Asia and International Law

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.

Law of the Sea – US warship sails within 12 miles of Chinese-built island in South China Sea (Washington Post, 26 October 2015)

A U.S. naval destroyer sailed early Tuesday (27 October 2015) within 12 nautical miles of an artificial island built by China in the South China Sea, a U.S. defense official said, in a direct challenge to China’s territorial claims. The USS Lassen, a guided-missile destroyer, was accompanied by Navy surveillance planes as it approached the Subi Reef in the Spratly Islands, the official said. The mission “was completed without incident,” said the official, who spoke on the condition of anonymity. The decision to go ahead with the mission follows months of deliberation in Washington and is certain to China, which said last month it would “never allow any country” to violate what it considers to be its territorial waters and airspace around the islands. Chinese Foreign Minister Wang Yi had said earlier that Beijing was trying to verify whether the U.S. vessel had entered the 12-mile zone. Under the international law of the sea, turning such features into artificial islands does not imply any rights to territorial waters around them, something the U.S. mission is designed to underline, although countries can claim a “safety zone” of just 500 meters around previously submerged reefs.

Law of Development – UN report calls for urgent response to harness Asia-Pacific’s rapid urban transformation (UN News, 19 October 2015)

The report, State of Asian and Pacific Cities 2015: Urban Transformations’ shifting from quantity to quality, compiled by ESCAP and the UN Human Settlements Programme (UN HABITAT), highlights growing gaps between current urbanization patterns and what is needed to shift to a more inclusive and sustainable urban future, in which the role of the region’s cities is unquestionably tied to national, regional and global development prospects. The report states that the current economic dynamism in the region’s urban areas that has spurred a rise in the size of middle classes still witnesses widening gaps and growing inequalities. Youth employments, rising number of urban poor, lack of rights, rising urban living costs, lack of access to adequate services and housing are some of the challenges facing the urban population. Widening disparities threaten to undermine social cohesion, and affordability is at a crisis point in many of the region’s larger cities. The report also highlights the environmental challenges facing the urban cities of Asia-Pacific where an increasing number of cities face livability crises, evidenced by deteriorating air standards and water pollution. They are also highly vulnerable to natural disasters and climate change activities with poor and disadvantaged communities being more at risk.

International Economic Law – Trade talks pace must speed up, Chinese expert says (China Daily, 26 October 2015)

China must accelerate the negotiation pace of the Regional Comprehensive Economic Partnership and other regional free trade agreements to be better able to confront any challenges posed by the United States-led Trans-Pacific Partnership, said Zhang Jianping, director of the International Economic Cooperation Institute of the National Development and Reform Commission. Apart from upgrading its industrial structure and promoting the Belt and Road Initiative, China has initiated and deepened negotiations on regional free trade to reduce possible effects on its exports. These include the RCEP talks, China-ASEAN Free Trade Agreement, China-South Korea-Japan Free Trade Agreement and Free Trade Area of the Asia-Pacific. "Since all these ongoing talks don't include the United States, it would be helpful to enhance China's foreign trade and outbound direct investment activities amid current global economic setting," said Zhang. China hopes to complete negotiations on the Regional Comprehensive Economic Partnership by the end of this year, which would link the Association of Southeast Asian Nations with China, Australia, India, Japan, New Zealand and South Korea, accounting for one-third of the global gross domestic product.

International Economic Law – ASEAN torn over TPP trade pact (Jakarta Post, 9 October 2015)

Jakarta rightly decided a few years ago not to join the TPP negotiations, instead focusing on the development of the ASEAN Economic Community and negotiations of ASEAN-led regional comprehensive economic partnerships. But now that four ASEAN members - Brunei, Malaysia, Singapore and Vietnam - have become TPP members and others, including Thailand and the Philippines, are considering joining, we should no longer rule out the possibility of adding our name to the TPP list. However, a special team of experts from the ministries of foreign affairs, trade, industry, manpower, forestry and the environment must first thoroughly assess whether the TPP's clauses - especially those on intellectual property rights (IPR), labour and environmental rules and settlement dispute mechanisms - are in line with our national interests. The IPR clause could result in steeper prices for drugs because the provision allows pharmaceutical firms to extend their monopolies on patented medicines up to eight years and keep cheaper generics off the market. The clause on dispute settlement also requires special attention because it allows investors from TPP members to settle any disputes they may have through the investor-state dispute settlement mechanism. This is precisely the dispute-settlement mechanism that Indonesia has been fighting to delete from its bilateral investment and trade pacts. The government should also rigorously examine the often-stringent TPP provisions on labour and environmental rules, in order to ascertain whether nation institutions are currently capable of enforcing such tough requirements.

International Economic Law – TPP likely to spur a shift in foreign investment to other ASEAN members (The Nation, 26 October 2015)

From next year onwards, Malaysia may overtake Thailand in terms of foreign direct investment (FDI) inflow thanks to its participation in the Trans-Pacific Partnership (TPP), said Benjarong Suwankiri, chief economist of TMB Bank. He also expected Vietnam to see an increase in FDI for the same reason. Among the 12 countries participating in the TPP, Vietnam is the most attractive due to its low-cost and labour-intensive production base, its energetic young labour force, low labour cost, which is 50 per cent lower than Thailand, and its dynamic economy. "Malaysia stands to benefit from foreign investors seeking to establish production base for shipping to the US and other TPP members, particularly in electronics and automotive parts industries. We do expect Vietnam to also draw more investment from joining TPP than it previously did, particularly in garments, textile and electronics," he said. According to TMB Analytics, although Thailand remains ahead in attracting investment, from better infrastructure and government processes, its winning margin is growing thinner by the year.

Human Rights – Children's right to freedom of religion or belief must be protected, says UN expert (UN News, 23 October 2015)

The UN Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, is calling on all Governments represented at the UN General Assembly “to respect religious practices by children and their families and support families in fulfilling their role in providing an enabling environment for the realisation of the rights of the child.” “Violations of freedom of religion or belief often affect the rights of children and their parents,” he said in a press release. “Children, typically girls, from religious minorities for example, are abducted and forcibly converted to another religion through forced early marriage.” The rights expert also urged religious communities across the world to ensure respect for the freedom of religion or belief of children within their teaching and community practices, bearing in mind the status of the child as a rights holder.

Human Rights – Welcoming Myanmar ceasefire, UNICEF says accord must cover 'every child, wherever they live' (UN News, 19 October 2015)

While the recent ceasefire agreement between the Government of Myanmar and representatives of eight ethnic armed groups marks an historic step for children in Myanmar who have suffered from some of the longest running civil conflicts in the world, the United Nations Children’s Fund (UNICEF) remains concerned for an estimated 1.8 million children who are not covered by the accord. “The ceasefire agreement provides a useful framework that will help accelerate all actions to protect children in armed conflict, making all signatories more accountable and, thus, serving as a game-changer for children living in the areas affected by conflict between the signatories and the Tatmadaw,” said UNICEF. According to UNICEF, it particularly calls on parties to stop grave violations against children, including their use and recruitment in the armed forces, attacks on schools and rights to receive humanitarian assistance.

See also: UNICEF applauds call from religious groups in Myanmar seeking tolerance for sake of country’s children (UN News, 21 October 2015)

International Organisations – ASEAN must make bold decision to combat transnational crime: Zahid (New Straits Times, 29 September 2015)
Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamid has said at the 10th ASEAN Ministerial Meeting on Transnational Crime (AMMTC) that with transnational organised crime having gone global and reached macroeconomic proportions, ASEAN countries are at a critical juncture to decide whether they should also focus on new types of such crimes. The new types of crime include illicit trades in nature and cultural heritage, wildlife, wood-based products, electrical and electronic waste, ozone-depleting substances, counterfeit goods and fraudulent essential medicines.
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