This case note critically analyses the logic of M/V Enrica Lexie of 2020 with a particular focus on the issue of the immunity ratione materiae. This judgment is important in terms of the development of the principle of sovereign immunity. It first reviews the background of the case and the judgment. It then examines (1) the basis of the principle of sovereign immunity and (2) the territorial exception and its relevance to the law of the sea. It criticizes the logic of the judgment, particularly on its reference to the United Nations Convention on Jurisdictional Immunities of States and Their Property, regardless of the fact that the instrument only applies to civil proceedings. Finally, it comments on the Award's implication for anti-piracy international cooperation.

In 2022, the CEDAW Committee issued an Individual Communication concerning Rosanna Flamer-Caldera, a lesbian woman, human rights defender, and Executive Director of the only organization in Sri Lanka advocating for the rights of the entire lesbian, gay, bisexual, transgender, and intersex community. To date, the CEDAW Committee has received extensive criticisms concerning its neglect of women from diverse gender identities and sexual orientations. In this Communication, the Committee found that Sri Lanka's criminalization of consensual same-sex relations among women violates Articles 2, 5, 15, and 16 of the Convention. Importantly, the Committee makes clear that non-heterosexual relations fall within the right to marriage and family relations, enshrined in the Convention. With numerous States Parties in the region retaining criminalization, this article analyses the implications of this decision for States Parties in Asia and grapples with the question, “Is this Communication ground-breaking?” and if so, how.

The recently adopted Trade-Related Aspects of Intellectual Property Rights (TRIPS) waiver decision at the World Trade Organization is a grossly inadequate and insincere response to the COVID-19 pandemic. This paper criticizes the TRIPS waiver for being faulty on several fronts such as: excluding COVID-19 diagnostics and therapeutics from its fold and focusing only on COVID-19 vaccines; restricting its coverage to only patents and leaving out other intellectual property rights; excluding developed countries that possess manufacturing and technological capability from being eligible exporters of COVID-19 vaccines; and its perplexing silence on the transfer of technology. It will have negligible impact on fighting the pandemic, sets an enfeebled example for the future, and is a classic case of “too little too late”.

This article proposes re-thinking the history of refugee protection in the Southeast Asia region, focusing on the post-World War Two period (1945–1979). It fills a gap in the literature on this period, drawing on archival material. It disrupts a narrative of “human rights exceptionalism” in Southeast Asia. First, it examines the small but powerful role of Southeast Asian states during the drafting of the 1951 Convention relating to the Status of Refugees. These states challenged colonial powers and asserted human rights. Second, it considers the role of key refugee-hosting states in Southeast Asia in developing—with other post-colonial states—regional standards to protect refugees under the auspices of the Asian-African Legal Consultative Committee, the Aliens Principles of 1961 and Bangkok Principles of 1966. Third, it places international and regional action in the domestic context by drawing on the example of Thailand's protection of Vietnamese refugees. It concludes that the approach in the post-WWII years points to an extended history of protecting refugees in Southeast Asia, and valuable lessons from the Global South for the region and beyond.

This paper aims to examine the legitimacy of Ryukyuans/Okinawans’1 right to self-determination (RSD) under international human rights law. To this end, it first details the evolution of the RSD from the traditional right to independence for colonial peoples, to the continuing right to self-governance for wider groups of peoples, which is followed by an analysis of holders of the RSD. The paper then turns to Ryukyu/Okinawa to discuss the RSD of its peoples. Three historical events, the Disposition of Ryukyu, the Treaty of San Francisco, and the reversion of Okinawa to Japan, are analysed from a legal perspective, followed by an examination of the peoplehood of Ryukyuans/Okinawans. These lead to the conclusion that the Ryukyuans/Okinawans may legitimately claim that they possess the “unexercised” RSD as a quasi-non-self-governing people, and that they are entitled to claim the RSD as a “people” under the International Covenant on Civil and Political Rights, International Covenant on Economic, Social, and Cultural Rights, and other United Nations declarations.

South Asia, as a region, consists of several stateless groups as well as groups at the risk of statelessness. However, none of the South Asian states are parties to the 1961 Convention on the Reduction of Statelessness, thus these states do not have specific obligations arising from this Convention to avoid, reduce, or prevent statelessness in the region. In this context, this article ascertains that despite the prevalence of statelessness, there exists state practice and opinio juris in South Asia that point to an emerging customary international law obligation to avoid, reduce, or prevent statelessness.

International legal discourses clash in violent ways within the state. For example, the international discourse on human rights identifies some individuals who oppose state-sanctioned projects as Indigenous peoples while the international discourse about terrorism may identify them as terrorists. These clashes are occurring throughout the world, particularly surrounding extractive resource projects, but this article considers one example from the Philippines where some B'laan individuals and communities oppose the Tampakan Copper-Gold Mine, and examines how various actors identify those individuals and communities. It explores how some identify them as Indigenous peoples while others identify them as terrorists. In highlighting the violent effects of international law, it investigates how discourse inhibits appreciation of violent erasures and the continuing coloniality of extractive resource development.

This paper historicizes the current challenges brought about by digitization to the Third World by revisiting a movement launched by the Non-Aligned Movement countries during the 1970s and early 1980s. Also known as the New World Information and Communication Order (NWICO), the movement contested the dominant liberal notion of freedom of information and spotlighted the critically material inequality and power asymmetry often concealed by the liberal vision of the free flow of information. Not only did NWICO present a counter-model to the liberal notion of freedom of information, it also provides a vital case for understanding the interrelations between information and domination and the role of international law therein. This paper retells the story of NWICO, its normative ambition as well as its internal contentions and practical limitations, and reflects on its legacy for TWAIL scholarship and the current politics of digitization.

India acceded to the Convention on the Elimination of all forms of Discrimination Against Women with a Declaration (CEDAW) to Article 5(a) stating that it will implement the principle on gender-based equality only to the extent of non-interference in the personal affairs of its religious communities. The due diligence obligation in the CEDAW, which was adopted through General Recommendation No. 19 in 1992, normatively expanded Article 5 to imply an obligation on nation states to redress traditional cultural attitudes that cause gender-based violence. This article argues that the cultural nature of GBV in India converts the Declaration of India into an inconsistent reservation under public international law. This implies that India's Declaration is an egregious breach of the CEDAW's due diligence obligation. Accession to the CEDAW's Optional Protocol is advocated as a solution to this serious breach. Theoretical implications for the three-stage norm life cycle and epiphenomenal norms are presented.

The universal system of protection against torture established by the United Nations (UN) is confronted with daily incidents of torture and other cruelties in all regions of the world. Moreover, despite the ratification of UN treaties, most governments lack a genuine commitment to address these abuses. In contrast, the anti-torture safeguards under the UN Convention against Torture and its Optional Protocol are currently being implemented in Taiwan, even though Taiwan is not part of the UN and cannot participate in the international human rights dialogue. The process of incorporation of UN anti-torture documents by a non-UN member is all but easy. This article shows, however, that commitment to combat torture goes beyond the UN treaty system and might be a welcome contribution towards the current debate on fostering compliance with human rights treaties both in Asia-Pacific and around the globe.

In investment treaties, the self-judging security exception clause allows states to restrict the exercise of investors’ rights and protections provided for by such treaties during security emergencies. During the last decade, such a clause has been included in numerous investment treaties to support state positions vis-à-vis foreign investors. States consider that this provision gives them a very broad discretion to limit or derogate from obligations which arise under the treaty. In this article, after having identified the self-judging character of this clause, it will be demonstrated that such a clause does not affect the jurisdiction of the tribunal but requires the tribunal to apply the principle of good faith as the proper standard of review to interpret the elements of the clause, preventing states’ abuse of such a clause.

This paper opens a scholarly discourse about Chinese scholars’ engagement with TWAIL (Third World Approach to International Law). This paper shows that Chinese international law scholars and TWAIL align in their resistance to Eurocentrism in international law, while they differ in their attitude towards whether to refrain from “national allegories” and criticize international law as a state-centric invention. A state-centric approach means that mainstream Chinese international lawyers tend to adopt a pragmatic attitude towards international law, employing it as a strategic weapon. During the course of this inquiry, this paper also observes a critical strand in Chinese academics – mostly outside of the international law discipline, and within the disciplines of history and philosophy – that is dedicated to redeeming China's subjectivity and history, which may be useful to understand Chinese critical spirit.

Paragraph 5(a) of Annex I to the Rules of Procedure of the Commission on the Limits of the Continental Shelf has been invoked by states to block the Commission's consideration of several submissions made by coastal states. The paragraph introduces several new factors into the delineation process of the continental shelf beyond 200 nautical miles, which had not been envisaged by the United Nations Convention on the Law of the Sea. In addition, this has had significant consequences in respect of the completion of the delineation process, and thus the realization of one of the key objects and purposes of the Convention – that is, to create certainty about the extent of the continental shelf and the limits of the area. This article examines whether Paragraph 5(a) is in accordance with the Convention, and whether there is an alternative approach that may have a more limited impact on the delineation process.

To foreign investors, data, either collected and processed before or after market entry in the host state, can be regarded as a part of the investment and subject to the protection of the applicable international investment agreements (IIAs). China has been developing rigorous and stringent data governance such as data localization requirements and mandatory business-to-government data sharing, and has also concluded the world's second largest IIA regime that provides sweeping investment protection. There is a risk of incompatibility between China's national data policies and its IIA obligations. Foreign investors may challenge China's national laws and practices on data governance, for alleged breaches of investor's protection obligations in Chinese IIAs, or breaches of the data residency provisions in Chinese trade and investment agreements. As a result, potential exists for such claims to be brought against China in investor-state arbitration.

The study of the Western classics of international law with Francisco de Vitoria and Hugo Grotius at its core is the foundational stone on which the whole edifice of today's ever-expanding history of international law was built upon. The article provides a gateway to Vitoria and Grotius's significance for international law and its history by providing a tenfold list of attributes of what makes a classic of international law. It then examines the rise to pre-eminence of the study of the classics of international law and surveys the main methodological responses addressed to correcting the historiographical blind spots and large gaps in legal history that the privileging of these Western “great men” have triggered. The conclusion recaps the importance of looking forward through, but also beyond, the deeply West-centric and male-dominated intellectual canon of international law in an international order the centre of gravity of which is inexorably moving eastwards.

The entry into force of the Treaty on the Prohibition of Nuclear Weapons (TPNW) in January 2021 has sparked much discussion of the Treaty's positive obligations under Article 6. But while victim assistance under Article 6(1) has received considerable attention, the environmental remediation obligation within Article 6(2) remains underexplored. Filling this gap, this article examines a specific issue relating to environmental remediation under Article 6(2): the scope of nuclear weapons-related activities captured by the obligation imposed upon TPNW parties. Ultimately, it is revealed that significant ambiguity exists as to the scope of activities covered when applying the rules of treaty interpretation of the 1969 Vienna Convention on the Law of Treaties. After offering some policy arguments both for and against a broad interpretation, this paper recommends that TPNW parties should begin to advance and clarify their positions on this issue in order to clearly identify the scope of Article 6(2).

This article proposes a new theory, “premise theory”, to account for recent international criminal courts’ practice on finding general principles of law. After analysing the traditional theory of transposition from national to international legal settings, and the modification/choice model, this article demonstrates that the focus should be shifted from arbitrariness to the determinants of results of recognizing general principles of law. Premise theory explains a mechanism that judges modify a common legal principle or choose the most appropriate national legal principle to apply to the issue at hand to reflect the premises of the legal field, the court, and, sometimes, even the individual case. This article concludes with a proposal for utilizing premise theory as an explanatory tool and as a guide for legal reasoning to increase judicial transparency and predictability. Lastly, it advocates for the application of premise theory to other areas of international law.