This paper provides a first-ever detailed study of NPM provisions in all stand-alone BITs which are in force in South Asian countries. It studies 147 BITs of South Asian countries in order to map the NPM provisions in them. It makes an in-depth analysis of the NPM provisions found in these BITs, and then makes an analysis of the consequences of not having NPM provisions in BITs. This follows the dissection of the NPM provisions found, so as to study each and every permissible objective and nexus requirement link in these provisions. This is followed by suggestions and conclusions, where the paper holds that NPM provisions are not sufficiently used in the BITs of these countries and these countries should incorporate this provision more frequently in order to ensure some much-needed regulatory latitude to these countries.

The treatment by states, at the 69th session of the UNGA, of the ILC’s work on the responsibility of international organizations, the effects of armed conflicts on treaties, and the expulsion of aliens, offer some interesting points for reflection, particularly about the role of states in international law-making. This paper situates the UNGA’s consideration of the draft articles before it within the context of the recent trends of the UNGA’s commending of the ILC’s draft articles to the attention of governments, and of its use of technical roll-overs. In this regard, the paper questions whether the UNGA’s approach to the draft articles on the expulsion of aliens signals a reawakening of the UNGA. Against this backdrop, the paper also discusses the past practice of the UNGA when considering the draft articles of the ILC.

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.

Bangladesh recently established a new trademark regime in 2009, repealing the seventy-year-old statute that was enacted as a response of the colonial government to comply with the requirements of the Paris Convention. This newly established regime governing the protection of trademarks was particularly important in discharging Bangladesh’s obligations under the WTO Agreement on TRIPS. The present study is an attempt to examine the compatibility of Bangladeshi law with the TRIPS regime of trademarks. The major focus of this study is, however, confined to the TRIPS compatibility of the Trademarks Act in relation to the aspects of acquisition and cancellation of trademark rights in particular, and the nature and scope of these rights in general. In so doing, this paper thus speaks of the success and ramifications of the present regime in exploiting the TRIPS flexibilities—the challenge that Bangladesh is supposed to encounter as a member of LDCs.

Sri Lanka is the first country against which a foreign investor has had recourse to international arbitration based on the dispute settlement clause in a bilateral investment treaty (BIT). This was the case of AAPL v. Sri Lanka. Since then, the country has been challenged twice before the International Centre for Settlement of Investment Disputes (ICSID), while its latest encounter was in the case of Deutsche Bank AG v. Sri Lanka. In the intervening years between these two cases, Sri Lanka maintained silence and failed to alter its BITs in a global context where the conventional attitude on international investment agreements (IIAs) is being increasingly reconsidered. This paper provides an overview of Sri Lanka’s BITs, which highlights the urgency of reconsidering the country’s investment treaty-making practice. It suggests some modifications to align the country’s investment treaty-making practice with international investment law (IIL) developments.

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.

This paper examines the evolution of expropriation provisions contained in Singapore’s bilateral investment treaties and free trade agreements from the 1970s until now. It will be seen that whilst earlier treaties contained skeletal expropriation provisions, the later treaties have sought to guide the exercise of tribunals’ discretion by providing a non-exhaustive list of factors to be taken into account when indirect expropriation is alleged. The consequences of this evolution in Singapore’s treaty-making practice are considered in the light of customary international law. The paper postulates a framework for analyzing Singapore’s treaty practice and this author concludes by submitting that the later treaties arguably go one step further in limiting the scope of indirect expropriation.

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.

Russia’s veto in the Security Council of a proposed ad hoc tribunal for the Malaysia Airlines Flight MH17 disaster prompts consideration of alternative mechanisms to bring the offenders to justice. It is arguable that the General Assembly, drawing upon the text of the UN Charter and the Uniting for Peace mechanism, possesses the constitutional powers to establish the tribunal. The unique features of the General Assembly, comprising the international community, also mean that it is able to act in a way that would facilitate the functioning of an ad hoc tribunal, even in the absence of mandatory powers. Although many practical obstacles lie ahead, an ad hoc tribunal established by a broad coalition in the General Assembly may offer the best hope in securing accountability for the MH17 disaster.

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.

This paper explains why so much soft law is widely adopted and followed despite lacking legal and coercive force. It argues that legal standards are susceptible to network effects. Network effects occur when the value of a standard to a user increases as the number of other agents using the same standard grows, which in turn draws more users to the standard. This can trigger a spontaneous coalescence around a standard in a “snowball effect” fashion. The paper argues that many areas of soft law exhibit strong network effects, rendering such soft law uniquely calibrated to induce voluntary adoption and even compliance. The model helps explain why certain soft law gains traction, and has important implications for international governance. Finally, the paper argues that policy-makers can strategically harness this dynamic to stimulate legal harmonization, but cautions that policy-makers must also remain mindful of the negative consequences that network effects can generate.

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.

A vast private recruitment industry has emerged across South and Southeast Asia, driven by exponential increases in migrant workers seeking temporary low-wage jobs abroad. Many workers encounter mistreatment which is traceable to systemic recruiter misconduct. Could origin countries better protect their citizens and render recruiters more accountable? This paper presents a novel, rights-based recruitment governance framework to tackle this challenge, based on empirical studies conducted across Asia. Section I examines recent regulatory efforts and illustrates their limited effectiveness absent such a guiding framework. Section II elucidates and applies the key elements of the framework, including: incorporation of human rights standards; enforceable legal rights and obligations; effective implementing institutions and processes; and empowered participation of migrant workers in key labour migration processes and decisions. Section III identifies structural and practical obstacles to regulatory enforcement that the framework addresses, creating necessary conditions for transnational market-based reforms and responsible recruitment within origin countries. Section IV concludes that the framework provides countries of origin with a feasible path to better protecting migrant workers within a sustainable development strategy.

It has been argued elsewhere that industrial states were legally responsible for interfering with the climate system by failing to prevent excessive greenhouse gas emissions. This paper determines the international legal principles relevant to the remedial obligations of industrial states. It assumes that climate change reparations should aim first at providing a signal for the cessation of the wrongful act (i.e. incentivizing climate change mitigation) rather than addressing the injury. A review of state practice in different fields suggests the existence of relevant exceptions to the principle of full reparation. These exceptions relate to the financial capacity of responsible states, the indirect nature of the injury, considerations of “culpability”, and the limitations of collective responsibility as “rough” justice. Accordingly, it is suggested that climate change reparations should be limited to partial compensation and symbolic measures of satisfaction prone to incentivize climate change mitigation.