In association with the International Commission of Jurists

Asia-Pacific

17 Jul

[Daniel Seah is a PhD candidate at the Faculty of Laws, University College London.] Has the Association of Southeast Asian Nations (ASEAN) finally had its own post-ontological moment?  No longer are we condemned to participate in the banality of questioning ASEAN’s legal existence as an international organization (IO). After all, since 2008, its international legal personality was expressly conferred in Article 3 of the ASEAN Charter, a constituent treaty.  Now is the time to ask a more useful question: what are the legal consequences that flow from ASEAN exercising its international legal personality? Nowhere is an answer to this question more clearly thrown into relief than in the conferral of competences by member States upon ASEAN, which is the focus of this post. IOs are not created equal; there is a great variety in their functions and objectives. Establishing the objective international legal personalities in these IOs is the easy bit. More difficult are the issues that bear on how the legal personality has been exercised by an IO; and what legal consequences arise for the IO and its member States, as separate legal persons. Because an IO at international law is a legal person, it (or its bodies) can act on behalf of member States although some of these acts are not expressly conferred in the constituent treaty - I call these “implied conferrals”. The word “conferral” is not a legal term of art. It had been variously defined as “capacities” (CF Amerasinghe) to indicate the consequences of international legal personality; “international delegations” (Curtis Bradley & Judith Kelley) to explain a range of legal (and non-legal) decision-making exercised by IOs; or “competences” on which the European Union (EU) is authorised to act in particular areas such as the common commercial policy. In this post, I instance the early practice of the ASEAN Intergovernmental Commission on Human Rights (AICHR) as an example of implied conferrals.
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13 Jun

The tendency in the United States is to think about cyberthreats exclusively in terms of US interests (a tendency I've certainly followed on more than one occasion).  Hence, the extended attention to questions of whether and how Congress should regulate cybersecurity.  But, of course, cyberspace -- and cyberthreats -- are global.  Every nation is now faced with developing a strategy...

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10 Jun

There has been a rightful flurry of media interest in the saga of Edward Snowden, the U.S. government contractor who is the apparent source of the leaks about the U.S. National Security Program's data mining surveillance program.  One area of focus is Snowden's decision to take refuge in Hong Kong from a possible prosecution by the U.S. government. As I noted...

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04 Jun

The indefatigable Benjamin Wittes at Lawfare has a short post describing a lively exchange between the Chinese and Filipino representatives at MILSOPS, an invitation-only off-the-record meeting of top military officials from the Asia-Pacific region, about China's nine-dash-line claim to the South China Sea. Apparently, this has been an ongoing debate at this annual conference. Last year, the Chinese representative presented this...

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12 May

The WSJ Saturday edition has a long review essay by distinguished historian Ian Buruma providing some historical perspective on the close to hot Chinese-Japanese conflict over the Senkaku Islands. It is a fascinating essay, and I was particularly struck by his argument that the Senkaku issue was essentially ignored by Mao Zedong and Deng Xiaopoing, whereas today's comparatively weaker Chinese...

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09 May

An article in China's leading state-run paper, the People's Daily, suggesting that the time may be ripe to reopen the question of Japanese sovereignty over Okinawa has already sparked sharp reactions.  The WSJ's blog on China picked up the story, as did this Business Insider post, headlined: "China Now Says It May Own Okinawa, Too." Other even more lurid headlines: "China Demands Japan Cede...

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26 Apr

Professor Craig Allen of University of Washington alerts me to this excerpt from the press conference held yesterday at China's Ministry of Foreign Affairs.  It is the first time, as far as I know, that a Chinese government spokesman has offered a detailed explanation of China's legal position in the Philippines arbitration.   It still doesn't fully make sense, or...

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26 Apr

This week 170 garment workers in Bangladesh died after the Rana Plaza building collapsed. A few months ago 112 garment workers in Bangladesh died after the Tazreen Fashions garment factory was destroyed by fire. Both tragedies were the result of inadequate fire and safety standards. These tragedies could not have come at a worst time for major...

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