If a state has waived state immunity by agreement with a non-state entity in advance of court proceedings brought by that entity to enforce an arbitral award against that state, then the enforcement court should give effect to the waiver. That is the opposite of what the Hong Kong Court of Final Appeal decided in Democratic Republic of the Congo v. FG Hemisphere, but it is the approach reflected in the 2004 United Nations Convention on the Jurisdictional Immunities of States and their Property. After examining that Hong Kong case and that United Nations Convention, this paper considers the position in various jurisdictions. The prevalent position is in general terms that consent to arbitration usually constitutes waiver of state immunity from jurisdiction of a court to recognize the arbitral award as creating a debt binding on the state, but usually does not constitute waiver of state immunity from execution of that debt against the assets of the state. The conclusion of the paper includes a model waiver of state immunity from jurisdiction and from execution.

The Anti-Dumping (AD) mechanism is susceptible to potential misuse for protectionist purposes, and the current explosion of AD disputes indicate a massive problem in the way international trade rules are implemented. The current World Trade Organisation (WTO) negotiations have identified areas within the Anti-Dumping Agreement (ADA) for possible reform; accordingly, the present analysis discusses these areas of concern relating to the AD provision. First, recent trends in AD practice will be analyzed both quantitatively and qualitatively to show the growing role of Asian economies. In particular, the traditional targets of AD activism, China and India, have initiated a number of AD investigations over the last decade, while imposing final measures on several occasions. Second, the ADA will be examined alongside a discussion of the potential risks of misinterpretation. Third, the paper will analyze all the complaints lodged at the WTO Dispute Settlement Body (DSB) on ADA to date.

The separate legal personality of ASEAN, an international organization, is a matter of some significance. ASEAN is capable of separate action and can carry rights and obligations on the international plane, as a distinct entity from its Member States. In this Journal, Chen Zhida advances the proposition that ASEAN is entitled to conclude treaties on behalf of its Member States, a practice which, it is argued, should be valid at international law. This paper responds by drawing attention to the difficulties with this argument on technical and conceptual grounds. For technical reasons, it is important to make a meaningful distinction in the ASEAN practice of concluding instruments such as Memoranda of Understandings, which can be distinguished from treaties. At a conceptual level, the treaty practice of ASEAN as a separate legal person must be based on what was consented to by Member States in the ASEAN Charter, a constituent instrument.

The question whether humanitarian intervention may ever be lawfully carried out unilaterally outside the scope of Chapter VII of the UN Charter has captured the interest of many for years. Faced with legal formalist arguments under the UN Charter, those otherwise favouring the idea of humanitarian intervention often retreat into an apologist stance by conceding too quickly the lack of cogent legal justifications therefor, preferring instead to rely on moral and ethical reasoning. The doctrine of Responsibility to Protect, while seemingly promising when first mooted in 2001, has since effectively been rendered obsolete as a justification for unilateral humanitarian intervention following the UN World Summit in 2005. By examining the role that equity plays in Article 38(1)(c) of the ICJ Statute, this paper advances the view that an aequitas ad bellum exists in international law that, under certain strict conditions, enables unilateral humanitarian intervention to be lawfully carried out.

This paper analyzes the application of rights-based approaches to disaster displacement in the Asia-Pacific region in order to assess whether the current framework is sufficient to protect the rights of internally displaced persons. It identifies that disaster-induced displacement is increasingly prevalent in the region and that economic and social conditions in many countries mean that the impact of displacement is often prolonged and more severe. The paper identifies the relevant human rights principles which apply in the context of disaster-induced displacement and examines their implementation in a number of soft-law instruments. While it identifies shortcomings in implementation and enforcement, the paper concludes that a rights-based approach could be enhanced by greater engagement with existing human rights treaties and greater implementation of soft-law principles, and that no new instrument is required.

This paper looks at the Judgment handed down by the International Court of Justice in November 2013 on the interpretation of its 1962 Judgment in the Temple of Preah Vihear case between Cambodia and Thailand. The primary objective of this paper is to disclose the imperfect account of states’ obligations provided for by the Court. In effect, the ICJ emphasized that Cambodia and Thailand must co-operate pursuant to the World Heritage Convention in the protection of the Temple as a world heritage site of outstanding universal value. Accordingly, the Court obscured the fact that the regime for the protection of cultural heritage in wartime was applicable in this case. This paper first examines the ICJ’s narrow approach and its implications. Next, it brings the focus back into a larger context by analyzing the impact of the ICJ’s jurisprudence on the development of international cultural heritage law.