Pub Date : 2024-05-27DOI: 10.1017/s2044251324000079
Carl LANDAUER
This article addresses the international legal historian C.H. Alexandrowicz's engagement with Kautilya's Arthashastra as part of his revision of the place of India and Southeast Asia in the development of international law. The article locates Alexandrowicz's writing on the Arthashastra against the backdrop of the debates about the Arthashastra that ensued upon its discovery in 1905, including controversies about its date, authorship, and place in the tradition of Indian political thought. The article reviews the Indian nationalist reading of Kautilya, the various attempts to compare Kautilya to Hobbes and Machiavelli, and the values that were particularly important for Alexandrowicz in telling the narrative of the place of Kautilya's Arthashastra, its rationalism, secularism, and the divisibility of sovereignty.
{"title":"C.H. Alexandrowicz's India and the Kautilyan Moment","authors":"Carl LANDAUER","doi":"10.1017/s2044251324000079","DOIUrl":"https://doi.org/10.1017/s2044251324000079","url":null,"abstract":"This article addresses the international legal historian C.H. Alexandrowicz's engagement with Kautilya's <jats:italic>Arthashastra</jats:italic> as part of his revision of the place of India and Southeast Asia in the development of international law. The article locates Alexandrowicz's writing on the <jats:italic>Arthashastra</jats:italic> against the backdrop of the debates about the <jats:italic>Arthashastra</jats:italic> that ensued upon its discovery in 1905, including controversies about its date, authorship, and place in the tradition of Indian political thought. The article reviews the Indian nationalist reading of Kautilya, the various attempts to compare Kautilya to Hobbes and Machiavelli, and the values that were particularly important for Alexandrowicz in telling the narrative of the place of Kautilya's <jats:italic>Arthashastra</jats:italic>, its rationalism, secularism, and the divisibility of sovereignty.","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141167818","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-05-17DOI: 10.1017/s2044251324000080
Judge Bonhoefer BERNARDEZ
{"title":"Annotated Leading Trademark Cases in Major Asian Jurisdictions edited by Kung-Chung LIU. London and New York: Routledge Taylor & Francis Group, 2020. xii + 456 pp. Hardcover: £150.00; Softcover: £38.99; VitalSource eBook: £38.99 doi: 10.4324/9780429316395","authors":"Judge Bonhoefer BERNARDEZ","doi":"10.1017/s2044251324000080","DOIUrl":"https://doi.org/10.1017/s2044251324000080","url":null,"abstract":"","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140963595","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-04-25DOI: 10.1017/s2044251324000067
Javier Garcia Olmedo
The Nottebohm judgment from the International Court of Justice (ICJ) has recently come under attack in the context of the European Commission's position on “golden passports” programmes. The judgment has long received intense criticism from a consensus of scholars. This article challenges the conventional wisdom of Nottebohm. The ICJ did not, as critics argue, depart from international law on nationality, nor did it seek to create an international rule based on a “genuine link” requirement. A closer look at the majority's reasoning reveals that the ICJ's conception of nationality as something more than a mere formal classification was prompted by problems that can arise precisely from the phenomenon of globalization, including the instrumentalization of nationality. It further shows that the “substance-over-form” approach adopted by Nottebohm may, or already does, operate in more contemporary contexts.
{"title":"In Fairness to Nottebohm: Nationality in an Age of Globalization","authors":"Javier Garcia Olmedo","doi":"10.1017/s2044251324000067","DOIUrl":"https://doi.org/10.1017/s2044251324000067","url":null,"abstract":"\u0000 The Nottebohm judgment from the International Court of Justice (ICJ) has recently come under attack in the context of the European Commission's position on “golden passports” programmes. The judgment has long received intense criticism from a consensus of scholars. This article challenges the conventional wisdom of Nottebohm. The ICJ did not, as critics argue, depart from international law on nationality, nor did it seek to create an international rule based on a “genuine link” requirement. A closer look at the majority's reasoning reveals that the ICJ's conception of nationality as something more than a mere formal classification was prompted by problems that can arise precisely from the phenomenon of globalization, including the instrumentalization of nationality. It further shows that the “substance-over-form” approach adopted by Nottebohm may, or already does, operate in more contemporary contexts.","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140653690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-04-15DOI: 10.1017/s2044251324000043
Rong Wen, Shisong Jiang
{"title":"Collective Self-Defence in International Law by James A. GREEN. Cambridge, United Kingdom: Cambridge University Press, 2024. xx + 366 pp. Hardback: USD$135.00. doi: 10.1017/9781009406420","authors":"Rong Wen, Shisong Jiang","doi":"10.1017/s2044251324000043","DOIUrl":"https://doi.org/10.1017/s2044251324000043","url":null,"abstract":"","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140699880","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-04-11DOI: 10.1017/s2044251324000031
Ka Lok YIP
This article reconceptualizes norm conflict in international law by uncovering the experiential dimension of its definition and the intentional dimension of its resolution that has been missing from traditional accounts. The article locates the basis of recognizing norm conflict in the experienced sense of incompatibility between norms in view of their contexts rather than in the predesignated constellation of norms with contrary or contradictory functions according to their texts. Concomitantly, it argues that the justification for using certain legal techniques to resolve norm conflicts lies in the intended relationship deducible only between those norms that share the same regulatory purpose rather than between norms merely applying to the same factual situation. This reconceptualization generates a new typology of norm conflicts in light of the norms’ end goals and the means they provide to achieve them: “Ends Conflict”, “Means Conflict”, and “Unexperienced Conflict”, and suggests apposite ways to tackle them.
{"title":"Reconceptualizing Norm Conflict in International Law","authors":"Ka Lok YIP","doi":"10.1017/s2044251324000031","DOIUrl":"https://doi.org/10.1017/s2044251324000031","url":null,"abstract":"This article reconceptualizes norm conflict in international law by uncovering the experiential dimension of its definition and the intentional dimension of its resolution that has been missing from traditional accounts. The article locates the basis of recognizing norm conflict in the experienced sense of incompatibility between norms in view of their contexts rather than in the predesignated constellation of norms with contrary or contradictory functions according to their texts. Concomitantly, it argues that the justification for using certain legal techniques to resolve norm conflicts lies in the intended relationship deducible only between those norms that share the same regulatory purpose rather than between norms merely applying to the same factual situation. This reconceptualization generates a new typology of norm conflicts in light of the norms’ end goals and the means they provide to achieve them: “Ends Conflict”, “Means Conflict”, and “Unexperienced Conflict”, and suggests apposite ways to tackle them.","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140573183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-01-23DOI: 10.1017/s2044251323000735
Hafiz GAFFAR, Saleh ALBARASHDI
This research explores AI-generated originality's impact on copyright regulations. It meticulously examines legal frameworks such as the Berne Convention, EU Copyright Law, and national legislation. Rigorously analyzing cases, including Infopaq International A/S v Danske Dagblades Forening and Levola Hengelo BV v Smilde Foods BV, illuminates evolving originality and human involvement in AI creativity. The study also contemplates global perspectives, drawing from esteemed organizations such as the World Intellectual Property Organization and the European Court of Justice and exploring diverse approaches adopted by individual nations. The paper emphasizes the imperative need for legislative updates to address the challenges and opportunities of AI-generated works. It highlights the pivotal role of international collaboration and public awareness in shaping copyright policies for the AI-driven creativity era. It also offers insights and recommendations for policymakers and researchers navigating this complex terrain.
本研究探讨了人工智能生成的原创性对版权法规的影响。它仔细研究了《伯尔尼公约》、《欧盟版权法》和国家立法等法律框架。通过对 Infopaq International A/S v Danske Dagblades Forening 和 Levola Hengelo BV v Smilde Foods BV 等案例的严谨分析，阐明了人工智能创造力中不断发展的原创性和人类的参与。本研究还从全球角度进行了思考，借鉴了世界知识产权组织和欧洲法院等著名组织的经验，并探讨了各个国家采用的不同方法。本文强调，迫切需要更新立法，以应对人工智能作品带来的挑战和机遇。它强调了国际合作和公众意识在为人工智能驱动的创意时代制定版权政策方面的关键作用。它还为决策者和研究人员驾驭这一复杂领域提供了见解和建议。
{"title":"Copyright Protection for AI-Generated Works: Exploring Originality and Ownership in a Digital Landscape","authors":"Hafiz GAFFAR, Saleh ALBARASHDI","doi":"10.1017/s2044251323000735","DOIUrl":"https://doi.org/10.1017/s2044251323000735","url":null,"abstract":"This research explores AI-generated originality's impact on copyright regulations. It meticulously examines legal frameworks such as the Berne Convention, EU Copyright Law, and national legislation. Rigorously analyzing cases, including Infopaq International A/S v Danske Dagblades Forening and Levola Hengelo BV v Smilde Foods BV, illuminates evolving originality and human involvement in AI creativity. The study also contemplates global perspectives, drawing from esteemed organizations such as the World Intellectual Property Organization and the European Court of Justice and exploring diverse approaches adopted by individual nations. The paper emphasizes the imperative need for legislative updates to address the challenges and opportunities of AI-generated works. It highlights the pivotal role of international collaboration and public awareness in shaping copyright policies for the AI-driven creativity era. It also offers insights and recommendations for policymakers and researchers navigating this complex terrain.","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139584434","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-01-22DOI: 10.1017/s2044251323000723
I Dewa Gede PALGUNA, Agung WARDANA
The relationship between international and domestic law in Indonesia is the subject of prolonged debate caused by the silence of the Indonesian Constitution on the choice between monism and dualism, which affects constitutional adjudication. This article discusses how the Constitutional Court engages with international law in its decisions and how the debate between monism and dualism is affected by it. It argues that the practice of the Court falls neither within the traditional scope of monism nor dualism but tends to be eclectic, which can be termed pragmatic monism. Here, the Court considers an international treaty part of domestic law upon ratification. However, its contents are only applicable if they are consistent with the Constitution, the highest law in the country. Nevertheless, such pragmatism is not without consequences where the consistency of the constitutional system as a whole is compromised for the instrumentality of its individual decisions on societal well-being.
{"title":"Pragmatic Monism: The Practice of the Indonesian Constitutional Court in Engaging with International Law","authors":"I Dewa Gede PALGUNA, Agung WARDANA","doi":"10.1017/s2044251323000723","DOIUrl":"https://doi.org/10.1017/s2044251323000723","url":null,"abstract":"<p>The relationship between international and domestic law in Indonesia is the subject of prolonged debate caused by the silence of the Indonesian Constitution on the choice between monism and dualism, which affects constitutional adjudication. This article discusses how the Constitutional Court engages with international law in its decisions and how the debate between monism and dualism is affected by it. It argues that the practice of the Court falls neither within the traditional scope of monism nor dualism but tends to be eclectic, which can be termed pragmatic monism. Here, the Court considers an international treaty part of domestic law upon ratification. However, its contents are only applicable if they are consistent with the Constitution, the highest law in the country. Nevertheless, such pragmatism is not without consequences where the consistency of the constitutional system as a whole is compromised for the instrumentality of its individual decisions on societal well-being.</p>","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139515336","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-01-18DOI: 10.1017/s2044251323000747
Khorsed Zaman
The global impacts of COVID-19 have been calamitous, unleashing widespread human suffering and exacerbating health crises, all while worsening pre-existing inequalities and transgressing fundamental human rights. Despite earnest pleas from the United Nations and developing nations for an equitable distribution of COVID-19 vaccines, these appeals were largely unheeded. Instead, major pharmaceutical manufacturers and high-income countries (HICs) had maintained a stranglehold on vaccine technology through the safeguarding of intellectual property rights (IPRs), leading to exorbitant pricing and preferential distribution to affluent regions. This vaccine hoarding has left low- and middle-income countries (LMICs) with delayed and insufficient supplies, endangering the lives of the most vulnerable. The stringent enforcement of IPRs mechanisms, rather than aligning with international human rights obligations, has further marginalised the right to life, health, and access to vaccines and medicines, particularly in LMICs. This study ardently advocates for a policy shift that promotes the decolonisation of human rights in the context of IPRs and global health law.
{"title":"Decolonizing Human Rights Law in Global Health - the Impacts of Intellectual Property Law on Access to Essential Medicines: A Perspective from the COVID-19 Pandemic","authors":"Khorsed Zaman","doi":"10.1017/s2044251323000747","DOIUrl":"https://doi.org/10.1017/s2044251323000747","url":null,"abstract":"\u0000 The global impacts of COVID-19 have been calamitous, unleashing widespread human suffering and exacerbating health crises, all while worsening pre-existing inequalities and transgressing fundamental human rights. Despite earnest pleas from the United Nations and developing nations for an equitable distribution of COVID-19 vaccines, these appeals were largely unheeded. Instead, major pharmaceutical manufacturers and high-income countries (HICs) had maintained a stranglehold on vaccine technology through the safeguarding of intellectual property rights (IPRs), leading to exorbitant pricing and preferential distribution to affluent regions. This vaccine hoarding has left low- and middle-income countries (LMICs) with delayed and insufficient supplies, endangering the lives of the most vulnerable. The stringent enforcement of IPRs mechanisms, rather than aligning with international human rights obligations, has further marginalised the right to life, health, and access to vaccines and medicines, particularly in LMICs. This study ardently advocates for a policy shift that promotes the decolonisation of human rights in the context of IPRs and global health law.","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139614660","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-01-04DOI: 10.1017/s2044251323000590
Parthiban Babu
{"title":"Conceptual (Re)Constructions of International Law edited by Kostiantyn GORBETS, Andreas HADJIGEORGIOU, and Pauline WESTERMAN. Cheltenham: Edward Elgar Publishing, 2022. x + 260 pp. Hardcover: AUD $185.55; eBook: AUD $49.08. doi: 10.4337/9781800373006","authors":"Parthiban Babu","doi":"10.1017/s2044251323000590","DOIUrl":"https://doi.org/10.1017/s2044251323000590","url":null,"abstract":"","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2024-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139386747","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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