Asia and International Law

Law of Armed Conflict (IHL) – ISIS fighters from Malaysia, Indonesia form military unit (The Star, 26 September 2014)

Militants from Indonesia and Malaysia fighting in Syria have formed a military unit for Malay-speaking ISIS fighters, and analysts fear this could expand their reach in South-east Asia. The unit is called Katibah Nusantara Lid Daulah Islamiyyah, or Malay archipelago unit for the Islamic State in Iraq and Syria. The Jakarta-based Institute for Policy Analysis of Conflict (Ipac) estimates in a report that the new unit has at least 22 members. Ipac said it was clear from Facebook pages that ISIS supporters in Indonesia and Malaysia were befriending one another. It added that members of the Katibah "could become the vanguard for a fighting force that would reach into Indonesia, Malaysia and the Philippines". So far, there are no indications of Filipino fighters in the unit yet. Ipac's Sidney Jones said that unlike the JI's South-east Asian Al-Ghuraba cell in the 1990s, which was based in Karachi, Pakistan, and made occasional trips to Afghanistan to train, the ISIS fighters have direct battle experience. "The cross-regional bonds established could also be the strongest we've seen in a long time," Jones added.

Law of the Sea – China-Indonesia Territorial Dispute: Chinese South China Sea Occupation is a "Real Threat" (International Business Times, 22 September 2014)

Indonesia has labeled Chinese claims to the hotly disputed South China Sea waters as a "real threat." Vice Admiral Desi Albert Mamahit, who heads Indonesia's Sea Security Coordinating Agency, told a maritime security focus group that the waters surrounding several of the country’s islands were in jeopardy from an encroaching Chinese presence. “This is clearly a real threat for Indonesia,” said Desi, who is also a dean at the Defense University. Desi said Indonesia would need to prepare for moves China may make to further expand its claims in the area. The forum aimed to establish Bakamla, a sea security organization, in the area to help support a warning system and military coordination in the event of confrontation.

International Economic Law – Deadlock at WTO continues as India stays firm on trade facilitation, food security deal (Economic Times, 25 September 2014)

The deadlock at the WTO continues as India sticks to its stand of a simultaneous deal on trade facilitation and food security at the Agriculture Committee meeting at the end of September in Geneva. India first blocked the trade facilitation deal adoption on July 31, seeking a permanent solution on public procurement for food security. India reiterated its position that adopting the trade facilitation text should be delayed until the end of the year and a permanent solution on public stockholding issue should be agreed by then. Several members said that the hold up on trade facilitation amounted to a betrayal of trust, which made it impossible to engage in further work in good faith. India countered the charge of bad faith by arguing that its accusers were also showing bad faith by questioning the feasibility of the December 2008 draft deal in agriculture, which is the only one currently on the table.

Law of Development – As development goals near deadline, UN chief urges global leaders to ‘finish the job’ (UN News, 25 September 2014)

Great gains have been made in the global effort to achieve the Millennium Development Goals, known worldwide as the “MDGs,” but with the deadline fast approaching more must be done to fully meet the targets set for 2015 and beyond, Secretary Ban Ki-moon said on 25 September. The meeting, organized by the MDG Advocacy Group, a body of global leaders and eminent personalities assembled by the Secretary-General to promote the implementation of the Goals, also marked the release of the Group’s latest report – Accelerating Action: Global Leaders on Challenges and Opportunities for MDG Achievement – which confirms the strides made so far. With 462 days remaining until the MDG deadline, the report strikes an optimistic note, adding that with many of the Goals already met – including the reduction of poverty, increasing access to clean drinking water, improving the lives of slum dwellers, and achieving gender parity in schools – many more targets are also within reach by the end of 2015. But Mr. Ban warned much more remained to be done in order to “finish the job.” “We need a strong successor framework in place,” affirmed Mr. Ban. “Building mechanisms for effective partnerships and multi-stakeholder accountability will be critical to the success of the post-2015 development agenda.”

Human Rights – UN rights office disappointed as Thai court upholds conviction on insulting monarchy (UN News, 23 September 2014)

Somyot Pruksakasemsuk, the editor of Voice Taksin magazine, was convicted under the lèse majesté law after the magazine published two articles deemed offensive to the King. In 2013, he was sentenced to 11 years in prison, and the sentence was upheld in mid-September. According to OHCHR, the authorities reportedly did not inform Mr. Somyot’s lawyer or his family of the date of the appeal verdict, thereby preventing them from attending the court. In 2013, the High Commissioner publicly expressed deep concerns about Mr. Somyot’s conviction and extremely harsh sentencing, saying his case represented a setback for the protection and promotion of human rights in Thailand. Also, the UN Working Group on Arbitrary Detention has concluded that Mr. Somyot’s detention is arbitrary and called on the Thai Government to release him.

Human Rights – Malaysia: UN rights office urges review of colonial-era Sedition Act (UN News, 16 September 2014)

The United Nations human rights office has urged Malaysian authorities to immediately stop investigations and prosecutions under a 1948 law that curbed free speech and freedom of expression. Since the beginning of August, at least 19 people, including religious leaders, civil society actors, political opposition members and activists, a university professor and a journalist have been charged or placed under investigation for sedition, according to the Office of the High Commissioner (OHCHR). The UN right office said it was also concerned that the authorities in Malaysia are arbitrarily applying the Sedition Act to silence critical voices.

International Economic Law – Japan shifting investments from China to ASEAN (Deutsche Welle, 25 July 2014)

Japanese companies are shifting their investments away from China and increasingly setting their sights on the ASEAN region as a result of growing tensions between the two Asian powers, analyst Rajiv Biswas tells DW. For instance, Japanese foreign direct investment (FDI) into China declined by almost 50 percent in the first half of 2014 compared to the same period a year ago. Last year, Chinese direct investment into Japan fell by 23.5 percent in 2013, moving in the opposite direction to China's overall FDI abroad, which rose by 16.8 percent in 2013. Rajiv Biswas, Asia-Pacific Chief Economist at the analytics firm IHS, said in a DW interview that as a result of the mounting tensions Japanese multinationals are refocusing their investments in Southeast Asia. ASEAN - the ten-member Association of South East Asian Nations - has a number of manufacturing hubs that have become increasingly attractive to Japan, particularly in comparison with China. 

International Economic Law – US warns Indian threat will 'flip the lights' off at WTO (Reuters, 25 July 2014)

An Indian-led ultimatum to unravel a World Trade Organization deal struck in Bali in December 2013 would end global trade reform efforts, US ambassador Michael Punke warned in a speech at the WTO headquarters on 25 July. At this meeting, diplomats from the 160 WTO member countries were supposed to rubber stamp a deal on "trade facilitation" that was agreed last December. Some estimates say it could add $1 trillion to the world economy and create 21 million jobs. But India said it would veto the agreement until it gets what it wants in a separate area linked to its system of subsidizing and stockpiling crops. To that, Punke said, “Today, we are extremely discouraged that a small handful of members in this organization are ready to walk away from their commitments at Bali, to kill the Bali agreement, to kill the power of that good faith and goodwill we all shared, to flip the lights in this building back to dark.”

International Criminal Law – How to Prosecute the Perpetrators of the Malaysian Jet (MH17) Downing (Just Security, 25 July 2014)

The Prime Minister of Ukraine has suggested that the International Criminal Court (ICC) might investigate and prosecute the case.  Although Ukraine is not yet a member of the ICC, it could refer the case to the Court pursuant to Article 12(3) of the Rome Statute. This provision allows non-States Parties to accept the jurisdiction of the Court on an ad hoc basis absent full ratification, even retroactively.  The fighting in Ukraine certainly qualifies as an “armed conflict,” determined in a non-international conflict by looking at the intensity of fighting and the organization of the parties on each side, and therefore international humanitarian law and international criminal law apply. In this case, investigators would consider whether the killing of the civilians on the plane constituted war crimes.

But here is where the difficulties would begin if it is in fact true that the perpetrators thought that they were shooting at a military transport plane. Aside from the legal challenges, there would of course be substantial investigative challenges and proof problems. Although reports indicate that intelligence regarding the shoot-down, which could shed light on both the perpetrators’ actions and their intent, governments are ordinarily reluctant to share such information with criminal courts.  Further, even if the specific perpetrators could be identified, apprehending them would be an additional challenge, though many war criminals who never imagined that they would be held accountable today find themselves behind bars.  The path to individual criminal responsibility for the shoot-down of flight 17 is therefore certainly difficult, but perhaps not impossible.


Human Rights – UN rights office urges probe into clashes between security forces, protesters in Cambodia (UN News, 18 July 2014)

Members of the main opposition party in Cambodia had gathered in Freedom Park in Phnom Penh on 15 July to protest against the barricading of the only designated area for public demonstrations in the capital, according to information from the Office of the UN High Commissioner for Human Rights (OHCHR). OHCHR spokesperson Ravina Shamdasani told reporters in Geneva, “We are concerned about the very serious charges which were brought against them, including ‘insurrection’, given the widely observed efforts by opposition leaders to calm the protesters and stop the violence during the clashes. Any politically motivated charges must be dropped immediately.” OHCHR called on the judicial authorities to strictly abide by human rights standards in the pursuit of these cases, recalling the seriously flawed processes surrounding other recent cases.

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