'s scholarship where degrowth would serve as an alternative to sustainable development and what such an alternative would mean for the norms in the different areas of I.Econ.L.

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.

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.

The Anti-Dumping (AD) mechanism is susceptible to potential misuse for protectionist purposes, and the current explosion of AD disputes indicate a massive problem in the way international trade rules are implemented. The current World Trade Organisation (WTO) negotiations have identified areas within the Anti-Dumping Agreement (ADA) for possible reform; accordingly, the present analysis discusses these areas of concern relating to the AD provision. First, recent trends in AD practice will be analyzed both quantitatively and qualitatively to show the growing role of Asian economies. In particular, the traditional targets of AD activism, China and India, have initiated a number of AD investigations over the last decade, while imposing final measures on several occasions. Second, the ADA will be examined alongside a discussion of the potential risks of misinterpretation. Third, the paper will analyze all the complaints lodged at the WTO Dispute Settlement Body (DSB) on ADA to date.

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.

This paper exposes the limited perspective that we have over the problem of jurisdiction in emergencies. In the classic theory of emergency powers, sovereign control over borders is assumed, and jurisdictional problems are acknowledged when threats come from outside those borders or when they are handled outside. However, what characterizes many emergencies is not the exercise of sovereign jurisdiction but rather contestations over problems of jurisdiction and competing jurisdictional claims. To illustrate the need for a broader perspective over emergencies’ jurisdictional politics, this paper tells a multilayered story about a successful intervention by the Association of Southeast Asian Nations (ASEAN) in one of Myanmar's natural disasters (Nargis 2008). ASEAN's role in its Member State's disaster should be understood in view of its unique regional solution to the jurisdictional problem that this disaster raised—the problem of access by foreign aid to a domestic area affected by a natural disaster.

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.

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.

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.

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”.

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.