This paper explores the practice of governments imposing domestic content-based requirements known as “offsets” on suppliers in order to secure public procurement contracts. Known to cause distortions in international trade, offsets are forbidden under the WTO’s Government Procurement Agreement and in the procurement chapters of several RTAs, although these restrictions have severe limitations with full offset prohibitions only accepted by a handful of developed countries. Given the sensitivity of procurement policy and the need to stimulate local economies, Asian countries in particular show an unwillingness to address offsets in their international agreements. While other WTO agreements restrain the use of local content rules, these regimes are ill-suited to control the harmful effects of offsets in a procurement context because of their focus on traditional commercial markets. The paper suggests that an enlargement of offset prohibitions would be advisable given the expected expansion of global procurement markets commensurate with economic development.

This paper discusses the Tribunal’s decision to assume jurisdiction over the Philippine claim notwithstanding China’s publicly declared and law-based withholding of consent to the proceedings instituted by the Philippines. The Tribunal relied on its interpretation of China’s general commitment under Section 2 of Part XV (Settlement of Disputes) of the UN Convention on the Law of the Sea,1 which was subjected to a Convention-authorized “exception” under Article 298 (China’s Declaration of 25 August 2006) that had selectively deprived any such proceeding of the essential element of China’s consent. The paper calls for inventive consideration of the methods available for resolving disputes, which might be seen currently as excessively influenced by procedures designed for resolving international trade disputes where only one party is a state.

Recent years have witnessed a rise in conflict between WTO members over the use of state subsidies designed to promote the renewable energy sector. Government subsidies are seen by domestic polic-ymakers as a key catalyst in attracting foreign investment, building capacity, and meeting other domestic policy goals. However, subsidies and other state incentivization programmes often carry trade-distorting effects. This paper examines the current state of WTO law and jurisprudence on subsidies extended to achieve environmental goals, in particular the Canada-Renewable Energy/Feed-in Tariff case and the more recent India-Solar Cells case which higlights the localization problem in the renewable energy sector. The case outcome shows that the WTO continues to maintain the status quo by prioritizing free trade over environmental considerations. The paper also discusses the possibility of reform in the GATT/WTO framework for promotion of renewable energy initiatives while maintaining the integrity of the system.

This paper provides an assessment of the Tribunal’s Award on the merits relating to the Philippines’ Submissions No. 1 and 2. First, it argues that the Convention is not the sole legal source of maritime rights. Second, the Tribunal erroneously infers from Article 311 that the Convention prevails over customary international law. Meanwhile, Article 293 does not terminate rules of general international law that are incompatible with the Convention. Third, the Tribunal, by deciding that historic rights under general international law have been superseded by the regimes of exclusive economic zone and continental shelf established under the Convention, fails to draw a distinction between the two separate legal regimes, namely the Convention and general international law. Fourth, as one of the “matters not regulated by the Convention”, historic rights should be governed by, and have been well established in, general international law.

By studying British Indian Army [BIA] desertions during World War II, and British postwar trial responses, this paper explores the complicated dimensions of desertion and draws attention to the need for a more explicit and comprehensive approach to desertion in international humanitarian law. The paper focuses on less known British trials dealing with desertion, namely, war crimes trials conducted by the British in Singapore. It examines how these trials dealt with contested interpretations of desertion. Drawing on lessons from these trials, the paper then highlights gaps in today’s international humanitarian law framework, specifically, the need to take into account the realities of desertion, its different permutations, and the difficulties of differentiating between prisoners of war [POWs] and deserters.

On 12 July 2016, the Arbitral Tribunal formed under Annex VII of the 1982 United Nations Convention on the Law of the Sea issued its decision on the proceeding brought by the Philippines against China relating to certain activities in the South China Sea. The Tribunal’s decision was hotly anticipated as it dealt with various important issues relating to law of the sea and the interpretation of the Convention. It dealt with issues including the jurisdiction of the Tribunal, the legal status of maritime features, historic rights, and duty to preserve the marine environment. Although it remains to be seen whether states will follow the Tribunal’s precedent, questions arose on whether such precedent can be applied to other unresolved issues in other parts of the world. This paper looks at the application of the precedent established by the South China Sea arbitration to the situation involving Dokdo between Korea and Japan.

On 12 July 2016, the Tribunal in the South China Sea arbitration issued its final award. China rejected the ruling as “null and void”. The Philippines dismissed it as “a piece of paper” after initially hailing the ruling a “milestone decision”. The reactions of the parties concerned raise important questions about the bindingness, finality, and state compliance with UNCLOS dispute settlement decisions. This paper addresses these questions by dissecting China’s arguments that the award “has no binding force” and by examining the options available for promoting compliance with the award. The paper also considers the broader question of how states generally comply with UNCLOS dispute settlement decisions and evaluates the significance of UNCLOS dispute settlement mechanisms, including the South China Sea arbitration, in the absence of external enforcement.

The conventional wisdom has been that the United Nations Convention on the Law of the Sea [UNCLOS] Part XV dispute settlement system is narrowly restricted and this reflects the drafters’ intent. Thus, tribunals should cautiously interpret Part XV, giving broad effect to its jurisdictional limitations. The unanimous award in South China Sea deals this approach a blow. Indeed, it assumes a fundamentally different orientation to interpreting UNCLOS: one which implicitly takes the foremost principle of Part XV as being its compulsory and comprehensive character. This approach is rooted in a very different understanding of UNCLOS as a “package deal” and the consensus it reflects. Indeed, I argue that any interpretation of ambiguous provisions of UNLCOS is necessarily coloured by one’s view of the struggles involved in its negotiation. Further evidence of this difference of approach in South China Sea is found, in particular, in its treatment of the regime of islands.

Whilst the Indus Waters Treaty of 1960 allows for damning and infrastructural development in the Indus River Basin, it does so without factoring in environmental considerations. This is because environmental standards in international law, except those related to pollution control, were largely absent when the Treaty was negotiated in the 1950s. Given the increasing list of development-related disputes between India and Pakistan, and their aspirations for further damming and other infrastructural works in the Basin, this paper seeks to close the gaps in the Treaty’s provisions and developments in international environmental law to date. To do so effectively, the paper analyzes the relevant provisions of the UN Watercourses Convention, supplemented with an examination of the European regional framework. Based on these, it proposes changes to the Treaty so that both India and Pakistan are able to work within a legal framework which not only provides for environmental impact assessments for planned projects, but enhances monitoring, assessments, and reporting. This will ensure that such developments are not only environmentally sound but also help to alleviate some of the disputes between India and Pakistan.

The Philippines v. China arbitration award has been praised as a landmark victory setting forth illuminating jurisprudence interpreting the UN Convention on the Law of the Sea [UNCLOS], but it has also been repeatedly excoriated as an “unenforceable” decision—a Pyrrhic victory—due to China’s repeated refusal to date to acknowledge the binding effect of the award. China’s withdrawal from Scarborough Shoal—hailed by the new Duterte government as a hallmark of its diplomatic efforts—is one instance of state practice that still remains equivocal on the opinio juris of China’s acceptance (or rejection) of the arbitration award.

This paper proposes to think counterfactually about international law: How could it have been otherwise? Asking that question has the benefit of, first, exposing contingencies in international law’s development that are otherwise glossed over in the rush towards making sense of what happened. Second, counterfactual thinking supports the understanding of what actually happened in a context-sensitive fashion. Third, it forms part of comparative moral assessments and exposes blind spots. Counterfactual thinking may thus contribute to the freedom from necessity, from grand theory, and from reality. The paper draws the contours of what writing counterfactual (hi)stories of international law is about, discusses its merits as well as drawbacks, offers guidance on how to do it, and then focuses on two probing examples: What if the International Trade Organization had been established around 1949? What if garment workers were seals and the European Commission prohibited the importation of certain textiles?

Home is not a familiar concept in international law. This paper looks at land grabbing and international law from the perspective of home. Through a case-study of a land grab in the context of a World Bank development project at Boeung Kak Lake in Phnom Penh, Cambodia, it argues that international law is involved in profound transformations of home. By making visible how experiences of loss, suffering, and struggle, as well as radical engagement, emerge from international law’s “homemaking” work, it also argues that the concept of home opens up a terrain of experience that cannot be captured or expressed in international law. The perspective from home in the land-grabbing debate is particularly important where not only is land at risk of capture for economic gain, but so too are the personal lifeworlds that homes represent.

All the claimants in the South China Sea disputes have engaged in various degrees of island-building on many of the geographic features in the Spratly Islands. However, as noted by the Tribunal in the South China Sea Arbitration, none has been on the scale of Chinese island-building on the features which it occupies, which escalated after the Philippines initiated arbitral proceedings in 2013. While the most important aspect of the Award is that it clarified the extent of the respective maritime rights of China and the Philippines in the South China Sea, the Tribunal’s rulings on the reclamation and island-building activities of China are equally significant. To this end, this paper will examine the findings of the Tribunal on the legality of China’s island-building activities as well as legal constraints on such activities (if any). Last, it will explore the implications of these findings for the Southeast Asian claimants and island-building and fortification of the features that they occupy.

The philosophy underlying the UNESCO World Heritage Convention of 1972 [WHC] consists in promoting a system of international co-operation in the context of which the States Parties commit to preserving the cultural treasures of “outstanding universal value” located within their territories. However, it is a fact that today many properties inscribed on the List set under the WHC are endangered. This paper will focus on the role played by “non-state actors” in the enforcement of the WHC. It will thus dwell upon the relationships between public and private interests, on the one hand, and between international and domestic legal orders, on the other. Its purpose is to map out and discuss the most salient problems about the involvement of non-state actors—particularly non-governmental organizations [NGOs] and private companies—in the monitoring and implementation of the WHC.

Asia is currently the scene of some of the most high-profile maritime disputes in the world. Even though the majority of states in Asia are parties to the United Nations Convention on the Law of the Sea [UNCLOS], its dispute settlement system has only been utilized in a handful of cases. Given that negotiations have brought about limited results in easing many of the tensions, it is worth asking whether the UNCLOS dispute settlement system can play a role in the resolution of maritime disputes in Asia. This paper, based on a review of the disputes before UNCLOS Tribunals, as well the advantages and limitations of the system, argues that the UNCLOS dispute settlement system can make meaningful contributions to resolving thorny disputes between Asian states. It does so by providing a solution to the disputes brought before them, clarifying the legal framework for the conduct of the parties and facilitating co-operation amongst countries in the region.

Southeast Asia includes some of the states at greatest risk of disasters worldwide, and ASEAN has been at the forefront of using international law to attempt to co-operate in disaster risk reduction and response. The ASEAN Agreement on Disaster Management and Emergency Response (AADMER) is a regional treaty that has been hailed as among the world’s best practice: progressive, comprehensive, and, unusually for a disaster instrument, legally binding. This paper evaluates ASEAN’s responses to two mega-disasters: Cyclone Nargis that hit Myanmar in May 2008 and Super-typhoon Haiyan/Yolanda that hit the Philippines in November 2013. The paper aims further to investigate the role of non-state actors, such as civil society and the private sector, in institutionalizing and implementing AADMER.

This paper uses the response to Cyclone Pam in Vanuatu, 2015, as a case-study to review one country’s legal preparedness to manage a large influx of international humanitarian assistance, and the international humanitarian community’s respect for national laws and institutions. It describes provisions in international disaster response law and the developing international law on the protection of persons in the event of disaster regarding the role of the affected state, and juxtaposes this with what happened in the cyclone response—namely, the introduction by international actors of a range of international humanitarian tools and services that were neither described in national legislation nor rehearsed in national planning processes. It concludes by suggesting that national governments and international humanitarian responders advance their efforts to promote the inter-operability of their disaster management systems, and to develop an improved mutual understanding of each other’s roles and responsibilities under international law.