Asia and International Law

International Organisations – ASEAN must step up to promote rule of law in region, experts say (Today, 15 January 2016)

With major world powers stepping up their engagement with Southeast Asia, the Association of Southeast Asian Nations (ASEAN) will have to take on a bigger role to create a robust rules-based regional order. “The Barack Obama administration has devoted more attention to South-east Asia than any other United States administration since the Vietnam War … It is an explicit policy and it started before the world started paying attention to China’s increasing assertiveness in Asia,” said Dr Susan Shirk, a professor at the School of Global Policy and Strategy at the University of California, San Diego. Prof Shirk, a former US Deputy Assistant Secretary of State, was speaking during a panel discussion on Major Power Interests and Contestation in Southeast Asia during the Regional Outlook Forum 2016 organised by the ISEAS-Yusof Ishak Institute. She pointed out that China’s intentions in the regional maritime domain are uncertain, especially since there is a gap between Beijing’s rhetoric of peaceful development and the construction of artificial islands, as well as its possible deployment of military assets in the South China Sea. “The question is how South-east Asia and, in fact, all of Asian countries, can encourage China to pursue a (regional) policy that is aimed at providing a public good of cooperation, freedom of navigation and respect for international law,” she said.

International Organisations – Formal establishment of ASEAN Community sees both opportunities, challenges (Xinhua, 31 December 2015)

As another significant milestone in its history and the regional integration process, Dec. 31 finally witnesses the formal establishment of theASEAN (the Association of Southeast Asian Nations) Community. Despite the euphoria and excitement, Malaysian Foreign Minister Anifah Aman said in a statement on this special day that the coming into being of the ASEAN Community does not mean that it has arrived towards the end of the community building process. "In fact, this is just the beginning," said the official. As what the foreign minister has revealed, the set-up of the ASEAN Community is far from the completion of the regional integration process, but a fresh starting point for this journey with both opportunities and challenges lying ahead.

Declaration on the Establishment of the ASEAN Community 2015 (22 November 2015)

See also: The ASEAN Economic Community: The Force Awakens? (The Diplomat, 12 January 2016)

Law of Development – Reviving domestic demand key to robust and sustainable growth in Asia-Pacific – UN report (UN News, 14 January 2016)

Against the backdrop of a global economic slowdown, reinvigorating domestic and intra-regional demand plays a crucial role in reviving economies in Asia and the Pacific, according to a newly released-United Nations report, which also recommends a proactive fiscal policy emphasising productivity and addressing inequalities in the region. “While the 2030 Agenda promotes a broader concept of human welfare, robust growth is important for creating jobs and improving overall development outcomes,” Shamshad Akhtar, Executive Secretary of the UN Economic and Social Commission for Asia and the Pacific (ESCAP), said on the launch of the Economic and Social Survey of Asia and the Pacific 2015: Year-end Update . Ms. Akhtar added that “adoption of the 2030 Agenda comes at a time when the global policy makers are still struggling to revive economic growth despite taking extraordinary measures.” Developing economies of the Asia-Pacific region grew by an estimated 4.5 per cent in 2015, the lowest rate since 2010, with only a modest rebound to five per cent growth projected for 2016, according to the report.

Law of the Sea – South China Sea arbitration: What may follow (Straits Times, 23 January 2016)

The Permanent Court of Arbitration at the Hague is expected to make a final decision this year on the Philippines' maritime dispute with China in the South China Sea. Its decision will have a significant impact on China and its ties with other claimant states in the South China Sea. The case has been before the arbitration tribunal since January 2013, when the Philippines unilaterally initiated arbitration against China, with regard to the latter's claims over much of South China Sea. The tribunal ruled at the end of last October that the case was "properly constituted" under the United Nations Convention on the Law of the Sea (UNCLOS). This was a blow to China, which had maintained that it will not participate in the proceedings because the tribunal has no jurisdiction over issues to do with territorial sovereignty. China also argued that the Philippines abused the arbitration mechanism because it unilaterally initiated proceedings without exhausting diplomatic channels. It would appear that China's steadfast policy of neither accepting nor participating in the arbitration has failed to prevent the arbitral tribunal's ruling that it has jurisdiction over part of the issues submitted by the Philippines. On Nov 30, the arbitral tribunal concluded the hearing on the merits and remaining issues of jurisdiction and admissibility in the arbitration, with the final decision due possibly between March and June.

International Economic Law – PH has legal options at WTO and ASEAN over cigarette tax case vs Thailand (Manila Bulletin, 24 January 2016)

The Philippines has legal options within the WTO and ASEAN to force Thailand to implement the multilateral trading body’s decision for a fair tax treatment on its cigarette exports. Anthony Abad, former legal counsel of the cigarette manufacturer Philip Morris Philippines on the WTO cigarette case, told reporters that the Philippines can tap the WTO Implementation Agreement. According to Abad, this legal option should be the logical option for the government after giving Thailand more than enough time to comply with the WTO ruling. Another venue is the ASEAN Dispute Settlement Mechanism. But the most diplomatic way is to talk to Thailand bilaterally to avoid the tax dispute from further escalating, Abad said. Abad further said that the Philippine government can file for both options at the same time to resolve the cigarette issue. But if Thailand still refuses to change the tax valuation on Philippine cigarettes, the government can opt for the WTO option. By going the WTO option, Abad said WTO as a multilateral trading body will be further strengthened. It will further cement its authority in the implementation of trading rules in the multilateral arena.

International Economic Law – 'Legal convergence needed in ASEAN for region to soar' (Business Times, 25 January 2016)

COMMON norms and practices developed by the Asian Business Law Institute can ease cross-border trade in Asia and facilitate dialogue between countries, which can lower costs and increase business flows, Minister for Law K Shanmugam has said. In his closing address at the Singapore Academy of Law conference on legal convergence in Asia, he cited surveys done in the last three years as having concluded that the region's diversity in legal and regulatory regimes was a major barrier holding back investment into Asia and hindering the growth of businesses.

Mr Shanmugam said the United Nations Commission on International Trade Law is an example of a framework that gives businesses "greater confidence that their cross-border commercial contracts will be enforceable, and they have a system which is predictable". Meanwhile, ASEAN's potential is clear: It was the world's seventh largest economy by 2014, with more than 600 million people and a gross domestic product (GDP) exceeding US$2.4 trillion (S$3.4 trillion). By 2020, this is expected to hit US$4 trillion, and by 2050, it could well be the world's fourth largest economy, he said.

See also: Asian Business Law Institute (ABLI) – New institute to 'help unlock region's economic potential'

Human Rights – ‘Imperative to pursue criminal accountability of the DPR Korea leadership’ – UN rights expert (UN News, 22 January 2016)

The United Nations Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (DPRK) has called on the international community to further all efforts to improve the human rights situation in the country. “In addition to continuing political pressure to exhort the DPRK to improve human rights, it is also now imperative to pursue criminal responsibility of the DPRK leadership,” said Marzuki Darusman in Tokyo at the end of his last official visit as a UN Human Rights Council’s independent expert. “Not much has changed in the country almost two years after the report of the Commission of Inquiry,” the Special Rapporteur, whose mandate ends in July 2016, added. According to the Office of the UN High Commissioner for Human Rights (OHCHR), since his appointment in 2010, Mr. Darusman has made several requests to visit DPRK; however, access was never granted. He has been visiting other countries in the region such as Japan, Thailand and the Republic of Korea.

Human Rights – Cambodia, Singapore Deposit Instrument of Ratification of the ASEAN Convention against Trafficking in Persons (ASEC Press Release, 25 January 2016)

Cambodia and Singapore have deposited their respective Instruments of Ratification for the ASEAN Convention Against Trafficking in Persons, Especially Women and Children (ACTIP) with H.E. Le Luong Minh, Secretary-General of ASEAN. The ACTIP, which was signed by the ASEAN Leaders at the 27th ASEAN Summit in November 2015, demonstrates ASEAN’s commitment in addressing trafficking in persons as a regional problem and resolve to find the most effective regional solution to combat this problem. The ACTIP, which is the first regionally binding instrument on trafficking in persons aims to prevent and combat trafficking in persons, especially women and children, and ensure just and effective punishment of traffickers; protect and assist victims of trafficking in persons with full respect for their human rights; and promote cooperation in the fight against trafficking in persons among the ASEAN Member States.

International Organisations – UN at 70 – The world still needs the United Nations (Washington Examiner, 26 October 2015)

October 24 marked the 70th birthday of the United Nations. The U.N. Charter came into effect when ratified by a majority of the 50 original signatories and the five permanent members of the Security Council (China, France, the Soviet Union, the United Kingdom and the United States). The ratification process, like the U.N. itself, combined hope for a better future with a large membership and power politics. Although the U.N. is not a perfect institution, it provides enormous net benefits to the world and to the United States.

Created in the shadow of the Second World War, the purpose of the United Nations was to prevent war and sow the seeds of peace. The U.N.'s work rests on three pillars: Peace and security, development and human rights. All three are necessary for long-term peace. Ultimately, the U.N. will be constrained by what its member states want and for what they are willing to pay. The U.N. system cannot — and was not intended to — override power politics. Instead, it can provide a place to channel power in the pursuit of peace. The P5+1 negotiations with Iran on its nuclear program are an example. The U.N. system provides the venue and expertise to address long-term efforts to bolster sustainable development and address climate change. The Millennium Development Goals adopted in 2000 provided a workable 15-year global framework for countries to reduce hunger and raise health standards. Perhaps the most surprising contribution of the U.N. system is to human rights. One of the most important examples is the Universal Periodic Review created in 2005. It would be almost impossible to create the U.N. system today. From the horror of war came the impetus to build an organization dedicated to helping states build peace. Despite its flaws, the U.N. is still crucial to the United States and the world at large.

Law of the Sea – U.S. provocative act in South China Sea breaks peaceful commitment (Xinhua, 27 October 2015)

The sailing of a U.S. warship within 12 nautical miles off China's islands in the South China Sea constitutes a blatant provocation to China's territorial sovereignty and puts on a show of force under the excuse of testing freedom of navigation and over-flight in the waters. China has always respected and stood up for the freedom of navigation and over-flight in the South China Sea and other major international passages all countries are entitled to under international law. In his just-concluded state visit to the United States, Chinese President Xi Jinping has clarified that relevant construction activities China is undertaking on the Nansha Islands do not target or impact any other country. Moreover, China does not intend to pursue militarization of the Nansha Islands in South China Sea, all its military deployment is necessary, limited and defense-oriented. China is committed to maintaining peace and stability in the region. During the visit, Xi and his U.S. counterpart, Barack Obama, renewed their commitment to building a new model of major-country relationship featuring no confrontation, no conflict, mutual respect and win-win cooperation. Thus, the U.S. provocative behavior violated, firstly, the two leaders' commitment, and will aggravate regional tensions.

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