Pub Date : 2023-10-19DOI: 10.1017/s2044251323000450
José Duke BAGULAYA, Romel Regalado BAGARES
Abstract Through symptomatic reading, we analyze the visible and the invisible – the explicit and the implicit – in the works of Filipino international legal scholar Merlin Magallona (1934–2022). We argue that Magallona's international legal thought was rooted in Marxist theory and practice and honed through the mode of production debates in the Philippine communist movement during the 1960s. Specifically, he developed a critique of the neocolonial division of labour and produced a materialist reading of international legal doctrines through “Postcolonial Self-Determination” – a synthesis of the antinomy of positivism and self-determination. In practice, his Third World Marxism led him to support the NIEO and resist UNCLOS through constitutional litigation based on the imperialist Treaty of Paris of 1898. Magallona's critique and praxis suggest new forms of resistance to the new imperialisms and underscore the imperative of a practice turn in Marxist international legal theory.
{"title":"Hidden in Plain Sight: International Law and Marxist Praxis in the Life and Works of Merlin M. Magallona","authors":"José Duke BAGULAYA, Romel Regalado BAGARES","doi":"10.1017/s2044251323000450","DOIUrl":"https://doi.org/10.1017/s2044251323000450","url":null,"abstract":"Abstract Through symptomatic reading, we analyze the visible and the invisible – the explicit and the implicit – in the works of Filipino international legal scholar Merlin Magallona (1934–2022). We argue that Magallona's international legal thought was rooted in Marxist theory and practice and honed through the mode of production debates in the Philippine communist movement during the 1960s. Specifically, he developed a critique of the neocolonial division of labour and produced a materialist reading of international legal doctrines through “Postcolonial Self-Determination” – a synthesis of the antinomy of positivism and self-determination. In practice, his Third World Marxism led him to support the NIEO and resist UNCLOS through constitutional litigation based on the imperialist Treaty of Paris of 1898. Magallona's critique and praxis suggest new forms of resistance to the new imperialisms and underscore the imperative of a practice turn in Marxist international legal theory.","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135729706","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 : 2023-10-19DOI: 10.1017/s2044251323000486
Ramona VIJEYARASA
Frontiers of Gender Equality: Transnational Legal Perspectives edited by J. COOK Rebecca. Philadelphia, Pennsylvania, USA: University of Pennsylvania Press, 2023. 616 pp. Hardcover: USD$54.95. doi: 10.9783/9781512823578
{"title":"Frontiers of Gender Equality: Transnational Legal Perspectives edited by J. COOK Rebecca. Philadelphia, Pennsylvania, USA: University of Pennsylvania Press, 2023. 616 pp. Hardcover: USD$99.95; Softcover: USD$54.95; eBook: USD$54.95. doi: 10.9783/9781512823578","authors":"Ramona VIJEYARASA","doi":"10.1017/s2044251323000486","DOIUrl":"https://doi.org/10.1017/s2044251323000486","url":null,"abstract":"Frontiers of Gender Equality: Transnational Legal Perspectives edited by J. COOK Rebecca. Philadelphia, Pennsylvania, USA: University of Pennsylvania Press, 2023. 616 pp. Hardcover: USD$54.95. doi: 10.9783/9781512823578","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135730088","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 : 2023-10-16DOI: 10.1017/s2044251323000474
Chukwuma OKOLI
Direct Jurisdiction: Asian Perspectives edited by Anselmo REYES and Wilson LUI. Oxford: Hart Publishing an Imprint of Bloomsbury Publishing, 2021. 440pp. Hardcover: £130.00; eBook (pdf): £117.00 doi: 10.5040/9781509936458
{"title":"Direct Jurisdiction: Asian Perspectives edited by Anselmo REYES and Wilson LUI. Oxford: Hart Publishing an Imprint of Bloomsbury Publishing, 2021. 440pp. Hardcover: £130.00; eBook (pdf): £117.00 doi: 10.5040/9781509936458","authors":"Chukwuma OKOLI","doi":"10.1017/s2044251323000474","DOIUrl":"https://doi.org/10.1017/s2044251323000474","url":null,"abstract":"Direct Jurisdiction: Asian Perspectives edited by Anselmo REYES and Wilson LUI. Oxford: Hart Publishing an Imprint of Bloomsbury Publishing, 2021. 440pp. Hardcover: £130.00; eBook (pdf): £117.00 doi: 10.5040/9781509936458","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136114276","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 : 2023-10-02DOI: 10.1017/s2044251323000425
Kazuki HAGIWARA
Abstract Since 2012, Japan, China, South Korea, and Chinese Taipei have consecutively held informal consultation meetings to discuss the conservation of Japanese eel stock. As a conservation and management measure, these participants adopted the Joint Statement in 2014 to regulate the initial input of Japanese eel seeds into aquaculture ponds. Despite the fact that the input limits were de facto constraints, these measures were implemented as domestic legal regulations in each participant's jurisdiction. This study examines the nature of the de facto constraints imposed by the Joint Statement for conserving and managing Japanese eel stock as a case study of stock regulations. This study further explores the possibilities of strengthening the de facto constraints through interactions with the normative environment; that is, the principle of sustainable development, domestic laws, and the relevant provisions in the United Nations Convention on the Law of the Sea (UNCLOS).
{"title":"Enhanced <i>De Facto</i> Constraints Imposed by Non-legally Binding Instruments and Interactions with Normative Environment: An Analysis of the Joint Statements for the Conservation and Management of Japanese Eel Stock","authors":"Kazuki HAGIWARA","doi":"10.1017/s2044251323000425","DOIUrl":"https://doi.org/10.1017/s2044251323000425","url":null,"abstract":"Abstract Since 2012, Japan, China, South Korea, and Chinese Taipei have consecutively held informal consultation meetings to discuss the conservation of Japanese eel stock. As a conservation and management measure, these participants adopted the Joint Statement in 2014 to regulate the initial input of Japanese eel seeds into aquaculture ponds. Despite the fact that the input limits were de facto constraints, these measures were implemented as domestic legal regulations in each participant's jurisdiction. This study examines the nature of the de facto constraints imposed by the Joint Statement for conserving and managing Japanese eel stock as a case study of stock regulations. This study further explores the possibilities of strengthening the de facto constraints through interactions with the normative environment; that is, the principle of sustainable development, domestic laws, and the relevant provisions in the United Nations Convention on the Law of the Sea (UNCLOS).","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135835870","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 : 2023-10-02DOI: 10.1017/s2044251323000462
Pannavit TAPANEEYAKORN
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{"title":"Judging the Law of the Sea by Natalie KLEIN and Kate PARLETT. Oxford: Oxford University Press, 2022. xl + 424 pp. Hardcover: £102.50; available as eBook. doi: 10.1093/9780198853350","authors":"Pannavit TAPANEEYAKORN","doi":"10.1017/s2044251323000462","DOIUrl":"https://doi.org/10.1017/s2044251323000462","url":null,"abstract":"An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135833542","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 : 2023-09-14DOI: 10.1017/s2044251323000395
Mohsen NAGHEEBY
Abstract After protracted conflicts, Afghanistan and Iran agreed on a treaty in 1973 to share the waters of the Helmand River. However, this legal arrangement became a source of controversy over its equitable and reasonable utilization principle. The 1973 Helmand River Water Treaty reflects a history of legal and political controversy and strongly contrasting views, with some labelling it the “worst” treaty and others the “best”. This paper scrutinizes the history of legal arrangements of the Helmand River within its underlying political context to search for evidence of the aforementioned equitable and reasonable utilization principle. The findings indicate that the 1973 Treaty provides a grey space for legality and illegality, being a greatly restricted instrument to uphold the principle of equity. Examination of the principle of equity in the 1973 Treaty contributes to developing constructive controversy over the Helmand River and offers valuable lessons for other international watercourses facing similar challenges.
{"title":"The Worst or the Best Treaty? Analysing the Equitable and Reasonable Utilization Principle in the Legal Arrangements of the Helmand River","authors":"Mohsen NAGHEEBY","doi":"10.1017/s2044251323000395","DOIUrl":"https://doi.org/10.1017/s2044251323000395","url":null,"abstract":"Abstract After protracted conflicts, Afghanistan and Iran agreed on a treaty in 1973 to share the waters of the Helmand River. However, this legal arrangement became a source of controversy over its equitable and reasonable utilization principle. The 1973 Helmand River Water Treaty reflects a history of legal and political controversy and strongly contrasting views, with some labelling it the “worst” treaty and others the “best”. This paper scrutinizes the history of legal arrangements of the Helmand River within its underlying political context to search for evidence of the aforementioned equitable and reasonable utilization principle. The findings indicate that the 1973 Treaty provides a grey space for legality and illegality, being a greatly restricted instrument to uphold the principle of equity. Examination of the principle of equity in the 1973 Treaty contributes to developing constructive controversy over the Helmand River and offers valuable lessons for other international watercourses facing similar challenges.","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134912344","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 : 2023-09-08DOI: 10.1017/s2044251323000413
Emma Palmer
Infrastructure has been the focus of geopolitically significant regional strategies, including the Belt and Road Initiative and the Asian Highway. Mega-infrastructure projects are thought to offer crucial stimulus to support economic recovery and “infrastructure diplomacy” efforts. Transportation projects, like roads, are material objects that offer complex questions for international law, most obviously when projects or their impacts cross borders. They are long-term and long-distance, with varying impacts upon closer and further populations and environments across the construction and life of the asset. This article draws on insights from new materialism to analyse what infrastructure's entanglements might suggest about international law. The relationship between international law and transportation infrastructure is contingent. However, there is a pattern to this contingency that foregrounds funding “gaps”, investment protections, and risk assessments, which minimizes intersecting impacts and human/non-human relationships.
{"title":"Roads and Rules: What Does Infrastructure Reveal about International Law?","authors":"Emma Palmer","doi":"10.1017/s2044251323000413","DOIUrl":"https://doi.org/10.1017/s2044251323000413","url":null,"abstract":"\u0000 Infrastructure has been the focus of geopolitically significant regional strategies, including the Belt and Road Initiative and the Asian Highway. Mega-infrastructure projects are thought to offer crucial stimulus to support economic recovery and “infrastructure diplomacy” efforts. Transportation projects, like roads, are material objects that offer complex questions for international law, most obviously when projects or their impacts cross borders. They are long-term and long-distance, with varying impacts upon closer and further populations and environments across the construction and life of the asset. This article draws on insights from new materialism to analyse what infrastructure's entanglements might suggest about international law. The relationship between international law and transportation infrastructure is contingent. However, there is a pattern to this contingency that foregrounds funding “gaps”, investment protections, and risk assessments, which minimizes intersecting impacts and human/non-human relationships.","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46983350","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 : 2023-08-15DOI: 10.1017/s2044251323000346
Zakeri Ahmad
In a 2020 anti-subsidy investigation concerning glass fibre fabric (GFF) products from Egypt, the European Commission (EC) attributed the Chinese government's conduct to the government of Egypt in a way that raised a systemic question about the boundary between trade and investment. This article argues that despite some overlap between the boundaries of these legal disciplines, the notions of trade and investment remain conceptually distinct. Customary rules of interpretation dictate that World Trade Organization (WTO) covered agreements are construed as facilitating trade relations and no further. Hence, an extension of WTO subsidy rules to cover outward investment promotion measures using the principles of state responsibility is untenable. Such a unilateral approach disproportionately affects the interests of developing countries, harming their efforts to draw green investments. This article recommends that new, balanced rules be designed to promote outward investments while limiting adverse trade impacts.
{"title":"The European Commission's Glass Fibre Fabrics Investigation and the Boundaries Between Investment and Trade","authors":"Zakeri Ahmad","doi":"10.1017/s2044251323000346","DOIUrl":"https://doi.org/10.1017/s2044251323000346","url":null,"abstract":"\u0000 In a 2020 anti-subsidy investigation concerning glass fibre fabric (GFF) products from Egypt, the European Commission (EC) attributed the Chinese government's conduct to the government of Egypt in a way that raised a systemic question about the boundary between trade and investment. This article argues that despite some overlap between the boundaries of these legal disciplines, the notions of trade and investment remain conceptually distinct. Customary rules of interpretation dictate that World Trade Organization (WTO) covered agreements are construed as facilitating trade relations and no further. Hence, an extension of WTO subsidy rules to cover outward investment promotion measures using the principles of state responsibility is untenable. Such a unilateral approach disproportionately affects the interests of developing countries, harming their efforts to draw green investments. This article recommends that new, balanced rules be designed to promote outward investments while limiting adverse trade impacts.","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57358912","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}
Cross-border data flow is essential to contemporary international trade. However, transitioning from paper to digital in international trade has benefits and concerns. Concerns have led to an upsurge in data regulation as nations and regions impose restrictions on data flows and storage. This paper argues that, with increasing concerns about data sovereignty, the reconciliation of differing positions will be necessary to ensure that the benefits of digitization can be realized equally. At present, the objective of “data free flow with trust” is aspirational at best, with emerging trade barriers that unfairly threaten opportunities for small to medium enterprises and development within the Global South. This paper supports new knowledge and demonstrates that discriminatory regulation of data flow and disproportionately prioritizing national interests will be a trade barrier that impacts private entities and consumers in all nations. To avoid unintended externalities, cooperation is needed at a global level.
{"title":"Trade in the Digital Age: Agreements to Mitigate Fragmentation","authors":"Felicity Deane, Emily Woolmer, Shoufeng Cao, Kieran Tranter","doi":"10.1017/s204425132300036x","DOIUrl":"https://doi.org/10.1017/s204425132300036x","url":null,"abstract":"\u0000 Cross-border data flow is essential to contemporary international trade. However, transitioning from paper to digital in international trade has benefits and concerns. Concerns have led to an upsurge in data regulation as nations and regions impose restrictions on data flows and storage. This paper argues that, with increasing concerns about data sovereignty, the reconciliation of differing positions will be necessary to ensure that the benefits of digitization can be realized equally. At present, the objective of “data free flow with trust” is aspirational at best, with emerging trade barriers that unfairly threaten opportunities for small to medium enterprises and development within the Global South. This paper supports new knowledge and demonstrates that discriminatory regulation of data flow and disproportionately prioritizing national interests will be a trade barrier that impacts private entities and consumers in all nations. To avoid unintended externalities, cooperation is needed at a global level.","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48955817","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 : 2023-08-09DOI: 10.1017/s2044251323000358
Sharmin Tania, Meika Atkins, R. Cunningham, Ajith Anawaratna
The developed and developing members of the World Trade Organization (WTO) are deeply divided on the concept, scope, and beneficiaries of the special and differential treatment (SDT) provisions. The division was revealed in the Committee on Trade and Development meetings, where developed members rejected the Group of 90's proposals to strengthen and operationalize SDT provisions in WTO agreements. This article focuses on the SDT provisions in the Dispute Settlement Understanding (DSU), positing that the provisions are ineffective in upholding the WTO's development objectives. It analyses the extent to which the needs and circumstances of low-income developing countries and least-developed countries have been considered by the WTO adjudicating bodies through the application and interpretation of SDT provisions in the DSU. The article seeks to reimagine SDT provisions’ role in the DSU through secondary lawmaking and progressive treaty interpretation to ensure development is integrated into the WTO's Dispute Settlement Mechanism.
{"title":"Reimagining the Special and Differential Treatment Provisions in the WTO's Dispute Settlement Understanding","authors":"Sharmin Tania, Meika Atkins, R. Cunningham, Ajith Anawaratna","doi":"10.1017/s2044251323000358","DOIUrl":"https://doi.org/10.1017/s2044251323000358","url":null,"abstract":"\u0000 The developed and developing members of the World Trade Organization (WTO) are deeply divided on the concept, scope, and beneficiaries of the special and differential treatment (SDT) provisions. The division was revealed in the Committee on Trade and Development meetings, where developed members rejected the Group of 90's proposals to strengthen and operationalize SDT provisions in WTO agreements. This article focuses on the SDT provisions in the Dispute Settlement Understanding (DSU), positing that the provisions are ineffective in upholding the WTO's development objectives. It analyses the extent to which the needs and circumstances of low-income developing countries and least-developed countries have been considered by the WTO adjudicating bodies through the application and interpretation of SDT provisions in the DSU. The article seeks to reimagine SDT provisions’ role in the DSU through secondary lawmaking and progressive treaty interpretation to ensure development is integrated into the WTO's Dispute Settlement Mechanism.","PeriodicalId":43342,"journal":{"name":"Asian Journal of International Law","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42684912","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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