Asia and International Law

Law of the Sea – Indonesian president says China's main claim in South China Sea has no legal basis (Reuters, 23 March 2015)

Indonesian President Joko Widodo has said one of China's main claims to the majority of the South China Sea – territory ringed within the nine-dash line – had no legal basis in international law, but Jakarta wanted to remain an "honest broker" in one of Asia's most thorny territorial disputes. Widodo's comments in an interview with a major Japanese newspaper came as he embarked on a visit to Japan and China, and was the first time he had taken a position on the issue since coming to power in October.

International Economic Law – Case Comment: Government of the Lao People's Democratic Republic v Sanum Investments Ltd [2015] SGHC 15

In a seminal decision of the Singapore High Court on the jurisdiction of an arbitral tribunal under a bilateral investment treaty between the People’s Republic of China and Laos (“PRC-Laos BIT”), the Court in Government of the Lao People's Democratic Republic ("Laos") v Sanum Investments Ltd ("Sanum") [2015] SGHC 15 held that the arbitral tribunal had no jurisdiction under the PRC-Laos BIT. This is the first decision in which the Singapore High Court had to consider the interpretation of the scope of a bilateral investment treaty in deciding on an investment tribunal’s jurisdictional ruling. This commentary focuses on the issue of whether Sanum's expropriation claims fell within Article 8(3) of the BIT, which provides that disputes "involving the amount of compensation for expropriation" can be submitted to arbitration.

International Economic Law – US, NZ challenge Indonesia at WTO over import rules (Jakarta Post, 20 March 2015)

The US and New Zealand have requested the establishment of a dispute settlement panel at the World Trade Organization (WTO) to resolve their disagreements with Indonesia over horticulture and animal trade. The proposed panel would examine Indonesia’s wide-ranging import rules, which both countries consider “import restrictions”, on fruits and vegetables, such as apples, grapes and potatoes, animal products, particularly beef and poultry, and other agricultural products, according to a statement from the office of the US Trade Representative (USTR). Among the measures it pointed to were a ban on imports of poultry and certain meat products and an import licensing system for horticultural products. In response to the US and New Zealand’s dispute settlement proposal, Indonesian Ambassador to the WTO Iman Pambagyo said that Indonesia would follow settlement procedures under the adjudication of the WTO and was prepared to defend its policies.

International Economic Law – ASEAN banking accord 'a key step towards economic integration' (Deutsche Welle, 23 March 2015)

Under the new framework agreement, banks within the 10-member Association of Southeast Asian Nations (ASEAN) can sign reciprocal bilateral deals to operate in a partner country on the same terms as domestic financial institutions. Signed by the bloc's finance ministers on Saturday, March 21, the ASEAN Banking Integration Framework or ABIF is aimed at ensuring a more stable flow of funds in the region and increasing cross-border trade and investment. The landmark banking deal, which is part of ASEAN efforts to create a single economic market, comes ahead of the December 31 launch of the ASEAN Economic Community or AEC. The community is designed to allow a free flow of goods, services and investments, as well as freer flow of capital and skills.

Human Rights – Caning is constitutional, Singapore Court of Appeal rules in drug trafficker's case (Straits Times, 4 March 2015)

Caning of convicted prisoners is constitutional, the Singapore Court of Appeal ruled in early March, dismissing a challenge by Malaysian drug trafficker Yong Vui Kong against the legality of the punishment. His lawyer M Ravi argued that caning violated the Constitution as it was discriminatory and that it amounted to torture, which is prohibited by international law and common law. The appeal court, after examining cases from Europe, Africa and elsewhere, held that caning as administered in Singapore does not amount to torture. Chief Justice Sundaresh Menon, delivering the court's decision, said that even though international law prohibits torture, international law and domestic law are two separate legal systems. A domestic court cannot strike down a piece of domestic legislation by reason alone of its incompatibility with international law, he said. In the same way, a state cannot rely on domestic legislation to justify a breach of its international obligations.

The court also disagreed with the argument that torture is unconstitutional because there is a common law prohibition on torture. The prohibition applies only to the torture of suspects or witnesses for the purpose of extracting evidence and confessions and does not cover the treatment of criminals after they are found guilty of their crimes, said CJ Menon.

Human Rights – Indonesia must push for ASEAN treaty on workers (Jakarta Post, 20 March 2015)
Indonesian migrant workers are at risk of harsh treatment and exploitation as the region moves toward the introduction of the ASEAN Economic Community (AEC) by the end of 2015 unless the region comes up with a legally binding instrument, officials have said. The Foreign Ministry said on Thursday that it was currently negotiating with other ASEAN countries to agree on an ASEAN migrant-workers protection regime. “We are pushing so that the documents can be used as a framework whenever there is a dispute [regarding the fate and welfare of Indonesian migrant workers] in the future,” the ministry’s director of ASEAN functional cooperation, George Lantu, said. The instrument is a follow up to the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (Cebu Declaration) in 2007.
Law of Development –  In new development report, UN spotlights ‘string of successes’ in Asia-Pacific region (UN News, 26 January 2015)
Launched by the UN Development Program (UNDP), the Asia-Pacific Regional Report Achieving Development Results in Asia and the Pacific highlights the accomplishments of programmes implemented in 2013 and 2014. “The report documents the achievements of UNDP’s $2 billion delivery in the region during the past two years, focusing on key priority areas: innovative solutions to persistent development challenges and scaling up those solutions for greater impact,” UNDP Administrator’s Helen Clark said.
International Organisations – Ban stresses UN’s impact in past 70 years, urges States to recommit to collective security, rights (UN News Centre, 23 February 2015)

In a Security Council meeting on 23 February in which Member States reaffirmed their commitment to the United Nations Charter, Secretary-General Ban Ki-moon said the UN was an organization with major achievements to its credit, multiple crises on its agenda, and tremendous opportunities ahead. Mr. Ban described how the world had “starkly” changed since the Charter was drafted and how those changes were reflected within the UN, with four times as many Member States and new items, such as climate change, on the international agenda. Despite those changes, the aspirations contained within the Charter remained “valid, valuable and vital”, especially the commitment to prevention of armed conflict through the peaceful settlement of disputes and the protection of human rights.

Despite that flexibility, he noted that UN Member States needed to fortify a sense of unity on the meaning of the term ‘collective security’, which he stressed was the core purpose of the Organization. States were also falling short in their personal responsibility to prevent conflict, something about which the Charter was very clear, and he stressed that the collective work of the UN was based on consent and respect for the sovereign equality of all members. UN human rights action often caused concern among Member States because of fears such action could harm national sovereignty, he said, stressing that in fact, early action to prevent conflict and protect human rights helps to strengthen sovereignty, rather than challenge or restrict it, and that serious violations of human rights that weaken sovereignty.

International Economic Law – Opportunities and fears as Asean prepares for single market (The Guardian, 3 February 2015)

The world’s seventh largest market, home to 10% of the world’s population, ASEAN is expected to grow 5% each year by 2018, surpassing the US, EU and Japan. But the scope of each individual country in the bloc varies wildly, prompting scepticism that a single market can be successfully created by the end of the year. In the poorest member state, Burma, three-quarters of the population still lack electricity after half a century of dictatorship; in the richest, Singapore, citizens are among the wealthiest in the world. “The business community wants ASEAN to be integrated as one entity,” says Mustapa Mohamed, Malaysia’s trade minister. “The fact is that there are border issues, customs, immigration and different regulations.”

While the vast differences in language, culture, political and economic models among ASEAN member states may make some investors wary, ASEAN is not likely to suffer the same debt concerns as the EU, primarily because the bloc has never planned to adopt a single currency or parliament.The variance among its economies, however, means certain countries already benefit more from the united marketplace than others, a report has found. Singapore remains the preferred regional base for 80% of multinational companies thanks to its international finance hub and open markets, according to recent findings from global law firm Baker & McKenzie. Up-and-coming economies with strong manufacturing pulls such as Indonesia and Burma are expected to profit as well, with companies naming them as their preferred factory locations over the next five years.

Human Rights – UN rights chief requests 'one time only' deferral of key report on Sri Lanka conflict (16 February 2015)
At the request of the Zeid Ra'ad Al Hussein, the UN High Commissioner for Human Rights, the Geneva-based UN Human Rights Council has agreed to temporarily hold off its consideration of a long-awaited report into alleged rights violations during the conflict in Sri Lanka for six months until September 2015. He said that there are good arguments for sticking to the original timetable, and there are also strong arguments for deferring the report's consideration a bit longer, given the changing context in Sri Lanka, and the possibility that important new information may emerge which will strengthen the report.” Mr. Zeid noted that the three distinguished experts, appointed by his predecessor Navi Pillay to advise the investigation, had informed him that, in their unanimous view, a one-off temporary deferral would be the best option to allow space for the new Government to show its willingness to cooperate on human rights issues.
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